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UWART 

UNIVERSITY  OF  CALIFORNIA 

RIVERSIDE 


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THE   PRINCIPLES    OF   JUDICIAL   PROOF 


THE 

PRINCIPLES  OF  JUDICIAL  PROOF 

AS    GIVEN    BY 

LOGIC,  PSYCHOLOGY,  AND  GENERAL  EXPERIENCE 

And  Illustrated  In 

JUDICIAL   TRIALS 


COMPILED  BY 

JOHN   HENRY  WIGMORE 

/.Y 

PROFESSOR    OF    THE    LAW   OF    EVIDENCE    IN  NORTHWESTERN    UNIVERSITY 

AUTHOR  OF  "a  SYSTEM  OF  EVIDENCE  IN  TRIALS  AT  COMMON 

LAW,"   "A   POCKET   CODE   OF    EVIDENCE,"   ETC. 


BOSTON 
LITTLE,   BROWN,  AND   COMPANY 

1913 


Copyright,  1913, 
By  John  H.  Wkjmore. 

All  rights  reserved 


Set  up  and  eUctrotypcd  by  J.  S.  Gushing  Co.,  Norwood,  Mass. ,  U.S.A. 


HANS    GROSS 

PROFESSOR    OF    CRIMINAL    LAW    IN    THE    UNIVERSITY    OF    GRAZ 

WHO    HAS    DONE    MORE 

THAN"    ANY    OTHER    MAN    IN    MODERN    TIMES 

TO    ENCOURAGE    THE    APPLICATION    OP    SCIENCE    TO    JUDICIAIi    PROOF 

THIS    VOLUME    IS    DEDICATED 

IN    TOKEN    OF 

PERSONAL    GRATITUDE 

AND 

PROFESSIONAL    ADMIRATION" 


CONTENTS 

THE  PRINCIPLES  OF  JUDICIAL  PROOF  AS  GIVEN 
BY  LOGIC,  PSYCHOLOGY,  AND  GENERAL  EXPE- 
RIENCE, AND  ILLUSTRATED  BY  JUDICIAL  TRIALS 

Page 

Introduction 1 

INTRODUCTORY:    GENERAL   THEORY    OF  PROOF 

1.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 5 

2.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 15 

PART    I:    CIRCUMSTANTIAL  EVIDENCE 

3.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 30 

TITLE  I:   JBVIDENCE  TO  PROVE  AX  EVEXT,  CONDITION,  QITAL- 
ITY,  CAUSE,  OR  EFFECT  OF  EXTERNAL  INANIMATE  NATURE 

4.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 31 

5.  Robert  Salmon's  Case 44 

6.  Bradford  v.  Insurance  Co 45 

7.  Eidt  V.  Cutter 45 

8.  East  St.  Louis  v.  Wiggins  Ferry  Co 47 

9.  Knowles  v.  State 47 

10.  Golden  Reward  Mining  Co.  v.  Buxton  Mining  Co 48 

11.  Chicago  C.  &  St.  Louis  R.  Co.  v.  Dixon 52 

12.  Food  Adulteration  Tests 55 

13.  Poison  Tests 56 

TITLE  II:  EVIDENCE   TO  PROVE  IDENTITY 

14.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 63 

15.  G.  F.  Arnold,  "  Psychology  applied  to  Legal  Evidence" 65 

16.  The  Cranberry  Cask  Case 72 

17.  Downie  and  Milnes'  Case       72 

18.  The  Chicago  Anarchists'  Case 72 

19.  Webber's  Case 73 

20.  The  Tichborne  Case 73 

21.  Joseph  Lesurques'  Case 77 

22.  Thomas  Hoag's  Case 77 

23.  Karl  Franz'  Case ' 78 

24.  The  Webster- Parkman  Case 78 

25.  Finger-print  Identification 79 

26.  People  v.  Jennings 83 

TITLE  III:  EVIDENCE   TO  PROVE  A   HUMAN  TRAIT,  QUALITY, 
OR   CONDITION 

27.  John  H.  Wigmore,  "Principles  of  Judicial  Proof  " 89 

SUBTITLE   A:     EVIDENCE   TO   PROVE   MORAL   CHARACTER 

28.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 91 

vii 


^^ii  CONTENTS 

SUBTITLE   B :    EVIDENCE  TO   PROVE   MOTIVE 

Page 

29.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 94 

SUBTITLE   C:    EVIDENCE   TO    PROVE   KNOWLEDGE,    BELIEF. 
OR  CONSCIOUSNESS 

30.  John  II.  Wigmore, '*  Principles  of  Judicial  Proof  " 96 

31.  Kugene  Aram's  Case 98 

32.  The  Perrcaus'  Case 99 

33.  Lord  Chancellor  Macclesfield's  Case 99 

34.  Mary  Blandy's  Case 101 

35.  David  Downie's  Case 104 

36.  Lord  Cochrane's  Case 106 

37.  Forbes  r.  Morse 108 

38.  William  Barnard's  Case 110 


SUBTITLE   D:    EVIDENCE   TO   PROVE   PLAN    (DESIGN, 

INTENTION) 

39.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 120 

40.  Alexander  ^L  Burrill,  "  Circumstantial  Evidence  " 121 

41.  The  Case  of  the  Dryad 122 

42.  The  Chicago  Anarchists'  Case 123 

43.  Madame  Lefarge's  Case 125 

SUBTITLE   E:     EVIDENCE   TO    PROVE   INTENT 

46.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 131 

47.  Hodges'  and  Probin's  Case 135 

48.  Captain  Kidd's  Case 136 

49.  Bradford  v.  Boylston  F.  and  M.  Insurance  Co 139 

50.  List  Publishing  Co.  v.  Keller 141 

TITLK  IV:   EVIDEXCE   TO  PROVE   THE  DOING   OF  A   HUM: AN  ACT 

53.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 143 

54.  Alexander  M.  Burrill,  "  Circumstantial  Evidence  " 143 

SUBTITLE   A  :    CONCOMITANT  CIRCUMSTANCES 

55.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 147 

Topic  1.    Time  and  Place 

56.  Alexander  M.  Burrill,  "  Circumstantial  Evidence" 148 

57.  Jonalhan  Bradford's  Case 1,'32 

58.  William  Shaw's  Case l.'')3 

59.  Downing's  Case 1.5.') 

60.  Looker's  Case l.f)() 

61.  Hegina  y.  Cleary !.'")() 

62.  Alexander  M.  Burrill.  "Circumstantial  Evidence  " l.')9 

63.  Abraham  Thornton's  Ca.se KiO 

64.  Frank  Bobinson's  Case 162 

65.  The  Popish  Plot 1G3 

6().    Karl  Franz'  Case 103 

67.  John  Hawkins'  Case 1(33 


CONTENTS  IX 

Page 

68.  Robert  Hawkins'  Case 163 

69.  Durrant's  Case 163 

70.  Hillmon  v.  Insurance  Co 164 

71.  Tourtelotte  v.  Brown 164 

72.  Anon 164 

Topic  2.     Physical  and  Mental  Capacity,  Tools,  Clothingr,  Etc. 

73.  Alexander  M.  Burrill,  "  Circumstantial  Evidence" 164 

74.  The  Sheffield  Case 166 

75.  The  Obstinate  Juryman's  Case 166 

76.  The  Yarmouth  Murder 167 

77.  The  Case  of  the  Pair  of  Gloves 168 

78.  William  Jones'  Case 170 

79.  Karl  Franz'  Case 173 

80.  Chicago  &  Alton  R.  Co.  v.  Crowder 173 

81.  Toledo,  St.  Louis  &  K.  C.  R.  Co.  i).  Clark     . 176 

SUBTITLE   B  :    PROSPECTANT   CIRCUMSTANCES 

83.  John  H.  Wigmore,  "  Principles  of  Judicial  P*roof  " 178 

Topic  1.    Moral  Character 

84.  James  Sully,  "  The  Human  Mind  " 178 

85.  Hans  Gross,  "  Criminal  Psychology  " 181 

86.  G.  F.  Arnold,  "  Psychology  applied  to  Legal  Evidence  " 182 

87.  Alexander  M.  Burrill,  "  Circumstantial  Evidence  " 184 

88.  United  States  v.  Roudenbush 185 

89.  A.  C.  Plowden,  "  The  Autobiography  of  a  Police  Magistrate  "       .     .  186 

90.  A.  G.  W.  Carter,  "  The  Old  Court  House  " 187 

91.  H.  L.  Adam,  "  The  Story  of  Crime  " 188. 

92.  Walter  Sheridan's  Case 189 

93.  The  Postman's  Case 192" 

94.  The  Self-sacrificing  Brother's  Case 194 

95.  Eugene  Aram's  Case 195 

96.  Leopold  Redpath's  Case 199 

97.  Case  of  "  B  " 202 

98.  Case  of  "  H  " 205 


Topic  2.    Emotion  (Motive) 

101.  James  Sully,  "  The  Human  Mind  " 210 

102.  G.  P.  Arnold,  "  Psychology  applied  to  Legal  Evidence  " 213 

103.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 215 

104.  Alexander  M.  Burrill,  "  Circumstantial  Evidence" 218 

105.  H.  L.  Adam,  "  The  Story  of  Crime  " 220 

106.  Arthur  C.  Train,  "Why  do  Men  Km?" 221 

107.  George  Wachs'  Case 225 

108.  George  Manners'  Case 227 

109.  Thomas  Patteson's  Case 229 

110.  The  Gloucester  Child-Murder ,     .     .  231 

111.  The  Kent  Case 232 

112.  Stevenson  v.  Stewart 238 

113.  Commonwealth  v.  Jeffries 240 

114.  Bradbury  v.  Dwight 242 

115.  Marey  v.  Barnes 244 


X  CONTENTS 

Topic  3.     Plan  i  Design,  Intention) 

Page 

121.  John  H.  Wigmore,  "  Principh's  of  Judicial  Proof  " 245 

122.  James  Sully,  "  The  Huiiiau  Mind  " 245 

123.  Richard  (iould's  C'ase 247 

124.  Jonathan  Bradford's  Case 250 

125.  The  Great  Oyer  of  Poisoning 250 

12(5.   Regina  v.  Cleary 251 

127.  William  Habron's  Case 251 

128.  Madeleine  Smith's  Case 254 

1-21).   O'Bannon  v.  Vigus 256 


Topic  4.     Habit    (Usage,  Custom) 

13ft.   James  Sully,  "  The  Human  Mind  " 256 

131.  Hans  Ciross,  "  Criminal  Psychology  " 258 

132.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 259 

133.  TwichcH's  Case 259 

134.  Hethcrington  r.  Kemp 260 

135.  American  E.xpress  Co.  r.  Haggard 261 

136.  Denver  &  Rio  Grande  R.  Co.  v.  Glasscott 262 


SUBTITLE   C  :    RETROSPECTANT   CIRCUMSTANCES 

138.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 265 

Topic  1.    Mechanical  (Physical)  Traces 

139.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 265 

140.  Alexander  M.  Burrill,  "  Circumstantial  Evidence  " 269 

141.  The  Baker's  Case 271 

142.  The  Case  of  the  Sailmaker's  Apprentice 272 

143.  John  Jennings'  Case 273 

144.  Courvoisier's  Case 275 

145.  Starne  Coal  Co.  v.  Ryan 277 

146.  Moudy  v.  Snider 279 

Topic  2.     Mental  Traces 

147.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 279 

148.  Alexander  M.  Burrill,  "  Circumstantial  Evidence  " 283 

149.  The  Escaped  Convict's  Case 286 

150.  MuUins'  Case 287 

151.  The  Uncle's  Case 289 

l.')2.    George  Rauschmaier's  Case 289 

l.')3.    Robert  Hawkins'  Case 291 

l.'>4.    Donellan's  Case 292 

155.  Robert  Wood's  Case 293 

TITLE    V:    THE  DATUM  SOLVENDUM 

156.  Joim  H.  Wigmore,  "  Principles  of  Judicial  Proof  "    ........  295 

1.57.   Alexander  M.  Burrill,  "  Circumstantial  Evidence  " 297 

1.5H.    Hans  (iross,  "  Criminal  Inve.stigatioii  " 300 

1.59.    Christopher  Rupprecht's  Case 302 

100.   John  I'aul  Korster's  Case 304 

161.  Newton's  Ca«e 306 

162.  Abraham  Thornton's  Case 309 


CONTENTS  :d 

PART  II:    TESTIMONIAL    EVIDENCE 

INTR  on  VCTION 

Page 

163.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 312 

TITLE  I:    GENERIC  HITMAX  TRAITS  AFFECTING    THE  TRUST- 
WORTHINESS   OF   TESTIMONY 

SUBTITLE   A:    RACE 

164.  Edward  Westermarck,  "  Origin  and  Growth  of  Moral  Ideas  "    .     ,     .  314 

165.  G.  F.  Arnold,  "  Psychology  applied  to  Legal  Evidence  " 317 

\166.    F.  W.  Colegrove,  "  Memory  " 318 

167.  M.  D.  Chalmers,  "  Petty  Perjury  "       319 

168.  Minnie  Moore- Willson,  "  The  Seminoles  of  Florida  " 320 

169.  Shelp  V.  United  States 321 

170.  United  States  v.  Lee  Huen 322 

171.  The  General  Rucker 327 

SUBTITLE   B:    AGE 

172.  Robert  Louis  Stevenson,  "  Virginibus  Puerisque  " 330 

173.  Hans  Gross,  "  Criminal  Psychology  " 333 

*174.   G.  Stanley  Hall,  "  Children's  Lies  " 337 

175.  Amos  C.  Miller,  "  Examination  of  Witnesses  " 340 

176.  Guy  M.  Whipple,  "  Manual  of  Mental  and  Physical  Tests  "  .     .     .     .  340 

177.  The  Disbelieved  Child's  Case 340 

178.  Laurence  Braddon's  Trial 340 

SUBTITLE  C:    SEX 

179.  Hans  Gross,  "  Criminal  Psychology  " 340 

180.  Arthur  C.  Train,  "  The  Prisoner  at  the  Bar  " 344 

»>  181.   Charles  C.  Moore,  "  A  Treatise  on  Facts" 349 

182.  Guy  M.  Whipple,  "  Manual  of  Mental  and  Physical  Tests  "      .     .     .  350 

183.  George  Cant's  Case 350 

184.  The  Perreaus'  Case 351 

185.  Thomas  Hoag's  Case 351 

186.  Mrs.  Morris'  Case 351 

187.  Chicago  &  Alton  R.   Co.  v.  Gibbons 351 

188.  Laurence  Braddon's  Trial 351 

189.  Hillmon  v.  Insurance  Co , 351 

190.  Throckmorton  v.  Holt 351 

SUBTITLE  D:     MENTAL   DISEASE 

191.  G.  F.  Arnold,  "  Psychology  applied  to  Legal  Evidence  " 351 

•  192.   Charles  Mercier,  "  Sanity  and  Insanity  " 354 

193.  Hans  Gross,  "  Criminal  Investigation  " 357 

194.  Regina  v.  Hill 358 

*195.   Colonel  King's  Case      .     .- 360 

SUBTITLE  E  :     MORAL   CHARACTER 

196.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 365 

197.  Charles  C.  Moore,  "  A  Treatise  on  Facts  " 367 

198.  Wm.  C.  Robinson,  "  Forensic  Oratory  " 368 

199.  Richard  Harris,  "  Hints  on  Advocacy  " 369 

200.  Day  v.  Day 369 

201.  Thomas  Hardy's  Case 371 

202.  G.  L.  Duprat,  "  The  Lie  " 377 


xii  CONTEXTS 

SUBTITLE   F:     FEELING,    EMOTION,   BIAS 

Page 

203.  G.  F.  Arnold,  "  PsyelioloKV  applied  to  Legal  Evidence" 382 

204.  Hans  Gross,  "  Criminal  Psychology" 383 

205.  Francis  L.  Wellinan,  "  The  Art  of  Cross-Examination  " 386 

200.  Ric-hard  Whately,  "  Elements  of  Rhetoric" 387 

207.  Robert  Hawkins'  Case 387 

208.  Mary  Blandys  Trial 390 

209.  Charles  C.  Moore,  "A  Treatise  on  Facts" 392 

210.  John  C.  Reed,  "  Conduct  of  Lawsuits  " 394 

211.  Amos  C.  Miller,  "  E.xamination  of  Witnesses  " 395 

212.  Richard  Harris,  "Hints  on  Advocacy  " 396 

213.  A.  G.  W.  Carter,  "  The  Old  Court  House  " 398 

214.  N.  W.  Sibley,  "  Criminal  Appeal  and  Evidence" 398 

215.  Richard  Harris,  "  Hints  on  Advocacy  " 399 

216.  A.  C.  Plowden,  "The  Autobiography  of  a  Police  Magistrate".   .     .    .  401 


SUBTITLE   G:     EXPERIENCE 

220.  Josiah  Royce,  "  Outlines  of  Psychology  " 402 

221.  Hans  Gross,  "  Criminal  Psychology"  and  "  Criminal  Investigation"  403 
"•222.  Richard  Whately,  "  Elements  of  Rhetoric  " 411 

223.  Samuel  S.  Page,  "  Personal  Injury  Actions  " 413 

224.  Richard  Harris,  "Hints  on  Advocacy  " 413 

225.  Donellan's  Case 419 

226.  Luetgert's  Case 419 

227.  Hillmon  v.  Insurance  Co 419 

228.  Thror-kmorton  v.  Holt 419 

229.  Frank  S.  Rice,  "  The  Medical  Expert  as  a  Witness  " 419 

230.  Albert  S.  Osborn,  "  Expert  Testimony  from  the  Standpoint  of  the 

Witness" 421 

231.  Wm.  L.  Foster,  "  Expert  Testimony  " 423 


TTTLK   IT.        Tin:    J:li:.WE\TS    of   the    TESTTMONIAT,   PROCESS 

ITS  Err  .ts  A  rrEcrisa  the  TuirsTwoKrurxEss  of  testi- 

SUBTITLE   A:     PERCEPTION    (OBSERVATION,   KNOWLEDGE) 

234.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 426 

235.  Hans  Gross,  "  Criminal  Psychology  " 429 

236.  G.  F.  Arnold,  "  Psydioiogy  applied  to  Legal  Evidence" 455 

237.  Wm.  C.  Robinson,  "  P^)rensic  Oratory  " 459 

238.  Arthur  C.  Train,  "The  Prisoner  at  the  Bar" 461 


SUBTITLE   B:     MEMORY 

239     Hans  Gross,  "Criminal  Psychology  " 402 

240.  G.  F.  Arnold,  "Psychology  applied  to  Legal  Evidence" 467 

241.  F.  W.  C'olcjjrove,  "Memcjry  " 478 

242.  Wm.  C.  Robinson,  "  Forensic  Oratory  " 481 

243.  Arthur  C.  Train,  "The  Pri.soner  at  the  Bar" 482 


SUBTITLE   C:     NARRATION 
244.   John  H.  Wigmore,  "Principles  of  Judicial  Proof  " 484 


CONTENTS  Xiii 

Topic  1.    Languag-e  and  Demeanor  as  a  Means  of  Expression 

Page 

245.  William  James,  "  The  Principles  of  Psychology  " 485 

246.  Wm.  D.  Whitney,  "  Oriental  and  Linguistic  Studies" 487 

247.  Wm.  C.  Robinson,  "  Forensic  Oratory" 489 

248.  Hans  Gross,  "  Criminal  Psychology  " 490 

249.  Arthur  C.  Train,  "  The  Prisoner  at  the  Bar" 491 

•  250.   G.  L.  Duprat,  "  The  Lie  " 493 

251.  A.  C.  Plowden,  "Autobiography  of  a  Police  Magistrate"      ....  496 

252.  Amos  C.  Miller,  "  Examination  of  Witnesses  " 497 

Topic  2.    Narration  as  affected  by  Interrogation  and  Suggestion 

253.  Richard  Harris,  "  Hints  on  Advocacy  " 497 

254.  Bardell  v.  Pickwick 502 

255.  John  C.  Reed,  "Conduct  of  Lawsuits" 503 

256.  Amos  C.  Miller,  "  The  Examination  of  Witnesses  " 505 

257.  Guy  M.  Whipple,  "  Manual  of  Mental  and  Physical  Tests  "       ...  506 
"258.   James  Ram,  "  Facts  as  Subjects  of  Inquiry  by  a  Jury  " 508 

259.  Charles  C.  Moore,  "  A  Treatise  on  Facts  " 510 

260.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 511 

261.  Francis  L.  Wellman,  "  Day  in  Court  " 511 

262.  Pat  Hogan's  Case 512 

263.  John  H.  Wigmore,  "Principles  of  Judicial  Proof  " 512 

264.  Charles  C.  Moore,  "A  Treatise  on  Facts  " 514 

265.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 515 

266.  Brown  v.  Bramble 515 

267.  Charles  C.  Moore,  "A  Treatise  on  Facts" 516 

268.  John  C.  Reed,  "  Conduct  of  Lawsuits  " 518 

269.  Francis  L.  Wellman,  "  Day  in  Court  " 518 

270.  Arthur  C.  Train,  "The  Prisoner  at  the  Bar" 519 

271.  The  Hospital  Case 520 

272.  Puyenbroeck's  Case 521 

273.  G.  F.  Arnold,  "  Psychology  applied  to  Legal  Evidence  " 524 

Topic  3.    Narration  as  affected  by  Typical  Temperaments 

275.  Wm.  C.  Robinson,  "  Forensic  Oratory  " 526 

276.  Richard  Harris,  "  Hints  on  Advocacy  " 530 

Topic  4.    Confessions  of  Guilt 

277.  Hans  Gross,  "  Criminal  Psychology  " 537 

278.  Daniel  Webster,  in  Commonwealth  v.  Knapp 539 

279.  Honore  de  Balzac,  "  Lucien  de  Rubempre  " 541 

280.  Allan  Pinkerton,  "  Bank  Robbers  and  Detectives  " 547 

281.  International  Association  of  Chiefs  of  Police,  "  Proceedings  "     .     .     .  550 

282.  Arthur  C.  Train,  "  Courts,  Criminals,  and  the  Camorra"       ....  554 

283.  W.  M.  Best,  "  A  Treatise  on  Evidence  " 555 

284.  The  Hermione  Case 558 

285.  The  Gloucester  Child-m_urder 559 

286.  The  Case  of  the  Boorns 559 

287.  Mrs.  Morris'  Case    ...  - 564 

288.  Hugo  Miinsterberg,  "  On  the  Witness  Stand  " 568 

289.  John  H.  Wigmore,  "  The  Psychology  of  Testimony  " 571 

TITLE  III.      THE  INTEItPRETATIOJyr  OF  SPECIFIC  TESTIMONY 
TO  ESTABLISH  THE  EXTENT  ANI>  SOTTRCES   OF  ERROR 

SUBTITLE  A:   EXTENT  OP  LATENT  ERROR  IN  THE  NORMAL 
TESTIMONIAL  PROCESS 

290.  Guy  M.  Whipple,  "  Manual  of  Mental  and  Physical  Tests  "  ....  575 

291.  Kansas  University  Experiment 581 


xiv  CONTENTS 

Pack 

292.  Arno  Gunther's  Experiment 583 

293.  Northwestern  University  Experiments 585 

294.  John  H.  Wigmore,  "The  Psychology  of  Testimony  " 591 

SUBTITLE   B:     EXTENT   AND    SOURCES    OF    ERROR   AS   INDI- 
CATED  BY   SOME   COMMON   TESTIMONIAL   INCIDENTS 

Topic  1.    Defective  Basis  of  Perception 

296.  Elizabeth  Canning's  Trial 592 

297.  Heath's  Trial 593 

298.  Brook's  Case 593 

299.  Cal  Armstrong's  Case 594 

300.  The  Beer-Wagon  Case 594 

301.  The  Bottomry  Bond  Case 595 

302.  The  Poisoned  Coffee  Case 596 

303.  Lady  Ivy's  Trial 597 

«304.   Captain  Baillie's  Trial 598 

305.  James  Byrne's  Trial 602 

306.  Hans  Gross,  "  Criminal  Investigation  " 602 

Topic  2.    Incomplete  Recollection 

308.  Langhorn's  Trial 602 

309.  Queen  Caroline's  Trial 603 

310.  The  Doctor's  Case 604 

311.  Lord  George  Gordon's  Trial 604 

312.  William  Winterbotham's  Trial 610 

Topic  3.    Self-contradictory  Statements 

«  314.   Col.  Turner's  Trial 617 

315.  Queen  Caroline's  Trial 617 

316.  M'Garahan  v.  Maguire 617 

317.  Parnell's  Commission's  Proceedings 618 

318.  Xetherolift's  Case 621 

319.  Christopher  Ruppreeht's  Case 621 

320.  Francis  Willis'  Trial 623 

321.  Loucks  I'.  Paden 628 

322.  G.  F.  Arnold,  "  Psychology  applied  to  Legal  Evidence  " 631 

323.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 632 

Topic  4.     Contradictory  Testimony  by  Witnesses  called  on  the 
Same  Side 

324.  The  History  of  Susanna 634 

325.  Kerne's  Trial 634 

326.  The  Attesting  Witnesses'  Case 635 

327.  Frank  Robinson's  Case 635 

32S.    Laun-nce  Braddon's  Trial 637 

329.  I>jrd  Chanc<.llor  Macclesfield's  Case 637 

330.  John  H.ggs' Trial 642 

331.  Ricliard  Harris,  "  Hints  on  Advocacy  " 650 

•332.   JaiiK-s  Itam,  "  F"'acts  as  Subjects  of  Inquiry  liy  a  Jury  " 656 

333.   John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 657 

Topic  6.    Contradictory  Testimony  by  "Witnesses  on  Opposite  Sides; 
and  Collateral  Error  in  General 

335.  Robert  Hawkins'  Trial 659 

336.  Smyth  t-.  Smyth 660 


CONTENTS  XV 

Page 

337.  Laurence  Braddon's  Trial 662 

338.  The  General  Rueker 662 

339.  Cal  Armstrong's  Case 662 

340.  Netherelift's  Case 663 

341.  Pittsburg  C.  C.  &  St.  Louis  R.  Co.  v.  Story 663 

342.  John  Hawkins'  Case 666 

343.  The  Bond  Payment  Case 666 

344.  The  Farm  Burglary  Case 667 

345.  Dr.  Ranney's  Case 668 

346.  Parnell  Commission's  Proceedings 670 

347.  Mobile  &  Ohio  R.  Co.  v.  Steamer  New  South 670 

348.  Lady  Ivy's  Trial 671 

349.  The  Popish  Plot 674 

350.  James  Byrne's  Trial 687 

351.  Wm.  C.  Robinson,  "  Forensic  Oratory  " 697 

352.  Charles  C.  Moore,  "A  Treatise  on  Facts" 697 

353.  John  C.  Reed,  "Conduct  of  Lawsuits" 698 

354.  Hans  Gross,  "  Criminal  Investigation  " 698 

355.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 699 

SUBTITLE  C :    SUNDRY  ILLUSTRATIONS  OF  THE  FALLIBILITY 
OP   TESTIMONY 

3.56.   The  Disbeheved  Child's  Case 702 

357.  The  Copied  Will 702 

358.  PhiUp  Clare's  Case 703 

359.  Joseph  Lesurques'  Case 704 

360.  Green  McDonald's  Case 708 

361.  The  Perreaus'  Case 709 

362.  Thomas  Hoag's  Case 714 

363.  Thomas  Hoag's  Case  (another  account) 720 

364.  George  Cant's  Case 721 

365.  Chicago  &  Alton  R.  Co.  v.  Gibbons 724 

366.  Hans  Gross,  "  Criminal  Investigation  " 726 

SUBTITLE   D:     CLASSIFICATION    OF    "IMPEACHING"   OR 
$  DISCREDITING   FACTS 

367.  John  H.  Wigmore,  "Principles  of  Judicial  Proof  " 727 

TITLE   IV.     RELATIVE    PROBATIVE   VALUE   OF  CIRCUMSTAJf- 
TIAL   AND   TESTIMONIAL   EVIDENCE 

369.  Daniel  Defoe,  "  Robinson  Crusoe  " 734 

370.  Hosea  M.  Knowlton,  in  Com.  v.  Borden 735 

371.  Shaw,  C.  J.,  in  Com.  v.  Webster 736 

372.  W.  Wills,  "  Circumstantial  Evidence  " 736 

373.  Alexander  M.  Burrill,  "  Circumstantial  Evidence  " 738 


PART    III:    PROBLEMS    OF    PROOF,    IN    MASSES 
OF    MIXED    EVIDENCE 

■^375.   Alexander  M.  Burrill,  "  Circumstantial  Evidence  "    .     , 745 

376.  John  H.  Wigmore,  "  Principles  of  Judicial  Proof  " 747 

377.  Commonwealth  v.  Umilian 761 

378.  Hatchett  v.  Commonwealth 763 

379.  John  Donellan's  Case 766 

380.  Lord  Sackville's  Case 772 


XVI  CONTENTS 

Pace 

381.  Moudy  v.  Snider 779 

382.  O'Bannon  r.  Vigus 784 

.383.   Tourtelotte  v.  BrowTi 796 

384.  Vant'il  r.  Hutchinson 8(M) 

385.  The  Borden  Case 806 

386.  The  Durrant  Case 815 

387.  The  Luetgert  Case 827 

388.  Karl  P>anz'  Case 840 

389.  Hillnion  v.  Insurance  Co 856 

390.  Throckmorton  t-.  Holt 897 

391.  Laurence  Braddon's  Trial 990 

392.  Earl  of  Thanet's  Trial 1018 

393.  Knapp's  Trial 1080 

APPENDIX 

List  of  Trials  Useful  for  Study 1169 

List  of  Authors  of  Extracts  Reprinted 1173 

List  of  Cases  Reprinted 1175 

Index  of  Topics 1177 


THE  PRINCIPLES  OF  JUDICIAL  PROOF 

AS  CONTAINED  IN  LOGIC,  PSYCHOLOGY,  AND  GENERAL  EXPERIENCE 
AND  ILLUSTRATED  IN  JUDICIAL  TRIALS 


INTRODUCTION 

This  book  aspires  to  offer,  though  in  tentative  form  only,  a  novum 
organum  for  the  study  of  Judicial  Evidence. 

The  study  of  the  principles  of  Evidence,  for  a  lawyer,  falls  into  two 
distinct  parts.  One  is  Proof  in  the  general  sense,  —  the  part  concerned 
with  the  ratiocinative  process  of  contentious  persuasion,  —  mind  to 
mind,  counsel  to  juror,  each  partisan  seeking  to  move  the  mind  of  the 
tribunal.  The  other  part  is  Admissibility,  —  the  procedural  rules 
devised  by  the  law,  and  based  on  litigious  experience  and  tradition,  to 
guard  the  tribunal  (particularly  the  jury)  against  erroneous  persuasion. 
Hitherto,  the  latter  has  loomed  largest  in  our  formal  studies,  —  has,  in 
fact,  monopolized  them ;  while  the  former,  virtually  ignored,  has  been 
left  to  the  chances  of  later  acquisition,  casual  and  empiric,  in  the  course 
of  practice.      Here  we  have  been  wrong ;  and  in  two  ways  : 

For  one  thing,  there  is,  and  there  must  be,  a  probative  science  — 
the  principles  of  proof  —  independent  of  the  artificial  rules  of  procedure  ; 
hence,  it  can  be  and  should  be  studied.  This  science,  to  be  sure,  may 
as  yet  be  imperfectly  formulated  or  even  incapable  of  formulation. 
But  all  the  more  need  is  there  to  begin  in  earnest  to  investigate  and 
develop  it.  Furthermore,  this  process  of  Proof  is  the  more  important 
of  the  two,  —  indeed,  is  the  ultniiate  purpose  in  every  judicial  investi- 
gation. The  procedural  rules  for  iVdmissibility  are  merely  a  preliminary 
aid  to  the  main  activity,  viz.  the  persuasion  of  the  tribunal's  mind  to 
a  correct  conclusion  by  safe  materials.  This  main  process  is  that  for 
which  the  jury  are  there,  and  on  which  the  counsel's  duty  is  focused. 
Vital  as  it  is,  its  principles  surely  demand  study. 

And,  for  another  thing,  the  judicial  rules  of  Admissibility  are 
destined  to  lessen  in  relative  importance  during  the  next  generation  or 
later.  Proof  will  assume  the  important  place ;  and  we  must  therefore 
prepare  ourselves  for  this  shifting  of  emphasis.  We  must  seek  to 
acquire  a  scientific  understanding  of  the  principles  of  what  may  be 
called  "  natural  "  proof,  —  the  hitherto  neglected  process.  If  we  do  not 
do  this,   history  will  repeat  itself,   and  we  shall  find  ourselves  in  the 


2  IXTHODllTIOX 

present  plight  of  Continoutal  Europe.  There,  in  the  early  ISOOs  the 
ancient  worn-out  numerical  system  of  "  legal  proof  "  was  abolished  by 
fiat,  and  the  so-called  "free  proof"  —  namely,  no  system  at  all  —  was 
substituted.  For  centuries,  lawyers  and  judges  had  evidenced  and 
proved  by  the  artificial  numerical  system  ;  they  had  no  training  in  any 
other,  —  no  understanding  of  the  living  process  of  belief ;  in  conse- 
quence, when  "  legal  proof "  was  abolished,  they  were  unready,  and 
juilicial  trials  have  been  carried  on  for  a  century  past  by  uncompre- 
hended,  unguided,  and  therefore  unsafe  mental  processes.  Only  in 
recent  times,  under  the  influence  of  modern  science,  are  they  beginning 
to  develop  a  science  of  proof. 

Such  will  be  our  own  fate,  when  the  time  comes,  if  yve  do  not  lay 
foundations  to  prepare  for  the  new  stage  of  procedure. 

The  present  work  seems  to  be  the  first  attempt  in  English,  since 
Benthani,  to  call  attention  to  the  principles  of  judicial  Proof  (distin- 
guished from  Admissibility)  as  a  whole  and  as  a  system.'  It  is  therefore 
tentative.  The  chief  service  it  aims  to  fulfill  is  to  emphasize  the 
subject  as  a  science,  and  to  stimulate  its  professional  study. 

The  materials  exist  in  abundance.  But  they  need  systematic  collec- 
tion and  analysis.  The  illustrative  materials  here  offered  are  culled 
from  a  wide  range ;  though  the  search  for  them  has  merely  touched  the 
surface.  A  longer  search  would  have  found  apter  materials  in  many 
places,  especially  from  the  annals  of  civil  trials.  Most  of  the  selections 
are  from  criminal  cases  ;  first,  because  they  usually  show  the  specific 
inference  in  more  striking  shape  and  shorter  compass,  and  next,  because 
they  are  the  more  profuse  in  the  records.  But  it  should  not  be  for- 
gotten that  while  blood  and  poison  and  pistol  waddings  are  usually 
conceived  as  types  of  Circumstantial  Evidence,  yet  the  short  and  simple 
annals  of  civil  cases  are  equally  permeated  with  it,  in  less  sensational  form. 

Now  a  few  words  about  the  use  of  the  book. 

1.  It  is  intended  mainly  for  law-school  work.  But  it  may  profitably 
be  used  (we  hope)  for  the  self-training  of  the  niaturer  practitioner. 

2.  Though  most  of  the  topics  are  introduced  or  followed  (as  befits 
a  novel  subject)  by  a  brief  expository  passage,  to  focus  the  reader  on 
the  possibilities  of  the  topic,  yet  the  main  part  of  the  material  may 
and  must  be  used  inductively.  Some  of  it  merely  illustrates;  but  most 
of  it  calls  for  self-application  of  the  process  of  analysis  and  inference. 

'  Mr.  Burrill's  masterly  work,  two  generations  ago,  eovered  only  a  part  of  the. field, 
Ciroumstautial  Evidence.  Mr.  Moor^'.s  recent  treatise  (a  valuable  arsenal  of  exten- 
sive researeh),  on  Facta,  or  The  Weight  and  Value  of  Evidence,  deals  in  substance  with 
TfHtimoniiil  Kvideiice  only.  Mr.  Justice  Stephen's  introduction  to  the  Iridian  Evidence 
Act.  entitled  The  Principles  of  Judicial  Evidence  (1872),  contains  a  brief  though 
thoroughly  .seientific  survey  of  the  .subject ;  and  perhaps  his  exposition  should  be  cla.ssed 
aa  an  attempt  at  a  sy.ftem.  He  seems  to  have  belir-s-ed  that  the  lopical  Methods  of 
Agreement  and  of  Difference  supplied  the  sufficient  key  to  all  such  ques'ions  ("the  princi- 
ple ia  preci.sely  the  same  in  ail  cases,  however  simple  or  however  complicated").  Inade- 
quate though  thi.s  may  be  deemed,  certainly  his  point  of  view  is  so  plausibly  stated  that  it 
miwt  be  HH-koned  with  in  any  future  proposals  of  a  system.  The  present  exposition  not 
being  controversial,  no  attempt  is  made  to  note  the  objections  to  Mr.  Justice  Stephen's 
method. 

f)n  thr-  Continent,  the  great  pioneer  work  of  Hans  Gros.s,  entitled  (not  happily) 
"C'riminnl  Psychology"  (translated  in  the  Modern  Criminal  Science  Series)  is  .still  the 
only  eystematic  treatise  on  the  p.sycholog.v  of  testimony.  However,  not  being  written 
from  the  point  of  view  of  our  law,  its  system  is  not  directly  available. 


INTRODUCTION  6 

There  is  a  probative  moral  to  every  one  of  the  cases ;  to  point  out  in 
footnotes  the  moral  as  conceived  by  the  compiler  would  have  spoiled  the 
object  of  the  book.  The  profitable  use  of  the  book  will  be  to  employ 
each  illustrative  case  rigidly  as  a  mental  exercise  somehow  bearing  on 
the  subject  where  it  is  classified.      In  this  EeHno  one  can  afford  to  let 

■'  another  do  his  thinking  for  him. 

'  3.  There  is  no  attempt  to  cover  all  kinds  of  evidential  data.  Many 
minor  but  troublesome  varieties  (for  example,  handwriting,  hearsay, 
corroboration  of  witnesses)  are  ignored,  partly  because  space  did  not 
permit,  partly  because  their  treatment  might  doubtfully  complicate  the 
system  here  offered.  Some  day  a  system  will  arise  into  which  all  of 
these  can  easily  be  fitted. 

4.  In  the  use  of  these  materials,  the  following  warning  suggestions 
are  offered : 

(a)  Do  not  attempt  to  invoke  mentally  any  of    those    exclusionary 

rules  of  Admissibility  commonly  thought  of  as  the  rules  of    evidence. 

Keep  them  out  of  the  ratiocinative  process.      Think  of  the  problem  as  a 

juror  would^  think  of  it  if  the  evidence  were  safely  in  the  case  and  the 

^    counsel  were  arguing  to  him  about  it.      What  we  are  aiming  to  analyze 

^"  is  the  actual  mind-to-mind  process  of  persuasion  and  belief. _ 

(6)  Do  not  assume  that  any  of  the  quoted  extracts  purporting  to 
describe  (especially  in  Part  II)  the  facts  of  experience  in  various  sorts 
of  testimony  are  here  put  forward  as  sound.  Give  them  such  credence 
as  their  chroniclers  may  seem  to  deserve ;  but  test  them  by  your  own 
experience,  and  apply  such  discount  as  may  seem  needed.  Those 
materials  are  here  offered  merely  as  materials  for  reflection,  and  not  as 
dogmas  of  truth. 

(c)  Use  Parts  I  and  II  as  simply  preliminary^,  i.e.  as  a  drill  in 
method  of  analysis,  and  a  supply  of  data  of  experience  to  supplement 
one's  own.  Then  make  Part  III  (Problems  in  Masses  of  Evidence) 
the  main  objective.  Parts  I  and  II  are  like  the  elemental  moves  or 
strokes  in  chess  or  in  golf ;  they  must  of  course  first  be  studied ;  but 
the  real  thing  is  the  game.  Or  they  are  like  the  various  scales,  arpeg- 
gios, and  chords  in  music ;  they  are  the  component  parts,  in  vary- 
ing form,  for  every  one  of  a  million  pieces  of  music ;  but  the  musical 
piece  is  what  we  always  expect  ultimately  to  play  or  to  hear.  The 
single  bits  or  kinds  of  evidence,  as  presented  in  Parts  I  and  II,  must 
first  for  exercitation  be  taken  apart  and  analyzed,  each  by  itself ;  but  in 
judicial  trials  single  kinds  of  evidence  are  not  thus  presented  in  segre- 
gated form.  What  is  really  found  is  a  mixed  mass  of  evidence,  cul- 
minating in  a  single  large  issue  (or  series  of  issuer)  :  "  Did  he,  or  did  he 
not?"  "Was  it,  or  was  it  not  ?  "  In  Part  III,  and  there  only,  we 
have  the  problem  of  Proof  as  it  is  actually  forced  upon  us  every  day  in 
our  courts. 

5.  Part  III  thus  represents  the  ultimate  and  most  difficult  aspect  of 
the  principles  of  Proof;  namely,  the  method  of  solving  a  complex  mass 
of  evidence  in  contentious  litigation.  '  Such  a  method  is  here  suggested 
(m  No.  ^6).      Nobody  yet  seems  to  have  ventured  to  offer  a  method,  — 

I  neither  the  logicians  (strange  to  say),  nor  the  psychologists,  nor  the 
jurists,  nor  the  advocates.      The  logicians  have  furnished  us  in  plenty 


4  ixTnoDrcTiON' 

with  canons  of  reasoning  for  specific  single  inferences  ;  but  for  a  total 
mass  of  contentious  evidence,  they  have  oti'ered  no  system.^  What  is 
here  put  forward  is  a  mere  provisional  attempt  at  method.  One  must 
have  a  working  scheme.  If  this  will  not  work,  try  to  devise  some 
other,  or  try  what  success  there  is  in  getting  along  without  any. 

The  prol)lems  in  Part  III  will  ofter  a  varied  range  for  testing  the 
practicability  of  whatever  scheme  one  may  devise.  But  some  method 
there  ought  to  be.  It  seems  incredible  that  advocates  can  have  got 
along  without  any,  through  the  long  period  of  judicial  annals.  What 
is  wanted  is  simple  enough  in  purpose,  —  namely,  some  method  which 
will  enable  us  to  lift  into  consciousness  and  to  state  in  words  the 
reasons  why  a  total  mass  of  evidence  does  or  should  persuade  us  to  a 
given  conclusion,  and  why  our  conclusion  would  or  should  have  been 
different  or  identical  if  some  part  of  that  total  mass  of  evidence  had 
been  tlitferent.  The  mind  is  moved  ;  then  can  we  not  explain  tchy  it  is 
moved  ?  If  we  can  set  down  and  work  out  a  mathematical  equation, 
why  can  we  not  set  down  and  work  out  a  mental  probative  equation  ? 

In  offering  this  collection  of  illustrations  and  problems  as  a  help 
towards  the  attainment  of  this  higher  purpose,  the  Compiler  realizes  the 
inadequacy  of  his  own  contributions  (mainly  No.  376,  herein)  towards 
developing  a  sound  and  workable  method.  Yet,  as  Locke  put  it,  "  He 
that  will  not  stir  till  he  infallibly  knows  that  the  business  he  goes  about 
will  succeed,  will  have  but  little  else  to  do  but  to  sit  still  and  perish." 
.\nd  there  is  at  least  the  consolation  of  believing  that  the  illustrations 
will  furnish  entertaining  reading  in  a  field  little  patronized  hitherto  by 
lawyers.  And  along  with  this  entertainment  ought  to  come  some  con- 
sciousness of  the  importance  of  the  general  problem,  and  a  resolve  to 
bring  the  Courts  and  the  Bar  lo  recognize  the  coming  stage  of  the  law 
of  Evidence,  —  an  epoch  in  which  the  present  rules  of  x\dmissibility, 
already  become  too  largely  formalistic  and  unreal,  will  be  partly  sup- 
planted by  a  new  method. 

'  The  feasibility  of  such  a  system  has  indeed  been  questioned  in  their  ranks.  Thus : 
"The  theory  of  probabilities  is  the  very  guide  of  life;  hardly  can  we  take  a  step  or 
make  a  decision  of  any  kind  without  correctly  or  incorrectly  making  an  estimation  of 
prt>babilities.  .  .  .  Attempts  to  apply  the  theory  of  probability  to  the  results  of  judicial 
proceedings  have  proved  of  little  value,  simply  because  the  conditions  are  far  too  intricate. \ 

.  No  matheniatif-al  formulas  can  be  framed  to  express  the  real  conditions.  .  .  .  But 
such  failures  in  no  way  diminish  the  truth  and  beauty  of  the  theory  itself ;  in  reality  there 
is  no  branch  of  science  in  which  our  symbols  can  cope  with  the  complexity  of  Nature 
The  difficulty,  in  short,  is  merely  relative  to  our  knowledge  and  skill,  and  is  not  absolute 
or  inherent  in  the  subject."  (W.  Stanley  .Jevons,  The  Principles  of  Science:  a  Treatise 
on  Logic  and  Scientific  Method,  p.  34,  2d  ed.,  1877,  reprint  of  1907.)  If  anybody  could 
have  performed  this  service  for  Judicial  Evidence,  Jevons  was  the  man  to  do  it.  His 
I>jgi(:il  Abacus  and  Logical  Machine  shows  that  he  had  the  keenest  appreciation  of  the 
possibilities. 

Throiigh  the  kind  assistance  of  his  colleague.  Professor  Horace  C.  Longwell,  the  present 
author  has  consulted  the  modern  works  on  Logic,  but  must  still  avow  that,  for  the  pur- 
p<jsea  of  judicial  controversy,  they  do  not  afiford   the  desired  help. 


te  ■ 
se  \ 

A 


GENERAL  THEORY  OF  JUDICIAL  PROOF 

1.   JoHX  H.  WiGMORE.      Principles  of  Judicial  Proof.      (1913.)  ^ 

§  1.  Definition  of  Judicial  Evidence.  It  is  of  little  practical  consequence 
to  construct  a  formula  defining  Judicial  Evidence.     That  term  represents : 

Any  knowable  fact  or  group  of  facts,  not  a  legal  or  a  logical  principle, 
considered  with  a  view  to  its  being  offered  before  a  legal  tribunal  for  the 
purpose  of  producing  the  effect  of  persuasion,  positive  or  negative,  on  the 
part  of  the  tribunal,  as  to  the  truth  of  a  proposition,  not  of  law  or  of  logic, 
on  which  the  determination  of  the  tribunal  is  to  be  asked. 

Inference  is  the  persuasive  effect  of  each  evidentiary  fact,  regarded  sep- 
arately, as  to  its  Probandmn. 

Proof  (or  Disproof)  is  the  persuasive  effect  of  a  mass  of  evidentiary  facts, 
regarded  as  a  whole,  as  to  a  Probaadum. 

§  2.  Distinctions  between  Factum  Probandum  and  Factum  Probans. 
Evidence  is  always  a  relative  term.  It  signifies  a  relation  l^etween  two 
facts,  the  factum  probandum,  or  proposition  to  be  established,  and  the  fac- 
tujn_j}wbajis,  or  material  evidencing  the  proposition.  The  former  is  neces- 
sarily hypothetical ;  the  latter  is  brought  forward  as  a  reality  for  the  purpose 
of  convincing  the  tribunal  that  the  former  is  also  a  reality.  No  correct 
and  sure  comprehension  of  the  nature  of  any  evidential  question  can  ever 
be  had  unless  this  double  or  relative  aspect  of  it  is  distinctly  pictured  in 
each  instance.  On  each  occasion  the  questions  must  be  asked.  What  is 
the  Proposition  (Probandum)  desired  to  be  proved  ?  What  is  the  Eviden- 
tiary Fact  (Probans)  offered  to  prove  it  ? 

Part  of  the  confusion  often  found  arises  from  the  circumstance  that 
each  Evidentiary'  Fact  may  in  turn  become  a  Proposition  to  be  proved, 
until  finally  some  ultimate  Evidentiary  Fact  is  reached.  For  example,  to 
prove  the  Proposition  that  a  murder  was  committed  by  John  Doe,  the  Evi- 
dentiary Fact  may  be  offered  that  John  Doe  left  the  victim's  house  shortly 
after  the  murder ;  to  prove  this  in  turn,  as  a  Proposition,  the  Evidentiary 
Fact  may  be  offered  that  John  Doe's  shoes  fit  the  track  left  near  the  house 
by  the  murderer ;  and  this  again,  as  a  Proposition,  may  be  evidenced  by 
the  statement  of  a  witness  on  the  stand  who  has  placed  the  shoe  in  the  tracks. 
Here  each  evidentiary  fact  in  its  turn  becomes  a  proposition  requiring  the 
marshaling  of  new  evidentiary  facts,  more  or  fewer  according  to  its  com- 
plexity. Any  specific  matter  may  be  Proposition  or  Evidentiary  Fact,  ^ 
according  to  the  point  of  view  of  the  moment.  •/ 

§  .3.    Classification   of    Evidentiary    Facts;     Autoptic    Proference.      There       ' 
are  two  possible  modes  of  proceeding  for  the  purpose  of  producing  persuasion 
on  the  part  of  the  tribunal  as  to  the  Probandum.     The  first  is  by  the  pres- 
entation of  the  thing  itself  as  to  which  persuasion  is  desired.     The  second 
is  the  presentation  of  some  independent  fact  by  inference  from  which  the 

1  Adapted  from  the  same  author's  Treatise  on  the  System  of  Evidence  in  Trials  ai  Com- 
mon Law  (U)05,  Vol.  I,  §§  l-2y) . 

5 


6  INTRODUCTION  No.  1. 

persuasion  is  to  be  produceil.  Instances  of  the  first  are  the  production  of 
a  blood-stained  knife ;  tiie  exhibition  of  an  injured  limb  ;  the  viewing  of 
premises  by  the  jury ;  the  production  of  a  document.  The  second  falls 
further  into  two  classes,  according  as  the  basis  of  inference  is  (a)  the  assertion 
of  a  human  being  as  to  the  existence  of  the  thing  in  issue,  or  (b)  any  other 
fact ;  the  one  may  be  termed  Testimonial  or  Direct  Evidence,  the  other 
Circumstantial  or  Indirect  Evidence. 

The  first  mode  above  mentioned  has  been  termed  Immediate,  or  Direct, 
Real  Evidence.'  "Thus,"  says  Mr.  Best,'-  "where  an  ofiense  or  contempt 
is  committed  in  presence  of  a  tribunal,  it  has  direct  real  evidence  of  the 
fact.  So  formerly,  on  an  appeal  of  mayhem,  the  Court  would  in  some  cases 
inspect  the  wound,  in  order  to  see  whether  it  were  a  mayhem  or  not.  .  .  . 
Immediate  Real  Evidence  is  where  the  thing  which  is  the  source  of  the  evi- 
dence is  present  to  the  senses  of  the  tribunal."  A  preferable  term  is  Au-' 
toptic  Proference  ;  this  avoids  the  fallacy  of  attributing  an  evidential  quality 
to  that  which  is  in  fact  nothing  more  nor  less  than  the  thing  itself.  With 
reference  to  this  mode  of  producing  persuasion  no  question  of  logic  arises. 
"Res  ipsa  loquitur."  The  thing  proves  or  disproves  itself.  No  logical 
process  is  employed  ;  only  an  act  of  sensible  apprehension  occurs,  —  appre- 
hension of  the  existence  or  non-existence  of  the  thing  as  alleged.  Bringing 
a  knife  into  court  is  in  strictness  not  giving  evidence  of  the  knife's  existence. 
It  is  a  mode  of  enabling  the  Court  to  reach  a  conviction  of  the  existence  of 
the  knife,  and  is  in  that  sense  a  means  of  producing  persuasion,  yet  it  is  not 
giving  evidence  in  the  sense  that  it  is  asking  the  Court  to  perform  a  process 
of  inference,'  and  it  therefore  gives  rise  to  no  questions  of  relevancy.^ 

Though  the  classes  of  things  that  can  become  the  subject  of  autoptic 
proference  are  few,  yet  within  those  classes  its  use  is  common.  In  addition 
to  jury  views  of  land,  the  production  of  movables  associated  with  a  crime, 
and  the  exhibition  of  personal  injuries,  the  perusal  of  documents  is  the  most 
usual  instance  of  its  employment.  Though  a  document  is  generally  eviden- 
tial only  as  being  the  assertion  of  its  writer,  yet  when  it  becomes  desirable 
and  allowable  to  prove  the  terms  of  the  assertion  {i.e.  when  its  existence 
becomes  in  itself  a  Probandum),  it  is  obvious  that  we  must  either  have  some 
one  tell  about  its  contents,  which  would  be  using  testimonial  evidence,  or 
must  infer  its  existence  circumstantially  from  some  other  fact,  or  produce 
the  document  itself  for  inspection,  which  would  be  Autoptic  Proference. 

§  4.  Distinction  between  Circumstantial  and  Testimonial  Evidence. 
Aside  from  Autoptic  Proference,  then,  all  evidence  must  involve  an  infer- 
nirefrom  some  Fact  (Probans)  to  the  Proposition  (Probandum)  to  he  proved. 
The  kinds  of  inferences,  with  regard  to  the  material  taken  as  their  subject, 
fall  naturally  into  two  great  clas.ses ;  or,  rather,  a  single  special  class  of 
evidentiary  facts  separates  itself  from  the  mass  and  calls  for  a  distinct 

'  Mr.  Bj-nthain,  in  his  Treatise  on  Judicial  Evidence  (tr.  Dumont,  London,  1825),  p.  12, 
U8cd  "real  ovidcnr-o "  to  moan  the  inferences  from  a  res;   this  of  course  is  a  different  usage. 

*  Chamherlayne's  Bent  on  Evidence.  IHO.'i,  §§  196,  197. 

'  It  miRht  ^K;  said  that  the  Court  is  to  use  the  fact  of  its  sense  perception  as  a  basis  of 
inference  to  a  jutlKtiient ;  l>ut  this  is  a  distinction  which  cannot  be  accepted  in  the  law  of 
evidence,  because  practically  the  fourt  recoRnizcs  none  such  and  takes  the  results  of  its 
HcnHcs  !iH  immediate  and  full  knowledge. 

*  Of  courne.  the  knife  miKht  become  the  source  of  an  inference,  e.g.  as  to  the  nature  of  a 
wound ;  but  in  that  aspect  it  is  merely  circumstantial  evidence. 


No.  1.  GENERAL  THEORY  OF  PROOF  7 

treatment,  attended  as  it  is  with  uniform  and  peculiar  qualities  affecting 
its  probative  features.  That  a  separate  treatment  is  inevitably  demanded 
by  these  qualities  has  been  long  recognized  in  experience  and  acknowledged 
by  jurists.  This  special  class  of  facts  is  the  assertions  of  human  beings  re- 
garded as  the  basis  of  inference  to  the  propositions  asserted  by  them.  This 
may  be  called  Testimonial  Evidence ;  ^  Direct  Evidence  is  an  alternative 
term  sanctioned  by  usage,  though  not  so  satisfactory  in  theory.  All  re- 
maining facts  form  a  class  known  as  Circumstantial  Evidence.-  The  dis- 
tinction has  been  thus  stated  : 

Mr.  Thomas  Starkie.  Evidence.  (1824.  1,13.)  Where  knowledge  cannot  be  ac- 
quired by  means  of  actual  and  personal  observation,  there  are  but  two  modes  by  which 
the  existence  of  a  bygone  fact  can  be  ascertained  :  1st,  By  information  derived  either 
immediately  or  mediately  from  those  who  had  actual  knowledge  of  the  fact ;  or, 
2dly,  by  means  of  inferences  or  conclusions  drawn  from  other  facts  connected  with 
the  principal  fact  which  can  be  sufficiently  established.  In  the  first  case,  the  infer- 
ence is  founded  on  a  principle  of  faith  in  human  veracity  sanctioned  by  experience. 
In  the  second,  the  conclusion  is  one  derived  by  the  aids  of  experience  and  reason  from 
the  connection  between  the  facts  which  are  known  and  that  which  is  unknown.  In 
each  case  the  inference  is  made  by  virtue  of  previous  experience  of  the  connection 
between  the  known  and  the  disputed  facts,  although  the  grounds  of  such  inference 
in  the  two  cases  materially  differ. 

Sir  J.  F.  Stephen.  Indian  Evidence  Act.  (1S72.  p.  38.)  It  will  be  found 
upon  examination  that  inferences  employed  in  judicial  inquiries  fall  under  two 
heads : 

(1)  Inferences  from  an  assertion,  whether  oral  or  documentary,  to  the  truth  of  the 
matter  asserted ; 

(2)  Inferences  from  facts,  which  upon  the  strength  of  assertions  are  believed  to 
exist,  to  facts  of  which  the  existence  has  not  been  so  asserted. 

.  .  .  This  is  the  distinction  usually  expressed  by  saying  that  all  evidence  is  either 
'  direct  or  circumstantial.  .  .  .  The  truth  is  that  each  inference  depends  upon  pre- 
1  cisely  the  same  general  theory.  .  .  .  The  judge  hears  with  his  own  ears  the  state- 
•  ments  of  the  witnesses  and  sees  with  his  own  ejes  the  documents  produced  in  court. 

His  task  is  to  infer  from  what  he  thus  sees  and  hears  the  existence  of  facts  which  he 

neither  sees  nor  hears. 

1  The  word  "evidence"  was  until  the  middle  of  the  1700s  used  distinctively  of  testi- 
monial evidence,  —  circumstantial  evidence  being  either  not  reckoned  with  or  else  con- 
ceived of  under  the  term  "presumptions"  ;  hence,  in  the  trials  of  that  period  "an  evidence" 
is  used  to  mean  "a  witness"  :  1628,  Coke  upon  Littleton,  282,  b  ("Evidence,  evidentia: 
This  word  in  legall  understanding  doth  not  only  containe  matter  of  record,  .  .  .  and 
writings  under  scale,  .  .  .  and  other  writings  without  seale,  .  .  .  which  are  called  evi- 
dences, instnanenta ;  but  in  a  larger  sense  it  containeth  also  testimonia,  the  testimony  of 
witnesses,  and  other  proofes  to  be  produced  and  given  to  a  jury  for  the  finding  of  any  issue 
betweene  the  parties.  And  it  is  called  evidence,  because  thereby  the  point  in  issue  is  to  be 
made  evident  to  the  jury.")  ;  1746,  Lord  Lovat's  Trial,  18  How.  St.  Tr.  798;  1754,  Can- 
ning's Trial,  19  id.,  478,  488,  514,  580. 

2  An  earlier  term  for  this  class  was  "presumptive  evidence."  The  distinction  between 
"presumption"  in  the  sense  of  a  mere  circumstantial  inference  and  in  the  sense  of  a  rule  of 
procedure  affecting  the  duty  of  proof  has  in  modern  times  led  to  confusion.  It  may  be 
noted  here  that  the  term  is  often  met  with  in  the  sense  of  "inference,"  as  applied  to 
the  probative  value  of  ordinary  circumstantial  evidence,  and  as  distinguishing  it  from 
testimonial  evidence:  1810,  Boyle,  C.  J.,  in  Davis  v.  Curry,  2  Bibb,  239  ("Evidence, 
whether  written  or  oral,  is  either  positive  or  presumptive.  Positive  evidence  is  the  direct 
proof  of  the  fact  or  point  in  issue  ;  presumptive  evidence  consists  in  the  proof  of  some  other 
fact  or  facts  from  which  the  point  in  issue  may  be  inferred")  ;  187.3,  Gilpin,  C.  J.,  in  State 
B.  Carter,  1  Houst.  Cr.  C.  402,  411  ("When  the  existence  of  the  principal  facts  is  deduced 
inferentially  by  a  process  of  sound  reasoning  from  facts  or  circumstances  proved  and  es- 
tablished in  the  case,  it  is  termed  presumptive  evidence";  and  he  later  uses  the  phrase 
"circumstantial  or  presumptive  evidence"). 


l.NTKODrcTlOX 


In  tlie  grouping  of  Circumstantial  Evidence  difficulty  has  arisen  front 
not  keeping  in  mind  that  most  circumstantial  evidentiary  facts  must  ul- 
timately in  turn  become  themselves  a  Probandum  and  be  proved  by  testi- 
monial evidence,  and  also  from  confining  the  latter  term  to  assertions  of 
some  main  fact  in  issue.  For  example,  the  finding  of  a  bloody  knife  upon 
the  accused  after  a  secret  killing  is  a  circumstance  from  which  an  important 
inference  may  be  drawn  ;  yet  this  fact  of  the  finding  must  be  proved  by 
some  person's  assertion  ;  here  the  special  rules  of  assertive  or  testimonial 
evidence  must  be  applied  in  weighing  the  assertion,  and  the  orilinary  rules 
of  circumstantial  relevancy  in  weighing  the  fact  of  fintling,  assuming  it  as 
proved  by  the  assertion.  But  this  mixture  of  both  kinds  is  not  necessary 
and  inevitable.  At  one  extreme,  as  in  a  jury's  view  of  a  corpse  or  in  a  matter 
of  judicial  notice,  we  may  have  a  circumstance  given  us  as  the  basis  of  in- 
ference without  the  intervention  of  an  assertion.  At  the  other  extreme, 
we  may  have  assertions,  as  of  the  signing  of  a  deed  or  of  the  perceived  feloni- 
ous abstraction  of  a  bank  note,  directly  positing  the  main  probandum  of 
the  case,  and  needing  no  intervening  inference,  except  from  the  fact  of  the 
assertion.  But  between  these  extremes  lies  the  mass  of  ordinary  evidence, 
for  which  at  least  two  distinct  steps  of  inference  are  required,  —  the  infer- 
ence from  the  fact  of  an  assertion  to  the  matter  asserted,  and  then  the  in- 
ference from  the  matter  asserted  to  another  matter.  Moreover,  just  as  we 
may  need  even  two  or  three  inferences  of  the  latter  sort  before  reaching  a 
main  proposition  of  the  pleadings,  so  (as  in  using  hearsay)  we  may  often 
need  to  use  two  inferences  from  assertions,  —  first  from  one  assertion  on  the 
stand  to  the  fact  of  the  making  of  the  extra-judicial  assertion,  and  then  from 
the  latter  to  the  truth  of  the  matter  asserted  by  it. 

Now,  so  far  as  the  principles  of  proof  are  concerned,  it  is  apparent  that 
it  does  not  matter  how  we  have  come  to  our  knowledge  of  these  so-called 
"circumstances,"  i.e.  things  not  assertions,  —  whether  we  get  at  them 
through  believing  assertions,  or  otherwise ;  what  matters  is  the  nature  of 
the  particular  evidentiary  fact  in  hand,  whether  it  is  assertive  or  circum- 
stantial. In  dealing  with  the  probative  value  of  the  circumstantial  class, 
we  are  to  take  the  alleged  circumstantial  (or  non-assertive)  fact  as  assumedly 
proved,  and  then  determine  its  effect.  It  is  immaterial  whether  it  has  itself 
to  be  proved  by  testimony  (as  ordinarily)  or  by  the  tribunal's  use  of  its 
own  senses  or  existing  knowledge  (as  occasionally).  .  .  . 

§  5.  Sperial  Charactrri.sfics  of  Legal  Proof  in  General.  When  a  fact  is 
offered  as  evidence,  the  very  oftering  of  it  is  an  implication  that  it  has  some 
l>earing  on  the  proposition  at  issue,  —  that  it  tends  naturally  to  produce  a 
conviction  about  that  proposition.  The  situation  is  thus  in  its  elements 
the  same  as  when  the  persons  engaged  are  not  occupied  in  a  legal  controversy. 
One  might  suppose  that  the  question  would  be  essentially  one  of  the  ordi- 
nary laws  of  reasoning,  whether  it  were  to  be  decided  by  a  judge  or  jury,  or 
by  the  au<li('nce  of  a  lecturer,  or  by  a  policeman  notified  of  an  alleged  mis- 
•Icmeanor  in  his  district,  or  by  a  class  in  rhetoric.  But  the  application  of 
the  laws  of  reasoning  is  here  attended  with  peculiar  considerations  not  exist- 
ing for  any  investigation  but  a  judicial  one. 

These  featun-s  of  legal  pr«)of  have  been  emphasized,  from  different  points 
of  view,  by  some  of  the  iu(»st  original  thinkers  in  the  law  of  evidence : 


No.  1.  GENERAL  THEORY  OF  PROOF  9 

Sir  J.  F.  Stephen.  Indian  Evidence  Act.  (1872.  p.  33.)  The  leading  differ- 
ences between  judicial  investigations  and  inquiries  into  physical  nature  are  as  fol- 
lows:  1.  In  physical  inquiries  the  number  of  relevant  facts  is  generally  unlimited, 
and  is  capable  of  indefinite  increase  by  experiments.  In  judicial  investigations  the 
number  of  relevant  facts  is  limited  by  circumstances,  and  is  incapable  of  being  increased . 
2.  Physical  inquiries  can  be  prolonged  for  any  time  that  may  be  required  in  order  to 
obtain  full  proof  of  the  conclusion  reached,  and  when  a  conclusion  has  been  reached, 
it  is  always  liable  to  review  if  fresh  facts  are  discovered,  or  if  any  objection  is  made  to 
the  process  by  which  it  was  arrived  at.  In  judicial  investigations  it  is  necessary  to 
airive  at  a  definite' result  in  a  limited  time;  and  when  that  result  is  arrived  at,  it 
is  final  and  irreversible  with  exceptions  too  rare  to  require  notice.  3.  In  physical 
inquiries  the  relevant  facts  are  usually  established  by  testimony  open  to  no  doubt, 
because  they  relate  to  simple  facts  which  do  not  affect  the  passions,  which  are  ob- 
served by  trained  observers  who  are  exposed  to  detection  if  they  make  mistakes, 
and  who  could  not  tell  the  effect  of  misrepresentation,  if  they  were  disposed  to  be 
fraudulent.  In  judicial  inquiries  the  relevant  facts  are  generally  complex.  They 
affect  the  passions  in  the  highest  degree.  They  are  testified  to  by  untrained  observers 
who  are  generally  not  open  to  contradiction,  and  are  aware  of  the  bearing  of  the 
facts  which  they  allege  upon  the  conclusion  to  be  established.  4.  On  the  other  hand, 
approximate  generalizations  are  more  useful  in  judicial  than  they  are  in  scientific  in- 
quiries, because  in  the  case  of  judicial  inquiries  every  man's  individual  experience  sup- 
plies the  qualifications  and  exceptions  necessary  to  adjust  general  rules  to  particular 
facts,  which  is  not  the  case  in  regard  to  scientific  inquiries.  5.  Judicial  inquiries  being 
limited  in  extent,  the  process  of  reaching  as  good  a  conclusion  as  is  to  be  got  out  of  the 
materials  is  far  easier  than  the  process  of  establishing  a  scientific  conclusion  with 
complete  certainty,  though  the  conclusion  arrived  at  is  less  satisfactory. 

Professor  J.  B.  Thayer.  Preliminary  Treatise  on  Evidence.  (1898.  pp.  271-275.) 
It  is  a  proper  qualification  when  we  use  the  phrase  legal  reasoning ;  not  because,  as 
compared  wuth  reasoning  in  general,  it  calls  into  play  any  different  faculties  or  in- 
volves any  new  principles  or  methods,  or  is  the  creature  of  technical  precepts ;  but 
because  in  law,  as  elsewhere,  in  adjusting  old  and  universal  methods  to  the  immediate 
purposes  in  hand,  special  limitations,  exclusions,  and  qualifications  have  to  be  taken 
into  account.  .  .  .  The  peculiar  character  and  scope  of  legal  reasoning  is  determined 
by  its  purely  practical  aims  and  the  necessities  of  its  procedure  and  machinery. 
Litigation  imports,  for  the  most  part,  as  we  have  seen,  a  contest,  and  adversaries. 
It  has  in  it,  therefore,  a  personal  element,  and  it  requires  not  merely  a  consideration 
of  what  is  just  in  general,  but  of  what  is  just  as  between  these  adversaries.  It  has 
often  to  be  conducted  with  the  aid  of  a  tribunal  whose  peculiarities  in  point  of  num- 
ber and  of  physical  and  mental  capacity,  and  whose  danger  of  being  misled,  must 
cojistantly  be  considered.  It  must  shape  itself  to  various  other  exigencies  of  a  practi- 
cal kind,  such  as  the  time  that  it  is  possible  to  allow  to  any  particular  case,  the  rea- 
sonable limitations  of  the  number  of  witnesses,  the  opportunities  for  reply,  and  the 
chance  to  correct  errors.  It  must  adjust  its  processes  to  general  ends,  so  as  generally 
to  promote  justice,  and  to  discourage  evil,  to  maintain  long-established  rights,  and 
the  existing  governmental  order.  The  judicial  office  is  really  one  of  administration. 
.  .  .  While  these  are  some  of  the  chief  characteristics  of  legal  reasoning,  it  will  be 
noticed  that  they  are  only,  in  the  nature  of  them,  so  many  reasonable  accommoda- 
tions of  the  general  process  to  particular  subject  matters  and  particular  aims. 
Amidst  them  all  the  great  characteristics  of  the  art  of  reasoning  and  the  laws 
of  thought  still  remain  constant.  As  regards  the  main  methods  in  hand,  they  are 
still  those  untechnical  ways  of  all  sound  reasoning,  of  the  logical  process  in  its  normal 
and  ordinary  manifestations ;  and  the  rides  that  govern  it  here  are  the  general  rules 
that  govern  it  everywhere,  the  ordinary  rules  of  human  thought  and  human  experi- 
ence, to  be  sought  in  the  ordinary  sources,  and  not  in  law  books. 


10  INTRODUCTION  No.  1. 

Alexander  M.  Bl'KRiLL.  A  Treatise  on  Circumstantial  Eridcnce.  (1S68.  p.  94.) 
Between  the  results  of  judicial  investigation  of  crime,  and  those  of  certain  philosophi- 
cal inciuiries,  there  exist  analogies  worthy  of  consideration.  Thus,  they  both  have  a 
common  subject,  —  a  past  transaction,  occurrence  or  event,  which  has  had  an  actual, 
though  merol\-  transient  existence;  and  they  have  a  common  immediate  object,  — 
the  discovery  of  its  cause;  and,  in  the  attainment  of  this  object,  they  act  upon  the 
same  general  princijjle.  But  in  all  that  relates  to  the  particular  mode  and  course  of 
inquiry,  and  what  may  be  called  its  external  circumstances,  the  resemblance  again 
fails,  and  further  particulars  of  difference  and  contrast  are  found  to  present  them- 
selves.    The  most  important  of  these  will  now  be  enumerated. 

1.  The  philosophic  inquirer  deals  with  the  particular  cases  which  come  under  his 
observation,  for  the  sake  of,  and  with  reference  to  some  general  truth  to  be  eventually 
deducefl  from  them.  It  is,  moreover,  a  characteristic  of  the  occurrences  or  events 
to  which  his  attention  is  directed,  that  they  are  liable  to  be  repeated  in  the  same  or 
nearly  the  same  form,  or  happen  again,  inider  precisely  similar  circumstances.  In 
fact,  it  is  to  the  recurrence  of  a  phenomenon,  in  some  form  or  other,  tliat  he  constantly 
looks  forward,  and  upon  it  that  he  often  confidently  relies,  either  to  complete  his 
obser\ations,  or  to  verify  and  confirm  their  results. 

But  the  cases  with  which  the  judicial  investigator  —  the  juror  —  has  to  deal, 
have  not,  in  general,  this  quality  or  capacity  of  recurrence  or  repetition,  in  the  same 
or  similar  forms.  The  same  combination  of  circumstances  which  go  to  make  up  a 
case  of  crime,  cannot,  where  they  are  at  all  numerous,  be  expected  to  occur  again. 
And  even  if  it  could  and  did  occur,  it  would  answer  no  purpose ;  for  it  is  the  identical 
transaction  which  took  place,  and  as  it  took  place,  which  is  to  be  the  sole  subject  of 
inquiry.  The  investigator  deals  with  the  cases  submitted  to  him,  for  their  oion  sake, 
and  for  the  express  purpose  of  ascertaining  the  truth  of  every  fact  composing  them ; 
and  not  at  all  with  reference  to  anything  that  may  happen  or  be  discovered  in  future. 
He  looks  exclusively  to  the  past,  as  well  for  the  facts  from  which  he  is  to  reason,  as 
for  the  experience  which  enal>les  him  to  reason  accurately.  His  object  is  not  to  es- 
talilish  a  general  principle,  but  to  ascertain  the  existence  or  non-existence  of  a  partic- 
ular disputed  fact.  Hence,  the  very  first  step  he  is  obliged  to  take,  is  actually  to 
revive  and  recall  his  subject.  .  .  .  It  is  in  this  peculiar  process  of  revival  and  re- 
construction, that  the  characteristic  difficulties  of  judicial  inquiry  by  means  of  cir- 
cumstantial evidence,  are  found  to  consist,  as  may  appear  from  the  following  further 
considerations. 

2.  In  the  majority  of  instances,  the  philosophical  investigator  combines  with  the 
character  of  intiuirer,  that  of  original  observer,  also.  He  has  him.self  witnessed  the 
occurrence,  the  cause  of  which  he  seeks  to  discover.  He  has  observed  the  phenomena, 
not  only  once,  but  repeatedly,  —  ob.servetl  them  as  they  occurred,  and  with  the  ut- 
most deliberation  and  precision,  —  observed  them  for  the  very  purpose  of  deducing 
a  result.  His  impressions  jf  them  are  direct,  and  therefore  of  a  corresponding  per- 
fection. If  he  ever  relies  upon  the  observations  of  others,  it  is  only  such  as  he  has 
found  to  be  worthy  of  confidence,  because  made  with  the  same  care  that  he  himself 
would  have  bestowed ;  and  even  these  he  sometimes  prefers  to  repeat,  and  thus  to 
test  by  his  own  personal  observation.  He  reasons  and  draws  his  conclusions  con- 
fidently, because  he  hnoies  the  fa<'ts  upon  which  they  are  based. 

But  with  the  juror,  the  case  is  different.  He  knows,  or  is  presumed  to  know  noth- 
ing of  the  transaction  into  which  he  is  called  to  intpiire.  He  has  not  witnessed  one 
—  even  the  mo>t  trifling  —  of  its  component  circumstances.  For  his  knowledge 
of  each  of  them,  in  its  character  of  a  past  event,  he  must  rely  on  the  observations  of 
others.  .  .  .  Hence,  his  obs<Tvati(m  is  of  an  indirect,  dependent,  and  therefore 
inferior  kind. 

'.i.  Again,  the  disa<lvantage  ari.sing  from  the  last  consideration  is  often  increased 
by  the  intrinsic  character  of  the  ohsermtimis  themselves,  as  originally  made  by  the 
vyitncss.     The  j)hilosoi)hifal  observer  cither  actually  goes  in  search  of  his  subject,  or, 


No.  1.  GENERAL  THEORY  OF  PROOF  11 

where  it  is  suddenly  presented  to  his  view,  arrests  and  keeps  it  before  him,  and  in 
both  instances,  for  the  very  purpose  of  examination.  He  observes  with  express 
reference  to  a  specific  object  and  result ;  and  his  predetermination  always  is  that  his 
observation  shall  be  complete  and  correct  to  the  minutest  particular  possible.  .  .   . 

But  the  observer  of  the  facts  and  appearances  which  constitute,  or  are  connected 
with  criminal  action,  —  especially  of  those  which  precede  or  accompany  the  com- 
mission of  crime,  —  the  observer  who  is  to  appear  in  the  future  character  of  a  judi- 
cial witness,  often  acts  under  very  different  circumstances,  and  in  a  very  different 
frame  of  mind.  Many  of  the  facts  and  appearances  just  mentioned  (including 
frequently  some  of  the  most  important  materials  of  evidence)  not  only  present 
themselves  to  the  senses,  incidentally,  unexpectedly  and  transiently,  but  are,  out- 
wardly, and  as  they  present  themselves,  of  the  most  ordinary  and  familiar  kind, 
having  nothing  on  their  face  to  attract  or  arrest  attention  in  any  considerable  degree ; 
and  not  to  be  distinguished  from  the  great  mass  of  facts  and  events  which  are  con- 
stantly passing  before  the  eyes  of  men,  in  their  daily  public  intercourse  with  each 
other.  Hence,  where  they  are  perceived  merely  by  the  organs  of  sense,  without  any 
act  on  the  part  of  the  observer,  to  give  them  connection  with  himself,  they  are  usually 
perceived  in  a  general  and  superficial  manner.  .  .  . 

6.  But  supposing  the  facts  fairly  placed  before  the  juror,  by  evidence  to  which  no 
objection  on  the  score  of  admissibility  exists.  They  are,  in  the  next  place,  to  be  put 
together ;  to  be  considered  in  connection ;  to  be  used  in  reconstructing  the  case. 
Assuming  all  those  testified  to,  to  have  been  reported  accurately,  to  be,  in  short,  the 
actual  facts  as  they  occurred,  a  new  difficulty  may  arise.  Some  fact  is  seen  to  be 
wanting ;  it  has  not  been  proved.  And  some  fact  may  be  wanting,  the  absence  of 
which  is  not  noticed.  .  .  .     The  philosophic  anatomist  may,  by  the  aid  of  scientific 

'    rules,  build  up,  with  accuracy,  an  entire  skeleton,  from  a  single  fossil  bone.     But  the 
(j  juror  cannot  supply  a  single  fact ;  he  cannot  add  one  component  element  to  the  num- 
ber of  those  which  have  been  "retrieved  "  from  the  past ;  he  cannot  go  a  step  beyond 
the  evidence.  .  .  . 

7.  The  great  characteristics  of  philosophical  inquiry  are  deliberation  and  pre- 
cision ;  and,  as  necessary  conditions  of  these,  mental,  if  not  physical,  abstraction, 
and  unlimited  freedom  in  every  sense.  We  have  seen  with  what  undivided  attention 
and  laborious  accuracy,  the  investigator  in  physical  or  astronomical  science  collects 
his  facts.  He  observes  and  registers  with  the  utmost  care.  He  rarely,  especially 
on  a  subject  not  before  examined,  attempts  to  draw  a  conclusion  from  a  single  obser- 
vation, or  set  of  observations.  He  observes  and  registers  again  and  again.  .  .  . 
In  all  this,  he  is  under  no  sort  of  constraint.  He  is  not  necessarily  confined  to  any 
particular  place.     He  may  retire  into  the  most  perfect  seclusion,  not  admitting  even 

'  the  presence  of  his  associates  in  inquiry ;  and  he  often  adopts  this  course,  to  secure 
that  mental  composure  which  such  investigations  generally  require.  He  is  equally 
at  liberty,  in  regard  to  time.  He  may  decide  now,  a  month  or  a  year  hence,  as  he 
may  choose.  He  constantly  postpones  decision  until  he  can  reexamine  his  facts, 
or  confirm  them  by  new  observations.  And  where  he  does  decide,  he  often  does  so 
provisionally. 

But  the  juror,  with  his  eleven  associate  inquirers  after  truth,  finds  himself  under 
very  different  circumstances.  The  processes  of  collecting  the  facts,  and  deducing 
from  them  the  inference  desired,  are,  in  his  case,  if  not  positively  combined,  at  least 
so  hedged  in  by  the  common  limits  of  a  single  inquiry,  as  not  to  admit  of  separation 
for  any  practical  purpose.  .  .  . 

But  this  is  not  all.  From  the  moment  the  juror  enters  upon  the  business  —  with 
him,  the  duty  —  of  inquiry,  to  the  moment  after  his  verdict  is  pronounced,  he  acts 
under  the  almost  cxjnstant  pressure  of  immediate  personal  constraint.  From  the 
moment  he  enters  the  court  room,  in  obedience  to  the  summons  of  the  law,  until 
discharged,  he  places  himself  under  judicial  control.  He  renounces,  pro  hoc  vice,  his 
personal  freedom.  .  .  . 


12  INTRODUCTION  No.  1. 

More  than  this,  —  lie  must  observe,  inquire,  examine,  infer,  qll  but  decide,  in 
jiiihlic;  subject  to  all  the  exciting  and  exhausting  influences  which  confinement  m 
the  immtiliate  presence  and  close  contact  of  crowded  assemblages  so  naturally  exerts 
upon  the  human  frame  ;  and  this  he  must  do  day  after  day,  and  sometimes  for  weeks 
together.  He  cannot  withdraw  to  his  own  apartment,  for  jjrivate  reflection  on  the 
momentous  dwision  he  may  be  about  to  make.  He  must,  if  he  have  not  done  it 
before,  carry  on  the  processes  of  recalling  the  facts  proved  ;  passing  them  through 
his  mind,  in  a  certain  order  and  combination;  and  extracting  a  satisfactory  con- 
clusion, in  the  constant  presence  and  close  i)roximity  of  all  his  associates. 

Finally,  the  juror  is  limited  and  constrained  in  the  important  particular  of  time. 
A  trial,  once  entered  upon,  cannot  be,  for  any  considerable  period,  postponed.  The 
process  of  collecting  the  facts  once  closed,  those  of  examination  and  decision  must 
iinmetliately  follow.  There  can  be  no  delay  until  new  light  be  obtained  from  further 
oliservations.  .  .  .  The  efl"ect,  and,  indeed,  the  avowed  object  of  the  personal  con- 
straint to  which  he  is  now  more  stringently  subjected  than  ever,  is  to  hasten  and 
enforce  decision.   .   .   .  "■""- 

The  foregoing  comprise  the  principal  points  of  view  in  which  a  course  of  philosophi- 
cal incpiiry,  and  the  process  of  a  criminal  trial  by  jury,  as  means  of  discovering  a 
desired  truth,  in  the  way  of  presumptive  inference  from  other  known  truths,  may  be 
made  subjects  of  comparison. 

§  6.  Judge  and  Jury  as  a  Tribunal ;  Admissibility,  as  distinguished  from 
Proof.  The  (livLsion  of  function  between  judge  ami  jury  creates  a  special 
condition  peculiar  to  litigious  proof.  Judicial  evidence  involves  always 
two  distinct  processes  —  one  concerning  the  judge,  and  the  other  concern- 
ing the  jury.  The  former  is  Admissibility  ;  the  latter  is  Demonstration  or 
Proof,  —  whether  a  particular  fact  is  fit  to  be  considered,  and  whether  it 
with  others  suffices  for  a  demonstration.  For  example,  the  existence  of  a 
habit  of  doing  a  particular  act  under  certain  circumstances  points  forward 
to  a  doing  of  the  act  under  those  circumstances  on  a  particidar  occasion. 
This  is  not  a  demonstration  that  the  act  was  done,  for  the  influence,  of 
the  habit  may  have  been  counteracted  by  other  considerations ;  there  is 
not  an  invariable  .sequence.  The  jury  may  ultimately  decide  that  the 
habit,  with  all  the  other  circumstances,  is  not  adequate  to  prove  the 
doing ;  though  the  judge  may  at  the  outset  have  ruled  that  the  course  of 
conduct  was  at  least  sufficiently  regular  to  have  some  value  as  an  indi- 
cation. The  latter  question  is  one  of  Admissibility,  and  under  our  sys- 
tem is  a  preliminary  one  for  the  judge  only.  The  former  question  is  one 
of  Weight,  or  completeness  of  Proof;  it  is  the  final  one,  and  is  for  the 
jury. 

(1)  Admissibility  thus  rai.ses  a  peculiar  and  otherwise  anomalous  class  of 
questions.  While  the  historian  or  the  naturalist  may  as  he  pleases  set  aside 
and  preserve  data  of  the  slightest  helpfidness,  or  may  pass  judgment  ui)on 
his  facts  immediately  and  finally,  the  legal  tribunal  is,  with  us,  divided  in 
function  ;  the  judge  pa.s.ses  first  upon  the  evidence  and  sets  aside  the  tidbits 
for  the  jury  ;  that  which  is  not  worth  considering,  for  one  reason  or  another 
aifecting  its  value,  never  reaches  the  auxiliary  functionaries,  the  jurors. 
This  process,  then,  of  determining  the  Admissibility  of  evidence,  as  dis- 
tinguished from  demonstrative  and  conclusive  (|uality,  is  from  the  point  of 
view  of  I>ogie  a  decidedly  unique  process,  worked  out  clearly  in  no  other 
flepartment  of  life.  Little  considered  by  our  logicians,  it  is  a  commonplace 
in  the  judicial  experience.  It  owes  its  persistence  and  emphasis  (peculiar 
U.S  it  is  to  the  .\ngl()-Aiucrican  legal  system)  in  some  part,  no  doul)t,  to  the 


No.  1.  GENERAL  THEORY  OF  PROOF  13 

tradition  of  our  practice  which  looks  almost  solely  to  the  parties  in  a  case 
for  such  evidence  as  may  be  mustered,  leaving  the  judge  almost  entirely 
passive ;  for  the  question  of  the  uselessness,  or  the  contrary,  of  the  spending 
of  time  on  evidence  offered  is  thus  constantly  required  to  be  raised  and  set- 
tled at  the  outset  in  a  trial.  But  chiefly  it  owes  its  origin,  maintenance,  and 
system  to  the  separation  of  function  between  judge  and  jury.  If  this  separa- 
tion of  judge  and  jury  had  not  existed  as  it  has,  with  all  its  history,  nothing 
marked  would  probably  have  developed.  Under  the  Continental  systems, 
in  which  the  jury  is  but  a  recent  borrowing,  little  of  the  sort  appears. 
.  This  feature,  characteristic  of  legal  controversy  in  general,  has  a  marked 
effect,  in  that  the  Court  will  of  course  allow  to  be  considered  only  such  evi- 
dence as  is  worth  submitting  to  men  who  will  judge  only  by  the  most  com- 
mon and  practicable  tests.  But  to  a  more  important  extent  the  effect 
is  to  require  a  generally  higher  degree  of  probative  value  for  all  evidence  to 
be  submitted  to  a  jury  than  would  be  asked  in  ordinary  reasoning.  The 
judge,  in  his  efforts  to  prevent  the  jury  from  being  satisfied  by  matters  of 
slight  value,  capable  of  being  exaggerated  by  prejudice  and  hasty  reasoning, 
has  constantly  seen  fit  to  exclude  matter  which  does  not  rise  to  a  clearly 
sufficient  degree  of  value.  In  other  words,  Admissibility  denotes,  first  of 
all,  something  more  than  a  ininimum  of  prohatire  value.  Each  single  piece 
of  evidence  must  have  a  plus  value.  This  feature  is  seen  in  the  form  of 
scores  of  detailed  and  artificial  rules,  applying  and  shaping  the  fundamental 
principles  of  probative  value,  i.e.  the  rules  of  Admissibility,  framed  in  pursu- 
ance of  this  spirit  of  safeguarding  the  decision  of  the  jury,  and  on  the  whole 
with  good  practical  results  : 

Mr.  Edmund  Burke.  Report  to  the  House  of  Commons.  (Debrett's  Hastings' 
Trial,  1796.  Part  VII,  Suppl.  p.  xliii,  31  Pari.  Hist.  357.)  In  the  trials  below,  the 
Judges  decide  on  the  competency  of  the  evidence  before  it  goes  to  the  jury,  and  (under 
the  correctives  in  the  use  of  their  discretion,  stated  before  in  this  report)  with  great 
propriety  and  wisdom.  Juries  are  taken  promiscuously  from  the  mass  of  the  people ; 
they  are  composed  of  men  who  in  many  instances,  in  most  perhaps,  were  never 
concerned  in  any  causes,  judicially  or  otherwise,  before  the  time  of  their  service. 
They  have  generally  no  previous  preparation  or  possible  knowledge  of  the  matter  to 
be  tried ;  and  they  decide  in  a  space  of  time  too  short  for  any  nice  or  critical  dis- 
quisition. These  Judges,  therefore,  of  necessity  must  forestall  the  evidence  where 
there  is  a  doubt  on  its  competence,  and  indeed  observe  much  on  its  credibility,  or 
the  most  dreadful  consequences  might  follow.  The  institution  of  juries,  if  not  thus 
qualified,  could  not  exist. 

BosANQUET,  J.,  in  Wright  v.  Tatham.  (1837.  7  A.  &  E.  375.)  [The  Ecclesiastical 
courts]  are  constituted  upon  principles  very  different  from  those  which  regulate 
the  courts  of  common  law.  Where  judges  are  authorized  to  deal  both  with  the  facts 
and  the  law,  a  much  larger  discretion  with  respect  to  the  reception  of  evidence  may 
not  imreasonably  be  allowed  than  in  courts  of  common  law,  where  the  evidence,  if 
received  by  the  judge,  must  necessarily  be  submitted  entire  to  the  jury.  By  the 
rules  of  evidence  established  in  the  courts  of  law,  circumstances  of  great  moral  weight 
are  often  excluded,  from  which  much  assistance  might  in  particular  cases  be  afforded 
in  coming  to  a  just  conclusion,  but  which  are  nevertheless  withheld  from  the  con- 
sideration of  the  jury  upon  general  principles,  lest  they  should  produce  an  undue 
influence  upon  the  minds  of  persons  unaccustomed  to  consider  the  limitations  and 
restrictions  which  legal  views  upon  the  subject  would  impose. 

§  7,  (2)  Proof,  on  the  other  hand,  is  the  result  of  that  natural  process 
of  mind  which  all  men  would  use  in  weighing  the  evidence  that  has  already 


14  INTRODUCTION  No.  1. 

heen  admitted.  Judges  constantly  find  it  necessary  to  warn  us  that  their 
function,  in  determining  AdmissihiHty,  is  not  that  of  final  arbiters,  hut 
merely  of  preliminary  testers,  i.e.  that  the  evidentiary  fact  offered  does  not 
need  to  have  strong,  full,  superlative,  probative  value,  does  not  need  to 
involve  demonstration  or  to  produce  persuasion  by  its  sole  and  intrinsic 
force,  but  merely  to  be  worth  consideration  by  the  jury.  It  is  for  the  jury 
to  give  it  the  appropriate  weight  in  effecting  persuasion.  The  rule  of  law 
which  the  judge  employs  is  concerned  merely  with  admitting  the  fact  through 
the  evidentiary  portal. 

Mr.  W.  D.  Ev.ws.  Notes  to  Pothieron  Obligations.  (1806.  II,  157  ;  No.  16,  §  VI.) 
The  general  rules  of  law  concerning  the  admission  and  sufficiency  of  evidence,  and 
the  particular  conclusion  which  a  jury  may  draw  from  the  evidence  before  them  in  a 
particular  case,  are  two  things  which,  as  I  have  already  more  than  once  observed, 
whilst  they  differ  most  essentially  in  their  nature  and  principle,  are  very  subject  to 
be  confounded,  and  which  tiierefore  in  every  discussion  should  be  most  carefully 
kept  distinct. 

T\sd.klX.  •!.,  in  Wright  y.Tathnm.  (1837.  7  A.  &  E.  407.)  The  judge  who  pre- 
sides at  the  trial,  by  admitting  this  evidence,  is  not  determining,  nor  has  he  any  right 
to  determine,  the  C|iiestion  of  the  [testamentary]  competency  of  the  testator.  That  is 
a  question  which  the  jury  are  to  decide,  after  the  termination  of  a  long  course  of  con- 
flicting evidence.  All  that  the  judge  has  to  determine  is  whether  a  particular  piece 
of  evidence  is  at  a  particular  period  of  the  cause  admissible  for  the  consideration  of 
the  jury  as  the  matter  then  stands. 

Proof,  then,  is  obviously  a  distinct  thing  from  Admissibility ;  because 
each  evidential  fact  is  offered  separately,  and  we  could  not  expect  any 
one  fact  to  produce  demonstration.  Since  the  production  of  evidential 
facts  takes  time,  and  one  fact  must  precede  another,  we  do  not  come 
to  the  question  of  Proof  until  all  the  evidence  is  in  and  the  jury  is  ready 
to  retire. 

The  principles  of  Proof,  then,  represent  the  natural  process  of  the  mind 
in  dealing  with  the  evidential  facts  after  they  are  admitted  to  the  jury; 
while  the  rules  of  Admissibility  represent  the  artificial  legal  rules  peculiar 
to  our  Anglo-American  jury-system.  Hence  the  former  should  be  studied 
first.  They  bring  into  play  only  those  reasoning  processes  which  are  al- 
ready the  possession  of  intelligent  and  educated  persons.  They  familiarize 
the  student  with  the  materials  most  commonly  presented  in  trials  at  law, 
and  thus  prepare  him  to  take  up  more  readily  the  artificial  rules  of  Admis- 
sibility devised  by  judicial  experience  for  safeguarding  legal  investigations 
of  fact. 

Moreover,  this  process  of  Proof  is  after  all  the  most  important  in  the 
trial.  The  trial  culminates  in  either  Proof  or  non-Proof.  When  the  evi- 
dence is  all  in,  the  counsel  sets  himself  to  his  ultimate  and  crucial  task,  i.e. 
that  of  persuading  the  jury  that  they  should  or  should  not  believe  the  fact 
alleged  in  the  issue.  To  do  this,  he  must  reason  naturally,  as  all  men  reason 
and  as  juries  reason.  He  must  have  familiarized  himself  with  the  logical 
processes  which  men  naturally  use  and  with  general  experience  as  to  the 
classes  of  inferences  commonly  called  for  in  legal  trials.  Here  he  has  no  use 
for  the  artificial  rules  of  Admissibility.  Those  have  been  disposed  of,  at 
the  out.set,  by  the  judge.  The  evidence  is  in,  and  the  question  how  is. 
What  is  its  effect  ?  The  study  of  the  principles  of  Proof  is  thus  an  essential 
part  of  the  lawyer's  equipment  in  dealing  with  Evidence.     All  the  artificial 


No.  2.  GENERAL  THEORY  OF  PROOF  15 

rules  of  Admissibility  might  be  abolished  ;  yet  the  principles  of  Proof  would 
remain,  so  long  as  trials  remain  as  a  rational  attempt  to  seek  the  truth  in 
legal  controversies. 

The  proper  order  of  study  is  therefore : 

1.  The  Principles  of  Judicial   Proof,  as  contained  in  logic,  psychology,  ^ 
and  gejieraLexperience. 

II.    The  Legal  Rules  of  Admissibility. 

The  first  of  these  is  the  subject  of  this  volume.  The  second  is  the  sub- 
ject of  the  present  Compiler's  Cases  on  Evidence  (2d  ed.,  1913). 

2.  John  H.  Wigmore,  Principles  of  Judicial  Proof.      (1913.)  ^ 

Modes  of  Inference  and  Proof.  We  thus  take  up  first  the  inquiry  :  What 
is  the  logical  form  of  inference  or  proof  employed  in  the  use  of  litigious  evi- 
dence ?     And  what  are  its  standards  or  tests  ? 

§  1.  Form  of  Argument  is  Inductive.  The  process  of  passing  upon  pro- 
bative value  is  and  must  be  based  ultimately  on  the  canons  of  ordinary 
reasoning,  whether  explicitly  or  implicitly  employed.  It  is  therefore  neces- 
sary to  review  the  distinction  which  Logic  makes  between  the  two  great 
types  of  Argument  ^  or  Proof,  —  the  Deductive  and  the  Inductive  forms. 
Modern  Logic  looks  at  this  distinction  without  prejudice.  Its  tendency  is 
to  accept  both  types  as  capable  of  reduction  to  a  single  one.  Neverthe- 
less the  distinction  is  a  practical  and  substantial  one,  particularly  in  liti- 
gious proof.  It  is  set  forth  with  clearness  and  brevity  by  an  eminent 
authority : 

Professor  Alfred  Sidgwick.  Fallacies;  A  View  of  Logic  from  the  Practical  Side. 
(1884.  pp.  212  fF.)  The  real  foundation  of  Proof  is  always  the  recognition  of  resem- 
blance and  difference  between  things  or  events  known  and  observed,  and  those  which 
are  on  their  trial,  —  whether  such  recognition  is  based  (1)  on  knowledge  already 
reached  and  formulated  in  names  or  propositions  or  (2)  on  direct  observation  and 
experiment.  (1)  In  proportion  as  we  openly  and  distinctly  refer  to  know^n  principles 
(already  generalized  knowledge)  is  Proof  deductive;  (2)  in  proportion  as  we  rapidly 
and  somewhat  dimly  frame  new  principles  for  ourselves  from  the  cases  observed  is 
Proof  inductive,  empirical,  or  (in  its  loosest  form)  analogical.  .  .  .  The  whole  history 
of  the  rise  and  growth  of  knowledge  (it  has  been  also  already  remarked)  is  a  record 
of  fruitful  rivalry  and  interaction  between  two  opposite  processes.  Observation  of 
facts  has  demanded  theory  —  statement  of  "laws"  or  uniformities  —  to  explain, 
and  even  to  name,  the  things  and  events  observed  ;  theory  in  its  turn  has  always  been 
more  or  less  liable  to  purging  criticism  of  "fact."  .  .  . 

Strictly  speaking  all  Proof,  so  far  as  really  proof,  is  deductive.  That  is  to  say, 
unless  and  until  a  supposed  truth  can  be  brought  under  the  shadow  of  some  more 
certain  truth,  it  is  self-supporting  or  circular.  Unless  we  have  some  more  compre- 
hensive and  better-tested  generalization  within  the  sweep  of  which  to  bring  our  Thesis, 
we  reach  no  foundation  broader  than  itself ;  no  assurance  beyond  what  may  be  de- 
rived from  the  fact  that  nothing  has  yet  been  found  to  contradict  the  theory.  For 
two  elements,  express  or  implied,  are  required  for  all  rationalization  :  (1)  a  Principle 
or  abstract  indication  (an  assertion  that  a  certain  sign  is  trustworthy) ;  (2)  an  Appli- 
cation of  such  Principle,  or  an  assertion  that  the  sign  is  present  in  the  case  or  cases 
contemplated  by  the  Thesis.  In  other  words  all  rationalization  may  be  represented 
syllogistically.  .  .  .     Just  as  Explanation  always  demands  a  reference  to  some  wider 

'  [This  passage  is  adapted  from  the  same  author's  Treatise  on  Evidence  (1905.  Vol.  I, 
§§30-36).] 

'  "  Argument  "  is  here  used  in  the  logician's  sense  of  a  "  pioposed  inference." 


16  IXTRODrCTlON  No-  2. 

Generality  than  that  which  is  to  \>e  explained,  so  Proof  always  demands  a  reference 
to  some  wider  Generality  than  that  which  is  to  he  proved.  To  explain  and  to  prove 
consist  essentially  in  this.  Both  are  forms  of  "rationalization."  But  there  is  yet 
a  meaning  in  the  distinction  [between  inductive  and  deductive],  and,  with  certain 
limitations  and  apologies,  I  propose  to  make  some  use  of  it. 

Although  the  dei)endence  of  any  Thesis  on  its  Reason  must  be  rationalized  —  i.e. 
must  have  the  underlying  principle  made  clear  —  before  the  testing  operation  can  be 
<-alletl  com|)lete,  yet  in  reganl  to  special  dangers  it  makes  considerable  difference 
whether  that  principle  is  at  first  definitely  apprehended  or  not,  —  whether  (as  it  is 
<t)mmonly  expresstnl)  the  Proof  professes  to  rely  (1)  upon  laws  known  or  supposed 
to  l)e  true,  or  (2)  upon  facts  observeil  or  supposed  to  be  observed.  We  must  dis- 
tinguish, then,  as  far  as  jjossible.  Ix'tween  that  kind  of  Proof  which  rests  openh/  and 
dislinctl}/  upon  already  generalized  knowledge  —  Deductive  Proof  —  and  that  which 
rests  upon  what  nuiy  be  loosely  described  as  "  isolated  fndu''  or  "perception  of  re- 
semblance and  difference"  or  "observation  and  experiment"  .  .  .  —  that  which  is 
commonly  known  in  its  highest  form  as  Inductive  Proof,  and  in  its  lowest  form  as  the 
Argument  from  Analogy.  The  required  limitations  in  preserving  the  distinction 
apjH'ar  to  be,  in  the  first  place,  a  clear  recognition  that  although  in  Induction  the 
Principle  or  Law  connecting  the  ca.ses  is  in  the  case  of  Inference  commonly  dropped 
out  of  sight,  or  at  least  left  highly  indistinct,  yet  the  whole  cogency  of  Inductive 
Profif  depends  uijon  the  extent  to  which  such  principle  is  first  rendered  definite  and 
then  confronted  with  observable  or  admitted  fact.  .  .  .  The  second  difficulty  in 
preserving  the  distinction  lies  in  the  fact  that  as  a  rule  the  Empirical  and  Deductive 
processes  are  found  in  combination,  l)oth  being  employed  on  tlie  same  subject-matter. 
.  .  .  These  two  considerations  make  it  of  course  extremely  difficult  in  practice  to 
laljel  every  argument  at  once  with  one  or  the  other  name.  Sometimes,  as  where  the 
Reason  is  a  direct  statement  of  the  Principle  itself,  or  again  where  it  consists  of  a 
record  of  some  experiment,  no  hesitation  need  practically  be  felt  as  to  where  the 
danger  lies ;  but  in  a  large  number  of  cases  we  have  no  means  of  deciding  whether 
the  argument  may  best  be  classed  as  empirical  or  deductive  or  both.  .  .  .  But, 
because  the  distinction  breaks  down  when  pressure  is  put  upon  it,  we  need  not  con- 
sider it  wholly  worthless.  It  possesses  a  solid  core  of  applicability,  and  if  we  can  be 
content  to  use  it  as  a  rough  guide  in  finding  the  weak  point  of  an  argument,  much 
value  may  still  be  extracted  from  it  in  economy  of  time.  .  .  .  However  we  choose 
to  name  the  two  different  kinds  of  arguments,  the  distinction  between  them  has  a 
certain  real  importance,  as  already  shown ;  and  all  that  is  intended  to  be  done  with 
it  is  to  recognize  that  so  far  as  the  given  argument  may  be  seen  to  belong  to  one  or 
the  other  class,  so  far  we  are  already  on  the  track  of  special  dangers. 

A  brief  examiimtion  will  show  that  in  the  offering  of  evidence  in  court 
the  form  of  argument  is  always  inductive.  Suppose,  to  prove  a  charge  of 
murder,  evidence  is  offered  of  the  defendant's  fixed  design  to  kill  the  de- 
cea.sed.  The  form  of  the  argument  is  :  "  A  planned  to  kill  B  ;  therefore,  A 
probably  did  kill  li."  It  is  clear  that  we  have  here  no  semblance  of  a  syllo- 
gism. The  form  of  argument  is  exactly  the  same  Avhen  we  argue:  "  Yes- 
tenhiy,  Dec.  :\\,  A  slipped  on  the  sidewalk  and  fell ;  therefore,  the  sidewalk 
was  probably  coated  with  ice";  or,  "To-day  A,  who  was  bitten  by  a  dog 
yesterday,  died  in  convulsions;  therefore,  the  dog  probably  had  hydro- 
phobia." So  with  all  other  legal  evidentiary  facts.  We  may  argue  :  "  Last 
week  the  witness  A  liad  a  (piarrel  with  the  defendant  B  ;  therefore,  A  is  prob- 
ably biased  against  B";  "A  was  found  with  a  i)loody  knife  in  B's  house; 
therefore,  A  is  probably  (he  iminlerer  of  B";  "After  B's  injury  at  A's 
machinery,  A  repaired  the  machinery ;  therefore,  A  probably  acknowledged 
that  the  machinery  was  negligently  defective"  ;  "  A,  an  adult  of  sound  mind 


No.  2.  GENERAL  THEORY  OF  PROOF  17 

and  senses,  and  apparently  impartial,  was  present  at  an  affray  between  B 
and  C,  and  testifies  that  B  struck  first ;  therefore,  it  is  probably  true  that 
B  did  strike  first."     In  all  these  eases,  we  take  a  single  or  isolated  fact,  and 

iupon  it  base  immediately  an  inference  as  to  the  proposition  in  question. 
This  is  the  Inductive  or  Empiric  process. 

It  may  be  replied,  however,  that  in  all  the  above  instances,  the  argument 
is  implicitly  based  upon  an  understood  law  or  generalization,  and  is  thus 
capable  of  being  expressed  in  the  deductive  or  syllogistic  form.  Thus,  in 
the  first  instance  above,  is  not  the  true  form  :  "  Men's  fixed  designs  are  proba- 
bly carried  out;  A  had  a  fixed  design  to  kill  B ;  therefore,  A  probably  car- 
ried out  his  design  and  did  kill  B"  ?  There  are  two  answers  to  this.  (1) 
It  has  just  been  seen  that  every  inductive  argument  is  at  least  capable  of 
being  transmuted  into  and  stated  in  the  deductive  form,  by  forcing  into 
prominence  the  implied  law  or  generalization  on  which  it  rests  more  or  less 
obscurely.  Thus  it  is  nothing  peculiar  to  litigious  argument  that  this  possi- 
bility of  turning  it  into  deductive  form  exists  here  also.  It  is  not  a  question 
of  what  the  form  might  be, — for  all  inductive  may  be  turned  into  deductive 
forms,  —  but  of  what  it  is,  as  actually  employed  ;  and  it  is  actually  put  for- 
ward in  inductive  form.  (2)  Even  supposing  this  transmutation  to  be  a 
possibility,  it  would  still  be  undesirable  to  make  the  transmutation  for  the 
purpose  of  testing  probative  value  ;  because  it  would  be  useless.  We  should 
ultimately  come  to  the  same  situation  as  before.  Thus,  in  one  of  the  in- 
stances above  :  "  A  repaired  machinery  after  the  accident ;  therefore,  A  was 
conscious  of  a  negligent  defect  in  it"  ;  suppose  we  turn  this  into  deductive 
form  :  "  People  who  make  such  repairs  show  a'  consciousness  of  negligence  ; 
A  made  such  repairs ;  therefore,  A  was  conscious  of  negligence."  We  now 
have  an  argument  perfectly  sound  deductively,  i.e.  if  the  premises  be  con- 
ceded. But  it  remains  for  the  Court  to  declare  whether  it  accepts  the 
major  premise,  and  so  the  Court  must  now  take  it  up  for  examination,  and 
the  proponent  of  the  evidence  appears  as  its  champion  and  his  argument 
becomes  :  "  The  fact  that  people  make  such  repairs  indicates  (shows,  proves, 
probably  shows,  etc.)  that  they  are  conscious  of  negligence."  But  here  we 
come  again,  after  all,  to  an  inductive  form  of  argument.  The  consciousness 
of  negligence  is  to  be  inferred  from  the  fact  of  repairs',  —  just  as  the  presence 
of  electricity  in  the  clouds  was  inferred  by  Franklin  from  the  shock  through 
the  kite  string,  i.e.  by  a  purely  inductive  form  of  reasoning.  So  with  all 
other  evidence  when  resolved  into  the  deductive  form ;  the  transmutation 
is  useless,  because  the  Court's  attention  is  merely  transferred  from  the  syllo- 
gism as  a  whole  to  the  validity  of  the  inference  contained  in  the  major  prem- 
ise; which  presents  itself  again  in  inductive  form.  For  all  practical  pur- 
poses, then,  it  is  sufficient  to  treat  the  use  of  litigious  evidentiary  facts  as 
inductive  in  form. 

§  2.  Practical  Requirements  of  the  Process,  to  constitute  Proof.  The  next 
inquiry  is.  What  are  the  peculiar  dangers  of  the  argument,  the  loopholes 
for  error,  the  opportunities  for  false  inference  ?  By  ascertaining  these,  we 
shall  learn  what  safeguards  or  tests  ought  to  be  applied  by  the  jurors  in 
weighing  the  evidence,  and  what  opportunities  of  counterargument  are 
offered  to  the  opponent. 

These  peculiar  dangers  and  necessities  are  thus  set  forth  by  the  same  emi- 
nent authority  : 


18  INTRODUCTION  No.  2. 

Professor  Alfred  SiDOWiCK.  Fallacit's.  (18S4.  p.  270.)  There  is  at  bottom  one 
primary  source  of  falhu-y  in  the  inductive  argument,  call  it  by  whatever  name  may 
l>e  most  ciiinenieiit.  We  may  name  it,  for  instance,  the  danger  of  overlooking  plural- 
ilu  of  caiijifs.  or  of  neglecting  jmssilile  chance  or  counteraction,  or  the  possibility 
of  unknown  antec-etlents.  or  of  arguing  either  "post  hoc  ergo  propter  hoc"  or  "per 
enunierationem  siinplicem."  or  of  neglecting  to  exclude  alternative  possibilities,  or 
of  forgetting  that  facts  may  bear  more  than  one  interpretation,  ...  or  of  failing 
to  see  l»elow  the  surface,  or  —  periiaps  on  the  whole  the  best  of  all — of  unduly  neg- 
le<-ting  points  of  difference.  .  .  .  [The  form  of  argument  is]  a  case  or  cases  brought 
forward  of  which  a  certain  conclusion  is  asserted  to  be  the  best  explanation.  If, 
then,  some  l)etter  explanation  is  possible,  the  theory  as  stated  is  impeachable.  .  .  . 
By  tfie  "  lK\st "  explanation  is  meant  .  .  .  that  solitary  one  out  of  all  possible  hypothe- 
ses which,  while  explaining  all  the  facts  already  in  view,  is  narrowed,  limited,  hedged, 
or  qualifieti.  sutticiently  to  guard  in  the  l)est  ])ossible  way  against  undiscovered  ex- 
ceptions. .  .  .  Hence,  the  "best"  explanation  of  the  facts  A  and  B  and  C  is  that 
explanation  which,  while  neglecting  certain  points  of  difference  among  them,  and 
thus  forming  some  generalization,  neglects  only  those  differences  which  are  "unes- 
sential." The  best  explanation  of  {i.e.  generalization  from)  one  solitary  sequence 
observed  is  that  which  neglects  only  its  unessential  elements  or  features.  ...  It 
is  in  every  case,  then,  through  undue  neglect  of  the  essential  difference  between  the 
specific  case  or  cases  observed  and  the  wider  genus  to  which  the  assertion  professes 
to  refer,  that  we  rise  to  a  generalization  not  sufficiently  guarded  against  possible 
exceptions.  .  .  .     All    positive   proof   depends  ...  on   the   care,    the   precautions 

I    with  which  observation  has  been  interpreted  and  experiment  conducted.     So  far 

1  onlii  a.s  these  exeliule  alternaiive  pos-s-ihilitics  are  thei/  of  real  value.  .  .  .  Because  all 
positive  assertion  can  only  justify  itself  .  .  .  when  mistakes  have  been  either  one  by 
one  eliminated  or  in  a  body  preyented,  the  burden  of  doubt  to  be  removed  by  evi- 
dence consists  essentially  in  the  group  of  alternative  theories  remaining  undiscarded. 
.  .  .  The  important  point  is,  always,  to  show  that  all  other  possible  theories  are 
weighed  in  the  balance  and  found  wanting,  —  that  is  to  say,  that  all  precautions  have 
l)een  taken  against  that  crudest  kind  of  unchecked  generalization  which  the  least- 
trained  mind  possesses  in  the  greatest  abundance.  This  objection  against  a  theory, 
that  alternative  theories  are  not  yet  discarded,  appears,  however,  more  directly 
applicai)le,  more  fruitful  of  results,  against  a  concrete  or  an  abstract-concrete  thesis 
than  against  a  directly  abstract  one.  .  .  .  And  the  right  of  the  theory  chosen,  over 
all  its  jjossible  rivals,  depends  entirely  upon  the  depth  of  our  insight  into  the  condi- 
tions under  which  the  experiment  or  observation  was  really  made.  This  is  the  main 
lessfin  of  Logic  as  regards  Induction.  .  .  .  The.se  alternatives  have  to  be  faced  as 
possible  explanations  of  each  observed  case ;  and  the  immediate  question  in  each 
case  is.  What  certainty  can  we  obtain  that  tlie  alternative  chosen  is  the  right  one  out 
of  all  those  conceivable  '/     The  methods  of  Inductive  Proof  may  be  viewed  as  attempts 

j    to  answer  this  (juestion. 

I  The  peculiar  (iaiiger,  tlicii,  of  Inductive  Proof  is  that  there  may  be  other 
exjilanitiinns,  than  the  desired  one,  for  the  fact  taken  a.s  the  basis  of  proof. 

I/ft  us  now  examine  this  principle  from  the  point  of  view  of  the  opposing 
j)arties  in  a  legal  trial.  Since  our  system  of  procedure  is  based  on  the  method 
of  leaving  the  pndhiction  of  evidence  to  the  parties  themselves,  the  proceed- 
ing is  an  antii>h<)iial  one.  Proponent  and  opponent  in  turn  oifer  evidence. 
Both  cr)unsel  and  jury  therefore  need  to  examine  each  piece  of  evidence,  first, 

1  from  the  proponent's  point  of  view,  next,  from  the  opponent's  point  of 
view,  anfl  finally,  from  the  jury's  point  of  view. 

§  :i.  Sanir:  (1)  with  Hrfrrrncr  to  the  Propound  of  Evidence.  If,  then, 
the  potential  defect  of  Inductive  Proof  is  that  the  fact  ottered  as  the  basis 


No.  2.  GENERAL  THEORY  OF  PROOF  19 

of  the  conclusion  may  be  open  to  one  or  more  other  explanations  or  conclu- 
sions, the  failure  to  exclude  a  single  other  rational  hypothesis  would  be,  from 
the  standpoint  of  Proof,  a  fatal  defect;  and  yet,  if  only  that  single  other 
hypothesis  were  open,  there  might  still  be  an  extremely  high  degree  of  proba- 
bility for  the  conclusion  first  claimed.  When  Robinson  Crusoe  saw  the 
human  footprint  on  the  sand,  he  could  not  argue  inductively  that  the  pres- 
ence of  another  human  being  was  absolutely  proved.  There  was  at  least 
(for  example)  the  hypothesis  of  his  own  somnambulism.  Nevertheless, 
the  fact  of  the  footprint  was  for  his  conclusion  evidence  of  an  extraordinary 
degree  of  proliability.  The  provisional  test,  then,  from  the  point  of  view  of 
judicial  Proof,  would  be  something  like  this  :  Does  the  evidentiary  fact 
point  to  the  desired  conclusion  (not  as  the  only  rational  hypothesis,  but) 
as  the  hypothesis  (or  explanation)  most  plausible  or  most  natural  out  of 
the  various  ones  that  are  conceivable  ?  Or  (to  state  the  requirement  more 
weakly),  is  the  desired  conclusion  (not,  the  most  natural,  but)  a  natural 
or  plausible  one  among  the  various  conceivable  ones  ?  After  all  the  other 
evidential  facts  have  been  introduced  and  considered,  the  net  conclusion 
can  be  attempted.  At  present,  in  dealing  with  each  separate  fact,  the  only 
inquiry  is  a  provisional  one :  How  probable  is  the  ProbaVidum  as  based  on 
this  Prdbans  ? 

This  general  attitude  may  be  illustrated  from  various  sorts  of  evidentiary 
facts.  (1)  The  fact  that  A  left  the  city  soon  after  a  crime  was  committed 
will  raise  a  slight  probability  that  he  left  because  of  his  consciousness  of 
guilt,  but  a  greater  one  if  his  knowledge  that  he  was  suspected  be  first  shown. 
Here  the  evident  notion  is  that  the  mere  fact  of  departure  by  one  unaware 
of  the  charge  is  open  to  too  many  innocent  explanations ;  but  the  addition 
of  the  fact  that  A  knew  of  the  charge  tends  to  put  these  other  hypotheses  into 
the  background,  and  makes  the  desired  explanation  or  conclusion  —  i.e. 
a  guilty  consciousness  —  stand  out  prominently  as  a  more  probable  and 
plausible  one.  Even  then  there  are  other  possible  hypotheses  —  such  as  a 
summons  from  a  dying  relative  or  the  fear  of  a  yellow-fever  epidemic  in 
the  city ;  but  these  are  not  the  immediately  natural  ones,  and  the  greater 
naturalness  of  the  desired  explanation  makes  it  highly  probable.  (2)  The 
fact  that  A  before  a  robbery  had  no  money,  but  after  it  had  a  large  sum, 
indicates  that  he  by  robbery  became  possessed  of  the  large  sum  of  money. 
There  are  several  other  possible  explanations,  —  the  receipt  of  a  legacy, 
the  receipt  of  a  debt,  the  winning  of  a  gambling  game,  and  the  like.  Never- 
theless, the  desired  explanation  rises,  among  other  explanations,  to  a  fair 
degree  of  plausibility.  (3)  The  fact  that  A,  charged  with  stealing  a  suit 
of  clothes,  was  a  poor  man  is  offered  to  show  him  to  be  the  thief.  Now  the 
conclusion  of  theft  from  the  mere  fact  of  poverty  is,  among  the  various  pos- 
sible conclusions,  one  of  the  leas't  probable ;  for  the  conclusions  that  he 
would  preferably  work  or  beg  or  borrow  are  all  equally  or  more  probable, 
and  the  hypothesis  of  stealing,  being  also  a  dangerous  one  to  adopt  as  the 
habitual  construction  to' be  put  on  poor  men's  conduct,  has  the  double  de- 
fect of  being  less  probable  and  more  hard  upon  the  innocent.  Such  evi- 
dence, then,  is  of  slight  value  to  show  that  conclusion.  (4)  A  person  of 
unbalanced  delusions  asserts  on  the  stand  that  he  saw  A  strike  B.  Nowa- 
days it  is  recognized  that  a  delusion  may  affect  the  powers  of  observation 
and  memory  to  a  limited  extent  only,  and  may  not  concern  the  subject  of 


20  INTRODUCTION 


No.  2. 


the  testimony.  If  it  does  concern  that  subject,  the  hypothesis  that  the 
act  occurred  as  he  states  it  is  too  feeble  and  improbable,  alongside  of  the 
liypothesis  that  his  delusion  is  the  only  source  of  his  statement.  But  if 
the  delusi«>n  does  not  concern  that  subject,  then  his  statement  may  prove 
somethinfr,  even  though  it  is  still  possible  that  his  statement  has  been  affected 
by  the  delusion.  Thus  the  notion  is,  as  before,  that  the  evidentiary  fact  — 
i.i.  the  assertion  on  the  stand  —  is  of  probative  value  so  far  as  the  correct- 
ness of  the  assertion  is  at  least  one  among  probable  hypotheses.  (5)  The 
fact  that  A  makes  his  statement  on  the  witness  stand  in  response  to  a  lead- 
ing question  of  his  counsel  is  not  of  great  value,  because  in  experience  the 
chances  a'-e  so  great  that  his  answer  is  based  on  the  counsel's  suggestion 
and  not  on  his  own  knowledge.  On  the  other  hand,  where  the  leading  ques- 
tion deals  merely  with  the  preliminary  matters  of  his  name,  age,  and  resi- 
dence, the  answer  is  fairly  probative  because,  there  being  so  little  motive 
for  falsification  on  those  subjects,  the  conclusion  that  he  answered  truly  is 
far  the  most  probable  one.  (G)  The  fact  that  A,  the  witness,  has  had  a 
lawsuit  with  B,  the  defendant,  is  ofl'ered  to  show  that  A  has  feelings  of  ani- 
mosity towards  B  which  make  it  prolnible  that  he  cannot  testify  correctly 
against  him.  Yet  the  inference  of  such  animosity  is  a  forced  and  unnatural 
one  ;  the  mere  fact  of  a  lawsuit  is  consistent  with  so  many  other  more  prob- 
able hypotheses  that  the  evidence  does  not  reach  a  great  degree  of  probative 
value. 

Thus,  throughout  the  whole  realm  of  evidence,  circumstantial  P'^d  testi- 
monial, the  theory  of  the  inductive  argument,  as  practically  applied  from 
the  standpoint  of  Proof,  is  that  the  evidentiary  fact  has  probative  value 
only  so  far  as  the  desired  conclusion  based  upon  it  is  a  more  probable  or 
natural  hypothesis,  and  the  other  hypotheses  or  explanations  of  the  fact,  if 
any.  are  less  prol)al)le  or  natural.  The  degree  of  strength  required  will  vary 
with  ilitferent  sorts  of  evidentiary  facts,  depending  somewhat  upon  ditt'ermg 
views  of  human  experience  with  those  facts,  somewhat  upon  the  practical 
availability  of  stronger  facts.  But  the  general  spirit  and  mode  of  reasoning 
of  the  Courts  sul)stantially  illustrates  the  dictates  of  scientific  logic. 

§  4.  Sdfiic :  Occasional  Suhordiiiafr  Tests;  Method  of  Agreement  and 
Method  of  Difference.  Thus,  the  main  question  for  the  inductive  argument 
is  (in  the  words  of  Professor  Sidgwick,  already  quoted) :  "  What  certainty 
can  we  obtain  that  the  alternative  chosen  is  the  right  one  out  of  all  those 
conceival)le  ?"  But  there  have  been  stated  by  scientific  logic  several  sub- 
ordinate methods  or  processes  of  in\"estigation  which  may  be  viewed  as 
attempts  to  answer  this  question.  Usually  enumerated  as  five,  they  are 
rcflucible  in  essence  to  two,  —  the  Method  of  Agreement  and  the  Method  of 
Difference.  Occasionally  they  may  be  and  are  conveniently  resorted  to 
in  the  testing  of  judicial  evidence. 

(a)  Method  of  Arireement.  The  canon  which  this  applies  may  be  thus 
stated:  "Whatever  circumstances  can  be  excluded  without  excluding  the 
phenomenon  whose  effect  (or  cause)  is  being  sought,  or  can  be  absent  not- 
withstanding its  presence,  are  not  causally  connected  with  it.  .  .  .  The 
n-maindcr,  those  circumstances  which  are  not  eliminated  by  this  process,  are 
supj)os«'d  to  b«-  thus  shown  to  be  essential  to  the  phenomenon,  —  to  be  the 
proved  circct  for  <  ause). "  '     From  the  point  of  view  of  Proof,  then,  w^hen  we 

•  Sidgwick,  uhi  supra,  p.  310. 


No.  2.  GENERAL  THEORY  OF  PROOF  21 

argue  that  the  observed  instances  of  a,  viz.  a',  a",  a'",  being  always  followed 
by  b,  prove  a  to  be  the  cause  of  /;,  we  can  avoid  the  danger  of  ignoring  other 
causes  as  the  true  explanation,  by  providing  that  the  various  instances  shall 
be  attended  by  identically  the  same  circumstances  or  conditions  ;  then,  and 
then  only,  when  a,  under  identically  the  same  conditions,  is  followed  always 
by  b,  have  we  the  right  to  claim  that  b  is  the  effect  of  a  and  not  of  some  other 
cause.  This  subordinate  test  —  which  is  merely  a  practical  aid  to  the  ul- 
timate or  fundamental  one  —  will  naturally  be  most  available  and  useful 
where  the  evidential  fact  consists  of  a  supposed  parallel  instance.  To  illus- 
trate :  (1)  In  showing  that  a  person's  illness  was  due  to  the  eating  of  cer- 
tain food,  the  fact  is  offered  that  other  persons  were  ill  after  eating  of  the 
same  food.  Here  the  test  naturally  to  be  applied  is  whether  the  other  ill- 
nesses occurred  under  substantially  similiar  conditions  of  time,  surroundings, 
and  symptoms.  (2)  To  show  that  a  portion  of  a  pavement  caused  an  injury 
because  dangerous  to  passers-by,  the  fact  is  offered  that  other  persons  who 
passed  fell  down  at  that  place.  Here  a  similar  test  is  called  for.  (3)  To 
show  that  the  accused  wore  a  lilack  hat,  not  a  gray  hat,  the  prosecution  calls 
five  different  witnesses,  all  of  whom  were  present,  and  none  of  whom  were 
acquainted  with  each  other.  All  agree  that  the  hat  was  black.  The  con- 
ditions being  substantially  similar,  the  conclusion  is  highly  probable. 
Judicial  annals  contain  a  vast  variety  of  instances  in  which  this  same  sub- 
ordinate test  is  the  natural  one  to  be  applied,  and  is  in  practice  used  by  the 
Courts. 

(b)  Method  of  Difference.  The  canon  of  this  method  is  :  ^  "  If  an  instance 
in  which  the  phenomenon  under  investigation  occurs,  and  an  instance  in 
which  it  does  not  occur  have  every  circumstance  in  common  save  one,  that 
one  only  occurring  in  the  former ;  the  circumstance  in  which  alone  the  two 
instances  differ  is  the  effect,  or  the  cause,  or  an  indispensable  part  of  the 
cause,  of  the  phenomenon."  As  applied  to  the  judicial  purposes  of  Admis- 
sibility, the  test  of  this  argument  becomes :  In  order  to  prove  that  .r  is  the 
cause  of  b,  by  the  fact  that  wherever  x  was  present  the  effect  b,  b' ,  b" ,  was 
found,  and  that  wherever  x  was  not  present  the  different  effects  c  or  d  were 
found,  the  various  instances  b,  b' ,  b" ,  c,  and  d  are  admissible  if  they  were 
substantially  similar  to  each  other  in  all  respects  except  the  presence  of  x. 
This  test  is  of  comparatively  rare  employment  in  circumstantial  evidence, 
because  it  is  rare  that  instances  occur  which  fulfill  this  requirement,  unless 
where  prearranged  expei'iments  are  possible.  But  in  testimonial  evidence, 
the  argument  may  be  and  is  employed.  To  illustrate:  (1)  The  injury  to 
the  paint  on  the  plaintiff's  house  is  attributed  by  the  defendant  to  sewer 
gas  ;  for  this  purpose,  from  the  fact  that  under  conditions  and  circumstances 
as  nearly  as  possible  like  those  surrounding  the  plaintiff's  house,  except  the 
presence  of  the  sewer  gas,  he  argues  that  the  injury  to  paint  did  not  occur. 
(2)  The  accused  calls  a  witness  to  prove  an  alibi,  who  testifies  that  the  ac- 
cused at  the  time  in  question  was  in  a  certain  saloon  at  345  Fifth  St.,  five 
miles  away  from  the  crime.  The  prosecution  calls  four  other  witnesses, 
all  of  whom  say  that  they  were  in  the  same  room  at  that  time  and  the  ac- 
cused was  not  there.  The  accused's  witness  is  his  brother ;  the  other  per- 
sons are  strangers.  Here  the  fact  of  the  accused's  relationship  and  his  wit- 
ness' probable  bias  is  the  only  circumstance  different  in  his  case  from  that 

1  Sidgwick,  p.  345. 


22  IXTRODI'CTION  No.  2. 

of  the  other  four.  Hence  we  may  infer  that  this  bias  is  the  catise  of  his  tell- 
ing a  diiferent  story  from  theirs. 

The  purpose  in  using  both  these  subordinate  tests  is  always  the  same 
general  one.  —  to  secure  a  fair  proliability  for  the  claimed  hypothesis,  as 
against  and  in  competition  with  other  possible  ones. 

§5.  Saiin-:  (~^)  ivith  Refrrnur  to  the  Opponent.  It  is  important  to  no- 
tice the  double  treatment  of  which  every  offer  of  evidence  may  admit. 
Where  we  are  dealing  with  the  general  subject  of  Proof  in  Logic,  the  single 
inquiry  is  whether  the  argument  offered  as  involving  Proof  does  really  fulfill 
the  logical  reciuircments.  But  wherever,  in  the  applications  of  logical  prin- 
ciples to  specific  practical  purposes,  two  parties  are  found  contending,  the 
proponent  and  the  opponent  —  as  in  a  formal  debate,  a  controversy  of 
scientific  investigators,  and,  preeminently,  a  trial  at  law  —  the  mode  of 
argument  nuist  be  studied  from  the  two  points  of  view.  Whenever,  on  the 
evidential  fact  offered  by  the  proponent,  a  single  other  hypothesis  remains 
open,  complete  Proof  fails ;  the  desired  conclusion  is  merely  the  more 
proi)able,  or  a  probable  one ;  the  other  hypotheses,  less  probable  or  equally 
probable,  remain  open.  It  is  thus  apparent  that,  by  the  very  nature  of 
(this  process,  a  specific  course  is  suggested  for  the  opponent.  He  may  now 
\proprrhi  show,  hij  adducing  other  facts,  that  one  or  another  of  these  hypotheses, 
thus  left  open,  is  not  merely  possible  and  speculative,  but  is  more  probable 
J  and  natural  as  the  true  explanation  of  the  originally  offered  evidentiary  fact. 
That  fact  has  been  admitted  in  evidence,  but  its  force  may  now  be  dimin- 
ished or  annulletl  by  showing  that  some  explanation  of  it  other  than  the 
proponent's  is  the  true  one.  Thus  every  sort  of  evidentiary  fact  may  call 
for  treatment  in  a  second  aspect,  viz.  :  What  are  the  other  hypotheses  which 
are  available  for  the  opponent  as  explaining  away  the  force  of  the  fact  al- 
ready admitted?  To  illustrate:  (I)  In  showing  the  defendant's  connec- 
tion with  a  murder,  the  fact  is  admitted  of  .the  finding  of  a  knife,  bearing 
his  name,  near  the  body  of  the  deceased ;  the  defendant,  to  refute  the 
claimed  conclusion  that  he  was  present  with  the  knife  at  the  murder,  may 
show  that  he  lost  the  knife  a  month  before;  thus  giving  greater  color  of 
probability  to  the  hypothesis  that  some  one  else  was  present  with  the  knife. 
(2)  To  show  the  flefendant's  animosity  against  the  deceased,  the  fact  of  a 
serious  (juarrel  ten  years  before  is  offered  ;  the  claimed  conclusion,  namely, 
that  the  animosity  existed  at  the  time  of  the  killing,  is  an  hypothesis  of  low 
relative  probability  ;  for  the  opponent  may  show,  by  the  fact  of  a  reconcilia- 
tion in  the  interim,  that  the  fact  of  the  quarrel  does  not  lead  to  the  conclu- 
sion claimed.  Ci)  To  show  the  injurious  vibrative  qualities  of  a  bridge  in 
causing  cracks  in  adjacent  i)uildings,  the  fact  of  the  existence  of  cracks  in 
other  a<ljacent  buildings  is  received ;  this  may  be  explained  away  by  the 
fact  that  the  operation  of  a  railway,  and  not  the  bridge  vibrations,  had 
been  their  cause.  (4)  A  witness  may  appear  to  have  had  adequate  oppor- 
tunity to  observe  accurately  the  facts  related  ;  but  he  may  be  mendacious 
by  disposition,  and  if  the  oppf)nent  can  show  his  bad  character,  it  will  tend 
to  explain  away  all  his  assertions  as  those  of  a  confirmed  liar.  (5)  The  rest 
of  a  <-onversation  or  writing,  of  which  a  part  has  been  received,  may  be  pre- 
sented by  the  opponent  to  explain  away  the  apparent  effect  of  the  fragment ; 
thus,  to  adopt  .Mgernon  Sidney's  famous  illustration  (frequently  u.sed  by 
Krskine  in  his  arguments  for  the  accused  in  tlie  sedition  trials  of  the  1790s), 


No.  2.  GENERAL  THEORY  OF  PROOF  23 

the  prosecution,  on  a  charge  of  hhisphemy,  miglit  offer  a  statement  of  the 
defendant:  "There  is  no  God";  but  this  might  be  instantly  explained 
away  as  being  merely  part  of  a  quotation  from  the  Bible  of  the  passage, 
"The  fool  hath  said  in  his  heart,  'There  is  no  God.'"  Such  is  the  comple- 
mentary process  of  Explanation,  by  the  opponent,  as  suggested  by  and 
related  to  the  evidentiary  fact  received  from  the  proponent.^ 

§  6.  Same:  Occasional  Suborclinatc  Forms.  It  has  been  seen  that  the 
proponent's  evidentiary  fact  is  occasionally  subjected  to  subordinate  tests, 
peculiarly  useful  in  a  few  situations  {ante,  §  4).  In  the  same  way,  the 
opponent,  desirous  of  explaining  away  the  force  of  an  evidentiary  fact  by 
showing  tliat  another  hypothesis  is  equally  or  more  probable  than  the  one 
claimed,  finds  that  the  process,  just  described  in  its  common  form,  some- 
times takes  on  a  specific  subordinate  form  peculiarly  useful  in  certain  situa- 
tions. These  forms,  as  noticed  in  judicial  annals,  seem  to  be  practically 
three  in  number. 

(1)  Explanation  by  Inconsistent  Instances.  Where  the  proposition  is  that 
y  is  the  effect  of  .r,  and  the  evidentiary  fact  is  that  in  instances  a,  a',  and  a", 
the  circumstance  y  followed  and  the  circumstance  .r  was  present,  a  con- 
venient way  of  annulling  the  effect  of  these  instances  is  to  show  that  in 
a  fourth  instance  a"  the  circumstance  x  was  present  and  yet  the  circum- 
stance y  did  not  follow.^  To  illustrate :  In  arguing  that  the  vibrations  of 
the  defendant's  railway  bridge  cracked  the  plaintiff's  buildings  at  the  eastern 
end,  the  injured  condition  of  various  buildings  at  that  end  is  received  for 
the  plaintiff ;  to  explain  this  away,  the  fact  is  probative  for  the  defendant 
that  at  the  western  end  the  vibrations  were  even  more  severe,  and  yet  no 
buildings  there  were  cracked. 

A  chief  use  for  this  mode  of  argument  is  to  demonstrate  an  alleged  possi- 
bility or  impossibility.  When  A's  argument  is  that  an  event  or  deed  x 
is  possible  or  impossible,  it  is  obvious  that  the  whole  force  of  his  evidentiary 
facts  is  at  once  destroyed  by  a  single  instance  of  its  impossibility  or  its  possi- 
bility, provided  the  conditions  are  substantially  similar  in  both  cases.  In 
this  way  the  hypothesis  originally  set  up  as  the  exclusive  one  is  shown  not 
to  be  an  exclusive  one  at  all,  by  the  fact  that  a  contrary  one  has  occurred 
in  the  instance  oft'ered  by  the  opponent.  A  universal  or  absolute  affirma- 
tive can  be  thus  exploded  equally  as  well  as  a  universal  or  absolute  negative. 
It  is  the  universality  of  the  alleged  indication  that  lays  it  open  to  fatal  at- 
tack by  one  inconsistent  instance.  To  illustrate  :  (a)  A  burglar  was  alleged 
to  have  entered  through  a  certain  window ;  but  the  accused  affirmed  the 
impossibility  of  a  man's  getting  through  it ;  the  prosecuting  attorney  sud- 
denly put  the  frame  over  the  defendant's  head  and  drew  it  completely  down, 
thus  disproving  the  alleged  impossibility ;  (b)  at  a  trial  for  murder,  there 
was  testimony  that  the  accused  was  seen  going  up  a  certain  hill,  wearing  a 
pepper-and-salt  suit,  the  witness  looking  from  the  rear  and  facing  the  sun ; 
experiments  showed  that  under  such  cirpumstances  it  was  impossible  for 
an  observer  to  distinguish  any  color  at  all ;  (c)  at  a  trial  for  arson,  the  prose- 
cution claimed  that  the  fire  was  set  with  a  candle  set  in  a  closed  box  so  as  to 

1  The  term  "infirmative  fact"  was  invented,  to  signify  this  class  of  facts  here  termed 
"explanatory,"  by  Jeremy  Bentham,  and  was  afterwards  adopted  by  Alexander  Burrill 
(Circumstantial  Evidence,  186S,  p.  153). 

-  Sidgwick,  ubi  supra,  p.  275. 


24  INTRODUCTION  No-  2. 

Inirn  down  into  a  hunch  of  shavings ;  experiment  showed  that  under  the 
conditions  allegeil  a  candle  would  have  gone  out  in  a  shorter  interval  than 
that  which  must  have  elapsed. 

(2)  Kxphnmtioti  by  Dissimilnriiii  of  Condiiions.  Where  the  proponent's 
evidentiary  fact  has  been  admitted  under  the  subordinate  test  of  §  4,  ante, 
—  the  substantial  similarity  of  conditions  in  the  instances  offered, —  the 
opponent's  course  is  naturally  suggested ;  i.e.  he  may  show  that  there  is  at 
least  a  residuum  of  dissimilar  conditions  which  diminish  probative  value, 
by  making  some  other  hypothesis  a  possible  one,  if  not  an  equally  probable 
one.  To  illustrate:  [a)  In  arguing  that  arsenical  wall  paper  was  the  source 
of  the  plaintilVs  illness,  the  fact  that  others  living  in  the  same  house  were 
atfecteii  by  similar  symptoms  is  received;  to  explain  this  away,  evidence 
is  received  that  the  same  symptoms  customarily  attend  the  eating  of  un- 
sound oysters,  and  that  the  others,  but  not  the  plaintiff,  had  eaten  oysters ; 
thus  the  dissimilarity  of  conditions  is  emphasized  as  the  possible  source 
of  erroneous  explanation,  {h)  To  prove  the  qualities  of  a  dental  invention 
as  a  pain  killer,  the  fact  is  received  that  the  patrons  of  the  dentist  using  it 
had  suffered  pain  under  other  dentists  but  not  under  him;  to  explain  this 
away,  it  may  be  shown  that  they  had  never  been  under  him  before  he  used 
this  pain  killer;  thus  emphasizing  the  dissimilarity  of  conditions  to  sug- 
gest that  this  dentist's  personal  skill,  and  not  tlic  invention,  had  prevented 
their  pain. 

(3)  Explanation  hi/  Cumnhifivc  Instances.  Where  the  proposition  is 
that  y  is  the  effect  of  .r,  and  the  evidentiary  fact  is  that  in  instances  a,  a', 
and  a",  the  circumstance  y  followed  and  the  circumstance  x  was  present, 
another  way  of  annulling  the  effect  of  these  instances  is  to  show  that  in  a 
fourth  instance  a'"  the  circumstance  y  again  followed,  and  yet  the  circum- 
stance X  was  not  present.  This  argument  is  in  a  manner  the  opposite  of 
(1)  supra,  and  consists  in  offering  other  instances  in  which  the  same  effect 
is  found,  but  without  the  presence  of  the  alleged  causing  circumstance;  and 
this  forces  us  to  look  ujwn  its  presence  in  the  proponent's  original  instances 
a.s  merely  accidental,  and  not  really  causative.  The  requirement  of  this 
argument  is  that  the  conditions  of  the  additional  instances  shall  be  substan- 
tially similar  in  every  respect  except  the  alleged  causing  circumstance;  for 
if  they  were  not,  then  the  elimination  of  the  alleged  cause  as  harmless  is  not 
accomplished.  For  example,  the  fact  of  the  defendant's  flowage  of  certain 
lands  of  the  plaintiff  is  alleged  to  be  the  cause  of  deterioration  in  their  pro- 
ductiveness during  the  previous  ten  years  ;  to  refute  this,  the  defendant  offers 
the  fact  of  similar  deterioration  of  other  lands  that  had  not  been  .sul)jected 
to  the  flowage;  this  is  proljative  oidy  so  far  as  the  other  lands  are  near  by 
and  presumably  under  the  same  influences  of  soil  and  climate. 

§  7.  Sanir:  Other  Methods  of  Rebuttal  by  the  Opponent.  It  must  be  un- 
derstfmd,  of  course,  that  the  opponent's  modes  of  opposition  are  not  con- 
fined to  the  process  of  Explanation.  He  has  three  processes  in  all.  He 
may  (2)  dmy  the  truth  of  the  evidentiary  fact  itself;  or  (3)  advance  some 
mw  mid  riral  evidentiary  fact  tending  to  prove  his  own  Probandum.  But 
in  neither  case  is  he  using  any  new  logical  process.  In  (2)  there  is  no  form 
of  argument  at  all,  but  a  simple  denial  of  the  evidentiary  fact ;  in  (3)  there 
is  a  wholly  new  argument,  in  which  the  opponent  in  turn  becomes  proponent 
and  submits  his  material  as  pn.of,  according  to  the  ordinary  tests.     To 


No.  2.  GENERAL  THEORY  OF  PROOF  25 

illustrate  :  To  charge  A  with  murder,  the  prosecution  shows  a  specific  threat, 
an  old  quarrel,  and  traces  of  blood  on  his  clothes.  The  defendant  answers  : 
(1)  Explaining  away  the  old  quarrel  by  showing  an  intervening  recon- 
ciliation ;  explaining  away  the  blood  traces  by  showing  the  recent  killing 
of  a  chicken  ;  this  is  the  complementary  process  of  Explanation  suggested 
by  the  evidentiary  facts  of  quarrel  and  blood,  and  is  directed  to  diminishing 
their  force  ;  this  complementary  process  depends  for  its  conditions  and  possi- 
bilities upon  those  original  facts ;  (2)  Denying  the  specific  threat ;  this  in 
itself  does  not  affect  the  logical  probative  value  of  the  threat  as  circum- 
stantial evidence ;  it  introduces  an  issue  of  evidence,  raising  a  doubt  as  to 
the  very  existence  of  the  circumstantial  fact ;  (3)  Advancing  the  rival  facts 
of  an  alibi  and  of  good  character  for  peaceableness ;  here  the  defendant  is 
simply  a  proponent  of  new  evidentiary  facts,  just  as  the  prosecution  was 
for  its  own  evidence ;  this  new  question  of  relevancy  depends  on  precisely 
the  same  tests  as  the  prosecution's  original  evidence. 

All  an  opponent's  modes  are  reducible  to  these  three.  In  the  first,  he 
is  an  opponent  by  logical  nature  of  his  argument.  In  the  second,  he  is  an 
opponent  from  the  contradictory  point  of  view,  but  this  may  require  him 
to  become  a  proponent  of  either  a  new  circumstance  or  a  new  witness.  In 
the  third,  he  becomes  himself  the  proponent  of  a  new  argument,  which  the 
original  proponent  may  now  attack  as  an  opponent.  The  first  is  inherent 
in  the  probative  use  of  the  proponent's  original  fact ;  the  other  two  are 
not  inherent,  and  may  or  may  not  be  resorted  to. 

§  8.  Summary  of  Probative  Processes.  It  has  thus  been  seen  that  every 
evidentiary  fact  or  class  of  facts  may  call  for  four  processes  and  raise  four 
sets  of  questions,  which  may  be  grouped  as  follows  :  (P)  representing  the 
proponent,  and  (O)  the  opponent. 

(P)  The  first  process,  Assertion,  consists  in  offering  a  fact  tending  to  prove 
a  specific  conclusion  or  Probandum.  This  is  subject  to  the  test  whether 
the  claimed  conclusion  is  a  probable  or  a  more  probable  one,  having  regard 
to  conceivable  other  interpretations  of  the  fact.  This  process  we  may 
label  PA. 

(O)  The  second  process.  Explanation,  consists  in  explaining  aioay  the 
original  fact's  force  by  showing  the  existence  and  probability  of  other  hy- 
potheses ;  for  this  purpose  other  facts  affording  such  explanations  are  re- 
ceivable from  the  opponent.     This  process  we  may  label  OE. 

(0)  The  third  process.  Denial,  consists  in  negating  the, original  proponent's 
evidentiary  fact  as  such,  either  testimonially  or  circumstantially ;  and  thus 
(O)  as  proponent  offers  a  new  witness  or  circumstance.  This  process  we 
may  label  OD. 

(O)  The  fourth  process,  Rimlry,-  consists  in  adducing  a  new  fact,  circum- 
stantial or  testimonial,  which  by  a  rival  inference  tends  to  disprove  the 
proponent's  Probandum.  This  process  we  may  label  OR.  Here  the  oppo- 
nent becomes  in  turn  a  proponent,  and  the  fact  offered  by  him  is  now  open 
to  the  same  processes  as  above  from  the  original  proponent,  viz. :  OE,  OD, 
and  OR. 

Such  are  the  forms  of  probative  processes  available  for  each  single  fact 
as  offered.  For  each  additional  new  fact  the  processes  may  be  repeated, 
though  they  may  not  be  actually  used  in  each  instance. 

The  following  outline  will  illustrate  the  application  of  the  processes  to  a 


26  INTRODUCTION  No.  2 

single  offeretl  fact  of  t-ach  variety,  circuinstantia!  and  testimonial.  The 
sign  — >-  signifies  "tends  to  prove"  ;  the  sign  -e^  signifies  "tends  to  dis- 
prove" ;  the  sign  <  signifies  " e.xplains  away"  ;  letter  T  stands  for  a  testi- 
monial evidential  fact ;  letter  C  stands  for  a  circumstantial  evidential  fact : 
Circuiii.siantiol  Kridcrnr  Procrjmcs : 

Frobaiuliiiii :   X  stabbed  Y  with  a  knife  at  a  certain  time  and  place. 
PA  (.Proponent's  Evidential  Fact)   C  =  Bloody    knife    was   found    on 

X >~  Probandum. 

OE  (Proponent's  Evidential  Fact 

explained  by  Opponent)  C  =  X    drew    it    from    the    wound 

after  the  affray  on  coming 
to  Y's  assistance  <  Propo- 
nent's Evidential  Fact. 
OD  (Proponent's  Evidential  Fact 

denied  by  Opponent)  C  =  Bloody    knife   was   not   found 

on  X  — ^  Proponent's  Evi- 
dential Fact, 
and  this  the  opponent  may  do  either 

(1)  by    adducing   new    evi- 

dential facts  T  =  M's  assertion  that  on  searching 

X  tio  knife  was  found. 
C  =  No  trace  of  blood  appeared  on 
X's  garments  by  the  knife. 

(2)  or  by  questioning  the  inference  from  the  T  or  C  on  which 

PA  itself  rested  as  a  probandum. 
OR  (Rival  New  Facts  adduced  by 

Opponent)  C  =  X    had    no   quarrel    or    other 

motive  to  stab  Y  — ^  Pro- 
bandum. 
and  T  =  X    a    bystander    asserts    that 
X  did  not  stab  Y  -©>  Pro- 
bandum. 
In  the  ab()\e  instance,  OP]  is  of  course  inconsistent  with  01)  ;   and  in  this 
particular  case  the  two  processes  would  not  be  employed  together  in  the 
above  maimer.     Note  al.so  that  under  OE,  01),  and  OR,  alike,  new  T  and 
('  will  ramify  into  further  details;   yet  the  processes  will  always  be  one  or 
more  of  these  three. 

Trull niotiidl  Kvulcucr  Prorcascs  : 

ProhanduDi :  X  an  automobilist  was  carrying  a  light  at  the  time  of  a 

collision. 
P  (Proponent's  Fact)  T  =  M's  assertion  that  a  light  was 

being  carried   by  X  at  the 

time >■  Probandum. 

OE  (Proponent's  Fact  explained 

by  Opponent)  C  =  M    is    X's    chauffeur    and    is 

therefore     biased  <  Propo- 
nent's Evidentiary  P'act. 
Ol>  '  Proponent'^  ]';nt  ilciiied  by 

Opponent)  (This  is  not  here  feasible  except  as 

stated  below.) 


No.  2.  GENERAL  THEORY  OF  PROOF  27 

OR   (Rival  New  Facts  adduced 

by  Opponent)  C  =  After  the  collision,  no  acety- 

lene    was     found     in     X's 
lamp  — e>  Probandum. 
T  =  N  a  bystander  asserts  that  no 
light  was  carried  — &>  Pro- 
bandum. 
In  the  above  instance,  the  process  OE  is  commonly  termed  Impeach- 
ment of  the  Witness,  in  legal  phrase,  and  includes  all  methods  of  detracting 
from  the  force  of  the  witness'  assertion,  by  showing  it  to  be  untrustworthy. 
The  process  OD,  it  will  be  noticed,  is  not  ordinarily  feasible  for  testimonial 
evidence,  because,  when  the  witness  is  testifying  in  court,  the  fact  of  his  mak- 
ing the  assertion  cannot  be  disputed.     Yet  even  then  the  opponent  may  in- 
duce him  on  cross-examination  to  retract  the  assertion  ;  which  would  be  the 
process  OD.     Moreover,  when  the  witness  is  not  in  court,  and  his  making 
of  the  assertion  is  proved  by  hearsay,  its  making  may  be  disputed  by  the 
opponent ;   which  would  be  another  instance  of  the  process  OD. 

For  testimonial  evidence,  therefore,  as  well  as  for  circumstantial  evidence, 
the  available  processes  are  four  in  all.  Their  distinction  is  due  to  the  fact 
that  separate  methods  of  reasoning  are  involved  in  each. 

The  jury's  point  of  view,  in  estimating  the  total  effect  of  the  mass  of  evi- 
dence, will  be  examined  post  (No.  37G),  after  the  various  kinds  of  evidential 
facts  have  been  studied  in  detail. 

§  9.  Analysis  of  an  Evidential  Fad.  From  the  foregoing  exposition  of 
the  kinds  of  evidence  and  processes  of  probative  reasoning,  it  will  be  seen 
that  the  essential  thing,  in  preparing  to  estimate  the  effect  of  evidence,  is  to 
analyze  accurately  the  inference  proposed  in  each  instance.  Every  evidential 
fact  is  offered  as  tending  to  prove  a  Probandum.  We  know  that  in  most 
instances  it  will  not  completely  prove.  Therefore  it  is  necessary  to  place 
it  in  the  light  and  dissect  it  to  see  what  are  its  shortcomings.  For  practi- 
cal purposes  this  analysis  has  four  steps. 

The  first  step  is  to  state  to  ourselves,  in  words,  precisely  what  the  offered 
evidence  is,  and  then  precisely  what  is  its  supposed  Probandum.  Until 
this  is  done,  it  is  useless  to  go  further.  For  example,  a  policeman  tells  his 
story  about  capturing  the  accused  after  an  affray.  Out  of  that  story  we 
may  select  two  or  three  supposed  facts;  e.g.  (1)  that  the  accused  had  no 
hat,  and  (2)  that  his  hand  was  cut.  This  (1)  first  supposed  fact  we  may  then 
analyze  into  the  inferences  as  alleged  or  implied  by  the  proponent ;  e.g. 
C  —  The  fact  of  having  no  hat  — >■  P  —  it  was  lost  by  running ; 
C  —  The  fact  that  he  lost  it  by 

running  — >■  P  —  he  was  running  away ; 

C  —  The  fact  that  he  was  run- 
ning away       •  — >-  P  —  his  consciousness  of  guilt ; 
C  —  His  consciousness  of  guilt  — >-  P  —  his  actual  guilt  of  the  assault 

charged. 
Now  at  any  one  of  these  four  steps  a  lack  of  certainty'  in  the  inference  may 
become  important ;  whether  and  just  where  the  doubt  will  become  important 
will  depend  upon  the  opponent's  attitude  in  the  case  in  hand. 


28  INTRODUCTION  No.  2. 

The  (2)  second  supposed  fact  we  may  analyze  thus : 
C  —  The  fact  of  havinjr  a  cut 

hand  — >-  1*  —  the    recent    contact   with    a 

sharp  weapon ; 
C  —  Recent    contact    with     a 

weapon  — >-  P  —  contact     with     the    weapon 

used  in  the  affray ; 
C  —  Contact  with  the  weapon 

used  in  the  affray  — ^  P  —  takin<j  part  in  the  affray. 

Here,  too,  there  is  an  opening  for  dispute  as  to  the  successive  inferences. 
The  analysis  enables  us  to  estimate  the  strength  of  the  final  inference,  and 
to  prepare  for  the  various  possibilities  of  dispute  at  any  possible  point. 

The  ftccond  atcp  is  to  set  down,  in  words,  precisely,  what  the  opportunities 
are  for  tlie  opponent  to  explain  away  the  inference  at  any  one  of  the  succes- 
sive stages,  and  to  estimate  the  probabilities  of  any  one  of  them  being  more 
correct,  in  the  case  in  hand,  than  the  one  constituting  an  inference  towards 
our  own  probandum.  Thus,  in  the  first  instance  above  taken : 
C  —  the  fact  of  having  no  hat, 
may   be  explained   by  four 

other  inferences  :  — >-  Hat  was  blown  off  by  a  gust  of 

wind ; 
or  — >-  Hat   was    already   off   when    the 
accused  came  out  of  his  store 
to  learn  the  cause  of  the  com- 
motion ; 
or  — >■  Hat    was    off    because    the    day 

was  hot ; 
or  — >-  Hat    was    off    because    he    never 
wore  one. 
One  or  more  of  these  explanations  may  be  absurd ;    but  the  necessary 
process  is  first  to  set  them  down  in  black  and  white  and  label  them  according 
to  their  probability. 

.Vgain,  in  the  next  step  of  inference,  assuming  that  the  proponent's  in- 
ference is  sound,  nevertheless  — 

C  —  The  fact  of  losing  the 
hat  by  running,  may  be  ex- 
plained thus :  — >■  He    was     running    to     board    a 

street  car ; 

oi ^  He    was     running     to     give     an 

alarm  of  fire ; 
or  — >■  He    was    running    to    evade    a 
third  ])erson. 
.Any  one  r)f  these  may  be  iniprol)aMc ;    but  the  needful  thing  is  to  deter- 
mine explicitly  whether  it  is  or  not. 

The  lliinl  utrp  is  to  set  down,  in  words,  precisely,  what  the  possibilities 
arc  for  the  opponent  in  dealing  with  the  al)ove  evidential  facts.  Thus, 
C  —  the  fact  that  the  accused  when  arrested  had  no  hat,  may  be  (OE)  ex- 
piaine«l  away,  (OD)  denied,  or  (OK)  rivalled.  (OI-:)  It  may  be  explained 
away  by  one  of  the  al)ove  suggested  inferences  as  the  true  one.  (OD)  It 
may  b«-  denied,  !•>•  aiiothcT  witness  who  contradicts  the  policeman's  asser- 


No.  2.  GENERAL  THEORY  OF  PROOF  29 

tion,  or  by  the  circumstance  that  the  accused  still  had  his  hat  a  few  minutes 
later.  (OR)  It  may  be  rivalled,  by  the  circumstance  that  the  accused  had 
no  motive  for  making  an  assault.  —  Whether  the  opponent  will  explain, 
or  deny,  or  adduce  rival  facts,  cannot  be  told  beforehand  ;  but  the  directions 
which  his  refutation  may  take,  must  be  thought  out  beforehand  and  pre- 
pared for. 

The  final  step  consists  in  the  analysis  of  the  effect  of  a  mass  of  evidential 
facts.  This  is  something  larger  than  the  analysis  of  each  separate  fact,  and 
involves  additional  canons  of  reasoning  (post,  No.  376). 

The  main  subject  of  study  will  therefore  be  the  various  kinds  of  specific 
evidential  facts  commonly  offered  in  litigation,  and  their  possibilities  of  in- 
ference. 

The  instances  taken  from  the  chronicles  of  litigation  will  illustrate  these 
varied  possibilities.  The  exercise  gained  from  their  analysis  will  be  the 
essential  value  of  the  work  to  the  student. 

The  material  may  best  be  taken  up  under  three  heads : 
Part     I.    Circumstantial  Evidence ; 
Part   11.    Testimonial  Evidence ; 
Part  III.    Problems  involving  a  Mass  of  Evidence  of  Both  Kinds. 


PART  I:  CIRCUMSTANTIAL  EVIDENCE 

3.   John  H.  WiGMOKE.      Principles- of  Judicial  Proof.      (1913.)^ 
Clajfsificatioti  of  Circumstantial  Evidence.     Two  important  considerations 
affect   the  classification  of  circumstantial  evidence  for  convenient  treat- 
ment. 

(1)  The  starting  point  of  the  classification  shoukl  be  the  proposition 
desired  to  be  pro\ed  (Probandum),  rather  than  the  evidentiary  fact  offered. 
The  fundamental  inquiry  whether  the  claimed  conclusion  is  a  probable  in- 
ference from  the  offered  fact.  Now  if  we  take  a  specific  probandum  as  the 
starting  point,  and  ask  in  turn,  whether  it  is  relevantly  evidenced  by  fact 
a,  fact  b,  fact  c,  and  so  on,  we  are  able  to  compare  intelligently,  without 
repetition,  the  various  sources  from  which  the  conclusion  or  proposition  is 
capable  of  being  inferred. 

(2)  A  second  consideration  is  that  we  are  here  dealing,  not  with  a  general 
scheme  of  human  life  or  of  modes  of  proof,  but  with  a  limited  body  of  rules 
brought  forth  l)y  problems  laid  before  the  Courts  for  adjudication.  Not 
e\ery  species  of  evidentiary  fact  or  of  inference  is  brought  into  the  realm 
of  judicial  evidence,  but  chiefly  certain  common  and  frequently  recurring 
matters  affecting  the  usual  crimes  and  civil  disputes. 

With  these  considerations  in  mind,  the  general  grouping  of  Probanda  may 
l)e  made  as  follows  : 

I.    An  Event,  Quality,  or  Condition  of  Physical  (Inanimate)  Nature; 
II.    The  Identity  of  a  Thing  or  Person ; 

III.    A  Quality  or  Condition  of  a  Human  Being; 
I\'.    The  Doing  of  a  Human  Act. 

Further,  under  each  group,  it  will  be  often  convenient  to  arrange  the 
evidentiary  facts  according  as  the  proof  or  indication  they  afford  is  : 

A.    Prospectant; 

]}.    Concomitant;   or 

C.    Kctrospcctant.- 

The  distinction  between  the  first  and  the  third  heads  is  always  marked  and 
often  useful  in  hints.  For  instance,  under  Group  IV,  above,  the  evidentiary 
facts  of  Character,  Plan  or  Design,  Motive,  point  forward  to  a  future  act; 
i.e.  we  take  our  stand  before  the  time  of  the  act,  and  argue  that  because 
of  the  person's  character,  design,  or  motive,  he  was  likely,  or  not,  to  do  the 
act  in  the  future;  while  the  fact  of  Consciousness  of  Guilt  points  back- 
wards, i.e.  we  infer  from  his  state  of  mind  that  he  has  been  guilty  of  some 
crime  in  the  past.     In  evidencing  matters  under  Group  III,  this  distinction 

>  Adaptec!  from  thn  same  author's  Treatise  on  Evidence  (1905,  Vol.  I,  §  43). 

*  It  JH  rwrhaps  wr)rth  noting  that  this  analysis  was  long  ago  hintod  at  by  Burke,  in  hia 
diwiuiHition  on  «'vidpnro  in  tho  Report  on  Warren  Hastings'  Trial,  in  1794  (.31  Pari.  Hist. 
.342);  ■' every  rireumstanee."  he  remarks,  "precedent,  concomitant,  and  subsequent,  be- 
rome  parts  of  eireumstantial  evidence."  Mr.  Burrill's  treatise  on  Circumstantial  Evidence 
also  uwfs  the  tuituc  dawsifieation. 

30 


-Vo.  4,  I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC.  31 

becomes  also  useful ;  e.g.  the  fact  of  hereditary  insanity  as  pointing  forward 
to  a  defendant's  insanity  raises  a  question  of  relevancy  essentially  different 
from  that  raised  by  evidence  of  abnormal  conduct  exhibited  by  him  ;  so 
also  in  proving  an  emotion  or  passion  (motive),  evidentiary  circumstances 
such  as  family  relationship,  need  of  money,  and  the  like,  are  offered  as  point- 
ing forward  to  the  probability  of  such  an  emotion  being  excited,  while  out- 
ward exhibitions  of  conduct,  used  for  the  same  purpose,  have  a  retrospectant 
value  as  showing  that  the  emotion  was  the  probable  source  of  the  evidentiary 
conduct.  This  distinction,  then,  while  not  always  an  essential  one,  at  least 
provides  a  convenient  order  of  arrangement,  and  is  often  serviceable  in 
emphasizing  related  qualities  of  probative  value. 


TITLE  I:    EVIDENCE  TO  PROVE  AN  EVENT,  CON- 
DITION, QUALITY,  CAUSE,  OB  EFFECT  OF 
EXTERNAL  INANI3IATE  NATURE 

4.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^  §  1. 
Classification  of  Probanda.  There  can  be,  at  certain  points,  no  sharp  distinc- 
tion between  a  Human  Act,  a  Human  Quality  or  Condition,  and  a  Physical 
Fact  (External  Inanimate  Nature),  with  reference  to  evidencing  them  as 
probanda.  Some  matters,  such  as  death,  may  sometimes  be  viewed  in  either 
the  first  or  the  second  aspect ;  for  other  matters,  such  as  the  possession  of 
land,  it  may  not  be  easy  to  distinguish  between  the  second  and  the  third. 
The  propositions  which  come  to  be  proved  before  triljunals  of  justice  em- 
brace every  sort  of  fact  in  life,  and  no  classification  not  purely  arbitrary  can 
divide  them  for  practical  purposes  into  classes  always  absolutely  distinct. 

But  in  the  present  group  the  distinguishing  feature  is  the  absence  of  the 
element  of  a  human  will  and  of  the  human  emotion,  reason,  and  character 
as  affecting  conduct. 

The  kinds  of  probanda  may  be  further  subdivided  into  four  categories  : 

I.  Identity  (for  example,  whether  a  machine  delivered  was  the  same  as 
the  one  agreed  to  be  delivered) ; 

II.  Occurrence  of  an  Event  (for  example,  whether  a  tree  fell,  or  whether 
lightning  struck  a  house) ; 

III.  Existence,  or  Persistence,  in  Time  (for  example,  whether  a  defect  in 
a  street  or  a  house  was  in  existence  at  the  time  in  issue) ; 

IV.  Tendency,  Capacity,  Quality,  Cause,  or  Effect  (for  example,  whether 
a  place  in  a  sidewalk  was  dangerous,  or  whether  a  gunshot  could  carry  a 
certain  distance). 

Here,  again,  no  specific  single  terms  can  accurately  distinguish  the  dif- 
ferent groups,  nor  is  it  possible  always  to  draw  the  lines  sharply  between 
the  various  groups.  A  given  evidentiary  fact  may  and  usually  does  involve 
(as  already  observable  in  dealing  with  the  other  materials)  more  than  one  of 
these  processes  of  inference.  For  example,  in  proving  a  sidewalk  hole  to 
be  unsafe,  the  evidence  may  be  that  A  fell  there  two  weeks  ago  ;  this  involves, 
first,  an  inference  in  the  fourth  group,  namely,  that  the  place  was  then  unsafe, 

'  Adapted  from  the  sams  author's  Treatise  on  Evidence  (1905,  Vol.  I,  §§  432  461). 


32  PART    I.       CIRCTMSTAXTIAL    EVIDENCE  No-  4. 

and,  secondly,  an  inference  in  the  third  group,  namely,  that  its  unsafeness 
two  weeks  before  evidences  its  unsafeness  at  the  time  in  issue ;  and  either 
of  these  inferences  may  be  rejected  as  unsound,  while  the  other  remains 
sound.  Again,  to  prove  the  identity  of  a  bale  of  goods  delivered,  its  fea- 
tures six  months  before  may  be  offered  ;  and  this  involves  the  soundness  of 
two  inferences,  one  of  the  first  and  one  of  the  third  sort.  Again,  the  ques- 
tion being  whether  a  tree  was  lying  across  a  street  on  January  1,  the  evi- 
dentiary fact  that  the  tree  was  struck  by  lightning  on  July  1  preceding  in-, 
volves  two  inferences,  namely,  that  the  tree  fell  when  struck,  and  that  its 
fallen  condition  continued  till  tlie  time  in  question,  i.e.  an  inference  of  the 
second  and  one  of  the  third  sorts.  Again,  to  show  that  a  dust  explosion 
occurreil  in  a  certain  room,  the  evidentiary  fact  that  a  dust  explosion  pre- 
viously occurred  in  the  same  room  involves  two  and  perhaps  three  infer- 
ences, —  first,  that  there  is  a  tendency  in  a  room  thus  circumstanced  for 
the  dust  to  explode  spontaneously,  secondly,  that  as  a  result  of  this  ten- 
dency an  explosion  did  occur,  and  perhaps  (intervening  between  these  two), 
thirdly,  that  the  condition  at  the  previous  time  continued  up  to  the  time 
in  (juestion,  —  inferences,  respectively,  of  the  fourth,  the  second,  and  the 
third  sorts. 

In  spite,  however,  of  this  incidental  resort  to  two  or  more  of  the  kinds 
of  inference  in  one  piece  of  evidence,  the  kinds  of  inference,  as  types,  re- 
main distinct. 

§2(1).  I  (lent  if}/ of  One  Object  with  Another.  The  mode  of  inference  used 
in  proving  identity  is  precisely  the  same  for  objects  of  inanimate  nature 
and  for  human  l)eings  and  will  be  examined  post,  No.  14. 

§  3  (II).  Occurrence  of  an  Event.  This  term  includes  theoretically 
matters  which  might  perhaps  be  conceived  of  also  under  the  category  of 
Existence.  For  example,  if  the  probandum  be  the  destruction  of  a 
house,  it  might  ordinarily  be  conceived  of  either  as  an  event,  the  momen- 
tary fact  of  destruction,  or  as  a  condition  of  existence,  the  state  of 
being  destroyed.'  For  practical  evidential  purposes,  however,  the  choice 
of  terms  is  here  not  important.  The  distinction  between  the  second  and 
the  third  groups  is  the  distinction  between  the  mere  fact  of  occurrence  or 
existence  «."?  such,  and  the  fact  v  f  occurrence  or  existence  with  reference  to 
time.  In  the  present  group  it  is  asked  how  to  prove  the  mere  fact  of  de- 
struction or  non-destruction. 

§  4.  Same:  Occurrence  of  an  Erent,  as  evidenced  from  Cause  or  Effect. 
An  event  may  be  evidenced  circumstantially  by  a  cause  or  by  an  effect. 
This  mode  of  inference  is  available  in  the  three  forms  already  mentioned 
(ante,  No.  2),  — Pro.spectant,  Retrospectant,  and  Concomitant.  For  ex- 
ample, the  sinking  of  a  ship  is  evidenced  prospectantly  by  the  presence  of 
a  storm  in  the  vicinity  ;  the  occurrence  of  a  fire  is  evidenced  retrospectantly 
by  the  blackened  ruins  left  as  its  traces;    the  revolution  of  car  wheels  is 

'  "Whc-ii  HUfo<«H.sivc  phonoiiK'iia  arc  in  question,  thfso  ahstractod  portions  [factum  pro- 
Itantlnm  and  cvidf-ntiary  fart]  may  always  thcinsclv(!s  be  viewed  as  events,  even  where  so 
uneventful  a«  liar<lly  to  flcHerve  the  name  in  popular  language.  Thus,  where  any  quality 
of  liny  thing  ehnnges  ever  so  slightly  —  say,  when  a  thermometer  rises  one  degree —  we 
have  what  i«  here  considered  uii  '(^vent. '  ...  It  may  seem  (in  thesp  examples]  strange  to 
call  a  large  river  or  a  large  town  'events,'  but  here  the  names  are  only  used  elliptieally,  for 
the  growth  of  the  town  and  the  continued  existence  of  the  river."  (Sidgwick,  Fallacies, 
I>p.  XV.i.  :{.{S.) 


No.  4.  I.   PKOOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC.  33 

evidenced  concomitantly,  by  the  motion  of  the  car,  to  the  person  riding  in 
it.  This  type  of  inference,  though  perhaps  in  practice  the  commonest  of 
all,  gives  rise,  nevertheless,  to  practically  no  judicial  problems.  One  reason 
for  their  rarity  is  that,  for  the  occurrences  of  external  or  inanimate  nature, 
testimonial  evidence  is  commonly  abundant.  Another  reason  is  that, 
where  the  desired  inference  transcends  the  scope  of  ordinary  instinct  and 
experience,  it  is  offered  as  the  subject  of  a  testimonial  knowledge  or  opinion 
by  an  expert  witness,  —  as  where  a  physician  testifies  that  froth  in  the  lungs 
of  a  corpse  evidences  a  certain  kind  of  death.  Another  reason  is  that  most 
events  of  external  nature  are  associated  with  some  human  act,  and  hence  the 
proof  involves  evidence  of  the  act.  But  a  reason  the  most  important  for 
present  purposes  is  that  an  inference  of  this  type,  though  in  form  the  first 
one  to  be  put  forward  as  the  main  inference,  frequently  —  if  not  usually  — 
resolves  itself  into  another  of  a  different  type,  and  the  evidential  question 
comes  to  turn  upon  the  other.  This  feature  it  is  necessary  to  explain  more 
fully.  The  process  may  be  examined  for  each  of  the  three  modes  of  infer- 
ence in  turn,  —  prospectant  (inference  from  a  prior  or  causal  fact),  retro- 
spectant (inference  from  an  effect),  and  concomitant. 

(1)  Prior  Cause,  as  the  Basis  of  Inference.  That  a  corporal  injury  will 
cause  a  permanent  disability  to  work ;  that  noxious  fumes  will  cause  the 
destruction  of  herbage,  —  these  are  examples  of  this  sort  of  inference. 
The  evidential  offer  may  be  put  in  this  way  :  The  fact  of  noxious  fumes  is 
offered  as  evidence  that  at  a  future  time  there  will  ensue  no  herbage.  But, 
in  practice,  these  offers  involving  an  argument  from  cause  to  effect  do  not 
raise  any  evidential  questions  in  the  above  form,  but  resolve  themselves 
into  others  ;  because  the  inference  rests  on  an  important  assumption,  which 
in  its  turn  becomes  the  subject  of  a  new  evidential  question.  To  take  the 
second  illustration  above,  and  state  it  more  accurately :  The  fact  of  these 
fumes  having  a  tendency  to  destroy  herbage  evidences  that  in  future  they 
will  probably  result  in  destroying  the  herbage  in  question.  Now  this  form 
of  statement  brings  out  the  necessity  of  proving,  in  its  turn,  a  fact  of  a  new 
and  different  category,  viz.  this  assumed  tendency  of  the  fumes  to  destroy 
herbage;  and  this  fact  of  tendency  (or  capacity)  is  seen  to  be  in  reality  the 
probable  point  of  controversy. 

(2)  Subsequent  Effect,  as  the  Basis  of  Inference.  That  the  falling  barometer 
indicates  the  existence  of  an  atmospheric  disturbance ;  that  the  derailed 
car  indicates  the  prior  occurrence  of  a  collision  or  other  destructive  event, 
—  these  are  instances  of  inferences  from  effect  back  to  the  existence  of  a 
cause.  Such  inferences,  however,  rarely  raise  evidential  questions  in  prac- 
tice, for  reasons  the  same  as  those  just  explained.  Thus,  in  the  illustra- 
tion above  used,  the  destruction  of  the  herbage  is  evidently  relevant,  with- 
out question,  as  indicating  the  Same  destructive  influence  of  atmosphere, 
soil,  or  the  like ;  but  in  the  further  process  of  fixing  on  the  fumes  in  ques- 
tion as  the  precise  cause,  either  we  proceed  to  oft'er  that  specific  inference 
through  an  expert  witness,  who  asserts  as  a  matter  of  professional  experi- 
ence that  the  appearance  of  the  herbage  indicates  specific  fumes  as  the  source 
(in  which  case  no  questions  of  circumstantial  relevancy  arises),  or,  in  attempt- 
ing otherwise  to  fix  upon  the  fumes  as  one  of  the  probable  destructive  in- 
fluences, it  must  first  be  shown  that  they  have  this  tendency  to  destroy  herb- 
age.    Thus,  in  general,  the  inference  from   an  effect   to  the  existence  or 


34  PART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  4. 

operaxicin  of  a  cause  usually  leads  to  a  new  controversy  as  to  whether  the 
supposed  cause  has  any  causing  tendency  of  the  alleged  sort,  and  this  new 
controversy  involves  a  different  sort  of  inference. 

(3)  Concomitant  hlvcnts,  as  tlw  ha.tis  of  Iiifciritcc.  An  event  cannot  be  in- 
ferred from  its  concomitant  event  except  on  the  assumption  that  they  have 
a  common  cause,  or  unless  the  inference  is  really  not  one  of  concomitancy, 
hut  of  cause  and  effect.  An  example  of  the  latter  sort  is  the  inference  of 
fire  from  smoke,  i.e.  it  is  really  the  inference  of  fire  as  a  cause  from  smoke 
as  the  effect.  An  example  of  the  former  sort  is  the  inference  of  revolving 
wheels  from  the  motion  of  the  car,  i.e.  there  is  really  an  inference,  first  from 
the  motion  to  the  motive  power  as  a  cause,  and  next,  from  the  motive  power 
to  tiie  revolution  of  the  wheels  as  a  common  effect  of  the  same  cause.  Hence, 
no  separate  prol)lem  is  involved  in  this  form  of  argument. 

§  5  (III).  K.ristrnci'  (or  J\'rsi{itcnce)  in  Time.  There  is,  in  strictness, 
no  place  for  a  separate  category  of  mere  p]xistence,  as  distinguished  from 
Occurrence ;  for,  as  above  suggested,  the  notion  of  a  thing's  either  coming 
into  being  or  of  its  having  been  in  being  is  an  inclusive  and  single  notion, 
with  reference  to  which  inferences  from  cause  or  from  effect  may  equally 
be  matle.  Thus  in  inferring  future  disability  from  corporal  injury,  it  is 
inunaterial  whether  the  former  be  termed  the  occurrence  of  an  event  or 
the  existence  of  a  condition  ;  the  inquiry  is  merely  how  far  we  may  infer 
towards  it  from  something  else  as  its  cause  or  its  effect ;  and  the  term  Occur- 
rence has  therefore  been  employed  as  the  one  most  generally  applicable 
to  the  probandum.  Nevertheless,  it  is  convenient  to  separate,  for  some 
piurposes,  a  category  of  Existence  in  Time  as  the  probandum,  i.e.  those  in- 
stances in  which  the  Existence  in  Time  of  an  object,  condition,  or  quality 
is  to  be  evidenced  by  a  prior,  subsequent,  or  concomitant  existence.  The 
inference  may,  as  usual,  be  of  one  of  these  three  general  types ;  but  the 
first  two  are  not  dissimilar  in  their  operation,  and  may  be  considered  to- 
gether. 

§  0.  Same:  (1)  Exiatence,  from  Prior  or  Suh.sequent  K.vi.stence ;  Gen- 
eral Principle,  applied  in  Sundri/  Instances  (Highways,  Machines,  Buildings, 
Hailwai/  Trades,  etc.).  When  the  existence  of  an  object,  condition,  quality, 
or  tendency  at  a  given  time  is  in  issue,  the  prior  existence  of  it  is  in  human 
experience  .some  indication  of  its  probable  persistence  or  continuance  at  a 
later  period.  The  degree  of  i)robability  of  this  continuance  depends  on 
the  chances  of  intervening  circumstances  having  occurred  to  bring  the  exist- 
ence to  an  end.  The  possibility  of  such  circumstances  will  depend  almost 
entirely  on  the  nature  of  the  specific  thing  whose  existence  is  in  issue  and  the 
particular  circumstances  affecting  it  in  the  case  in  hand.  That  a  .soap  bub- 
l)le  was  in  existence  half  an  hour  ago  affords  no  inference  at  all  that  it  is  in 
existence  now;  that  Mt.  Everest  was  in  existence  ten  years  ago  is  strong 
evidence  that  it  exists  yet ;  whether  the  fact  of  a  tree's  existence  a  year  ago 
will  indicate  its  continued  existence  to-day  will  vary  according  to  the  nature 
of  the  tree  and  the  conditions  of  life  in  the  region.  So  far,  then,  as  the  in- 
iirral  of  time  is  concerned,  no  fixed  rule  can  be  laid  down  ;  the  nature  of  the 
thing  and  the  circumstances  of  the  particular  case  nmst  control. 

Similar  considerations  affect  the  u.se  of  subsequent  existence  as  evidence 
of  existence  at  the  time  in  issue.  Here  the  disturbing  contingency  is  that 
some  circumstance  operating  in  the  interval  may  have  been  the  source  of 


No.  4.  I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC.  35 

the  subsequent  existence,  and  the  propriety  of  the  inference  will  depend  on 
the  likelihood  of  such  intervening  circumstances  having  occurred  and  been 
the  true  origin.  On  landing  at  New  York  it  can  hardly  be  inferred  that  the 
steamer  at  the  next  dock  has  been  there  for  a  week ;  but  it  may  usually 
be  inferred  that  the  dock  has  been  there  for  some  years  ;  while  the  particular 
circumstances  of  appearance  and  the  like  will  in  the  last  instance  affect 
the  length  of  time  to  which  the  inference  could  be  carried  back.  Here,  as 
with  prior  indications,  the  interval  of  time  to  which  any  inference  will  be 
allowable  must  depend  upon  the  nature  of  the  thing  and  the  circumstances 
of  the  particular  case. 

The  opponent,  on  the  principle  of  Exjjlanation  {ante.  No.  2,  §  5),  may 
always  attempt  to  explain  away  the  effect  of  the  evidence  by  showing  that 
in  the  meantime  other  circumstances  have  occurred  to  raise  a  probability 
of  change  instead  of  continuance. 

The  precedents  show  the  principle  applied  to  all  manner  of  subjects,  — 
to  the  condition  of  a  highway,  or  of  a  bridge,  or  of  a  railway  track,  station, 
or  roadbed,  or  of  a  stream,  or  of  premises,  without  or  within,  or  of  machinery 
and  apparatus,  or  of  a  stock  of  goods,  or  of  sundry  articles,  or  of  the  condi- 
tion of  a  human  body  or  of  an  animal.  These  applications  of  the  principle 
are  analogous  to  the  use  of  the  same  inference  in  evidencing,  from  prior 
or  subsequent  condition,  a  human  ciuality,  —  habit,  possession,  ownership, 
partnership,  and  solvency,  emotion,  physical  capacity,  insanity,  and  char- 
acter. In  the  proof  of  a  place  or  person  by  photographs,  the  principle  is 
frequently  applied. 

§  7.  Same:  (2)  Existence,  from  Concurrent  Existence;  the  Whole 
evidenced  by  the  Parts,  etc.  {Highways,  Railway  Tracks,  Premises,  etc.). 
The  process  of  thought  by  which  one  thing  concurrently  indicates  another 
rests  on  the  assumption  that  in  human  experience  the  one  is  likely  to  be 
found  associated  with  the  other.  This  assumption,  then,  in  one  form  or 
another,  must  underlie  any  attempt  to  evidence  the  latter  by  showing  the 
concurrent  existence  of  the  former.  For  practical  purposes  the  situations 
may  be  grouped  under  three  heads. 

(a)  Miscellaneous  Instances.  That  the  presence  of  smoke  indicates  the 
concurrent  presence  of  combustion ;  that  in  coming  upon  sea  water  in  its 
natural  place  we  are  likely  to  come  upon  fish ;  that  on  apple  trees  fruit  is 
likely  to  be  found  in  season,  —  these  are  illustrations  of  the  form  which 
this  inference  most  usually  takes.  This  form,  however,  is  but  superficially 
a  concurrent  indication ;  almost  every  apparent  inference  is  in  reality  a 
prospectant  one,  i.e.  from  cause  to  effect.  That  apple  trees  are  likely  to 
produce  apples ;  that  fire  is  likely  to  produce  smoke,  —  sucJi  are  the  true 
forms  of  these  arguments  upon  analysis.  There  are  few,  if  any,  genuine 
instances  of  concurrent  argument  of  this  sort. 

{b)  Existence  of  the  Whole  inferred  from  a  Part,  or  of  one  Part  from  Another. 
To  argue  to  the  whole  from  a  part,  or  to  one  part  from  another,  is  also,  in 
the  last  analysis,  an  argument  from  one  effect  of  a  common  cause  to  another 
effect.  But  for  practical  purposes  it  is  sufficient  to  treat  the  inference  as 
an  immediate  one.  The  condition  of  the  inference's  propriety  is  that  in 
human  experience  the  whole  has  been  found  probably  to  exist  with  certain 
related  parts  ;  we  may  then  use  the  existence  of  one  of  the  parts  as  evidence 
from  which  to  infer  the  presence  of  the  whole  or  of  one  of  the  associated  parts,. 


36  PART    I.      CIRCl'MSTAN'TIAL    EVIDENCE  No.  4. 

—  as  where,  ohserviiifi  a  floating  iceberg,  it  is  inferred  that  beneath  the 
water's  surface  is  a  hirger  mass  of  ice  in  the  proportion  usually  found  asso- 
ciated with  such  a  mass  above  water;  or  where  on  ol)serving,  from  one  side 
of  a  locomotive,  two  driving  wheels,  we  infer  that  on  the  other  side  there 
are  two  similar  ones.     This  sort  of  inference  is  common  enough  in  trials. 

(c)  CondHioii  ur  Qualiiii  in  one  Place,  from  Condition  or  Quality  in  Another. 
Ix)gically  of  the  same  nature  as  the  preceding,  but  in  practice  having  a 
slightly  dirtVrent  aspect,  is  the  inference  frequently  desired  to  be  made  from 
the  nature  of  a  condition  or  quality  in  one  place  to  the  condition  or  quality 
at  another  place,  usually  in  the  vicinity.  The  logical  assumption  is  that  by 
a  common  cause  or  causes  uniform  eftects  have  been  produced  over  a  given 
area,  which  is  thenceforth  related  to  the  evidential  place  as  a  homogeneous 
whole  to  its  parts.  In  practical  application,  therefore,  the  requirement  is 
that  the  two  places  should  be  so  related  that  they  probably  form  parts  of 
a  homogeneous  area  including  them  both ;  and  in  such  case  the  condition 
or  quality  of  the  one  place  is  probative  to  show  the  condition  or  quality 
of  the  otlier.  This  principle  receives  frequent  application,  —  to  highways, 
to  railway  tracks,  stations,  and  roadbeds,  to  machines,  buildings,  and  other 
structures,  to  natural  growths  and  formations,  weather  conditions,  and  the 
like. 

§  S.  Same:  Samples  as  Evidence  of  an  Entire  Lot.  It  is  on  the  present 
principle  that  a  sample  is  receivable  in  evidence  to  show  the  quality  or 
condition  of  the  entire  lot  or  mass  from  which  it  is  taken.  The  probative 
requirement  is  merely  that  the  mass  should  be  substantially  uniform  with 
reference  to  the  quality  in  question,  and  that  the  sample  portion  should 
be  of  such  a  nature  as  to  l)e  fairly  representative.  When  the  sample  is  not 
taken  from  the  very  substance  or  article  in  issue,  but  from  another  one,  the 
only  difference  in  the  argument  is  that  another  inference  is  introduced,  i.e. 
the  inference  of  Identity  {post,  No.  14).  It  must  first  be  evidenced  that 
substance  A  is  in  nature  identical,  for  the  purpose  in  hand,  with  substance 
B,  and  then  a  sample  from  B,  working  through  a  double  inference,  evidences 
the  nature  of  substance  A. 

§  9.  Same:  Sample  Copies  of  Printed  Matter.  An  impression  from 
type  (usually  known  by  the  unfortunate  because  ambiguous  term  copy)  is 
evidence  of  the  contents  of  another  impression  from  the  same  type,  the  re- 
fpiired  assumption  being  merely  that  both  were  produced  by  the  same  type. 
The  easier  motle  of  proof  is  usually  by  a  witness  who  offers  one  impression 
as  representing  his  recollection  of  the  other.  The  present  principle,  how- 
ever, is  to  be  distinguished  from  that  which  is  involved  when  it  is  attempted 
from  one  type-impression  to  show  the  authorship,  or  ])ul)lication,  of  another 
and  similar  one.  Where  the  authorship  (or  publication)  of  a  single  impres- 
sion is  shown,  the  authorship  of  another  impression  exactly  similar  is  not 
necessarily  proved,  although  it  ought  at  least  to  be  regarded  as  evidenced, 
because  the  printing  of  one  evidences  in  ordinary  experience  the  probable 
printing  of  all  others  of  the  same  content  and  ajjpearance.  That  (juestion, 
liDWcvcr,  does  not  involve  the  present  principle,  i.<\  the  nature  of  the  article, 
but  involves  the  doing  of  an  act,  i.e.  of  authorship  or  pul)lication. 

§  10  (IV).  Tendency,  Capacity,  Quality,  Came,  or  Effect.  It  has 
been  noted  above  how,  in  so  many  instances  of  other  classes  of  cases,  that 
which  is  the  main  or  first  apparent  inference  oft'ered  is  upon  analysis  to  be 


No.  4.  I.      PROOF   OF   PHYSICAL   EVENT,    CAUSE,    ETC.  37 

resolved  into  an  inference  of  the  present  sort,  i.e.  in  which  the  probandum 
is  a  tendency,  capacity,  or  the  Hke.  It  is  thus  easy  to  see  why  the  great 
majority  of  the  rulings  are  concerned  with  this  specific  sort  of  inference. 

What,  then,  is  the  mode  of  evidencing  circumstantially  a  tendency,  ca- 
pacity, or  quality  of  external  inanimate  nature  ?  In  general,  the  inference 
is  from  specific  instances  of  observed  effects,  exhibitions,  or  illustrations,  to  the 
supposed  tendency,  capacity,  or  quality  producing  them.  For  example,  the 
question  at  issue  may  be  whether  the  vibrations  of  factory  machinery  have 
caused  a  conceded  injury  in  an  adjacent  house.  The  main  controversy  is 
whether  the  former  is  the  cause  of  the  latter ;  but,  in  searching  among  the 
probable  causes,  the  argument  is  obviously  confined  to  those  things  which 
have  a  tendency  or  capacity  to  produce  such  effects,  and  thus  the  real 
proposition  of  the  proponent  now  becomes  this,  namely,  that  the  factory 
apparatus  has  a  tendency  or  capacity  to  produce  such  effects.  Thus,  while 
one  of  the  ultimate  issues  for  the  jury  still  remains  the  question  whether 
the  factory  caused  the  injury,  yet  the  subsidiary  proposition  to  which  the 
evidence  has  to  be  directed  is  whether  the  factory  has  such  a  tendency  or 
capacity.  In  short,  when  it  is  desired  to  show  broadly  the  occurrence  of 
an  event,  or  the  cause  of  it,  the  process  of  thought  usually  resolves  itself 
into  two  inferences,  —  first,  that  the  capacity  or  tendency  of  something  to 
cause  the  event  is  evidence  that  the  event  did  so  result  therefrom ;  and, 
secondly,  that  something  else  is  evidence  of  such  a  capacity  or  tendency ; 
and  it  is  the  second  of  these  inferences  which  in  practice  raises  evidential 
questions. 

§  11.  Same:  Principle  of  Probative  Value  {ante.  No.  2,  §  3).  The 
requirements  for  this  process  of  inference  are  indicated  by  the  logical  prin- 
ciples already  examined.  The  general  logical  requirement  is  that  when  a 
thing's  capacity  or  tendency  to  produce  an  effect  of  a  given  sort  is  to  be 
evidenced  by  instances  of  the  same  effect  found  attending  the  same  thing 
elsewhere,  these  other  instances  have  probative  value  to  show  such  a  tend- 
ency or  capacity  only  so  far  as  the  conditions  or  circumstances  in  the  other 
instances  are  similar  to  those  in  the  case  in  hand. 

But  this  similarity  need  not  be  precise  in  every  detail.  It  need  include 
only  those  circumstances  or  conditions  which  might  conceivably  have  some 
influence  in  affecting  the  result  in  question.  For  instance,  in  the  case  put 
above,  the  circumstance  that  house  B'  was  of  wood  while  house  B  was  of 
brick  would  conceivably  affect  the  ease  and  likelihood  of  injury  by  vibration  ; 
but  the  circumstance  that  the  inner  walls  in  B'  were  papered  while  those  in 
B  were  kalsomined,  or  that  the  house  B'  was  painted  red  while  the  house  B 
was  painted  green,  or  that  the  occupant  of  house  B'  was  a  Presbyterian  while 
the  house  B  was  occupied  by  a  Methodist,  —  such  a  circumstance,  though 
perhaps  material  in  other  aspects,  "could  not  have  any  bearing  upon  the  likeli- 
hood of  injury  by  vibration.  A  similarity  between  the  two  cases  in  respect 
to  such  circumstances,  therefore,  would  not  be  required.  The  similarity 
that  is  required  is,  in  short,  a  similarity  in  essential  circumstances,  or,  as  it  is 
usually  expressed,  a  substantial  similarity,  i.e.  a  similarity  in  such  circum- 
stances or  conditions  as  might  supposably  affect  the  result  in  question. 

There  is  also  available  here,  but  not  so  commonly,  the  subordinate  form 
of  argument  known  as  the  method  of  difference  {ante,  No.  2,  §  4).  This 
mode  of  evidencing  is  in  judicial  investigations  not  so  frequently  available, 


38  PART   I.      CIRCUMSTANTIAL   EVIDENCE  No.  4. 

l)ecause  it  is  not  usually  feasible  to  find  instances  which  fulfill  these  require- 
ments ;  hut  so  far  as  the  issue  admits  of  experiments  in  which  the  conditions: 
can  be  thus  artificially  manipulated,  the  mode  is  equally  feasible.  Occa- 
sional instances  are  found  in  the  precedents,  usually  in  the  form  of  proof  of 
the  absence  of  the  harm  in  (juestion  before  the  alleged  harmful  act  and  then 
the  supervening  presence  of  the  harm  immediately  after. 

§  12.  Same:  Di.stinctiou  hctwcvn  E.rpcrinirnt  and  Observation.  There 
are  two  ways  in  which  the  data  may  be  ol)tained  for  evidencing  tendency, 
capacity,  or  quality,  on  the  principle  under  consideration.  One  is  by  using 
such  instances  as  may  be  found  ready  at  hand,  —  instances  which  have 
already  occurrefl  in  the  ordinary  course  of  events  and  happen  to  be  suitable 
for  the  purpose.  The  other  is  to  reproduce  artificially  and  expressly  the 
appropriate  conditions  and  then  observe  the  data  obtained  by  this  effort 
and  prearrangement.  The  former  process  is  the  simple  one  of  Observation  ; 
the  latter  is  that  of  Experiment.  The  former  is,  in  general  scientific  accept- 
ance, distinctly  inferior  for  most  purposes  to  the  latter;  because,  in  taking 
data  just  as  they  come,  it  is  not  usually  feasible  to  secure  precisely  the  proper 
conditions  required  for  the  validity  or  certainty  of  our  inference ;  while  in 
the  latter  the  conditions  may  usually  be  prearranged  precisely  as  they  are 
needed  in  order  to  make  a  sound  inference.  Indeed,  the  former  source  of 
data,  in  the  modern  scientific  world,  is  looked  upon  as  concededly  so  inferior 
in  probative  value,  as  not  to  be  resorted  to  except  in  such  situations  (for 
example,  geological  formations  and  human  diseases)  as  do  not  usually  ad- 
mit of  artificial  prearrangement  and  control. 

§  13.  Sanir:  Distinction  hrtwrcn  Possihiliti/,  Capacity,  Tendency,  aJid 
Cause,  as  the  object  of  Evidence;  Evidencing  a  Possibility.  The  notion  of 
Causation  is  in  logic  by  no  means  easy  to  analyze ;  but  it  is  enough  to 
point  out  here  that  certain  superficially  different  terms  represent  essentially 
the  same  evidential  process.  When  it  is  asked,  for  example,  whether  cer- 
tain factory  vapors  were  the  cause  of  a  destruction  of  herbage,  the  notion 
of  "  cause,"  simple  as  it  seems,  becomes  upon  analysis  somewhat  complex 
and  at  the  same  time  indefinite.  Stated  in  its  broadest  form,  the  notion  of 
cause  and  effect  is  merely  that  of  invariable  sequence.  It  is  only  rarely, 
however,  if  at  all,  that  such  an  abstract  assertion  can  be  made  in  universal 
terms  that  will  stand  examination.  Thus,  that  a  bullet  shot  from  a  pistol 
into  the  heart  "causes"  —  i.e.  will  invariably  be  followed  by  —  death,  is  a 
seemingly  impregnable  assertion ;  and  yet  not  only  may  it  not  be  true  of 
bullets  of  every  size,  but  it  may  not  be  true,  even  with  ordinarily  large 
bullets,  in  instances  recorded  here  and  there ;  antl,  in  the  future,  surgical 
skill  may  show  that  the  instances  of  non-sequence  of  death  might  be  made 
even  more  nmnerous.  The  assertion  may  then  be  amended  by  adding 
limiting  conditions,  so  as  to  say  that,  provided  this  and  that  and  the  other 
be  so,  a  bullet  through  the  heart  causes  death.  In  short,  instead  of  an  abso- 
lute certainty  or  invariability  of  sefjuence,  the  assertion  will  be  only  of  a 
very  high  probability  of  sequence.  In  most  instances  no  one  thinks  of 
making  ;iri  assert if)n  in  absolute  form,  and  it  is  easy  to  see  that  an  assertion 
of  causatitm  means  usually  only  an  a.ssertion  of  high  probability  or  strong 
tendency.  Thus,  the  planting  of  .seed  in  good  soil  at  the  right  time  of  the 
year  will  probably  result  in  a  harvest  in  due  season  ;  but  the  result  is  not 
invariably  certain,  because  no  rain  may  fall  or  the  land  may  be  built  upon 


No.  4.  I,      PROOF   OF   PHYSICAL   EVENT,    CAUSE,    ETC.  39 

or  other  influences  may  intervene.  Though  we  should  feel  justified  in 
speaking  of  the  seed  as  the  cause  of  the  harvest,  yet  it  would  not  be  intended 
to  assert  anything  more  than  that  the  seed  has  a  tendency  to  produce  the 
harvest.  Coming  now  to  an  example  of  still  weaker  probability,  suppose 
it  to  be  asserted  that  gunpowder  may  spontaneously  —  i.e.  without  human 
meddling  —  explode,  this  is  not  saying  that  it  will  probably  so  explode, 
but  merely  that  under  a  rare  combination  of  circumstances  it  will  do  so, 
i.e.  it  has  a  capacity  to  do  so. 

Capacity,  then,  is  a  quality  representing  the  same  process  of  thought 
as  tendency ;  i.e.  it  represents  the  possibility  of  a  result  as  compared  with 
the  probability  of  a  result,  and  above  them  both  is  a  notion  of  a  still  higher 
degree,  rarely  realized  in  experience,'  —  that  of  absolute  certainty  of  result. 
All  these  are  in  the  same  category ;  the  difference  is  that  in  the  highest 
degree  we  think  of  the  sequence  as  occurring  under  any  and  every  combina- 
tion of  other  circumstances,  but  in  the  middle  degrees  under  the  ordinary 
combinations  only,  and  in  the  lowest  degrees  under  rare  combinations  only. 
The  notion  of  causation  is  perhaps  most  commonly  associated  with  the 
middle  and  highest  degrees  only ;  i.e.  one  would  naturally  enough  say,  "  A 
bullet  through  the  heart  will  cause  death,"  and  "  Sowing  seed  will  cause  a 
harvest";  while  in  the  lowest  degree  one  would  either  not  speak  at  all  of 
cause  or  would  qualify  the  statement,  for  example,  by  saying,  "  Gunpowder 
may  cause  spontaneously  an  explosion."  The  essential  thing  to  note  is 
that  all  these  terms  e.vpre.ss  only  varying  degrees  of  certainty  or  probability  or 
possibility ;  and  that  they  all  belong  to  the  same  logical  category  of 
thought : 

Professor  Alfred  SiDGWiCK.  Fallacies,  (pp.  18,285.)  Abstract  assertions  of  suc- 
cession are  commonly  made  with  a  large  margin  for  the  incalculable.  We  feel  fairly 
contented  in  obtaining  any  hint  of  "law,"  —  any  knowledge,  that  is,  which  may  form 
a  basis  for  even  imperfectly  secure  inference  and  proof.  The  only  alternative  to 
"Chance"  is  often  "Tendency,"  and  in  our  gladness  to  escape  from  Chance  we 
dignify  this  as  "Law."  .  .  .  Between  mere  guesses,  hypotheses,  theories,  empirical 
laws,  and  "laws  of  Nature,"  there  are  only  continuous  differences  of  degree  in  cer- 
tainty, according  to  the  nature  and  ninnber  of  the  tests  they  have  stood  and  the 
duration  of  their  past  invulnerability.  .  .  .  The  resemblance  in  uncertainty  be- 
tween a  fanciful  guess  and  a  proved  law  may  be  less  important  than  the  difference  in 
the  degree  of  certainty ;  but  the  fact  cannot  be  safely  hidden  that  the  resemblance 
exists.  .  .  .  The  method  of  proving  laws  is  one  and  the  same,  whether  they  be  the 
merest  wildest  supposition  or  the  soundest  explanation  of  the  facts  of  Nature. 

In  the  precedents  upon  the  present  subject,  then,  there  is  no  difference 
in  logic  or  in  legal  principle  between  evidencing  a  capacity,  a  tendency, 
or  a  certainty  of  operation  or  causation.  The  only  dift'erence  is  as..to  the 
practical  need  or  utility  of  one  or  the  other  degree  of  likelihood  in  the  case 
in  hand.  Thus,  if  the  issue  is  as  to  a  spontaneous  explosion  of  gunpowder, 
we  may  appreciably  advance  pur  proof  by  showing  merely  a  capacity,  i.e. 
possibility,  of  such  a  result.  But,  if  the  issue  is  as  to  the  destruction  of 
herbage  b}'  vapors,  the  capacity  of  the  vapors  to  d6  this  would  probably 
be  conceded,  and  the  only  useful  way  of  advancing  the  proof  will  be  to  show, 
not  merely  a  capacity,  but  a  strong  tendency  to  produce  this  effect. 

§  14.  Same:  Number  of  Instances  required.  It  follows,  from  what  has 
just  been  said,  that  the  number  of  instances  offered  is  immaterial,  so  far  as 
the  logical  principle  is  concerned.     The  only  difference  will  be  as  to  the 


40  PART   I.      CIRCUMSTAXTIAL   EVIDENCE  No.  4. 

practical  utility,  for  the  case  in  hand,  of  the  inference  to  be  drawTi.  One 
instance  may  indicate  a  capacity  to  produce  the  result ;  but  so  feeble  and 
indefinite  a  possibility  may  practically  not  advance  the  cause  beyond  what 
\\oii\d  be  already  conceded  or  easily  accepted.  So,  too,  a  limited  number 
of  instances  mif;ht  show  a  tendency  or  common  probability,  and  yet  this 
tendency  might  be  already  beyond  dispute  and  imnecessary  to  prove,  and 
nothing  short  of  an  approach  to  certainty  or  universality  of  operation  would 
ad\  ance  the  cause  of  the  proof.  Where  the  purpose  is  to  show  the  existence 
of  a  mere  capacity,  so  as  to  negative  the  impossibility  of  a  thing's  occurrence, 
here  a  single  instance  may  suffice. 

§  15.  ycgaiiir  and  Affirmative  Instances;  Evidencing  an  Impossihility. 
Whether  an  instance  is  to  be  regarded  as  affirmative  or  negative  in  form 
depends  much  on  the  issue  as  made  by  the  parties.  For  example,  if  it  were 
desired  to  proxe  performance  of  a  warranty  that  a  certain  substance  is 
calculated  to  deaden  pain  in  dental  operations,  instances  of  the  substance 
having  made  operations  painless  are  affirmative  of  the  quality  alleged  by 
the  warranty ;  but  if  a  patient  were  suing  the  dentist  for  careless  use  of  a 
substance  calculated  to  produce  pain,  the  offer  of  the  same  instances  by  the 
dentist  would  in  form  negative  the  alleged  quality,  i.e.  they  w^ould  be  in- 
stances in  which  pain  was  not  produced. 

Assuming,  then,  that  the  issue  is  such  that  the  instances  are  thus  genuinely 
negative  in  purpose  and  form,  is  there  any  difference  to  be  noted  as  to  the 
conditions  of  their  use,  as  distinguished  from  affirmative  instances  ?  Keep- 
ing in  mind  the  principle  just  examined  (ante,  §  13),  it  will  be  seen  that 
there  is  no  difference  of  logical  principle,  though  there  is  practically  a  differ- 
ence in  availability,  according  to  the  object  of  the  evidence : 

(1)  Suppose  that  the  proponent  in  the  issue  is  (correctly)  offering  only  to 
show  a  capacity  —  i.e.  an  occasional  possibility  —  of  producing  the  effect. 
Obviously,  it  is  here  logically  of  no  avail  to  produce  against  him  instances 
in  which  the  effect  was  not  produced.  They  do  not  meet  his  point ;  for  it  is 
quite  consistent  with  the  capacity  or  possibility  of  producing  the  effect  that 
there  should  be  many  instances  in  which  the  effect  w-as  not  produced  ;  for 
example,  if  the  proponent  has  evidenced  by  one  or  two  instances  the  capacity 
of  a  pistol  to  carry  two  hundred  yards,  it  is  logically  of  no  avail  for  the  oppo- 
nent to  answer  with  a  negative  instance  (or  instances)  in  which  it  has  not 
carried  thus  far.     Logically  nothing  short  of  a  universal  negative  will  suffice. 

(2)  Suppose,  however,  that  the  proponent  is  aiming  to  show  something 
stronger  than  a  mere  capacity,  i.e.  a  general  or  usual  tendency,  and  has  evi- 
denced this  by  a  few  instances ;  here,  obviously,  an  equal  or  greater  or  less 
numlicr  of  negative  instances  or  perhaps  even  a  single  instance  would  help 
to  show  that  no  usual  or  general  tendency  could  be  predicated,  and  thus 
would  be  practically  available  to  answer  the  showing  made  by  the  proponent. 

f.'V)  Hut  suj)j)()se,  finally,  that  the  proponent  is  interested  in  showing  a 
fair  rrrtiiniiy  or  iin  ritahleness  of  effect;  here  even  a  single  rtegative  instance 
would  suffice  to  dispose  of  his  contention.  The  proponent  cannot  claim 
that  an  effect  is  invariably  found,  if  an  instance  is  shown  in  which  the  effect 
is  not  found  ;  for  example,  where  it  is  claimed  that  a  near  gunshot  wound 
always  leaves  powder  stains,  a  single  instance  will  overturn  this  claim. 

§  Hi.  Same:  ()j,po.sing  the  ProponenVs  Instances.  An  opponent  finds 
three  processes  at  hand  for  opposing  the  proponent's  instances.     The  three 


No.  4.  I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC.  41 

ways  have  been  examined  already  in  dealing  with  Relevancy  in  general 
(ante,  No.  2,  §  8) ;  and  a  brief  notice  of  their  application  to  the  present  sort 
of  evidence  will  here  suffice. 

(1)  Explanation.  The  opponent  may  show  that,  while  the  proponent's 
instances  occurred  prima  facie  under  similar  conditions,  yet  there  was  for 
one  or  more  of  them  some  attendant  condition  which  was  really  important 
and  was  likely  to  have  been  the  true  source  of  the  effect  observed,  so  that 
the  proponent's  instance  may  or  must  be  attributed  to  that  other  and  not 
to  the  alleged  tendency  or  cause  in  question.  Thus  he  explains  away  the 
proponent's  instance  by  showing  that  it  does  not  mean  what  it  seemed  to 
mean. 

(2)  Denial.  The  opponent  may  deny  that  the  proponent's  instances 
ever  did  in  fact  take  place. 

(3)  Rivalry.  The  opponent  may  offer  rival  instances,  tending  to  the 
opposite  result ;  and  these  may  be  of  two  sorts :  (a)  The  proponent's  in- 
stances being  offered  to  show  a  tendency  or  capacity  to  produce  an  effect, 
the  opponent  answers  by  producing  other  and  negative  instances,  in  which 
the  effect  did  not  appear ;  arguing  from  this  that  the  tendency  must  be  only 
a  limited  one  and  does  not  produce  its  effects  with  any  probability,  {h) 
The  opponent  may  offer  other  instances  in  which  the  same  effect  did  appear 
but  without  the  presence  of  the  alleged  cause.  The  absence,  in  these  ad- 
ditional instances,  of  the  thing  alleged  to  have  the  causing  tendency,  forces 
us  to  look  upon  its  presence  in  the  proponent's  instance  as  merely  accidental, 
and  explains  that  instance  away  as  due  not  to  the  alleged  tendency  but  to 
something  else.  Thus,  to  show  that  an  illness  following  Monday's  dinner 
was  not  due  to  the  ham  eaten,  an  instance  of  the  same  illness  following  Tues- 
day's dinner,  at  which  the  dishes  were  the  same  except  that  no  ham  was 
eaten,  indicates  that  some  other  dish  was  probably  the  common  cause  on 
both  occasions.  The  limitations  on  the  use  of  this  form  of  disproof  are  that 
the  conditions  (other  than  the  alleged  cause,  e.g.  the  ham)  were  substantially 
the  same  on  both  occasions  ;  for,  unless  this  is  insured,  it  might  be  supposed 
that  the  alleged  cause  —  e.g.  the  ham  —  might  have  operated  in  the  one 
case  and  some  other  cause  in  the  other  case.  It  is  only  by  confining  the 
difference  of  the  two  instances  to  the  single  circumstance  in  question  that 
the  argument  is  effective  to  eliminate  it  as  the  cause. 

§  17.    Same:   Instanees  of  the  Foregoing  Principles. 

How  shall  the  various  precedents  be  arranged  most  usefully  for  the 
present  purpose  ?  The  principle  involved  is  the  evidencing  of  a  tendency 
(capacity,  or  quality)  by  its  effects.  The  precedents  may  therefore  best 
be  grouped  according  to  the  various  kinds  of  tendencies  (capacities,  or  quali- 
ties) and  the  various  kinds  of  effects.  A  preliminary  grouping  may  be 
A.  Material  effects  (for  example,  marks  left  by  a  pistol  shot,  damage  done  to 
houses  by  smoke,  fire  set  by  locomotive  sparks) ;  B.  Corporal  effects,  in- 
cluding animal  and  human  effects  (for  example,  wounds  produced  by  shots, 
disease  produced  by  poison,  injuries  by  dangerous  highways) ;  C.  Mental 
and  Moral  effects,  i.e.  on  human  conduct  (for  example,  eft'orts  to  escape  the 
danger  of  a  railroad  collision,  time  required  by  a  workman  for  work,  pre- 
cautions required  for  a  dangerous  machine). 

A.  Instances  of  Material  Effects,  as  Evidence.  In  this  way  may  be  e\i- 
denced  the  existence  (or  not)  of  sundry  nuisances,  by  the  presence  (or  ab- 


42  PART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  4. 

sence)  of  certain  effects  under  similar  circumstances  (for  example,  of  simi- 
lar (lamajje  by  other  factories,  streams,  hospitals,  sewers,  operating  tmder 
analogous  conditions) ;  of  the  nuisance-nature  of  a  railroad,  by  its  injurious 
effects  upon  similar  adjacent  property,  in  respect  to  smoke,  noise,  vibration, 
and  the  like;  of  the  tendency  of  u-atcr,  in  \arious  forms,  by  its  effect  under 
similar  circumstances  (for  example,  in  the  fiowage  of  streams,  the  silting 
of  harbors,  the  breaking  of  dams,  the  destruction  of  bridges) ;  of  t\m  ten- 
dency of  gasts,  by  their  injurious  effects,  on  other  houses,  trees,  or  water 
supplies ;  of  other  injurious  operations  and  structures  affecting  the  condi- 
tion of  land  or  huildiny.s  l)y  vibration,  burning,  or  otherwise  ;  of  the  tendency 
or  quality  of  fools,  weapons,  I'chiclcs,  acids,  and  other  materials,  as  indicated 
in  their  effects  upon  similar  substances  under  similar  conditions ;  and  of 
the  tendency  of  a  machine  or  apparatus,  as  shown  by  other  instances  of  its 
operation  under  similar  circumstances,  to  operate  defectively  or  otherwise 
(for  example,  in  actions  for  breach  of  warranty  or  personal  injury),  or  of  the 
workings  of  other  similar  machinery  (tools  or  apparatus)  provided  the  condi- 
tions were  similar. 

B.  Instances  of  Corporal  Effects,  as  Evidence.  The  capacity  or  tendency 
of  a  leeapon  (gun  or  pistol)  may  l)e  indicated  by  the  appearance  of  other 
wounds,  with  reference  to  size  of  bullet,  proximity  of  weapon,  nature  of 
powder,  or  direction  of  the  shot ;  the  specific  tendency  of  a  drug,  poison, 
disease,  food,  or  other  substance,  by  the  corporal  symptoms  or  effects  in 
other  like  situations,  either  on  animals  or  on  human  beings ;  in  particular, 
the  intoxicating  tendency  of  a  liquor,  by  its  effects  upon  others  partaking 
it.  The  .same  principle  applies  to  similar  injuries  to  other  persons  at  the 
same  machine,  highway,  railroad,  or  building.  If  a  white  powder's  ten- 
dency to  produce  illness  may  be  evidenced  by  the  symptoms  following  its 
administration,  then  in  the  same  Avay  the  tendency  of  a  projecting  spike 
in  a  gate  to  catch  and  tear  the  garment  of  a  passer-by  may  be  evidenced 
by  instances  of  such  tearings,  and  the  tendency  of  a  part  of  a  highway  to  make 
the  feet  trip  upon  it  may  be  shown  by  instances  of  trippings.  The  mass  of 
precedents  dealing  with  the  use  of  other  injuries  (or  "accidents")  as  evi- 
dencing the  dangerousness  of  a  place  or  a  machine  are  concerned  with  an 
inference  of  precisely  this  form,  i.e.  an  inference  as  to  the  harmful  tendency 
or  capacity  of  the  machine,  highway,  building,  or  track,  as  indicated  by  the 
occurrence  of  such  harm  to  human  beings  in  other  instances. 

The  other  instances  of  injuries  received  should  have  occurred  under  sub- 
stantially similar  circumstances.  Note  that  a  double  inference  usually  is 
necessary,  i.e.  from  the  other  instances  to  the  tendency  or  condition  at  the 
time  of  their  occurrence,  and  then  from  the  tendency  or  condition  at  that 
time  to  its  persistence  at  the  time  in  question.  The  principle  governing 
the  latter  inference  has  also  l)een  examined  (ante,  §  6). 

('.  hi.stnnce.^  of  Mental  and  Moral  Effects,  as  Eridence.  There  is  no  rea- 
son why  the  tendency  or  cpiality  of  an  object  of  external  nature  should  not 
.sometimes  be  as  easily  ascertainable  from  its  mental  or  moral  (psychological) 
effects  as  from  its  corporal  or  its  material  effects,  by  adducing  instances  of 
.such  effe<-ts,  if  they  have  attended  the  use  or  oi)eration  of  the  thing  in  ques- 
tion. Kor  example,  if  on  looking  out  of  the  window  of  a  comfortable  home 
the  persons  on  the  highway  are  ob.served  to  be  shuddering  and  turning  up 
tli.ir  iiUr.T  follars,  a  natural  inference  is  that  the  temperature  without  is 


No.  4.  I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC.  43 

extremely  cold.  Or,  if  on  looking  some  distance  ahead,  as  one  drives 
through  a  street,  all  the  vehicles  are  observed  to  be  turning  aside  at  a  certain 
apparently  vacant  spot  in  the  road,  a  natural  inference  is  made  that  some 
obstruction  exists,  such  as  a  pavement  hole  or  a  broken  electric  wire.  This 
«ort  of  inference  from  human  or  animal  conduct  is  of  constant  service  in 
daily  life,  and  claims  also  an  important  part  in  the  realm  of  evidence  for 
litigated  issues.  All  those  material  conditions  and  qualities  of  material 
objects  in  external  nature  which  become  effective  with  reference  to  the  ordi- 
nary sense  perceptions  and  muscular  activities  of  human  beings  or  animals 
may  be  evidenced  by  specific  instances  of  such  effects,  —  used  subject  to 
the  limitations  of  the  general  principles  already  noticed.  A  condition  of 
light  may  be  evidenced  by  instances  of  other  persons'  experience  in  seeing 
or  identifying  under  -similar  circumstances ;  and  this  application  of  the 
principle  includes  broadly  all  cases  of  the  possibility  of  mistaken  identity, 
as  shown  by  other  instances  of  mistaken  recognition.  A  condition  of  sound 
may  be  evidenced  by  instances  of  other  persons'  experience  in  hearing  under 
similar  conditions.  The  time  required  for  walking  or  riding  a  certain  dis- 
tance, or  for  stopping  a  train  within  a  certain  distance,  may  be  evidenced 
by  other  instances  under  similar  conditions.  The  height  of  a  cattle  guard, 
with  reference  to  the  possibility  of  cattle  leaping  it,  may  be  evidenced  by 
instances  of  what  cattle  have  done  with  similar  fences ;  or  the  amount  of 
animal  fe^d,  by  the  quantity  consumed  by  others.  In  general,  when  a 
question  arises  whether  at  a  certain  machine,  house,  field,  mine,  or  other 
thing,  a  certain  act  can  be  done,  under  given  conditions  of  time,  strength, 
skill,  or  achievement,  "one  way  to  do,"  in  the  language  of  IMr.  Justice  Doe, 
"  is  to  speculate  about  it ;  and  another  way  is  to  try  it." 

So,  too,  a  measure  of  negligence,  danger,  insufficiency,  unreason- 
ableness, cruelty,  unslcillfulness,  or  their  opposites,  may  be  evidenced  by 
similar  conduct  or  habits  of  other  persons  or  animals.  If  a  per- 
son is  in  the  house  and  wishes  to  know  whether  he  needs  to  take  out  his 
umbrella  with  him,  and  the  condition  of  the  atmosphere  makes  it  difficult 
to  see  whether  it  is  raining,  he  may  look  at  the  passers-by,  and  observe 
whether  their  umbrellas  are  lifted.  If  he  wished  to  ascertain  whether  a 
hill  was  too  steep  to  descend  in  a  wagon  without  a  brake,  he  would  learn 
something  by  observing  whether  the  brake  was  applied  to  other  persons' 
wagons  in  descending.  If  he  observed  the  workmen  in  a  powder  factory 
wearing  felt  shoes,  he  might  infer  that  the  tendency  of  the  powder  was  to 
explode  from  the  concussion  or  friction  of  ordinary  shoes,  and  that  felt  shoes 
were  necessary  for  obviating  this  tendency.  In  all  these  cases,  he  is  judg- 
ing of  the  nature  or  tendency  of  a  material  object  from  its  effects  on  the 
conduct  of  others.  This  tendency  of  the  material  object  is  usually  not  shown 
(as  in  the  preceding  classes  of  cases)  by  its  direct  effects  upon  senses  or 
muscles,  —  as  where  a  person  uses  his  vision  in  sighting  an  oliject  or  feels 
pain  upon  eating  a  substance,  —  but  by  its  indirect  effects,  i.e.  usually,  by 
voluntary  conduct,  exhibited  in  avoiding  the  supposed  tendenc}^  of  the 
object.  Thus,  the  wearing  of  the  felt  shoes  is  that  sort  of  conduct  which 
the  person  is  forced  into  in  order  to  avoid  the  consequences  otherwise  to 
be  expected  ;  the  raising  by  the  traveler  of  the  protective  umbrella  is  what 
he  is  put  to  in  order  to  escape  a  drenching ;  and  the  use  of  the  brake  is 
resorted  to  for  avoiding  the  danger  of  slipping  down  the  hill.     Nevertheless, 


44  PART   I.       CIRCUMSTANTIAL   EVIDENCE  No.  5. 

the  conduct  is  equally  cogent  evidentially  as  indicating  the  tendency  of 
the  material  object.  The  only  dilference  is  that  it  approaches  a  degree 
nearer  to  the  line  between  testimonial  and  circumstantial  evidence,  and 
thus  raises  more  distinctly  the  question  of  the  Hearsay  rule.  In  the  appli- 
cation of  this  principle,  then,  the  dangerous  tendency  of  an  object  to  friyhtcn 
horses  may  be  evidenced  by  instances  of  other  horses  being  frightened  by  it 
under  similar  circumstances.  So,  too,  the  tendency  of  an  extraordinary 
situation  to  frighten  human  beings  (as  when  in  a  collision  the  reasonableness 
of  a  person's  conduct  in  jiunping  or  rushing  out  is  in  issue)  may  be  evi- 
denced t)y  the  conduct  of  other  persons  similarly  situated.  Where  the  ordi- 
nary operation  of  (for  example)  a  railroad  car  is  in  issue,  with  reference  to 
the  care  to  be  used  by  passengers,  employees,  or  highivay  travelers,  or  the 
possibility  of  s'ifeh/  riding,  standing,  passing,  eonpling,  or  climbing  in  a  cer- 
tain manner,  the  same  principle  applies,  thougli  the  risk  is  greater  of  the 
jury's  improperly  confusing  the  e^■idential  effect  with  the  legal  standard  of 
care.  Where  the  care  required  of  the  owner  of  a  railroad  is  in  issue,  this  sort 
of  evidence  may  serve  in  a  variety  of  ways,  —  to  indicate,  for  example, 
the  adequate  construction  or  operation  of  tracks,  platforms,  bridges,  cars, 
turntables,  spark  arresters,  switches,  or  any  object  whose  qualities  are  ex- 
hibited by  the  specific  conduct  or  habitual  practice  of  other  persons  or  other 
railroads  in  using  it.  Thus  also  maj^  be  evidenced  the  conditioh  of  a,  factory, 
mine,  house,  vessel,  machine,  boiler,  or  other  apparatus,  with  reference  to 
the  propriety  of  certain  precautions  in  construction  and  operation  ;  or  of 
a  pavement,  ditch,  or  other  part  of  the  highway,  with  reference  to  its  proper 
mode  of  use ;  or  of  money  or  chattels,  with  reference  to  the  proper  method 
of  loading,  warehousing,  using,  mending,  or  otherwise  handling;  and,  in 
particular,  of  a  business,  or  a  stock  of  goods,  with  reference  to  the  prudence 
of  carrying  it.  Whether  in  medical  matters  a  certain  kind  of  remedy,  skill, 
or  treatment  is  necessary  or  sufficient,  may  often  be  evidenced  in  this  man- 
ner. Even  in  matters  more  nearly  involving  moral  standards,  some  light 
may  properly  thus  be  obtained  from  the  conduct  of  other  persons,  —  as 
when  the  propriety  of  a  schoolmaster's  or  ship-captain's  discipline  or  treat- 
ment is  evidenced  l)y  the  practice  of  others  ;  or  when  the  cruelty  of  treatment 
to  animals  is  evidenced  by  other  persons'  like  methods. 

5.  ROBERT  SALMON'S  CASE.  (Camden  Pelham.  Chronicles 
of  Crime,     ed.  1891.      Vol.  II,  p.  417.) 

This  case  aro.se  out  of  the  ex-  Robert  Salmon,  a  medicine  vendor 
tremely  dangerous  practice  of  ad-  in  Farrington  Street,  was  indicted 
ministering  (juack  medicines.  for  the  manslaughter  of  Mr.  John 
Morison's  vegetable  pills  have  been  IM'Kensie,  by  a(lministering  to  him 
for  inaiiy  years  an  article  from  the  certain  large  and  excessive  quanti- 
sale  of  which  immense  profits  have  ties  of  pills,  composed  of  gamboge, 
been  derived  ;  Ijut  it  is  to  be  re-  cream  of  tartar,  and  other  noxious 
gretted  that  in  more  than  one  and  deleterious  ingredients.  The 
instance  the  life  of  the  patient  has  deceased,  it  appeared,  was  the  mas- 
been  .sacrificed,  from  their  undue  ter  of  a  vessel,  and  lived  in  the 
and  improper  use.  neighborhood    of     the     Commercial 

At    the    Central    Criminal    Court  Road.     He  was  induced  to  take  some 

Sessions,  which  comrnciued  on  Mori-  of   Morison's   pills   as   a   purgative, 

day    the    4th    of    .\piil,     ]S:H'>,   Mr.  upon  the  representations  of  a  Mrs. 


No.  7. 


PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC. 


45 


Lane,  a  woman  who  was  employed 
by  his  wife  as  a  sempstress,  who  sold 
the  Hygeian  medicines ;  and  sub- 
sequently Mr.  Salmon's  aid  having 
been  claimed,  on  account  of  his 
suffering  from  rheumatism  in  the 
knee,  he  recommended  increased  and 
still-increasing  doses,  until  at  length 
the  deceased  became  so  ill  as  that 
his  life  was  placed  in  jeopardy. 
Medical  aid  was  now  called  in,  but 
it  was  too  late,  and  death  soon  put 
an  end  to  his  sufferings.  A  post- 
vioricm  examination  left  no  doubt 
that  the  medicine  prescribed  by  the 
prisoner  had  been  the  cause  of  this 
termination  of  the  case,  and  the 
present  indictment  was  in  conse- 
quence preferred. 

On  the  part  of  the  defendant  a 
great  many  persons  were  called  from 
all  parts  of  the  kingdom,  who  stated 
that  they  had  taken  large  quantities 
of  these  pills,   with   the   very  best 


results,  as  a  means  of  cure  for  almost 
every  species  of  malady  to  which  the 
human  frame  is  subject.  One  per- 
son stated  that  he  had  taken  no 
fewer  than  twenty  tliousand  of  them 
in  two  years,  and  that  he  had  found 
infinite  relief  from  swallowing  them 
in  very  large  doses. 

Mr.  Justice  Patteson  left  the  case 
to  the  jury,  who  had  to  decide  upon 
the  facts  which  had  been  proved  ; 
and  after  about  half  an  hour's  con- 
sideration they  found  a  verdict  of 
"Guilty,"  with  a  recommendation 
to  mercy,  upon  the  ground  that  the 
defendant  was  not  the  compounder, 
but  the  vendor  only  of  the  medicines. 

The  trade  in  Morison's  pills  is, 
however,  still  carried  on  to  a  very 
great  extent,  and  Mr.  Salmon  con- 
tinues one  of  the  largest  agents  for 
the  sale  of  the  medicine  in  the  me- 
tropolis. 


6.    BRADFORD  v.  INSURANCE  CO.      [Printed  post,  as  No.  49.] 


7.  EIDT  V.  CUTTER.  (1879. 
SACHUSETTS.      127  Mass.   522.) 

Tort  for  injuries  to  the  plaintiff's 
house  and  fence,  alleged  to  have 
been  caused  by  the  fumes,  vapors, 
and  gases  escaping  from  the  defend- 
ants' copperas  works,  and  discolor- 
ing the  paint  on  the  house  and  fence. 

At  the  trial  in  the  Superior  Court, 
before  Dewey,  J.,  it  appeared  that 
the  premises  of  the  parties  were  in 
the  southerly  part  of  the  city  of 
Worcester,  and  in  close  proximity 
to  an  open  sewer  maintained  by  the 
city ;  and  there  was  evidence  tend- 
ing to  show  that  from  this  sewer, 
and  from  the  piles  of  filth  dug  from 
it  and  laid  on  its  banks,  there  we're 
foul  exhalations  of  gases  containing 
ammoniacal  salts.  The  evidence  of 
the  defendants'  experts  tended  to 
show  that  the  gases  and  substances 
escaping  from  the  copperas  works 
would  not  of  themselves  produce  the 
discoloration  visible  on  the  plain- 
tiff's house,  but  that  the  discolora- 
tion as  seen  was  produced  by  the 


Supreme  Judicial  Court  of  Mas- 

union  of  the  gases  and  substances 
from  the  defendants'  works  with  the 
ammoniacal  gases  escaping  from  the 
sewer.  The  defendants'  experts  tes- 
tified that  copperas  deposited  on  a 
painted  surface  did  not  break 
through  or  abrade  the  paint ;  and 
exhibited  to  the  jury  a  board,  upon 
which  they  had  atomized  copperas 
in  large  quantities,  and  changed  its 
color  by  ammonia,  from  which  the 
copperas  had  been  brushed,  and  the 
painted  surface  was  shown  intact 
underneath.  This  experiment  was 
offered  only  to  show  the  fact  that 
copperas  did  not  penetrate  paint. 

The  evidence  of  the  plaintiff's  ex- 
perts tended  to  show  that  the  con- 
dition of  the  plaintiff's  house  and 
fence  could  be,  and  was,  brought 
about  by  the  gases  and  substances 
coming  from  the  defendants'  works  ; 
that  the  gases  coming  from  the  open 
sewer  probably  accelerated  and  in- 
tensified the  effect,  but  that  there 


4G 


PART    I.       CIRCrMSTAXTIAL    EVIDENCE 


No.  7. 


is  a  sufficient  quantity  of  anunonia 
in  ordinary  atniosj)lu're  to  account 
for  the  present  discoloration.  These 
experts  stated  that  they  formed  their 
judgment  from  their  general  knowl- 
edge of  chemistry,  from  experiments 
heretofore  maile,  and  from  a  series 
of  exi)eriments  recently  made  by 
them,  both  at  the  house  of  the  plain- 
titV,  and  in  the  city  of  Providence, 
Rhode  Island,  and  el.sewhere.  The 
experiments  made  at  the  liouse  of 
the  plaintiti'  were  upon  hoards, 
papers,  etc.,  exposed  for  six  weeks 
to  the  atmosphere,  and  to  the  fumes, 
vapors,  and  substances  therein  con- 
tained, and  were  acted  upon  thereby 
under  the  same  circumstances  and 
conditions  as  the  plaintiff's  house 
during  the  time  they  remained  on 
the  house.  The  experiments  made 
at  Providence  and  elsewhere  con- 
sistefl  mainly  of  atomizing  copperas 
upon  boards,  papers,  glass,  etc., 
and  exposing  the  same  to  the  at- 
mosphere and  were  made  under 
conditions  and  circumstances  which, 
as  the  plaintiff's  experts  stated, 
were,  in  their  opinion,  as  near  like 
those  surrounding  the  plaintiff's 
house,  in  the  absence  of  the  sewer, 
as  was  possible,  and  were  made  for 
the  purpose  of  ascertaining  the 
effect  of  copperas  ga.ses  where  the 
atmosphere  was  otherwise  pure. 
The  boards,  papers,  etc.,  thus  used 
by  the.se  witnesses  of  the  plaintiff  in 
these  experiments,  were  brought 
into  court  and  exhibited,  and  ex- 
jjlained  to  the  jury,  and  a  detailed 
account  of  the  experiments  given 
to  the  jury  by  the  witnesses.  The 
<l('f<'n(lants  f)bjected  to  the  intro- 
♦  luction  before  the  jury  of  any  of  the 
experiments,  and  the  evidence  given 
exijlanatory  thereof,  made  by  the 
plaintiff's  experts  at  Providence, 
Rhode  Island,  and  at  other  places 
other  than  the  plaintiff's  house. 
The  judge  admitted  the.se  last- 
named  experiments  and  the  evidence 
relating  thereto  on  the  ground  that. 


the  experts,  having  first  stated  their 
judgment  as  to  the  character  and 
eff'ect  of  the  gases  and  substances 
from  the  defendants'  works  alone, 
and  w'hen  in  union  with  ordinarily 
pure  air,  and  when  in  union  with  the 
ga.ses  coming  from  the  city  sewer, 
might  state  the  grounds  on  which 
they  based  their  judgment ;  and, 
they  having  stated  that,  among 
other  things,  the  grounds  on  which 
they  based  their  judgment  were 
certain  experiments  made  by  them, 
the  judge  allowed  the  witnesses  to 
testify  as  to  the  experiments  made 
by  them,  limiting  them  to  the  state- 
ment of  the  experiments  on  which 
they  said  they  had,  in  part,  based 
the  judgment  and  opinion  as  to 
which  they  had  testified. 

The  jury  returned  a  verdict  for 
the  plaintiff ;  and  the  defendants 
alleged  exceptions. 

W.  S.  B.  Hopkins  &  A.  G.  Bul- 
lock, for  the  defendants.  J.  R. 
Thayer,  for  the  plaintiff,  was  not 
called  upon. 

By  the  Court.  The  question  in 
controversy,  and  upon  which  both 
parties  had  introduced  the  testimony 
of  experts  was  whether  the  injury 
to  the  plaintiff's  house  was  caused 
by  the  fumes  and  gases  from  the 
defendants'  works,  or  by  the  emana- 
tions from  a  sewer.  The  grounfls 
and  reasons  of  the  opinions  of  the 
experts,  including  the  details  of 
experiments  made  by  them  under 
conditions  and  circumstances  which, 
as  they  testified,  were  as  nearly  as 
possible  like  those  surrounding  the 
plaintiff's  house  in  the  absence  of 
the  sewer,  were  rightly  permitted 
to  be  stated  by  the  experts,  in  order 
to  assist  the  jury  in  understanding 
their  testimony  and  applying  it  to 
the  case.  Lincoln  i'.  Taunton  Cop- 
per Co.,  9  Allen  181.  Common- 
wealth V.  Piper,  120  Mass.  185,  190. 
Williams  v.  Taunton,  125  Mass.  34, 
Exceptions  overruled. 


No.  9. 


I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC. 


47 


8.    EAST  ST.  LOUIS  i;.  WIGGINS  FERRY  CO.       (1882.     Appel- 
late Court  of  Illinois.      11  111.  App.  254.) 


Error  to  the  City  Court  of  East 
St.  Louis ;  the  Hon.  Charles  T. 
Ware,  Judge,  presiding.  Opinion 
filed  September  29,  1882.   .   .   . 

Baker,  P.  J.  This  was  a  suit 
by  the  Wiggins  Ferry  Company 
against  the  City  of  East  St.  Louis 
to  recover  damages  sustained  by  it 
as  owner  of  certain  lots  of  land, 
occasioned  by  the  building  of  the 
approaches  to  the  Illinois  &  St. 
Louis  Bridge  over  and  along  Crook 
Street  in  said  city.  See  Stack  v. 
City  of  East  St.  Louis,  85  111.  377. 
A  jury  trial  resulted  in  a  verdict 
and  judgment  for  810,610.  ...  A 
portion  of  the  claim  of  plaintiff 
was  for  damages  occasioned  by  the 
passage  of  loaded  wagons,  locomo- 
tives, cars,  and  trains  over  the 
superstructure  of  the  bridge  ap- 
proach, whereby  its  lots  were  so 
shaken  as  to  be  greatly  injured  for 
building  purposes.  Plaintiff  had 
introduced  testimony  tending  to 
prove  this  claim.  Thereupon  de- 
fendant offered  to  prove  how  the 
bridge  approach  was  constructed  on 
the  other  side  of  the  river  in  the 
city  of  St.  Louis,  and  that  there 
is  more  vibration  there  to  the 
adjoining  property  on  account  of 
the  operation  of  trains  which  cross 
the  bridge  than  there  is  on  the  Illi- 
nois side,  and  that  the  three-,  four-, 
five-  and  six-story  brick  build- 
ings in  St.  Louis,  close  to  the  bridge 
approach,   are  not   injured   by   the 


vibrations.  This  testimony  was  ob- 
jected to  and  the  objection  sustained. 
This  was  error,  more  especially  in 
view  of  the  character  of  the  evidence 
that  had  gone  to  the  jury  on  l)ehalf 
of  plaintiff,  bearing  on  this  issue. 
Differences  arising  from  diversity  of 
soil  or  geological  formation,  if  any, 
or  otherwise,  could  readily  have  been 
ascertained  on  cross-examination, 
or  by  the  introduction  of  rebutting 
testimony.  Besides,  the  proffered 
testimony  included  the  proposition 
that  the  vibrations  were  greater 
on  the  west  than  on  the  east  side 
of  the  river. 

Defendant  also  proposed  to  prove 
that  the  vibrations  caused  by  the 
Belt  Railway  are  greater  in  the  vi- 
cinity of  Crook  Street  than  the  vibra- 
tions of  the  bridge  approach.  This 
testimony  was  not  permitted  by  the 
court  to  go  to  the  jury.  If,  as  some 
of  plaintiff's  witnesses  had  testified, 
buildings,  walls,  plastering,  and  chim- 
neys on  plaintiff's  lots,  and  on  other 
lots  on  Crook  Street  and  in  the  im- 
mediate vicinity  of  plaintiff's  prop- 
erty had  been  cracked  and  damaged 
by  vibrations,  then  surely  it  was 
competent  to  show  the  greater  part 
of  these  vibrations  were  occasioned 
by  trains  on  the  Belt  Railway,  and 
not  by  travel  over  the  bridge  ap- 
proach. The  ruling  of  the  court  in 
this  regard  was  erroneous.  .  .  . 
Reversed  and  remanded. 


9.    KNOWLES  V.  STATE.      (1885.     Supreme  Court  of  Alabama. 


80  Ala.  9.) 

Appeal  from  Wilcox  County  Court. 
Tried  before  Honorable  John  Puri- 

FOY. 

Mat  Knowles  was  indicted,  and 
tried  in  the  Wilcox  County  Court, 
for  selling  intoxicating  liquors  in 
violation  of  a  local  statute.  The 
case  was  tried  by  the  court,  on  the 
plea  of  "not  guilty"  ;  the  defendant 
was  found  guilty,  and  a  fine  of  one 


thousand  dollars  adjudged  against 
him.  One  of  the  witnesses  for  the 
State  testified  that  he  had  bought 
of  the  defendant  three  bottles  con- 
taining fruit,  with  liquid  around  the 
fruit ;  that  he  and  another  had 
eaten  of  the  fruit,  and  drunk  the 
liquid  that  was  in  the  bottles ;  that 
the  effect  of  this  eating  and  drinking 
upon  witness  was  like  the  eft'ect  of 


48 


PART    I.       CIRCUMSTANTIAL   t:VIDENCE 


No.  10. 


drinking'  whisky  ;  that  he  felt  Hke 
lie  was  intoxieated.  After  the  State 
had  closed,  the  defendant  intro- 
tlueed  a  witness,  Dock  Griffith,  who 
testified  that  he  had  many  times 
honght  of  the  defendant  the  same 
kind  of  fruit  and  liquid  in  bottles, 
described  by  the  witnesses  for  the 
State,  and  had  eaten  the  fruit  and 
drunk  the  liquid  without  feeling 
any  intoxicating  effect,  or  any  such 
effect  as  he  experienced  from  drink- 
ing whisky.  The  solicitor  moved  to 
exclude  this  testimony  of  defendant 
on  the  ground  that  it  was  irrelevant ; 
and,  the  same  was  excluded  by  the 
court.  The  defendant  introduced 
a  number  of  other  witnesses,  who 
testified,  substantially,  as  the  wit- 
ness Grifhth,  that  they  had  pur- 
chased of  the  defendant  fruit  and 
liquid,  such  as  was  testified  about 
by  the  witnesses  for  the  State,  had 
eaten  the  fruit  and  drunk  the  liquid, 
without  feeling  any  intoxicating 
effects.  Their  testimony  was  also, 
upon  motion  of  the  solicitor,  ex- 
cluded by  the  court.  Defendant 
excepted  to  these  several  rulings  of 
the  court,  and,  on  appeal,  assigns 
the   same   as   error. 

T.  N.  McClrllnn,  Attorney-Gen- 
eral for  the  State. 

SoMERViLLE,  J.  .  .  .  The  court,  in 
our   judgment,    erred    in    excluding 


the  statements  of  the  several  wit- 
nesses, who  testified  as  to  the  effect 
upon  themselves  of  the  beverage  for 
the  sale  of  which  the  State  had 
elected  to  prosecute  the  defendant. 
.  .  .  The  most  available  mode  of 
testing  the  nature  and  properties  of 
a  fluid  or  drug,  next  to  that  of  chemi- 
cal analysis,  is  by  its  effects  on  the 
human  system.  That  a  liquor  when 
taken  in  certain  quantities  intoxi- 
cated or  failed  to  intoxicate  the 
person  takiftg  it,  is  as  competent  to 
prove  or  disprove  its  intoxicating 
qualities,  as  it  would  be  to  prove 
the  poisonous  nature  of  a  drug  by 
the  effect  following  its  administra- 
tion. Negative  testimony  of  this 
kind  may  often  be  very  weak  and 
inconclusive,  because  of  the  com- 
parison involved  in  determining  the 
relative  facility  with  which  different 
persons  may  or  may  not  become 
intoxicated  or  drunk.  But  we  can- 
not say  what  would  have  been  the 
effect  of  this  evidence  upon  the  mind 
of  the  judge,  who  was  substituted 
for  the  jury  as  the  trier  of  the  facts 
of  the  cause.  We  decide  nothing 
more  than  the  admissibility  of  this 
evidence,  leaving  to  the  County 
Court  itself  to  decide  what  shall  be 
its  weight  or  credil)ility.  The  judg- 
ment is  reversed  and  the  cause 
remanded. 


10.    GOLDEN    REWARD  MINING    CO.   v.  BUXTON    MINING 

CO.    (1899.      Federal  Circuit  Court  of  Appeals.      97  Fed.  413.) 


In  error  to  the  Circuit  Court  of 
the  United  States  for  the  District 
of  South  Dakota. 

The  Buxton  Mining  Company,  an 
Iowa  corporation,  brought  this  ac- 
tion against  the  Goklen  Reward 
Mining  Company,  a  corporation 
of  South  Dakota,  to  recover  dam- 
ages for  a  wrongful  entry  upon  its 
property,  situated  in  the  state  of 
South  Dakota,  known  as  the 
"Bonanza  lyfxle  Mining  Claim," 
and  for  the  removal  therefrom  and 
cf)nversif)n  to  its  own  use  of  a  large 
amount  of  gold-  and  silver-bearing 
ore,  alleged  to  be  of  the  value  of 


S20(),{)00.  The  Golden  Reward 
Mining  Company,  the  defendant 
below  (the  phiintiff  in  error  here, 
referred  to  hereafter  as  the  defend- 
ant) filed  a  general  denial,  which 
merely  put  in  issue  the  commission 
of  the  alleged  trespass,  and  did  not 
seek  to  justify  it.  There  was  a 
lengthy  trial  before  a  court  and  a 
jury,  lasting  from  February  9,  1898, 
until  March  IS,  1S98,  when  the  jury 
returned  a  verdict  against  the  de- 
fendant below  in  the  sum  of  $01,500, 
on  which  verdict  a  judgment  was 
subsequently  entered  in  favor  of 
the   plaintiff"  below.     The   proceed- 


No.  10. 


I.       PROOF   OF   PHYSICAL   EVENT,    CAUSE,    ETC. 


49 


ings  at  the  trial  are  brought  before 
us  for  review  by  a  writ  or  error. 

William  L.  McLaughlin  and  Wil- 
liam R.  Steele,  for  plaintiff  in  error. 

Ebe7i  W.  Martin  {Norman  T. 
Mason,  on  the  brief),  for  defendant 
in  error. 

Before  Caldwell,  Sanborn,  and 
Thayer,  Circuit  Judges.  Thayer, 
Circuit  Judge,  after  stating  the  case 
as  above,  delivered  the  opinion  of 
the  Court. 

Preliminary  to  any  discussion  of 
the  numerous  errors  that  have  been 
assigned,  it  will  be  advantageous  to 
state  certain  facts  which  are  prac- 
tically undisputed.  The  parties  to 
the  suit  are  the  owners  of  adjoining 
mining  claims  in  the  state  of  South 
Dakota.  It  will  suffice  to  say  gen- 
erally concerning  the  location  of  the 
claims  that  the  Bonanza  claim, 
which  belonged  to  the  plaintiff 
below,  and  on  which  the  trespass 
was  committed,  lay  immediately 
to  the  west  and  south  of  two  claims 
the  Silver  Case  and  the  Tilton,  which 
belonged  to  the  defendant  company. 
Prior  to  August,  1891,  the  defendant 
had  done  a  great  amount  of  mining, 
not  only  on  the  Silver  Case  claim, 
which  lay  to  the  east  of  the  Bonanza 
claim,  but  also  on  another  claim 
which  it  owned,  known  as  the 
"Golden  Reward  Claim,"  which 
latter  lay  immediately  to  the  east 
of  the  Silver  Case,  and  on  certain 
other  claims  not  necessary  to  be 
mentioned.  It  had  extensive  under- 
ground workings  on  both  of  the 
last-mentioned  claims,  consisting  of 
tunnels,  stopes,  and  levels,  whereas 
the  Bonanza  claim  was  at  that  time 
practically  undeveloped,  no  work 
of  importance  having  been  done 
thereon  or  thereunder.  Subsequent 
to  July,  1891,  the  defendant  com- 
pany extended  two  of  the  drifts  or 
tunnels  on  its  own  property  across 
the  boundary  line,  and  underneath 
the  Bonanza  claim,  and  there  ex- 
cavated two  stopes,  known  as 
"Stope  No.  2  West"  and  "Stope 
No.  3  West,"  from  which  it  extracted 
a  large  amount  of  mineral-bearing 


ore  between  the  months  of  August, 
1891,  and  August,  1892.  The  tres- 
pass so  committed  was  not  dis- 
co^-ered  by  the  plaintiff  company 
until  shortly  prior  to  November 
20,  1895,  when  the  present  action 
was  brought ;  and  the  discovery  at 
that  time  was  due  to  the  fact  that 
the  excavation  of  the  aforesaid 
stopes  ultimately  caused  the  super- 
imposed earth  to  settle,  making 
depressions  on  the  surface.  As  soon 
as  the  depressions  became  visible, 
the  plaintiff*  company  set  on  foot  an 
investigation,  which  speedily  de- 
veloped the  extent  of  the  trespass. 
While  the  defendant  company  by 
its  answer  denied  the  trespass,  yet 
on  the  trial  such  defense  was  prac- 
tically abandoned,  and  the  trial 
resolved  itself  into  a  consideration 
of  three  issues  of  fact :  First,  what 
was  the  quantity  of  the  mineral 
taken  from  stopes  Nos.  2  and  3 
west,  underneath  the  Bonanza 
claim  ?  Second,  what  was  the  value 
of  the  mineral  so  abstracted  ?  And, 
third,  was  the  trespass  committed 
knowingly  and  willfully  ?  A  large 
amount  of  testimony  was  taken  on 
these  issues,  very  little  of  which  has 
been  preserved  in  the  bill  of  excep- 
tions. .  .  . 

During  the  progress  of  the  trial, 
counsel  for  the  defendant  company 
inquired  of  a  witness  how  many  men 
were  employed  by  the  defendant  in 
its  mines  upon  the  Golden  Reward 
and  the  Silver  Case  claims  at  the 
time  when  ore  was  being  extracted 
from  stopes  Nos.  2  and  3  west, 
underneath  the  Bonanza  claim. 
This  question  was  objected  to, 
whereupon  counsel  for  the  defend- 
ant made  the  following  statement, 
in  substance :  That  they  proposed 
to  show  that  during  the  period  in 
question,  from  September  1,  1891, 
to  August  1,  1892,  the  defendant 
kept  an  accurate  account  of  the 
number  of  men  employed  in  all  of 
its  mines  located  within  the  territory 
which  it  was  then  working,  and  that 
they  were  all  worked  together,  as 
constituting  one  property  ;   that  the 


50 


PART    I.       CIRCr.MSTAXTlAL    EVIDENCE 


No.   10. 


fomlitions  under  which  mining  was 
clone  in  its  own  territory  were  the 
same  as  the  conchtions  in  stopes  2 
and  3  west,  and  that  the  same  num- 
ber of  men  would  break  approxi- 
mately the  same  amount  of  ore  in  the 
said  stopes  as  in  the  stopes  on  its 
own  claims  ;  that  durin<,'  the  period 
inquireil  about  the  total  output  from 
all  the  mines,  including  stopes  2  and 
3  west,  was  from  25  to  40  tons  per 
day  ;  and  that  by  dividing  the  whole 
output  from  all  the  mines  by  the 
total  number  of  men  employed,  and 
thus  ascertaining  the  average  out- 
put per  man,  and  by  multiplying 
the  average  output  per  man  by 
the  number  of  men  whom  the  jury 
might  find  were  employed  in  stopes 
Xos.  2  and  3  west,  while  they  were 
being  worked,  the  jury  could  thus 
ascertain  the  number  of  tons  of  ore 
taken  from  said  stopes  Nos.  2  and 
3  west,  within  the  plaintiff's  territory. 
The  offer  of  proof  was  rejected,  and 
an  exception  was  saved.  At  another 
stage  of  the  trial  the  defendant  also 
offered  in  e\idence  a  book  kept  by 
it,  which  was  known  as  its  milling  or 
assay  book,  first  having  supple- 
mented the  offer  by  testimony  to 
the  following  effect :  That,  during 
the  period  covered  by  the  alleged 
trespass  (that  is  to  say,  from  about 
September  1,  189 1,  to  about  August 
1,  1892),  ores  were  received  by  the 
defendant  by  rail  at  its  mill,  which 
was  some  distance  from  the  mines, 
in  a  mixed  state,  which  came  from 
different  localities  on  the  Golden 
Reward  and  Silver  Case  claims  and 
from  stopes  Xos.  2  and  3  west, 
underneath  the  Bonanza  claim  ;  .  .  . 
and  that  a  faithful  record  of  these 
assays  was  kept  by  its  milling  or 
assay  book  during  the  entire  period 
aforesaid.  The  cross  examination 
of  witnesses  in  connection  with  the 
offer  of  the  assay  book  devcloiK'd 
the  fact,  however,  that  the  ores  thus 
mixed  and  assayed  came  from  all 
parts  of  the  defendant's  territory 
which  it  was  then  engaged  in  work- 
ing, as  well  as  from  stopes  Nos.  2  and 
3  west,    underneath    the    plaintiff's 


claim,  that  some  of  the  ores  thus 
assayed  came  from  a  locality  three 
fourths  of  a  mile  distant  from  stopes 
Nos.  2  and  3  west,  and  that  1000 
feet  intervened  between  those  stopes 
and  other  localities  from  which  ore 
was  drawn  which  entered  into  the 
aforesaid  assays.  Besides,  there  Mas 
other  evidence  intro(hiced,  which 
tended  to  show  that  while  the  tres- 
pass was  in  progress  the  defendant 
company  failed  to  keep  a  daily 
record  of  the  number  of  cars  of  ore 
taken  from  its  mines,  and  the  lo- 
cality from  whence  it  was  derived, 
as  it  had  done  prior  to  the  commis- 
sion of  the  trespass,  and  that  it  had 
also  filled  up  stope  No.  3  west,  and 
had  closed  the  entrance  thereto,  and 
had  blasted  out  the  timbers  after 
the  stope  was  exhausted,  which  was 
an  unusual  proceeding  among 
miners.  The  assay  or  milling  book 
was  rejected,  when  the  same  was 
offered,  and  an  exception  was  like- 
wise saved.  The  two  exceptions 
thus  noted  have  been  argued  at  con- 
siderable length  in  this  court,  and, 
as  the  merits  thereof  involve  an 
application  of  the  same  general 
rules  of  evidence,  it  has  been  deemed 
most  convenient  to  consider  them 
together. 

As  a  general  rule,  any  evidence  is 
admissible  which  has  a  reasonable 
tendency  to  establish  a  material 
fact  in  controversy,  provided  the 
evidence  is  not  of  a  hearsay  char- 
acter or  otherwise  incompetent.  .  .  . 
The  professerl  object  which  the 
defendant  had  in  view  in  tendering 
proof  of  the  total  number  of  men 
who  were  employed  in  its  mines 
during  the  period  of  the  trespass, 
and  in  offering  its  milling  or  assay 
book,  was  to  show  by  the  first  item 
of  proof  the  total  amount  of  ore 
taken  from  stopes  Nos.  2  and  3 
west,  and  by  the  second  item,  or  by 
the  assay  book,  the  richness  or  assay 
value  of  such  ore.  It  is  obvious 
that  the  probative  value  of  the  tes- 
timony which  was  thus  offered  de- 
pended altogether  upon  the  assump- 
tion made  in  the  one  instance  that 


No.  10. 


I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC. 


51 


a  miner  could  extract  the  same  quan- 
tity  of   ore   each   day   whether   he 
worked  in  stopes  Nos.  2  and  3  west, 
or  in  any  of  the  numerous  stopes  and 
drifts  where  ore  was   being  mined 
within  the  defendant's  claims,  and 
upon   an   assumption   made   in   the 
other  instance  that  all  the  ores  which 
were  mixed  and  assayed  during  the 
period  in  controversy  were  of  about 
the    same    value,    no    matter   from 
what  source  the  same  were  derived. 
If   the   testimony   in   question   had 
been  admitted,  therefore,  it  is  clear 
that  the  plaintiff  would  have  been 
entitled  to  show  the  fallacy  of  each 
of  these  assumptions,  namely,  that 
the  character  of  the  rock  in  which 
the    ore    was    embedded,     or    the 
facilities  for  getting  at  it  and  extract- 
ing it,  were  such  that  more  ore  could 
be  obtained   in   a  single  day  from 
stopes  Nos.  2  and  3  west  than  from 
other  stopes  within  the  defendant's 
territory,  and  that  the  ores  taken 
from  stopes  2  and  3  west  were  of 
much  greater  value  than  the  other 
ores  that  were  mined  on  the  defend- 
ant's claims,  with  which  they  had 
been  mixed.     In  other  words,  if  the 
objectionable    testimony    had    been 
admitted,  it  would  have  led  neces- 
sarily to  a  lengthy   inquiry  before 
the  jury  as  to  the  quantity  and  value 
of  the  ore  found  in  all  of  the  defend- 
ant's  workings   within   the   Golden 
Reward  and  Silver  Case  claims,  and 
as  to  the  character  of  the  rock  in 
which  the  ore  within  said  claims  was 
embedded,  and  as   to  the  facilities 
which  existed  during  the  period  of 
the  trespass  for  extracting  it.  .  .  . 
In  the  present  instance  the  evidence 
which  was  offered  by  the  defendant 
company  could  not  have  been  ad- 
mitted with  any  propriety  on  the 
ground    of    necessity.     The    record 
shows  that  there  was  an  abundance 
of  direct  evidence  to  establish  both 
the  quantity   of   the   ore,   and   the 
richness  of  the  same,  that  had  been 
taken  from    stopes    Nos.   2    and  3 
west.     The  defendant  offered  direct 


testimony  (being  that  of  its  super- 
intendent, and  that  of  its  miners  who 
had  worked  in  the  two  stopes  on  the 
piaintitt's  claim)  showing  the  quan- 
tity of  ore  taken  from  those  stopes. 
It  also  introduced  a  record  of  assays, 
which  were  made  by  its  own  super- 
intendent, of  the  ores  in  stopes  Nos. 
2  and  3  west  while  it  was  working 
the  same.  The  quantity  of  ore 
contained  in  these  stopes  could  also 
be  computed  with  reasonable  ac- 
curacy by  reference  to  their  dimen- 
sions. Moreover,  both  parties 
entered  these  stopes  after  the  pres- 
ent suit  was  instituted,  and  selected 
samples  from  the  side  walls  and  had 
them  assayed,  and  in  this  way  were 
able  to  establish  with  great  certainty 
the  richness  of  the  ore  which  the 
stopes  had  contained.  Having  such 
direct  evidence  at  its  command,  the 
defendant  company  had  no  right  to 
fortify  it  by  e^'idence  of  the  kind 
above  indicated,  which  would  have 
introduced  numerous  collateral  is- 
sues, and  lengthened  the  trial  in- 
definitely.^ We  are  of  opinion, 
therefore,  that  the  trial  court  prop- 
erly excluded  the  testimony  to 
which  the  foregoing  discussion  re- 
lates. .  .  . 

Another  exception  was  saved  by 
the  defendant  to  the  introduction 
of  certain  evidence,  which  deserves 
a  brief  notice.  The  plaintiff  com- 
pany was  allowed  to  show  the  aver- 
age assay  value,  as  made  by  a  com- 
petent assayer,  of  certain  samples 
of  ore  that  had  been  taken,  as  it 
seems,  by  Professor  Jenney  and  some 
other  persons  from  the  side  walls  of 
stope  No.  3  west,  and  adjoining 
drifts  in  the  Bonanza  claim,  after 
the  trespass  was  disco \'ered.  The 
proof  was  offered,  evidently,  to 
establish  the  value  of  the  ore  body 
that  had  been  removed  by  the  de- 
fendant from  stope  No,  3,  but  its 
admissibility  for  that  purpose  is 
challenged  by  the  defendant.  It  is 
insisted,  in  substance,  that  the  ad- 
mission   of    evidence    showing    that 


'  [This  ground  for  excludiug  the  evidence  rests  on  a  rule  of  Admissibility  not  considered 
in  this  volume.  —  Ed.] 


PART    I.       CIRCIMSTANTIAL    EVIDEXCE 


No.  11. 


tlu'  averajie  vahu'  of  samples  of  ore 
taken  from  tlu*  insi«le  of  stope  No.  o 
was  $41.7')  per  ton.  and  that  tlie 
avera^'e  a.ssay  value  <»f  other  samples 
taken  from  plaees  immediately  ad- 
joining the  stope  was  S4S.(il>  per 
ton,  was  an  error  prejudicial  to  the 
tlefendant,  which  warrants  a  rever- 
sal. The  recorti  recites,  however, 
that,  hefore  the  averaj;e  assay  \alue 
of  the.se  samples  was  proven,  it  was 
shown  that  all  the  samples  of  ore 
taken  from  outside  of  the  sto|)e  were 
taken  immediately  adjacent  thereto, 
as  it  had  heeii  worked  out  hy  the 
<lefendant,  an«l  that  the  ore  hodies 
from  which  saiil  samples  were  de- 
rived were  of  the  same  general  char- 
acter as  the  ore  mined  out  of  said 
stope,  and  a  continuation  of  the 
same  ore  IhhIv.  The  record  also 
.shows  that,  when  the  average  assay 
value  of  the  several  samples  was 
a<lmitted  in  evidence,  the  trial  judge 


cautioned  the  jury  that  the  average 
assay  value  was  not  to  be  taken  as 
an  jd).solute  mathematical  demon- 
stration of  what  the  value  of  the  ore 
l»ody  in  stope  No.  3  was,  hut  that 
the  proof  was  admitted  simply  for 
their  consideration,  and  that  they 
should  give  it  such  weight  as  they 
thought  it  ought  to  receive;  first 
considering  whether  the  samples 
were  fairly  representative  of  the 
body  of  the  ore  that  had  been  ex- 
tracted from  the  stope.  In  view 
of  the  locality  from  which  the  ore 
.samples  were  taken,  and  its  prox- 
imity to  the  stope,  and  in  view  of  the 
caution  administered  by  the  court 
when  the  objectionable  testimony 
was  admitted,  it  cannot  be  success- 
fully claimed  that  an  error  was  com- 
mitted. The  testimony  certainly 
had  a  marked  tendency  to  establish 
the  grade  of  the  ore  which  the  de- 
fenilant  company  had  appropriated. 


11.  CHICAGO.  CINCINNATI 
DIXON.      '  1  s'.t-'.   Ai'i'iiLLA  n:  (  ofK 

Statement  of  the  facts  by  the 
Court.  Appellee's  left  hand  near 
the  wrist  was  crushed  between  the 
ileadwoodsof  two  cars  at  St.  Francis- 
vilir.  on  the  4th  day  of  July,  1S91, 
while,  as  brakeman  for  appellant, 
he  was  attempting  to  make  a  coup- 
ling. The  injury  was  so  serious  that 
the  arm  had  to  be  amputated.  The 
«leclaration  avers  that  "  the  couplers, 
by  which  .said  cars  were  fastened  to- 
gether, were  out  of  repair  and  not 
sufficient  for  the  purpo.se  u.sed,  and 
the  defendant  by  the  exercise  of 
reasonable  care  could  have  known 
of  said  defect,  and  while  the  plaintilf 
was  in  the  jH-rformancc'  of  his  duty 
as  brakeman.  with  due  care  and 
without  knowledge  of  the  condition 
of  said  machinery,  he  had  his  left 
hand  raiight  by  :ind  in  the  machiru'ry 
used  for  coupling  tlw  sai<l  cars  to- 
getluT,   therel)y   injuring  him."  etc. 

The  plaintiff  had  been  a  railroacl 
man  about  twenty-five  years,  ami 
de.scriln's  the  accident  substantially 
a.s    follows:      N\  hen    his    train       a 


&  ST.  LOUIS  RAILWAY  CO.   v. 

TOF  Illi.\(ji.s.  49  111.  App.  293.)  .  .  . 
freight  train  —  reached  St.  Franeis- 
ville,  some  empty  box  cars  had  to  be 
taken  or  moved  from  the  side  track. 
In  doing  so,  there  was  a  coupling 
to  be  made  of  the  cars  at  the  side 
track,  which  cars  had  iron  dead- 
woods,  located  on  each  side  of  the 
drawbars  and  a  little  above.  The 
couplings  on  these  cars  were  w'hat 
are  called  Ames  couplers  —  bull 
tongues,  commonly  called.  Both 
of  the  couplers  w^ere  alike,  except 
that  the  still  car,  to  the  right,  had 
no  bull  tongue  in;  the  tongue  was 
out  entirely  ;  while  the  car  to  the 
left  —  the  moving  car  —  had  a  bull 
tongue  in.  As  the  running  car  was 
slowly  pushed  back  ])y  the  engine 
to  make  the  cf)upling,  he  stepped 
in  front  of  that  car,  with  his  left 
side  rather  tow'ard  the  car,  and 
moved  back  with  it.  Just  before 
the  cars  came  together,  he  reached 
over  the  deadwood  and  caught  hold 
of  I  lie  iron  i)in,  so  as  to  push  or 
dro|>  it  through  the  hole  in  the  draw- 
bar or  drawhead  and  the  hole  in  the 


No.  11. 


PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC. 


53 


bull  tongues,  where  the  bull  tongues 
should  enter  the  drawhead  of  the 
right,  or  still  car,  and  thereby  make 
the  coupling.  He  did  not  have  to 
adjust  the  bull  tongue  in  the  draw- 
head  of  the  left  or  moving  car,  so  as 
to  make  it  enter  the  aperture  of  the 
drawhead  of  the  right  or  still  car, 
as  the  cars  were  of  the  same  height. 
The  bull  tongue  projected  straight 
out  from  the  drawhead  of  the  mov- 
ing car  and  had  a  hole  in  it  for  the 
pin  to  drop  through,  thereby  an- 
swering in  the  place  of  an  ordinary 
car  link.  The  pin  which  he  had 
seized  with  his  left  hand  projected 
through  the  upper  part  of  the  draw- 
head,  and  into  the  aperture  en- 
tered by  the  bull  tongue,  so  that  as 
the  bull  tongue  of  the  moving  car 
entered  the  drawhead  of  the  still 
car,  the  end  of  it  struck  the  pro- 
jecting end  of  the  pin,  thereby  press- 
ing the  upper  end  of  the  pin  out- 
ward toward  and  against  the  raised 
upper  lip  at  the  mouth  of  the  iron 
drawhead,  and  thus  caught  the  finger 
of  the  left  hand  between  the  pin  and 
the  lips  of  the  drawhead  and  held 
him  there,  as  he  says,  "until  the 
car  came  ahead,  and  the  car  bounced 
away."  When  the  cars  came  to- 
gether the  drawheads  receded  until 
the  deadwoods  of  the  cars  came 
solidly  together,  and  on  the  reaction, 
he  says,  the  drawheads  of  the  right 
or  still  car  pulled  out  nine  or  ten 
inches,  and  he  was  still  held  fast. 
He  says  then  "I  grabbed  hold  of 
the  pin  with  this  —  the  right  —  hand 
to  get  loose,  and  it  held  me  in  that 
position  imtil  it  (suppose  he  means 
deadwoods)  got  very  near  together 
again  and  it  took  up  the  slack  and 
I  got  my  hand  loose  and  pulled  it 
out  but  did  not  get  it  out  quick 
enough  and  got  it  caught  between 
the  deadwoods." 

The  plaintiff  was  then  asked  by 
his  counsel  these  questions :  "  Q. 
I  will  ask  you  to  state  to  the  jury 
what  condition  these  couplers  were 
in.  A.  The  one  to  my  left,  it  had 
a  lever  on,  and  the  chain  attached 
to  this  bull  tongue,  that  was  broken 


off.  Q.  What  was  broken  off  ?  A. 
The  lever.  Q.  Which  part  of  it 
was  broken  ?  A.  That  was  broken 
on  the  left ;  this  link  was  in  there 
so  you  could  work  it  any  way  you 
wanted  to,  but  the  one  to  my  right 
(the  bull  tongue  in  car  to  his  right) 
was  out  entirely.  Q.  Now  state, 
Mr.  Dixon,  in  making  a  coupling 
of  that  kind,  where  the  coupler  is 
out  on  one  side  and  in  on  the  other, 
how  the  coupling  is  made  ?  A. 
You  can  come  back,  and  it  is  not 
necessary  to  catch  hold  of  the  pin 
(means  link)  at  all,  because  it  is  all 
of  one  height."  The  bull  tongue 
was  in  left  or  moving  car  and  that 
was  used  for  a  link.  "  Q.  State  to 
the  jury  what  condition  as  to  re- 
pair the  couplers  were  in,  so  they 
may  understand  it.  A.  The  car 
to  my  right  —  the  bull  tongue  was 
out  entirely  ;  the  one  to  my  left,  the 
lever  that  works  the  bull  tongue  was 
broken,  and  this  drawhead  to  my 
right  certainly  must  have  been  out 
of  order,  for  there  was  a  great  deal 
of  lost  motion  there.  It  pulled  out 
at  least  nine  or  ten  inches ;  most 
generally  it  pulls  out  three  or  four 
inches."  It  is  more  dangerous  to 
make  couplings  of  cars  that  have 
deadwoods.  He  says  such  cars, 
however,  were  in  general  use. 

On  cross-examination  he  is  asked  : 
"  Q.  W' hat  defect  was  there  about 
this  coupling?  A.  I  don't  know,  • 
unless  the  springs  were  broken  or 
the  following  plates  out.  Q.  You 
can't  testify  positively  as  to  that  ? 
A.  Of  course  not.  Q.  You  knew 
before  you  entered  this  car  that  the 
lever  was  gone  —  broken  ?  .-1.  Oh, 
yes ;  certainly.  Q.  You  knew  that 
coupling  where  the  lever  is  gone  is 
more  dangerous  than  the  other  kind, 
didn't  you?  A.  Oh,  yes;  more 
dangerous  for  a  man  to  go  in,  of 
course.".   .   . 

Opinion  of  the  Court,  Sample, 
J.  The  appellee's  counsel  does  not 
insist  that  the  appellant  was  negli- 
gent in  furnishing  cars  with  dead- 
woods,  or  with  Ames  couplers. 
Nor   is   such   negligence   based   on 


54 


PAKT    I.       CIRCL'MSTANTIAL    EVIDENCE 


No.  11. 


furnisliing  a  car  witli  a  hroken  lever 
or  chain ;  hut  the  counsel  says : 
"IMaintitr  claims  tiiat  the  looseness 
of  the  (Irawhars,  allowinjj  it  to  re- 
cede siM)ner.  ami  a  greater  distance 
than  it  could  or  would,  had  it  heen 
in  repair,  allowing  the  l)ull  tongue 
to  shy  the  pin  in  an  unusual  and  un- 
expected maimer,  caught  his  fingers 
when  he  was  not  expecting  such 
occurrence."  The  injury  camiot 
he  attrihuted  to  tlie  receding  of 
the  drawl)ar  of  either  car  a  greater 
distance  than  usual,  for  the  reason 
that  there  is  no  evitlence  to  sustain 
that  theory.  All  of  the  evidence 
shows  that  the  drawbars  were  con- 
structeil  so  that  they  wouM  recede 
and  permit  the  force  of  the  con- 
cussion of  the  cars,  as  they  came 
together,  to  he  sustained  by  the 
deadwoods.  That  is  the  only  pur- 
pose of  the  deatlwoods.  They  are 
intended  to  receive  the  force  of  the 
concussion,  and  thus  relieve  and 
preserve  the  drawl)ars  from  heing 
broken.  In  such  case,  the  drawbars 
of  cars  having  deadwoods  cannot 
recede,  or  at  least  in  this  case  the 
eviilence  does  not  show  that  they 
did  recede  further  than  was  neces- 
sary for  the  deadwoods  to  receive 
the  force  of  the  shock  of  the  cars  as 
they  came  together.  The  evidence 
is  not  that  the  drawheads  receded 
too  far,  but  that  the  drawhead  of 
•  the  right  or  still  car  pulled  out  too 
fur,  as  shown  by  the  evidence  of 
the  plaintiff  al)ove  quoted.  He 
testifi«'d  as  follows:  "This  draw- 
head  to  my  right  (meaning  the  draw- 
head  of  the  still  car)  certainly  must 
have  been  out  of  order,  for  there  was 
a  great  deal  of  loose  motion  there. 
It  pulled  out  at  least  nine  or  ten 
indu-s.  Most  generally  it  pulls  out 
three  or  four  inches."  It  will  he 
ob.served  th;it  he  does  not  pretend 
to  state  how  'ir  the  drawbars  re- 
ceded, or  thai  riihcr  of  them  re- 
ceded farther  than  usual.  How 
the  pulling  out  of  the  drawbars  of 
the  cars,  or  either  of  them,  could 
have  caused  or  contributed  to  this 
injury,  we  are  unable  t(»  understand. 


The  pulling  out  of  the  drawhead 
of  the  right  car  occurred  on  the 
reaction,  after  the  cars  had  come 
together.  Before  that  time,  ac- 
cording to  the  plaintiff's  testimony, 
his  fingers  hail  lieen  caught  as  here- 
tofore descriheil. 

Even  if  the  drawbar  had  receded 
farther  than  usual,  w^e  are  at  a 
loss  to  understand  how  that  could 
have  caused  appellee's  injury.  Why 
should  such  receding  cause  the  pin 
to  l)e  forced  or  canted  over,  so  as 
to  catch  the  appellee's  hands  ?  As' 
a  cause,  the  receding  would  naturally 
have  the  opposite  effect.  The  hull 
tongue  was  in  the  left,  or  moving 
car;  the  pin,  of  which  appellee 
had  hold,  was  in  the  hole  of  the 
drawhead  of  the  right  or  still  car, 
with  the  lower  end  projecting  into 
the  aperture  of  that  drawhead. 
The  bull  tongue  being  fastened,  was 
stiff  —  therein  differing  from  a  link 
—  and  when  it  struck  the  lower 
end  of  the  pin,  the  canting  or  shying 
would  naturally  occur,  and  the  re- 
ceiling  of  the  drawhead  could  not, 
as  a  cause,  have  operated  to  produce 
it. 

It  w^as  incumbent  on  the  appellee 
to  prove,  not  only  a  defect  in  the 
coupler,  but  the  (lefect  that  caused 
the  injury.  Merely  proving  that 
there  was  a  defect,  is  not  sufficient. 
Not  only  so,  but  under  the  aver- 
ments of  the  declaration,  the  proof 
must  also  show  that  the  defect 
causing  the  injury  was  known  to 
the  defendant,  or  by  the  exercise 
of  reasonable  care,  it  could  have 
been  known.  There  is  an  absence 
of  proof  as  to  when  the  defect,  if  it 
can  be  so  called,  in  the  spring  or 
following  plate,  mentioned  by  the 
a])jK'llee,  occurred,  or  that  appel- 
lant knew,  or  could  have  known  by 
the  exercise  of  reasonable  diligence, 
of  such  defect,  even  if  it  is  assumed 
such  defect  was  the  cause  of  the 
injury.   .   .   . 

[We  find]  that  John  H.  Dixon  — 
the  appellee  —  was  injured  while 
in  the  employ  of  the  appellant  and 
in   the  line  of  duty,   in  attempting 


No.  12. 


I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC. 


55 


to  make  a  coupling  of  cars  that  were 
supplied  with  the  Ames  coupler  — 
commonly  called  bull  tongue  coupler 
—  both  couplers  on  the  cars  being 
at  the  time  defective,  which  was 
known  to  appellee,  but  for  which 
defect  so  known  there  is  no  claim 
for  a  recovery  in  this  case,  the  re- 
covery being  based  on  the  loose 
motion   of    one    of    the    drawbars, 


which  in  that  respect  was  claimed 
to  be  defective,  but  which  we  find 
did  not  cause  or  contribute  to  the 
injury,  even  if  defective  in  the  re- 
spect claimed.  We  find  there  is 
no  proof  of  a  defect  in  the  couplers 
of  the  cars,  that  caused  the  injury. 
The  clerk  will  enter  this  in  the  final 
order. 


12.    FOOD  ADULTERATION  CASES.      (C.  Ainsworth  Mitchell. 
Science  and  the  Criminal.      1911.      p.   218.)  .  .  . 


To  the  layman  it  may  seem 
strange  that  a  conflict  of  opinion 
should  ever  occur  between  analysts 
with  regard  to  the  genuineness  of 
a  sample  of  food,  and  that  it  should 
ever  be  possible  for  an  accused  sales- 
man to  bring  rebutting  scientific 
evidence.  A  consideration  of  the 
following  points,  however,  will  make 
this  clear,  and  show  how  such  dif- 
ferent opinions  may  be  honestly 
held.  (1)  Food  products  may  con- 
sist of  entirely  dissimilar  substances 
which  may  readily  be  distinguished 
by  Suitable  tests,  as,  for  instance, 
pepper  and  salt ;  or  (2)  the  food 
may  contain  a  special  constituent 
which  is  either  entirely  wanting  or 
only  present  in  a  smaller  proportion 
in  other  allied  products.  It  is 
mainlv  with  foods  of  this  latter  de- 


quently  happens  that  the  public 
analyst  has  to  give  his  judgment 
upon  a  sample,  which  might  either 
be  a  butter  very  rich  in  the  char- 
acteristic volatile  substances  and 
adulterated  with  10  per  cent  of 
foreign  fat ;  or  it  might  be  a  genu- 
ine butter  that  was  very  deficient 
in  these  volatile  compounds.  This, 
then,  is  the  dilemma.  If  the  an- 
alyst condemn  such  a  sample  on 
the  strength  of  this  and  other  tests, 
he  may  be  confronted  by  the  evi- 
dence of  other  analysts  who  will  give 
their  opinion  that  the  butter  is 
genuine ;  and  if,  then,  the  matter 
be  referred  to  the  Government 
analysts,  their  report  may  or  may 
not  corroborate  his,  and  in  the  latter 
alternative  the  authority  institut- 
ing the  prosecution  may  have  to  pay 


scription  that  the  difficulties  of  the  |  heavy  costs.     It  is  well  known  that 


public  analyst  arise.  For  instance, 
butter  fat  contains  a  large  proportion 
of  certain  volatile  compounds,  which 
are  either  absent  or  are  present  in 
much  smaller  quantity  in  the  fats 
used  to  adulterate  butter ;  and  thus 
an  estimation  of  these  volatile  com- 
pounds affords  a  means  of  judging  of 
the  purity  of  the  liutter.  Thus,  if 
only  half  the  normal  quantity  of 
volatile  compounds  is  present,  the 
conclusion  is  drawn  that  the  butter 
is  adulterated  with  an  equal  quantity 
of  foreign  fat,  and  so  on.  The  task 
would  not  be  difficult  if  butter  fat 
were  always  constant  in  composi- 
tion ;  but,  unfortunately,  there  are 
often  Avide  variations  in  the  pro- 
portion of  ingredients,   and   it  fre- 


butters  are  scientifically  blended 
with  foreign  fats  so  as  to  fall  just 
on  the  border  line  between  abnormal 
and  adulterated  samples,  and  the 
analyst  is  frequently  compelled  to 
pass  such  a  butter  as  genuine,  lest 
he  should  unwittingly  do  an  in- 
justice. .  .  . 

These  details  have  been  given  at 
some  length,  for  they  are  typical 
of  the  problem  Avhich  the  public 
analyst  has  to  solve  in  the  case  of 
many  natural  products,  i.e.,  to 
decide  whether  a  food  is  adulterated 
or  only  naturally  of  poor  quality. 
There  is  no  special  difficulty  in  the 
analyses ;  it  is  a  question  of  in- 
terpretation of  the  results.  The 
chief  culprit  in   the  matter  of  the 


56 


PART    I.       CIRCl'MSTANTIAL    EVIDEXCE 


No.  13. 


adulteration  of  Initter  is  the  small 
tlealer.  who  buys  margarine  from 
the  inar^'arine  numufaeturer  ami 
skillfully  lileiuls  it  with  hutier  in  a 
proportion  that  is  sniall  in  a  sinjjle 
instance,  hut  is  suftioient  to  l)ring 
him  in  a  liantlsome  profit  in  the 
course  of  a  year. 

Owin^  to  the  tliificulty  of  detect- 
ing such  small  ailditions  of  mar- 
garine to  l)utter  (which,  as  was 
explained  ahove.  is  ilue  to  the  varia- 
tions in  the  na  ural  product)  a  most 
ingenious  device  has  heen  adopted 
ui  some  countries.  This  is  the  ad- 
dition of  a  snuill  (piantity  of  a 
"latent  color"  to  the  margarine, 
so  that,  although  it  appears  yellow, 
like  hutter,  its  color  can  l>e  changed 
by  the  apj)licatit)n  of  a  single  reagent 
to  pink  or  blue,  and  its  presence 
thus  revealed  in  a  mi.xture  of  butter 
and  margarine.  Several  years  ago 
an  attempt  was  made  in  some  of  the 
United  States  to  compel  manu- 
facturers of  margarine  to  color 
it  pink,  .so  that  it  could  not  possibly 
l)e  palmed  otf  as  butter,  but  as  this 
law  was  found  to  have  the  etlect 
of  stopping  the  sale  of  margarine 
altogether,  it  is  no  longer  enforced. 
\'arious  substances  have  been  sug- 
gested aii  suitable  for  the  latent 
coloring  matter,  such  as  starch, 
which  turns  blue  on  contact  with 
iodine,  and  certain  colorless  coal- 
tar  derivatives  which  change  to 
pink  u|)on  the  addition  of  an  alkali 
or  acid.     There   are   numerous   ol)- 


jections  to  the  use  of  some  of  these 
compounds.  Thus,  starch  may  be 
washed  out  of  the  margarine  by  a 
simple  treatment  with  water,  while 
a  coal-tar  derivative  that  turns  pink 
on  contact  with  an  alkali  is  too 
sensitive  an  ingredient  for  every- 
day u.se.  A  far  more  satisfactory 
sui)stance  than  any  of  these  was 
found  in  the  oil  derived  from  sesame 
seed.  This  is  a  wholesome  oil  with 
a  fragrant  odor  and  pleasant  taste, 
which  is  largely  used  as  a  salad  oil 
in  certain  parts  of  Europe.  It  is 
one  of  the  few  vegetable  oils  that 
can  l)e  detected  by  means  of  a  special 
color  reaction  ;  for  on  treating  the 
oil  with  a  particular  reagent  it  gives 
a  bright  rose  color,  and  the  test  is 
so  sensitive  that  it  will  detect  the 
presence  of  even  a  small  percentage 
of  sesame  oil  in  other  fats.  A  com- 
pulsory addition  of  a  small  amount 
of  sesame  oil  to  all  margarine, 
therefore,  aflFords  an  absolutely  cer- 
tain means  of  recognizing  the  mar- 
garine subsequently.  The  first 
country  to  adopt  this  plan  was  Ger- 
many, where  a  few  years  ago  a  regu- 
lation was  made  that  all  makers  of 
margarine  must  use  10  per  cent  of 
sesame  oil  with  the  other  ingredients. 
Belgium  has  also  adopted  the  same 
l)lan  of  earmarking  the  margarine 
produced  in  the  country,  and  has 
thus  simplified  in  one  direction  the 
problem  of  detecting  petty  adul- 
teration. 


13.    POISON    TESTS.     (Willi 

Chiinitilni    and    Chrniiciil    Kn'dciicr. 

Character  of  Ariiclm  nuhmiiicd  to 
chniiiM. — These  may  include  the 
stomach  or  other  organs  of  the  liody  ; 
urine  or  other  secretions  of  the  body  ; 
vomit;  medicine;  food;  contents 
of  drinking  vessels,  etc. 

I'nridu.s  Ilixtortf  of  Tht-.tr.  —  As  a 
rule  all  these  articles  arc  first  collectecl 
by  some  p«'rM»n  other  than  the 
chemist,  such  as  a  policeman.  .\ 
non-professional  man  should,  if  |)os- 
sible,    touch   nothing,   and   >cc   tiiat 


AM  Jago.  a  Manual  of  Forensic 
1909.  ch.  VI,  p.  140.)  .  .  . 
nothing  is  touched.  To  this  there 
is  the  exception  of  something  that 
will  be  lost  if  not  at  once  recovered. 
For  example,  a  woman  was  found 
dead,  with  vomit  near  the  mouth 
running  away  and  soaking  into  the 
floor.  This  should  be  collected  at 
once  with  a  clean  spoon  in  a  clean 
vessel. 

All  Expert  Medical  Man  will,  on 
arrival,  take  note  of  everything, 
preserve  all  necessary  articles,  put 


No.  13. 


PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC. 


57 


in  proper  vessels,  seal,  and  arrange 
for  personal  delivery  to  the  chemist. 
On  post  mortem  examination  the 
operator  will  take  precautions  for 
the  proper  packing  of  essential 
organs  of  the  body  and  other  sub- 
stances therefrom  requiring  to  be 
analyzed. 

Exact  particulars  of  dcUirri/  and 
receipt  of  Articles. —  The  chemist 
should  ascertain  as  much  as  pos- 
sible of  the  previous  history  of  the 
case,  such  as  the  symptoms  pre- 
ceding death.  He  should  also  ac- 
quaint himself  with  the  circumstances 
under  which  any  articles  were  found, 
e.g.,  articles  of  food,  suspected  poison, 
etc.,  whether  in  clean  vessels  or  the 
reverse.  Also  vomit,  whether  in 
clean  vessel  or  possibly  collected 
from  a  dirty  floor.  The  nature  and 
efficiency  of  packages,  how  fastened, 
and  what  identifying  marks  or  seals 
must  also  be  noted.  A  record  of 
when  and  where  received  and  from 
whom  must  also  be  made  and  kept. 

Condition  ichen  received.  —  Note 
minutely  whether  seals  or  packages 
are  entire  or  show  any  sign  of  having 
been  tampered  with ;  also  whether 
putrefactive  or  other  changes  have 
occurred  in  the  contents. 

Custody  during  analysis.  —  If  pos- 
sible, all  articles  should  be  kept  in 
the  direct  personal  custody  of  the 
chemist.  They  must  be  securely 
locked  up  during  his  absence  ;  prod- 
ucts, etc.,  must  be  labeled  at  each 
stage  of  the  work.  If  any  article 
or  portion  of  article  is  given  to  any 
other  chemist  or  expert,  it  must  be 
handed  over  personally,  together 
with  a  written  description.  A  note 
must  be  made  of  the  time,  place,  and 
person.  At  the  close  of  the  in- 
vestigation any  remainders  must 
be  sealed  up  in  proper  vessels, 
labeled,  and  kept  in  safe  custody. 
Or  if  directions  have  been  received 
to  hand  them  to  some  other  person, 
a  note  must  be  made  of  full  particu- , 
lars  of  the  articles  handed  over, 
their  nature  and  state,  and  time 
when,  and  place  where,  and  person 
to  whom  so  handed. 


Preservation. — No  antiseptics  are 
admissible.  Obviously  one  must  not 
introduce  a  foreign  matter.  It  is 
dangerous  to  heat  since  some  of  the 
substances  may  be  volatile.  Cold 
storage  is  permissible.  If  spiritu- 
ous extracts  are  to  be  made,  at  an 
early  stage  one  may  macerate  with 
the  spirit,  and  thus  incidentally 
preserve  from  putrefaction.  .  .  . 

Accuracy  of  Analysis.  —  The  an- 
alyst should  be  able  to  speak  as  to 
the  accuracy  of  his  modes  of  analy- 
sis and  their  limitations.  He  should 
also  have  tested  the  accuracy  of  the 
calibration  of  his  instruments,  pi- 
pettes, burettes,  flasks,  hydrometers, 
etc. 

Substances  obtained  by  a7ialysis 
must  be  kept.  —  The  active  substance 
may  possibly  be  isolated,  in  that 
case  it  must  be  carefully  preserved 
for  production  if  necessary,  e.g., , 
samples  of  arsenic,  aconitine,  etc. 

Form  and  strength  of  poison  ad- 
ministered.—  If  possible,  the  analyst 
should  determine  the  form  in  which 
the  poison  was  given,  e.g.,  if  morphia, 
whether  as  opium,  laudanum,  or 
salt  of  alkaloid.  In  the  matter  of 
strength  he  should,  if  able,  decide 
whether  given  in  concentrated  or  in 
diluted  condition. 

Organs  or  Secretions  of  body  in 
lohich  found.  —  These  must  be  noted, 
as  thereby  indications  of  the  nature 
of  the  poison  and  the  length  of  time 
during  which  it  was  being  adminis- 
tered, are  afforded. 

Amount  of  fatal  dose. — The  analyst 
should  be  able  to  state  the  amount 
of  fatal  dose  and  its  relation  to  the 
sex,  age,  and  state  of  health  of  the 
deceased.  He  should  ascertain  the 
proportion  such  dose  bears  to  the 
quantity  found  on  analysis.  He 
should  further  be  able  to  state  what 
relation  this  quantity  found  bears 
to  the  quantity  administered. 

Possible  existence  of  poison  nat- 
urally in  the  body. — The  poison 
may  have  been  given  as  a  medicine ; 
for  example,  arsenic,  antimony,  and 
strychnine  are  all  recognized  drugs. 
Or    it    may    have    been    absorbed 


58 


PART    I.      (IRCl'MSTANTIAL   EVIDENCE 


No.  13. 


during  the  natural  avocations  of 
the  person  ;  tluis  K*atl  |)oisonin<r  fre- 
(jueiitly  occurs  in  tlie  case  of  potters 
working  with  K'ad  ghize. 

Another  ahcrnative  is  that  the 
I)oison  may  have  heen  present  in 
fcMMl.  Thus  prussic  acid  is  formed 
from  hitter  ahiionds,  and  also  may 
be  ohtained  from  other  fruit  kernels. 
A  well-known  anecdote  is  that  of 
counsel  who  advanced  the  theory 
that  a  person,  in  whose  htxly  prussic 
acid  was  found,  had  himself  in- 
troduced it  l»y  chewing  and  swallow- 
ing apple-pips.  The  defense  was 
ineffective,  except  that  for  long  after 
the  barrister  was  familiarly  known 
as  "Apple-pip  Kelly."' 

Poi.ton,  thf  rr.fult  of  drcinn posi- 
tion.—  As  a  result  of  certain  oh.scure 
chemical  changes  which  may  occur 
within  the  body  after  death,  there 
may  be  poisonous  bodies  produced 
from  non-poisonous  substances  in 
the  body.  These  are  known  as 
cadaveric  alkaloids,  or  more  usually 
as  "ptomaines."  As  the  naturally 
poisonous  alkaloids  may  possibly 
l)e  confused  with  ptomaines,  evi- 
dence ditferentiating  the  two  classes 
of  bodies  should  be  forthcoming. 

Introdnriion  of  jioison  by  impure 
aunhjtic  rragnit.s. —  This  is  not  an 
unknown  experience,  thus  arsenic 
has  actually  been  introduced,  by 
means  of  the  reagents,  into  the 
Mar'^h's  and  Reinsch's  tests  by 
which  substances  were  being  ex- 
amined for  its  presence. 

Intriii/urtitni  ////  iiiipro/icr  irrnjj- 
prr.s. —  The  obvious  duty  of  th«'  per- 
.son  forwarding  articles  for  analysis 
is  to  see  that  they  are  j)acke<l  in 
proper  receptacles.  The  chemist 
can  only  deal  with  them  as  the>- 
reach  him.  but  he  should  be  on  the 
alert  for  the  disco\cry  of  any  im- 
prr>per  wrapper.  Thus  a  case  is  on 
record  of  a  stomach,  suspected  to 
contain  arsenic,  having  been  packed 
in  a  piece  of  wall  pajx-r.  The  w;dl 
I);iper  itself  on  examination  w;is 
found  to  contain  arsenic  in  al)un- 
dance. 

Chcmiral  Eridrnrc  for  I)(fiiiKi . 


The  first  duty  of  a  chemist  who  is 
acting  for  the  defense  is  to  scrutinize 
most  clo.sely  the  whole  chain  of  evi::_ 
dence  for  the  prosecution.  The  pre- 
ceding directions  as  to  the  pre- 
cautions necessary  to  insure  its 
completeness  should  also  furnish 
suggestions  to  the  defense  as  to  the 
tests  to  which  it  may  be  subjected 
in  order  to  find  any  defects  in  case 
of  their  existence.  If,  for  example, 
the  circumstances  of  death  point  to 
a  possil)ility  of  ptomaine  poi.soning 
ha\ing  been  the  cause,  this  should 
l)e  pressed  in  cross-examination  of 
witnesses  for  the  prosecution.  Such 
a  possil)ility  should  be  supported  by 
direct  chemical  evidence  that  the 
analytical  results  are  compatible 
with  death  from  such  a  cause. 
Granted  any  reasonable  case  for 
death  being  due  to  other  causes,  or 
that  death  by  poison  has  resulted 
from  any  innocent  source,  the  de- 
fense must  be  prepared  with  all  the 
constructive  evidence  necessary  to 
build  up  an  affirmative  case.  This 
will  include  evidence  in  support  of 
the  whole  chemical  argument  (and 
of  course  equally  of  the  medical  one, 
though  the  latter  at  present  only 
indirectly  concerns  us). 

lUustraiiir  Cases. —  In  the  follow- 
ing poisoning  cases  an  account  is 
given  of  the  more  important  chemi- 
cal evidence. 

R.  V.  Smrihurd. —  On  the  7th 
July,  ]Sr)9,  Smetluirst  was  tried  at 
the  ('.  C  (".  for  the  murder  of 
Isabella  iJanks,  who  died  on  the  3d 
May,  1859.  A  motive  for  the 
alleged  nnirder  existed.  The  symp- 
toms of  illness  preceding  death 
were  as  follows  :  —  diarrhoea  and 
vomiting,  dysentery,  heat  and  burn- 
ing throughout  the  whole  alimen- 
tary canal.  These  pointed  to  the 
administration  of  some  irritant 
poison.  Xo  poison  was  traced  to 
the  i)risoner's  possession,  but  he  as 
a  doctor  would  have  no  difficulty 
in  procuring  .same.  Chemical  Evi- 
(Iriiee  for  Ihe  ProsecuHon.  A  part 
of  a  motion  was  analyzed  by  Dr. 
Taylor,    who    found    it    to    contain 


PROOF   OF   PHYSICAL    EVENT,    CAUSE,    ETC. 


59 


arsenic.  The  following  report  of 
the  evidence  is  abstracted  and  con- 
densed from  Vol.  50,  C.  C.  C,  Ses- 
sions Cases,  p.  552.  Taylor  in 
examination  in  chief,  deposed  that 
on  the  1st  May,  he  received  a  par- 
cel delivered  by  Buzzard.  This 
contained  two  bottles,  which  were 
sealed  ;  he  opened  one  and  took  out 
a  portion.^  Before  commencing  his 
analysis,  he  first  tested  his  apparatus 
and  reagents,  copper  wire,  hydro- 
chloric acid,  water,  and  test  tube ; 
he  found  them  all  perfectly  clean.- 
He  then  used  the  same  reagents  and 
apparatus,  and  tested  some  of  the 
liquid  from  the  bottle  he  had  opened. 
The  result  was  a  metallic  deposit 
of  a  grayish  steel  color  on  the  copper. 
This  might  be  arsenic  or  antimony, 
or  possibly  mercury.  The  bottle 
was  then  re-sealed  in  his  presence, 
and  taken  away  by  Buzzard.^  He 
made  further  experiments  with  some 
more  of  the  liquid,  and  obtained  a 
further  deposit  of  gra}'  matter. 
This  he  examined  under  the  micro- 
scope, and  found  it  to  ha^'e  the 
appearance  of  arsenic.  He  heated 
a  piece  of  the  copper  on  which  was 
the  deposit,  and  obtained  crystals 
of  arsenic.  These  he  produced.* 
He  had  not  the  slightest  doubt  of 
their  identity.  There  was  no  indi- 
cation of  the  presence  of  antimony, 
mercury,  or  bismuth.  He  found 
that  arsenic  was  contained  in  the 
blood.  On  the  5th  May,  he  re- 
ceived a  large  jar  from  M'Intyre, 
sealed  up  —  this  contained  viscera, 
stomach  unopened,  and  other  organs 
enumerated.  On  the  7th  May,  and 
on  other  specified  dates  he  received 
other  packages,  labeled,  and  num- 
bered them.^  On  examination  he 
found  no  arsenic  or  antimony  in 
the  gullet  or  stomach.     He  found 


antimony  in  two  places  in  the  in- 
testine, and  traces  of  antimony  in 
blood  taken  from  the  heart.  He 
was  assisted  by  Dr.  Odling.^  He 
examined  a  number  of  articles  of 
food  and  medicine.  Bottle  No.  5 
contained  355  grains  chlorate  of 
potash  —  free  from  anything  else  — 
it  is  not  muriate  of  potash  (KCl). 
Bottle  No.  21  contained  a  clear 
watery  liquid  of  saline  taste. 
Handed  H  oz.  from  it  to  an  assistant 
to  boil  for  Reinscli^s  test.  The 
copper  was  destroyed  by  being  dis- 
solved. He  plunged  a  portion  of 
fresh  copper  in  the  solution  for  a  very 
short  time,  and  found  arsenic  de- 
posited on  it.  Subsequent  examina- 
tion showed  no  arsenic  or  antimony 
in  the  liquid,  but  that  the  arsenic 
found  in  the  original  test  had  come 
from  the  copper  used  for  the  experi- 
ment.^ In  the  ordinary  mode  of  ap- 
plying the  test,  witness  added,  "We 
never  dissolve  the  copper."  On 
cross-examination  by  Parry.  When 
giving  evidence  before  the  magis- 
trate, he  believed  that  this  bottle 
contained  arsenic.  Subsequent  ex- 
amination showed  that  the  origi- 
nal analysis  was  mistaken.  On  re- 
examination by  Bodkin.  If  half 
a  grain  of  copper  was  administered 
during  life,  there  would  not  be  any 
action  of  acid  in  the  stomach  that 
would  account  for  the  arsenic  in  the 
evacuation.^  Slight  traces  of  ar- 
senic were  found  in  the  copper  pills, 
but  none  in  those  of  bismuth. 
Odling,  on  examination,  stated  that 
in  a  case  where  the  copper  is  not 
dissolved  there  is  no  fallacy  in 
Reinsch's  test.  Chemical  Evidence 
for  Defense.  B.  Ward  Richardson 
was  examined  by  Giffard.  Slow 
arsenical  poisoning  is  quite  iriipos- 
sible   without   arsenic    being   found 


*  The  witness  states  the  time  when,  and  the  person  from  whom  he  received  the  articles 
for  analysis,  also  the  mode  of  packing,  and  that  they  were  sealed. 

2  All  apparatus  was  tested  before  use. 

'  States  what  was  done  with  the  bottle  when  finished  with. 

*  Produced  in  court  the  substance  isolated. 
'  All  packages  labeled  and  numbered. 

'  Gives  name  of  assistant  whose  qualifications  were  well  known. 

'  Example  of  the  poison  being  searched  for  having  been  introduced  in  the  reagents. 

*  Medicines  administered  could  not  have  been  the  source  of  the  poison  found  on  analysis. 


60 


PART    I.       CIRCIMSTAXTIAL   EVIDENCE 


No.  13. 


in  the  tLssucs.'  He  expiTimented 
on  a  do^,  j;i\  in;;  it  white  arsenic  and 
potassium    chlorate    in    excess,    the 

latter    l)einjj    a    iliuretic he    sub- 

setjuently  found  arsenic  in  tlie  do^'s 
tissues.  \  arit)us  ineihcal  witnesses 
averretl  that  the  syinptoins  were  not 
those  of  sK)w  poisoning',  hut  of 
dysentery.  The  jury  heheved  the 
cheiiiiial  evidence  for  the  prosecu- 
tion and  found  the  prisoner  guilty. 
Stephen,  .1..  comments  somewhat 
fully  on  this  case  in  his  "Criminal 
Law  of  Kngland,"  p.  iiO.').  He  re- 
marks that  Taylor's  credit  was  at- 
tacked hecau.se  on  the  copper  gauze 
being  dis.solved  by  the  jjotassium 
chlorate,  ami  arsenic  liberated,  Taylor 
assumed  that  the  arsenic  came  from 
the  liijuid  being  tested.  The  defense 
tried  to  draw  the  inference  that  his 
whole  e\  idcnce  was  unreliable.  But 
examining  that  evidence,  altogether 
77  experiments  were  made,  in  four 
no  copper  was  dissolved  and  no 
arsenic  was  found.  In  two  tests 
no  copper  was  dis.solved  and  arsenic 
was  found.  In  one  test,  the  copper 
was  ilis.solved  and  arsenic  from  the 
coj)per  was  found,  thus  showing  that 
the  test  will  reveal  arsenic.  The 
74  experiments  show  that  when 
there  is  no  solution  of  coj)per,  the 
test  does  not  reveal  arsenic  unless 
it  is  free  in  the  licjuid,  as  distinct 
from  being  combined  with  the  cop- 
per. A  second  argument  was  based 
on  Richardson's  evidence,  that  ar- 
senic must  be  found  in  the  tissues 
in  a  case  of  arsenical  poisoning.  In 
the  judge's  opinion,  absence  of  ar- 
senic at  death  does  not  show  that 
no  arsenic  wa,s  given  during  life, 
but  that  none  was  given  for  the  last 
two  or  three  days  of  life.  The  third 
argument  of  th«-  (h-fense  was  that 
Taylor  foun<l  antimony  and  arsenic 
pres»-nt  in  the  medicines,  which 
containe<l  bisnnith,  and  therefore 
in  that  way  such  arsenic  as  was 
found  could  be  account(*d  for.  An 
attack  was  nuide  on  the  credit  of  the 


witnesses  for  the  defense,  on  the 
ground  that  they  had  also  given 
evidence  for  the  defense  at  Palmer's 
trial.  Richardson  then  deposed 
that  Cook's  symptoms  were  those 
of  angina  pectoris,  and  Rogers  that 
if  death  were  due  to  strychnine, 
that  poison  ought  to  have  been 
found  in  the  body.  After  the  sen- 
tence, petitions  and  other  docu- 
ments were  sent  to  the  judge  (L.  C. 
Baron  Pollock),  among  them  being  a 
communication  from  I)rs.  Baly  and 
.Tenner  on  the  medical  evidence, 
they  regarded  the  symptoms  and 
post-mortem  appearances  as  am- 
l)iguous,  and  thought  they  might  be 
due  either  to  natural  causes  or 
poison.  The  judge  recommended 
the  Home  Secretary  to  refer  the 
matter  to  the  judgment  of  some  in- 
dependent medical  and  scientific  per- 
sons selected  by  himself.  Herapath 
meanwhile  had  written  a  letter  to 
"  The  Times  "  asserting  that  Taylor 
had  extracted  more  arsenic  from 
the  potassium  chlorate  and  copper 
than  could  have  been  set  free  by 
the  solution  of  the  copper.  The 
Home  Secretary  sent  the  papers  to 
Sir  Benjamin  Brodie,  the  eminent 
surgeon,  who  reported  on  the  ma- 
terials supplied  him,  that  there  were 
six  reasons  for  believing  Smethurst 
guilty,  and  eight  for  doubting  the 
.same,  and  concluded  —  "I  own  that 
the  impression  on  my  mind  is  that 
there  is  not  absolute  and  complete 
evidence  of  Smethurst's  guilt."  The 
Home  Secretary  thereon  granted  a 
free  pardon.  .  .  . 

R.  V.  Mat/brick.— On  the  31st  July, 
1SS9,  Florence  ]Mayl)rick  was  tried 
at  the  Liverpool  Assizes  for  the 
nuirder  of  James  Maybrick,  her 
husband,  who  died  on  the  Uth  May, 
18S9.  The  alleged  motive  w^as  in- 
timacy with  a  man  named  Brierley. 
The  symptoms  of  the  fatal  illness 
were  agreed  to  be  those  of  gastritis 
or  .some  similar  disease.  According 
to  the  theory  of  the  prosecution  the 


'  D.-foruw  (itt!irk«  tho  cvirL-tin..  f.,r  till-  i)ros<-pution  on  tho  Rround  that  absence  Of  ar- 
•M-iiir  fr.iiii  til.-  ti«N«i.-N  iH  .•..ii.liiMv  .•vi.lri,.,.of  :il)s.-nc<.  of  slow  ar.scnical  poisoning.  Dif- 
fcr.-iit  ar«uiii<-ut  and  <on<;lusi(jii  baaed  on  facts  aa  advanced  by  the  prosecution. 


No.  13. 


I.   PROOF  OF  PHYSICAL  EVENT,  CAUSE,  ETC, 


61 


gastritis  was  due  to  administration 
of  arsenic.  According  to  the  de- 
fense it  was  due  to  irritant  food 
or  cold  through  wetting.  Chemical 
Evidence  for  the  Prosecution.  Nokes, 
pharmaceutical  chemist,  had  sold 
to  the  prisoner  some  fiy  papers  con- 
taining arsenic,  also  at  the  time  of 
purchases  she  paid  for  them,  although 
she  had  a  running  account.  They 
were  delivered  in  the  ordinary  way 
by  the  boy.  Hanson,  pharmaceuti- 
cal chemist,  had  also  sold  arsenical 
fly  papers  to  the  prisoner  under  the 
same  circumstances  of  paying  at  the 
time,  although  she  had  a  running 
account.  At  the  same  time  he  sold 
her  a  lotion  containing  benzoin  and 
elder  flower  water,  being  the  usual 
ingredients  of  a  skin  lotion.  These 
mixed  with  the  arsenic  would  make 
a  good  combination  as  a  cosmetic' 
Humphreys,  surgeon,  attended  the 
deceased  during  his  last  illness,  and 
gave  him  Fowler's  Solution  on  5th 
or  6th  May.  This  contains  arsenic, 
the  total  quantity  thus  administered 
was  yifoo-  grain.  On  the  .  9th  he  ■ 
applied  Reinsch's  test  to  the  ffeces 
and  urine  —  i-esults  negative  ;  but 
he  admitted  inexperience  in  chemi- 
cal testing,  and  hence  possibly  failed 
in  detecting  the  presence  of  arsenic. 
Davis,  analyst,  deposed  that  a 
bottle  of  Valentine's  Meat  Juice 
handed  to  him  contained  ^  grain  of 
arsenic  in  solution.  The  normal 
preparation  contained  no  arsenic. 
Some  arsenic  was  present  in  the 
glass  of  the  bottle,  but  less  than  in 
that  of  another  bottle,  the  contents 
of  which  were  arsenic  free.-  He 
found  no  arsenic  in  the  stomach  or 
spleen,  but  it  was  present  in  the 
liver  and  intestines.  A  number  of 
bottles   present   in   the   house   con- 


tained arsenic,  as  did  also  a  box 
labeled  "  poison  for  cats."  One 
bottle  was  filled  with  a  saturated 
solution  of  arsenic.  A  tuml)ler  in 
a  hat-box  contained  milk  in  which 
was  a  handkerchief.  This  milk 
contained  arsenic  equal  to  from  20 
to  30  grains  in  the  whole  tumbler. 
He  found  arsenic  in  a  jug  in  which 
some  lunch  for  the  deceased  had  been 
taken  to  his  office.  A  bottle  of 
glycerin  in  the  lavatory  contained 
arsenic,  as  did  also  one  of  deceased's 
medicine  bottles.  Stock  bottles  of 
the  drugs  from  which  the  medicine 
was  dispensed  contained  no  arsenic* 
The  fly  papers  contained  arsenic. 
Witness  produced  tubes  containing 
the  characteristic  sublimate  from 
Reinsch's  test,  made  respectively 
on  the  kidneys  and  liver.  He 
calculated  the  quantity  in  the  entire 
liver  to  be  |  grain.  The  amount 
found  was  half  the  smallest  amount 
that  the  witness  had  ever  found  in 
a  fatal  case  of  arsenic  poisoning. 
Stevenson,  analyst,  stated  that  he 
had  examined  the  contents  of  the 
stomach,  and  found  no  arsenic.  In 
the  intestines  he  found  about  jj 
grain  of  arsenic,  and  some  arsenic  in 
the  kidneys.  On  examining  the 
liver,  4  oz.  yielded  0.027  grain  of 
arsenic,  equal  to  ^  grain  (0.33)  for 
the  whole  liver,  which  weighed  3  lbs. 
On  making  a  duplicate  test,  8  oz. 
yielded  0.049  grain  equal  to  0.29 
grain  of  arsenic  for  the  whole  liver.* 
'  The  body  at  the  time  of  death 
probably  contained  approximately  a 
fatal  dose  of  arsenic."  He  did  not 
macerate  the  whole  liver  into  one 
bulk.^  For  the  Defense.  Various 
witnesses  stated  that  the  deceased 
was  in  the  habit  of  taking  arsenic  as 
a  medicine.     In  particular,  Stanton, 


'  Evidence  of  purchase  of  arsenic  under  suspicious  circumstances,  but  one  witness  ad- 
mitted that  the  arsenic  would  make  a  good  cosmetic.  The  use  as  a  cosmetic  might  explain 
the  secrecy  of  the  purchase. 

'  The  evidence  here  given  had  evidently  been  prepared  in  anticipation  of  a  defense  that 
the  arsenic  in  the  meat  juice  had  been  derived  from  the  glass  of  the  bottle. 

'  Interesting  as  a  tracing  back  of  the  history  of  the  medicine,  in  order  to  prove  that  it 
contained  no  arsenic  when  originally  prepared. 

*  A  duplicate  test  served  the  double  purpose  of  confirming  the  accuracy  of  the  first  test, 
and  also  that  the  poison  was  fairly  evenly  distributed  throughout  the  whole  liver. 

'  Evidently  an  answer  given  to  a  question  foreshadowing  one  of  the  lines  of  defense. 


62 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  13. 


a  pharmaceutical  dieinist.  sold  the 
(leceastHl  a  "  pick-iiie-iip"  contain- 
ing Fowler's  Solution,  7  «lrops  to  the 
(lose,  sometimes  as  often  as  five 
times  a  day.  The  last  occasion  was 
in  Novemher.  1SS7;  the  quantity 
in  the  day  was  nearly  I  jrrain  of 
arsenic.  On  jroint:  away  from  home 
he  ttK)k  with  hin>  S  or  ICt  dose  hottles. 
.\rsenic  is  use<l  as  an  aphrodisiai.' 
Tidy,  chemist,  was  of  oj)inioM  that 
the  symptoms  an<l  appearances  were 
not  those  of  arsenical  poisoning. 
Stevenson  a.ssumed  the  quantity 
present  to  he  ()..'>  prain,  hut  witness 
did  not  think  that  warranted.  It  is 
not  fair  to  infer  that  all  the  intestines 
or  liver  contained  the  same  pro- 
portion of  arsenic  as  a  portion. 
They  should  have  heen  mashed  up, 
and  a  uniform  .sample  taken.'-  Wit- 
ness calculated  the  total  (|uantity 
of  arsenic  found  to  he  ().()S2  grain. ^ 


This  does  not  point  to  over  adminis- 
tration. He  cited  various  medicinal 
cases.  No.  1.  arsenic  was  given 
three  months  hefore  death,  there 
was  found  0.028  grain  of  arsenic. 
In  No.  2,  arsenic  was  given  five 
months  hefore  death,  there  was 
found  in  the  liver  0.174  grain  of 
arsenic.  In  these  cases  there  was 
no  suggestion  of  arsenical  poison- 
ing. Paul,  examiner  in  Toxicology, 
\'ictoria  University,  had  examined 
similar  pans  to  that  mentioned  by 
Davis,  and  found  arsenic  in  the 
glaze,  which  arsenic  was  set  free  by 
acids. ^  Prisoner's  Statement.  She 
had  used  a  cosmetic  containing 
arsenic  from  fly-papers.^  Her  hus- 
band had  been  taking  a  powder, 
this  she  mixed  in  with  the  meat 
juice  at  his  request.®  The  jury 
found  the  prisoner  guilty.  {Times 
Rrport.) 


'  Evidencf  of  the  deceased  l>eing  an  hahitunl  arsenic  taker. 

*  Cioes  to  prove  that  the  sample  did  not  adequately  represent  the  whole  of  the  organ. 

*  The  calculation  by  which  the  witness  arrived  at  the  figure  0.082  grain  is  not  very 
clear.  If  the  amounts  found  in  the  two  porti(jns  analyzed  by  Stevenson  be  added  together 
the  sum  is  O.OTd.  which  is  only  O.OOG  grain  short  of  Tidy's  estimated  total.  That  12  oz. 
of  the  liver  .should  contain  0.076  grain,  and  the  remaining  2  lb.  4  oz.  only  O.OOG  grain,  is 
exceedingly  imi>roI)able. 

*  It  will  bf  remembered  that  Davis  found  arsenic  in  the  food  sent  to  the  deceased's 
office  for  his  lunch.  This  is  an  attejnpt  to  prove  that  such  arsenic  was  derived  from  the 
glaze  of  the  containing  vessel,  from  which  it  could  be  set  free  by  any  acids  in  the  food. 

*  This  was  an  explanation  of  the  reason  for  purchasing  the  fly  papers.  Compare  with 
Note  1. 

*  This  was  an  explanation  of  the  reason  why  arsenic  was  found  in  the  meat  juice.  It 
would  be  strengthened  by  the  evidence  that  the  deceased  was  an  habitual  arsenic  taker. 


TITLE  II:    EVIDEyCE    TO   PROVE    IDEXTITY 


14.     John  H.  Wigmore.      Principles  of  Judicial  Proof.      (1913.)' 

Other  Principles  discriminated.     In  evidencing  that  proposition  commonly 

spoken  of  as  Identity,  there  is  apt  to  be  a  confusion  in  thought  with  two 

other  processes  which  are  really  not  germane. 

(1)  It  is  perhaps  natural  to  apply  the  notion  of  Identity  or  Identification 
to  the  general  process  of  proving  an  accused  person  guilty.  He  is  said  to  be 
"  identified  "  as  the  murderer  or  the  thief ;  i.e.  the  whole  process  of  proof  and 
the  whole  mass  of  evidence  is  thought  of  as  involving  the  "  identity  "  of  the 
accused  and  the  guilty  person.  From  this  point  of  view,  all  distinctions 
between  the  ^•arious  sorts  of  evidence  heretofore  analyzed  are  merged  and 
become  useless.  That  the  accused  planned  the  act,  had  a  motive  for  the 
act,  bore  traces  of  the  act,  and  so  forth,  are  all -merely  "identifying"  facts; 
because  the  real  guilty  person  also  must  have  planned,  had  a  motive,  bore 
traces,  and  the  like.  Such  an  indiscriminate  confusion  and  merger  of  all 
sorts  of  probative  elements  naturally  excites  suspicion  of  the  propriety  of  the 
term  "identification"  as  thus  applied.  In  truth,  there  is  no  propriety  in  it. 
The  very  looseness  of  the  term  shows  that,  since  the  various  sorts  of  evidence 
thus  covered  by  it  may  be  further  analyzed  and  separated,  there  would  re- 
main no  specific  need  for  the  term  "identity"  and  no  specific  class  of  evi- 
dence to  which  it  wa,s  distinctively  appropriate.  If  this  were  the  true  mean- 
ing of  the  term,  it  might  be  discarded  altogether  as  superfluous.  Yet  the 
term  does  have  a  distinctive  application. 

(2)  In  arguing  from  subsequent  traces  of  an  act  to  the  doing  of  an  act,  the 
argument  of  Identity  sometimes  is  necessarily  involved  and  needs  to  be  dis- 
tinguished. Suppose,  for  example,  to  prove  a  murder,  evidence  is  offered 
that  a  gun.  found  three  days  later  in  the  defendant's  possession  is  exactly 
fitted  by  a  bullet  found  in  the  body  of  the  deceased.  Here  there  are  two  in- 
ferences involved  :  (a)  "  Because  the  defendant  possessed  the  gun  when 
found  later,  therefore  he  probably  possessed  it  at  the  time " ;  this  inference 
is  always  open  to  doubt,  since  the  defendant  may  have  borrowed  the  gun 
since  the  killing,  or  some  third  person  may  have  surreptitiously  placed  the 
gun  on  his  premises  ;  (b)  "  Because  the  gun,  thus  possessed  by  the  defendant 
at  the  time  of  the  killing,  fitted  the  bullet  found  in  the  body,  therefore  the 
defendant's  gun  must  be  the  one  that  shot  the  deceased  "  ;  here  the  inference 
is  open  to  doubt  because  the  bullet  may  fit  other  guns,  i.e.  the  fitting  of  the 
bullet  is  not  a  necessary  mark  of  the  identity  of  the  gun  that  shot  it.  Now 
the  first  inference  is  an  inference,  from  subsequent  traces  to  the  former 
act  of  possession  or  use  of  the  gun ;  no  question  of  identity  is  in\olved. 
It  is  the  second  inference  that  involves  the  element  of  the  identity. 
This  is  why  much  of  the  evidence  herein  termed  Traces,  as  pointing 
back  to  an  Act  {post,  No.  139),  may  incidentally  in\olve  a  question  of 
Identity. 

'  Adapted  from  the  same  author's  Treatise  on  Evidence  (1905.    Vol.  I,  §§  410,  411). 

63 


64  PART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  14. 

General  Priticipli-  of  IclcntHy  Evidence.  Identity  may  be  thought  of 
as  a  quality  of  a  person  or  tiling,  —  the  quality  of  sameness  with  an- 
other person  or  thing.  The  essential  assumption  is  that  two  persons  or 
things  are  thought  of  as  existing,  and  that  the  one  is  alleged,  because  of 
common  features,  to  be  the  same  as  the  other.  The  process  of  inference  thus 
hai>  two  necessiiry  elements  :  (1)  it  is  a  Concomitant  one,  in  its  logical  scheme 
{ante.  No.  3) ;  and  (2 )  it  operates  by  comparing  common  marks,  found  to  exist 
in  the  two  supixvsed  separate  objects  of  thought,  with  reference  to  the  possi- 
bility of  their  being  the  same.  It  follows  that  its  force  depends  on  the  neces- 
sarinejttt  nf  the  ajy-.s-ociafion  between  the  murk  and  a  single  object.  Where  a 
certain  circumstance,  feature,  or  mark,  may  commonly  be  found  associated 
with  a  large  munber  of  ol)jects,  the  presence  of  that  feature  or  mark  in  two 
suppo.sed  objects  is  little  indicaticm  of  their  identity,  because,  on  the  general 
principle  of  Rele\  ancy  ianfe,  Xo.  2.  §  2),  the  other  conceivable  hypotheses  are 
so  numerous,  i.e.  tlu'()l)jects  that  possess  that  mark  are  numerous  and  there- 
fore two  of  them  po.ssessing  it  may  well  be  different.  But  where  the  objects 
possessing  the  mark  are  only  one  or  a  few,  and  the  mark  is  found  in  two  supposed 
instances,  the  chances  of  the  two  being  different  are  nil  or  are  comparatively 
small.  Hence,  in  the  process  of  identification  of  two  supposed  objects,  by  a 
common  nuirk,  the  force  of  the  inference  depends  on  the  degree  of  necessari- 
ness  of  association  of  that  mark  with  a  single  object. 

For  simplicity's  sake,  the  evitlential  circumstance  may  thus  be  spoken  of 
as  "a  mark."  But  in  practice  it  rarely  occurs  that  the  evidential  mark  is  a 
single  circumstance.  The  evidencing  feature  is  usually  a  group  of  circum- 
stances, which  as  a  whole  constitute  a  feature  capable  of  being  associated 
with  a  single  object.  liarely  can  one  circumstance  alone  be  so  inherently 
peculiar  to  a  single  object.  It  is  by  aflding  circumstance  to  circumstance 
that  we  obtain  a  composite  feature  or  mark  which  as  a  whole  cannot  be  sup- 
posed to  be  a.ss()eiated  with  more  than  a  single  ol)ject.  The  process  of  con- 
structing an  inference  of  identification  thus  consists  usually  in  adding  together 
a  number  of  circumstances,  each  of  which  by  itself  might  be  a  feature  of 
many  objects,  but  all  of  which  together  can  conceivably  coexist  in  a  single 
object  only.  Each  adilitional  circumstance  reduces  the  chances  of  there 
being  more  than  (»ne  object  so  associated.  The  process  thus  corresponds  ac- 
curately to  the  general  principle  of  l{ele\ancy  (described  ante,  Xo.  2,  §§  2-4). 
It  may -be  illustrated  by  the  ordinary  case  of  identification  by  name.  Suppose 
there  existed  a  parent  named  John  Smith,  who.se  heirs  are  sought ;  and  there 
is  also  a  claimant  whose  parent's  name  was  John  Smith.  The  name  John 
Smith  is  associated  with  so  many  per.st)ns  that  the  chances  of  two  supposed 
persons  of  that  name  being  diiVerent  are  too  numerous  to  allow  us  to  consider 
the  common  mark  as  having  apprecial)le  probative  value.  But  these  chances 
may  be  diminished  by  adding  other  conunon  circumstances  going  to  form  the 
common  mark.  .\<lil,  for  instance,  another  name  circumstance, —  as  that 
the  name  of  each  sui)p«»scd  jicrson  was  John  Barebones  Bonaparte  Smith; 
here  the  chances  of  there  being  two  persons  of  that  name,  in  any  district  how- 
ever large,  are  instantly  reduced  to  a  miniiiuuii.  Or,  add  a  circumstance  of 
IfK-ality,  —  for  »'xample,  that  each  of  the  supi)osed  persons  lived  in  a  particu- 
lar village,  or  in  a  i)articular  block  of  a  certain  .street,  or  in  a  particular  house ; 
here,  again,  the  «lianccs  arc  rc<iuced  in  varying  degrees  in  each  instance. 
Or.  add  a  ciniimstaiicc  of  family,       for  cxaniple,  that  each  of  the  persons  had 


No.  15.  II.      PROOF    OF   IDENTITY  65 

seven  sons  and  five  daughters,  or  that  each  had  a  wife  named  Mary  Ehzabeth 
and  three  daughters  named  Flora,  Deha,  and  Stella ;  here  the  chances  are 
again  reduced,  in  varying  degrees,  in  proportion  to  the  probable  number  of 
persons  who  would  possess  this  composite  mark.  In  every  instance,  the 
process  depends  upon  the  same  principle,  —  the  extent  to  which  the  common 
mark  is  capable  of  being  associated,  in  human  experience,  with  more  than 
one  object. 

In  accordance  with  the  general  principle  of  Explanation  {ante,  No.  2,  §  5), 
the  party  denying  the  identity  may  show  that  there  are  numerous  objects 
equally  possessing  the  evidential  mark  offered,  so  as  to  show  that  the 
chances  of  the  two  supposed  objects  being  the  same  are  very  small.  It  may 
also  be  noted  that  a  mark  of  identity  may  be  negative  as  well  as  affirmative  ;^ 
i.e.  where  a  certain  circumstance  would  be  necessarily  associated  with  an 
object  in  issue,  the  lack  of  that  feature  in  a  particular  object  offered  tends  to 
show  that  it  cannot  be  the  object  in  issue,  —  in  analogy  with  the  argument 
from  essential  inconsistency  {post,  No.  55). 

15.     G.F.Arnold.    Psychology  applied  to  Legal  Emdence.     (1906.    p.  356.) 

In  trying  to  arri^•e  at   the  nature  of  Identity  we  are  forced  to  a  certain 

extent  to  discuss  Metaphysics :    this  is  unavoidable,  and  it  is  the  neglect 

of  what  ISIetaphysics  teaches  which  has  in  our  opinion  led  to  the  confusion 

and  contradictions  on  the  subject  which  exist  in  the  law. 

We  shall  begin  by  insisting  on  a  few  propositions  :  viz.  (1)  that  you  can- 
not be  aware  of  identity  unless  you  have  also  diversity ;  (2)  that  you  cannot 
ask  whether  a  thing  is  generally  the  same,  but  you  must  confine  your  ques- 
tions to  a  certain  aspect  of  it ;  (3)  that  we  select  that  aspect  to  suit  our 
interests,  and  such  interests  are  usually  practical ;  (4)  that  identity  or  the 
relation  of  sameness  is  ideal,  it  lies  in  the  view  we  take  of  tilings,  and  not  in 
the  nature  of  things  themselves  ;  (5)  that  the  word  "same"  is  used  ambigu- 
ously and  that  it  is  a  different  problem  when  we  ask  whether  an  individual 
remains  the  same,  and  when  we  ask  whether  two  things  are  the  same. 

(1)  The  first  proposition  applies  whether  we  are  speaking  of  the  resem- 
blance of  two  things  or  of  the  continuous  identity  of  one.  "  In  order  that  the 
mind  may  perceive  the  resemblance  between  two  images,"  says  Binet, 
"they  must  differ  a  little;  if  they  do  not,  they  become  added  together  and 
form  a  single  image." ^  .  .  .  Professor  Sully  writes  :  "The  visual  recognition 
of  a  thing  as  identical  with  something  previously  perceived  takes  place  by 
help  of  the  idea  of  persistence.  .  .  .  (It  involves)  the  comparison  of  successive 
impressions  and  the  detection  of  similarity  and  diversity  of  change.  Thus 
a  child  learns  to  recognize  his  hat,  etc.,  by  discounting  a  certain  amount  of 
dissimilarity."  ^ 

(2)  If  the  persistence  is  in  the  object  itself,  this  implies  a  sameness  of 
character  attaching  to  the  thing  itself,  i.e.  a  qualitative  sameness,  and  further 
the  avoidance  of  any  absolute  break  in  its  existence.  When,  however,  it  is 
asked  in  what  the  sameness  of  quality  consists,  it  will  be  found  that  no  reply 
can  be  given,  unless  the  point  or  particular  respect  of  which  you  were  think- 
ing is  specified.  A  general  reply  cannot  be  given  because  we  do  not  know  the 
general  character  which  is  taken  to  make  the  thing's  essence ;  it  is  not  al- 
ways material  substance,  nor  shape,  nor  size,  nor  color.     The  identity  lies 

'  Binet,  Psychology  of  Reasoning,  p.  120.  *  Sully,  Outlines  of  Psychology,  p.  155. 


66  PART    I.       CIRCIMSTANTIAL    EVIDENCE  No.  15. 

really  in  the  view  we  take  of  it.  ami  that  view  is  often  a  mere  chance  idea; 
the  character  therefore  lies  outside  of  and  beyond  the  fact  taken.  .  .  } 

(3)  How  then  do  we  determine  in  what  respect  we  shall  ask  of  a  thmg 
whether  it  is  the  same  or  not  r  Professor  Stout  seems  to  have  answered  this 
question  in  his  remarks  on  what  he  calls  "  thinj^hood."  It  depends  on  interest : 
we  take  what  answer  for  practical  purposes  as  real,  identical,  etc. :  on  the 
perceptual  level  this  interest  is  purely  practical.  It  is  the  interest  of  the 
moment  which  determines  how  we  look  at  a  thing,  and  we  look  at  it  differ- 
ently, according  to  the  fluctuation  of  interest.-  And  this  is  why  we  say  that 
the  rule  of  convenience  is  the  one  to  be  followed  in  deciding  whether  events 
belong  to  the  .same  transaction  or  not.  Our  interest  here  is  solely  as  to  how 
we  shall  dispo.-<e  judicially  of  the  charges  brought  against  the  accused  in  the 
most  convenient  manner,  and  the  considerations  which  chiefly  influence  us 
are  whether  the  same  witnesses  can  speak  to  all  tlie  charges  and  whether 
those  charges  can  be  kept  separate  before  the  mind  without  risk  of  confusion 
or  prejudice,  if  they  are  taken  together.  The  fact  that  the  events  happened 
at  ditVerent  times  and  places  and  such  like  reasons  are  irrelevant  in  them- 
selves save  in  .so  far  as  they  hinder  or  promote  our  convenience.  .  .  .  To 
seek  to  convert  such  reasons  into  an  objecti\e  general  test  of  identity  and 
difference  seems  to  us  both  meaningless  and  irrational.  .  .  • 

(4)  The  relation  of  Similarity  to  Identity  will  now  be  described.  "Simi- 
larity," says  Bradley,  "  is  nothing  in  the  world  but  more  or  less  unspecified 
sameness."  "The  feeling  that  two  things  are  similar  need  not  imply  the 
perception  of  the  identical  point,  but  none  the  less  this  feeling  is  based  al- 
ways on  partial  sameness,"  ^  and  elsewhere  he  says  that  Resemblance  is  the 
perception  of  the  more  or  less  unspecified  identity  of  two  distinct  things. 
It  fliti'crs  from  identity  in  its  lowest  form,  i.e.  where  things  are  taken  as  the 
same  without  specific  awareness  of  the  point,  or  sameness  and  distinction  of 
that  from  the  diversity,  becau.se  it  implies  the  distinct  consciousness  that  the 
two  things  are  two  and  different.  It  differs  again  from  identity  in  a  more 
explicit  form  because  it  is  of  the  essence  of  Resemblance  that  the  point  or 
points  of  sameness  should  remain  at  least  partly  undistinguished  and  un- 
specified. .\nd,  further,  the  feeling  which  belongs  to  the  experience  of  simi- 
larity is  different  from  that  which  belongs  to  the  experience  of  sameness 
proper.  Hut  resemblance  is  based  always  on  partial  sameness,  though  the 
specific  feeling  of  resemblance  is  not  itself  the  partial  identity  which  it 
involves,  and  partial  identity  need  not  imply  likeness  proper  at  all.  The 
writer  is  aware  that  this  view  is  disputed  by  more  than  one  philosopher:^ 
they  hold  that  Resei-iblance  is  not  ba.sed  on  Identity,  but  is  an  ultimate 
idea,  or  even  that  Identity  is  ba.sed  on  Resemblance.  Thus  Binet  writes, 
"to  explain  the  resemblance  between  two  states  of  ccmsciousness  by  the 
common  elements  in  the  two  states  or  by  a  partial  identiiy  of  their  elements, 
.simplifies  n«)thing  at  all.  For  it  replaces  the  idea  of  resemblance  by  the 
idea.s  of  identity  and  unity  which  are  merely  its  derivatives.  Resemblance 
i.s  a  single,  ultimate,  and  irreducible  idea."  ^  Similarly  Professor  James  says, 
"So  here  any  theory  that  would  base  likeness  on  identity,  and  not  rather 
identity  on  likeness  must  fail  ;  "  again,  "likeness  must  not  be  conceived  as  a 

'  Brudlcy.  Api>earanre  and  firtilil]/,  pp.  73-74. 
'  .'if'jut.  Muniuil  of  Pui/rholoai/,  pp.  :i27  et  acq. 
•  Hni.ll.'y.  op.  cit..  p.  MH,  aii.l  iiot<-  1.  *  Binet,  op.  cit.,  p.  129, 


No.  15.  II.      PROOF   OF   IDENTITY  67 

special  complication  of  identity,  but  rather  that  identity  must  be  conceived 
as  a  special  degree  of  likeness,  .  .  .  likeness  and  difference  are  ultimate  rela- 
tions perceived.  As  a  matter  of  fact  no  two  sensations,  no  two  objects  of 
all  those  we  know,  are  in  scientific  rigor  identical.  We  call  those  of  them 
identical  whose  difference  is  unperceived.  Over  and  above  this  we  have  a 
conception  of  absolute  sameness,  it  is  true,  but  this,  like  so  many  of  our  con- 
ceptions, is  an  ideal  construction  got  by  following  a  certain  direction  of 
serial  increase  to  its  maximum  supposable  extreme.  It  plays  an  important 
part  among  other  permanent  meanings  possessed  by  us  in  our  ideal  intellec- 
tual constructions.  But  it  plays  no  part  whatever  in  explaining  psycho- 
logically how  we  perceive  likenesses  between  simple  things."  ^  We  remember 
to  have  read  in  a  judgment  of  one  of  the  Indian  High  Courts  (unfortunately 
we  cannot  now  give  the  reference)  that  the  judges  considered  the  case  was 
not  proved  because  the  evidence  only  established  likeness  and  not  identity, 
and  it  is  no  uncommon  thing  to  hear  evidence  given  that  a  witness  can  swear 
that  two  things  or  two  persons  are  very  like,  but  he  will  not  swear  that  they 
are  the  same :  such  testimony  is  usually  considered  to  fall  short  of  an 
identification.  Now  if  identity  is  based  on  resemblance,  what  more  is  re- 
quired than  the  assertion  that  two  things  are  very  like  ?  It  is  the  fact  that 
such  questions  arise  in  law  that  is  our  excuse  for  pursuing  this  controversy 
concerning  Resemblance  and  Identity  a  little  further.  The  position  of  the  one 
side  is  that  Identity  is  nothing  more  than  a  special  degree  of  resemblance  with 
the  difference  between  the  two  objects  unperceived ;  the  contention  of  the 
other  is  that  all  resemblance  is  partial  identity,  but  the  points  of  sameness 
are  not  fully  specified,  and  that  terms  such  as  "  exact  likeness"  "  precise  simi- 
larity "  are  misleading.  For  as  soon  as  you  have  removed  all  internal  differ- 
ence, and  resemblance  is  carried  to  such  a  point  that  perceptible  difference 
ceases,  then  you  have  identity.  As  soon  as  you  begin  to  analyze  resem- 
blance you  get  something  else  than  it,  and  when  you  argue  from  resemblance, 
what  you  use  is  not  the  resemblance,  but  the  point  of  resemblance,  and  a 
point  of  resemblance  is  clearly  an  identity. 

The  physiological  explanation,  when  one  state  of  consciousness  is  said 
to  revive  a  similar  state,  doubtless  is  that  the  two  similar  states  have  a 
numerically  single  nerve  element  as  their  basis ;  the  two  images  put  a  com- 
mon cell  element  in  vibration  and  this  is  called  an  identity  of  seat."  This 
'appears  to  us  to  point  to  identity  being  the  ultimate  state.  But  for  the 
purpose  of  our  discussion  it  seems  clear  that  what  is  really  the  important 
matter  is  the  amount  of  difference  which  is  perceived ;  and  we  think  that 
in  most  cases  when  a  witness  is  able  to  swear  to  great  likeness  between 
two  objects  or  persons  and  can  specify  the  points  of  likeness,  in  the  absence 
of  any  specified  points  of  difference  it  should  be  accepted  as  an  identifica- 
tion even  though  the  witness  shrinks  from  using  that  term.  If  an  advocate 
persists  in  asking,  "  Will  you  swear  that  they  are  the  same  ?  "  many  witnesses 
will  answer,  No,  and  on  paper  and  to  the  unreflecting  mind  this  will  con- 
siderably weaken  the  effect  of  the  evidence.  Such  an  advocate  should  be 
asked  in  his  turn  to  define  what  he  means  by  "same,"  and  if  he  attempts  to 
do  this,  it  will  soon  become  apparent  that  his  question  as  so  addressed  is 
not  one   that   can   be  fairly  given  the  direct  answer.  Yes  or  No.     If  the 

>  W.  James,  Principles  of  Psychology,  Vol.  I,  pp.  532-533. 
2Binet,  op.  cit.,  pp.  125,  126. 


6S  I'AHT    I.       CIRCUMSTANTIAL   EVIDEXCE  No    15. 

witness  attempts  to  j;i\c-  any  other  response,  he  is  often  charged  with  pre- 
varication, whereas  it  is  not  his  fault  that  he  does  so,  but  the  form  of  his 
interro^'ator's  tiuestion  compels  him  to  do  it.  In  a  case,  e.g.,  of  the  identifi- 
cation of  stolen  goods,  the  magistrate  should  not  he  influenced  so  much  by 
the  use  of  the  words  "like"  and  "same,"  Imt  shoukl  rather  get  from  the 
witness  the  points  in  which  he  is  aV)le  to  say  that  the  objects  correspond 
and  those  in  which  he  is  able  to  say  that  they  diifer.  "Two  objects  are 
similar."  says  Wundt.  "when  certain  of  their  characteristics  correspond, 
while  others  are  dillcrent"  ;  and  perfect  likeness  —  to  indicate  which  the 
term  "identity"  is  sometimes  used  —  whether  of  quality  or  of  intensity, 
must  l)e  estimated  for  practical  purposes  l)y  indistinguishableness  when 
attention  is  closely  directed  to  the  two  objects. 

(■))  At  the  same  time  it  must  be  remarked  that  difference  is  not  always 
fatal  to  identity.  Hut  here  we  are  using  "identity"  in  another  sense. 
A  quotation  will  explain  this:  "Real  identity,"  says  Dr.  Ward,  "no  more 
involves  exact  similarity  than  exact  similarity  involves  sameness  of  things ; 
on  the  contrary,  we  are  wont  to  find  the  same  thing  alter  with  time,  so  that 
exact  similarity  after  an  interval,  so  far  from  suggesting  one  thing,  is  often 
the  surest  proof  that  there  are  two  concerned.  Of  such  real  identity,  then, 
it  would  seem  we  must  have  direct  experience ;  and  we  have  it  in  the  con- 
tinuous presentation  of  the  bodily  self."  .  .  .  The  same  writer  points  out 
the  aml)iguity  in  the  word  "same"  -whereby  it  means  either  individual 
identity  or  indistinguislial)le  resemblance:  in  the  former  we  have  mere 
oneness  or  singularity  which  entails  no  relation ;  in  the  latter  there  is  a 
relation,  for  two  individuals  partially  coincide.  .  .  .  Resemblance  itself 
may  be  fatal  to  identification,  wlien  the  law  of  being  is  changed.  .   .   . 

It  is  hardly  necessary  to  concern  ourselves  further  with  this  meaning  of 
the  term,  though  we  have  a  few  more  remarks  to  make  on  the  subject  of 
Identification.  One  method  of  identification  allowed  in  law  is  by  showing 
the  photograph  of  a  person  to  the  witness.  ...  In  the  case  of  R.  v.  Tol- 
son,  4  V.  &  F.  104,  a  j)hotogniph  in  a  trial  for  bigamy  was  shown  to  two 
persons  to  identify  on  the  ground  that  it  was  a  permanent  visible  represen- 
tation of  the  image  made  on  the  minds  (the  retinas  of  the  eyes)  of  the 
witnesses  by  the  sight  of  the  person  represented,  so  that  it  was  "only  an- 
other species  of  the  evidence  which  persons  give  of  identity,  when  they 
speak  merely  from  memory."  This  reason  does  not  appear  to  us  to  be 
correct;  no  photograph  corresponds  entirely  to  the  mental  image  which 
we  have  of  a  man,  but  only  contains  certain  elements  which  are  the  same. 
These  elements  not  merely  revive  those  corresponding  to  them  in  the 
image,  but  they  further  revive  others  which  do  not  correspond  but  which 
were  contiguous  with  the  like  ones  in  the  past,  and  it  is  this  whole  often 
made  up  of  many  reprt'sciitations  of  the  individual  which  is  the  mental 
image  that  we  have  of  the  jxTson.  It  is  a  case  of  a.ssociation  of  ideas  both 
by  similarity  an<l  c(mtiguity,  and  not  by  similarity  alone  as  the  dictum 
quoted  al)ovc  implies.  Hence  Professor  Stout,  when  explaining  the  uncer- 
tainty of  revival  says,  "The  i)oints  of  difference  in  the  given  presentation 
preoccii|)y  conseiousness  and  have  preformed  associations  of  their  own. 
The  points  of  identity  can  only  reproduce  their  contiguous  associates  by 
partially  or  wholly  <lisplaeing  the  setting  in  which  they  are  embedded  in 
the  given  presentation,  and  by  overcoming  the  reproductive  tendencies 


No.  15.  II.      PROOF   OF   IDENTITY  69 

which  attach  to  this  presentation  as  a  whole  and  to  its  specific  constituents. 
In  order  tliat  such  obstructions  may  he  overcome,  the  points  of  identity 
must  have  pecuhar  interest  or  impressiveness,  or  their  performed  associa- 
tion must  in  some  other  way  be  pecuharly  favored,  e.g.  by  frequent 
repetition,  or  by  the  general  direction  of  mental  activity  at  the  moment." 
In  short,  the  function  of  photographs,  portraits,  and  the  like  is  to  call  up 
not  any  image  of  the  person  as  seen  on  one  particular  occasion,  but  the 
general  idea  or  generic  image  that  we  have  in  our  mind,  and  how  that  idea 
is  formed  has  already  been  discussed  in  the  chapter  on  the  theory  of  the 
normal  man.  When,  therefore,  in  the  case  of  Fryer  v.  Gathercole  (13  Jur. 
542)  Parke,  B.,  said,  "In  the  identification  of  persons  you  compare  in  your 
mind  the  man  you  have  seen  with  the  man  you  see  at  the  trial ;  the  same 
rule  of  comparison  belongs  to  every  species  of  identification,"  the  state- 
ment does  not  appear  sufficient,  for  the  words  "the  man  you  have  seen" 
do  not  adequately  describe  the  nature  of  the  mental  image  employed.  Nor 
do  you  compare  generally  :  just  as  you  must  ask  whether  a  man  is  identical 
in  this  or  that  respect,  so  you  always  compare  in  some  special  respect. 
Some  theoretical  or  practical  end  is  to  be  subserved  by  the  comparison 
which  takes  place  only  in  regard  to  the  characteristics  which  happen  to  be 
interesting  at  the  moment,  other  characteristics  being  set  aside  or  disre- 
garded as  unimportant.  This  explains  why  persons  often  fail  to  observe 
suspicious  facts  or  draw  what  appear  to  be  obvious  inferences.  They  do 
not  make  the  necessary  comparisons  because  they  have  not  the  necessary 
interest  at  the  time :  after  they  have  been  cheated,  interest  is  aroused  and 
in  retrospect  it  looks  very  different.  But  judges  overlook  this  and  regard- 
ing the  matter  after  the  event,  draw  the  conclusion  that  the  complainant 
consented,  was  an  accomplice,  etc. 

(6)  Comparison  of  handwriting  and  identification  by  it  next  claims  atten- 
tion. Only  two  methods  will  be  here  considered,  viz.  that  by  which  an 
admitted  specimen  of  the  person's  handwriting  is  placed  side  by  side  with 
the  handwriting  in  dispute,  and  compared  by  an  expert,  the  jury,  or  the 
judge ;  and  that  by  which  a  person  who  is  acquainted  with  the  handwriting 
of  the  individual  through  having  seen  it  on  previous  occasions,  is  shown  a 
writing  in  court  and  is  asked  to  say  from  his  general  knowledge  whether  it 
is  or  is  not  that  individual's  handwriting.     The  methods  are  different. 

(a)  In  the  latter,  which  will  be  first  discussed,  the  witness  identifies  the 
handwriting  by  reference  to  some  general  standard  which  exists  in  his 
mind.  The  general  standard  by  which  the  witness  recognizes  the  hand- 
writing put  before  him  must  (it  appears  to  the  writer)  be  simply  the  general 
or  universal  idea  which  has  already  been  fully  discussed  in  the  chapter  on 
the  theory  of  the  normal  man.  It  is  in  virtue  of  the  common  elements 
existing  between  the  particular  writing  and  the  general  idea  of  the  hand- 
writing in  the  witness's  mind  that  the  comparison  is  able  to  be  made.  "  In 
comparison,"  says  Professor  Stoiit,  "we  first  become  conscious  of  the  an- 
tithesis between  the  particular  and  the  universal.  The  reason  is  that  in  it 
we  become  aware  of  the  universal,  as  the  common  element  which  connects 
two  clearly  distinguished  particulars.  Thus  the  common  element  stands 
out  in  contrast  to  the  differences ;  whereas  in  mere  recognition  no  such 
contrast  exists."  We  say  the  "general  idea"  and  do  not  lay  stress  on  the 
"generic  image"  because  M.  Binet  has  recently  doubted  the  existence  of 


70  PART    I.      CIRCUMSTANTIAL    EVIDENCE  No.  15. 

the  latter.  ...  It  would,  if  this  be  so,  be  more  correct  apparently  to  say 
that  it  is  in  virtue  of  the  general  trend  or  channel  of  our  ideas  which  is. 
organized  by  thought  on  the  occasion  of  each  particular  experience  arising, 
that  we  recognize  tlie  particular  handwriting  shown  us.  It  is  the  neural 
matter  of  the  brain  that  is  so  affected  by  previous  impressions  made  by  the 
sight  of  such  handwriting  in  the  past  that  it  responds  at  once  to  a  similar 
impression  now  maile  by  the  sight  of  similar  handwriting.  But  whether  we 
speak  t)f  tile  influence  of  the  trend  of  ideas  or  of  awakening  the  generic 
image,  it  must  be  eviilent  that  the  more  examples  of  the  handwriting  which 
have  been  seen  in  the  past,  the  deeper  the  impression  which  will  have  been 
made.  .  .  .  Perhaps  it  would  more  nearly  express  the  nature  of  this  general 
standard  if  we  employ  the  term  "general  impression."  Concerning  these, 
Profes.sor  James  .says  that  they  seem  to  be  the  impulsive  result  of  summa- 
tion of  stimuli :  they  come  alxiut  through  the  subject  dispersing  his  atten- 
tion impartially  o\er  the  whole,  surrendering  himself  to  the  general  look. 
He  thus  gets  a  total  effect  in  its  entirety,  which  is  lost  upon  the  man  who 
is  bent  on  concentration,  analysis,  and  emphasis.  If  the  time  is  too  short 
for  the  latter,  it  is  best  to  abstain  from  analysis  and  be  guided  by  the  general 
look.  The  person  who  has  the  general  impression  does  not  give  any  reason 
for  it,  but  he  feels  it  is  so.  He  is  guided  by  a  sum  of  impressions  not  one  of 
which  is  emphatic  or  distinguished  from  the  rest,  not  one  of  which  is  essen- 
tial, not  one  of  which  is  conceived,  l)Ut  all  of  which  together  drive  him  to  a 
conclusion  to  which  nothing  but  that  sum  total  leads.  The  man,  however, 
by  seeking  to  make  some  one  impression  characteristic  and  essential,  pre- 
vents the  rest  from  having  their  effect.  This  remarkable  passage  is  capa- 
ble of  many  applications  in  law  and  is  alluded  to  elsewhere  in  this  work : 
it  is  here  cited  to  assist  in  showing  what  the  nature  of  the  standard  is, 
and  to  make  it  plain  that  it  is  idle  to  cross-examine  a  witness  on  the  nature 
or  composition  of  his  general  impression  of  a  man's  handwriting.  From  it 
we  can  also  understand  why  the  witness  is  able  to  give  an  opinion  as  to 
resemblance,  for  it  was  found  that  it  was  e.s.sential  for  the  perception  of 
resemblance,  that  there  should  be  sameness  in  tlie  two  things,  but  that  the 
points  of  the  sameness  should  be  partly  undistinguished  and  unspecified 
(paragraph  4) :  and  this  appears  to  be  exactly  the  basis  of  this  species  of 
identification.   .   .   . 

(b)  In  the  other  method,  which  is  prescribed  in  §§  45  and  73  of  the 
Act  (Indian  Kvidcnce  .Act),  two  or  more  writings  are  compared,  and  some- 
times the  opinion  of  an  expert  on  handwriting  is  taken  on  them.  What  is 
important  here  is  distinctness  of  the  ground  of  comparison  or  common 
factor.  ...  \  difference  in  opinion  of  two  persons  concerning  the  identity 
of  the  handwriting  on  two  papers  may  often  be  accounted  for  by  the  fact 
that  one  has  a  special  aptitu.le  for  noting  likenes.ses  and  the  other  for  not- 
ing diirennces,  an<l  the  practiced  aptitude  of  each  will  further  the  detec- 
tion of  that  relation.  It  is  said,  however,  that  more  weight  should  be 
given  to  evidence  of  similitude  than  to  that  of  dissimilitude,  because  it 
recjuirrs  great  skill  to  imitate  han<iwriting,  especially  for  several  lines,  while 
dissimilitude  may  be  occasioned  by  a  variety  of  circumstances,  such  as 
the  health  and  spirits  of  the  writer,  the  care  used,  the  pen,  ink,  etc.i  But 
ili.n-  is  another  re;,M.n  given  which  requires  examination.  "Handwriting, 
'  LawHon.  Expert  Evidence,  278. 


No.  15.  II.       PROOF   OF    IDENTITY  71 

notwithstanding  it  may  be  artificial,  is  always  in  some  degree  the  reflex 
of  the  nervous  organization  of  the  writer.  Hence  there  is  in  each  person's 
handwriting  some  distinctive  characteristic,  which  as  being  the  reflex  of 
his  nervous  organization,  is  necessarily  independent  of  his  own  will,  and 
unconsciously  forces  the  writer  to  stamp  the  writing  as  his  own.  Those 
skillful  in  such  matters  affirm  that  it  is  impossible  for  a  person  to  success- 
fully disguise  in  a  writing  of  any  length  this  characteristic  of  his  penman- 
ship ;  that  the  tendency  to  angles  or  curves  developed  in  the  analysis  of 
this  characteristic  may  be  mechanically  measured  by  placing  a  fine  speci- 
men within  a  coarser  specimen  and  the  strokes  will  be  parallel  if  written  by 
the  same  person,  the  nerves  influencing  the  direction  which  he  will  give  to 
the  pen."  ^  Whatever  writing  may  be  in  the  adult,  it  certainly  was  not 
reflex  action  in  the  child,  l)ut  much  that  originally  required  conscious  eft'ort 
with  practice  becomes  automatic  and  mechanical  and,  with  this  qualifica- 
tion, we  do  not  object  to  the  description.  Ribot,  however,  distinguishes 
writing  from  reflex  movements  proper,  and  the  following  quotation  will 
show  to  what  extent :  "  Reflex  movements,  whether  reflex  action  proper, 
natural  and  innate,  or  reflex  actions  that  are  acquired,  secondary,  and  fixed 
by  repetition  and  habit,  are  produced  without  volition,  hesitation,  or  eft'ort, 
and  may  continue  a  long  time  without  fatigue.  They  call  into  action  in 
the  organism  only  those  elements  necessary  to  their  effectuation,  while 
their  adaptation  to  ends  is  perfect.  In  the  strictly  motor  order  of  things, 
they  are  the  equivalent  of  spontaneous  attention,  which  similarly  is  an 
intellectual  reflex  action  that  presupposes  neither  choice  nor  hesitation 
nor  eft'ort,  and  may  likewise  continue  a  long  time  without  fatigue.  But 
there  are  other  classes  of  movements  that  are  more  complex  and  artificial ; 
as,  for  instance,  writing,  dancing,  fencing,  all  bodily  exercises,  and  all  me- 
chanical handicrafts.  In  these  instances  adaptation  is  no  longer  natural, 
but  laboriously  acquired.  It  demands  the  exercise  of  choice,  repeated  en- 
deavor, effort,  and  at  the  outset  is  accompanied  by  great  fatigue."^  It 
seems  necessary  to  try  and  determine  to  what  extent  writing  is  reflex  and 
to  what  extent  it  can  be  modified  by  will,  for  it  is  apparent  that  if  the  claim 
of  the  experts  in  caligraphy  is  really  correct,  considerably  more  importance 
should  be  attached  to  evidence  of  handwriting  than  is  usually  done.  It  is  a 
test  of  automatic  actions  that  they  do  not  involve  attention  but  are  fixed 
and  uniform  responses  to  the  fixed  and  uniform  recurrence  of  similar  modes 
of  stimulation.  Now  it  appears  to  us  that  it  would  ))e  untrue  to  say  that 
writing  does  not  involve  attention ;  though  the  attention  given  is  not  a 
close  one,  it  is  to  a  certain  extent  controlled  by  vision,  and  we  soon  become 
aware  of  this  if  we  try  to  write  in  the  dark.  Practice  dispenses  with  that 
close  attention  to  the  detailed  elements  of  the  composite  train  which  was 
necessary  at  first,  and  so  the  sensory  elements  l)ecome  indistinct  as  compared 
with  the  motor  ones,  and  the  final  result  of  the  repetition  is  a  habitual  or 
quasi-automatic  action  in  which  all  the  psychical  elements,  presentations,  and 
representations  alike  become  indistinct.  We  do  not  believe,  however,  that 
the  movements  become  so  independent  of  the  will  that  in  forging  or  delib- 
erately disguising  the  handwriting,  where  attention  is  preeminently  displayed, 
the  attention  would  not  be  likely  to  counteract  the  eftects  of  habit. 

1  Rogers,  Expert  Testimony,  291,  292,  quoted  on   p.  389  of   Ameer  Ali  &  Woodroffe's 
Indian  Evidence  Act.  ^  Ribot,  Attention,  p.  57. 


72 


PART    I.      CIRCIMSTAXTIAL    EVIDENCE 


No.  16. 


16.  THE  CRANBERRY  CASK 
Eridcnc.      Aiiicr.  vd.  I'JU.').     p.   17'.) 

At  the  Spring  Assizes,  at  Bury 
St.  Etlinumls.  1S30.  a  respectal)le 
farmer,  ofcupyiii'i:  twelve  luimircd 
acres  of  lanti,  was  tried  for  a  l)»ir,i:lary 
and  stealiiii:  a  variety  of  articles. 
Ainonjrst  the  articles  allej;ed  to 
have  heeji  stolen  were  a  pair  of 
sheets  and  a  cask,  which  were  found 
in  the  possession  of  the  prisoner, 
and  were  positively  sworn  to  by 
the  witnesses  for  the  prosecution  to 
he  those  which  had  been  stolen. 
The  sheets  were  identified  by  a 
particular  stain,  and  the  cask  by 
the  mark  "  P.  (".  84."  indcsed 
in  a  circle  at  one  end  of  it.  On 
the  other  hantl,  a  numlter  of  wit- 
nesses swore  to  the  slieets  beinj? 
the  prisoner's,  by  the  same  mark 
by  which  they  had  been  iilentificd 
by  the  witnesses  on  the  other  side 
as  being  the  prcsecutor's.  With 
respect  to  the  cask,  it  was  proved 


CASE.     iW.  Wills.     Circumstantial 

.) 

by  numerous  witnesses,  whose  re- 
spectability left  no  doubt  of  the 
truth  of  their  testimony,  that  the 
prisoner  was  in  the  habit  of  using^ 
cranberries  in  his  establishment,  and 
that  they  came  in  casks,  of  which 
the  cask  in  question  was  one.  In 
addition  to  this,  it  was  proved  that 
the  prisoner  purchased  his  cran- 
berries from  a  tradesman  in  Nor- 
wich, whose  casks  were  all  marked 
"P.  C.  84."  inclosed  in  a  circle, 
precisely  as  the  prisoner's  were, 
the  letters  P.  ('.  l)eing  the  initials 
of  his  name,  and  that  the  cask  in 
question  was  one  of  them.  In 
simiming  up,  the  learned  judge  re- 
marked that  this  was  one  of  the 
most  extraordinary  cases  ever  tried, 
and  that  it  certainly  appeared 
that  the  witnesses  for  the  prosecu- 
tion were  mistaken.  The  prisoner 
was  acquitted. 


17.    DOWNIE  AND  MILNE'S  CASE.      (W.  Wills.      Circumstantial 


Eridcncc.  Amer.  ed.  1905.  p.  73.) 
On  the  trial  of  two  men  at  Aber- 
deen autumn  circuit,  1S24,  it  ap- 
peared that  a  carpenter's  workshop 
at  .\berdeen  was  broken  open  on  a 
particular  night,  and  .some  tools 
carried  off,  and  that  on  the  same 
night  the  counting-houses  of  Messrs. 
David.son  and  of  Messrs.  Catto  and 
Co.,  in  different  parts  of  that  city, 
were  broken  into,  and  goods  and 
money  to  a  consideral)le  extent 
stolen.  The  prisoners  were  met 
at  seven  on  the  following  morning 
in  one  of  the  streets  of  Aberdeen, 
at  a  distance  from  either  of  the 
places  of  depredation,  l)y  two  of 
the  p(»lice.  I'pori  seeing  the  officers 
they  began  to  rim  ;  and  l)eing  pur- 
sued ami  taken,  there  was  found 
in  the  possession  of  each  a  consider- 
able (piantity  of  the  articles  taken 
from  Catto  and  <  <»..  Imt  none  of 
the  things  taken  from  t  Iir  carpenter's 


shop  or  Davidson's.  But  in  Catto 
and  Co.'s  warehouse  were  found  a 
brown  coat  and  other  articles  got 
fro.n  Davidson's,  which  had  not  been 
there  the  preceding  evening  when  the 
shop  was  locked  up ;  and  in  David- 
son's were  found  the  tools  which  had 
been  abstracted  from  the  carpen- 
ter's. Thus,  the  recent  possession 
of  the  articles  stolen  from  Catto  and 
Co.'s  proved  that  the  prisoners  were 
the  depredators  in  that  warehouse ; 
while  the  fact  of  the  articles  taken 
from  Davidson's  having  been  left 
there,  connected  them  with  that 
prior  housebreaking  ;  and  again,  the 
cjiisels  l)elonging  to  the  carpenter's 
shop,  found  in  Davidson's,  identi- 
fied the  persons  who  broke  into  that 
last  house  with  those  who  committed 
the  original  theft  at  the  carpenter's. 
The  prisoners  were  convicted  of  all 
the  thefts. 


IS.     THE    CHICAGO    ANARCHISTS'    CASE. 

No.  42.] 


[Printed  post,    as 


No.  20. 


II. 


PROOF   OF    IDENTITY 


73 


19.    WEBBER'S  CASE.     (S.  M. 

cuinstantial  Evidence.  No.  LXX.) 
On  December  29th,  187(5,  a 
terrible  disaster  occurred  at  Ash- 
tabula, Ohio,  on  the  Lake  Shore 
Raih'oad.  The  train  fell  through  a 
l)ridge,  and  as  the  cars  immediately 
caught  fire,  and  a  large  numl)er 
of  the  passengers  were  burned,  the 
most  of  the  bodies  were  so  charred 
as  to  prevent  recognition.  Shortly 
after  this  accident,  Mrs.  Webber, 
who  is  a  poor  woman  with  two 
children,  appeared  in  the  office  of  a 
lawyer,  in  Rochester,  N.  Y.,  and 
stating  that  she  had  every  reason  to 
belie\'e  that  her  husband  had  been 
killed  in  that  disaster,  requested 
him  to  commence  a  suit  against 
the  railroad  company  on  her  behalf. 
The  evidence  which  she  offered  to 
introduce  in  proof  of  her  husband's 
sad  fate  was  only  of  a  circumstantial 
nature,  as  nothing  was  ever  found 
of  the  body,  which  was  supposed  to 
have  been  consumed  in  the  flames. 
She  had  been  to  Ashtabula,  and  in 
the  debris  of  the  wrecked  train  she 
had  found  a  l)unch  of  keys  which 
she  positively  recognized  as  those 
having  been  in  the  possession  of 
her  husband.  One  of  these  keys, 
in  further  proof,  she  had  ascer- 
tained exactly  fitted  the  clock  in 
her  house,  and  an  Auburn  man  was 
ready  to  swear  that  he  had  made 
such  a  key  for  the  deceased. 
Another  key  fitted  a  chest  which 
she  had  in  her  possession,  while 
still  another  of  the  keys  fitted  the 
lock  on  the  door.  But  the  strongest 
proof  of  all  which  she  had  discovered 
was  a  piece  of  cloth,  which  she  had 
recognized  as  having  been  part  of 
her  dead  husband's  coat.  The  proof 
by  no  means  stopped  here,  however. 


Phillipps.     Famous  Cases  of  Cir- 

A  physician  of  Rochester,  who 
knew  Mr.  Webber,  testified  that  he 
rode  to  Buffalo  on  the  same  train 
with  the  deceased  on  the  fatal  29th 
of  December ;  while  another  gentle- 
man testified  to  seeing  deceased 
take  the  train  at  Buffalo  which 
went  to  ruin  at  Ashtabula.  With 
this  all  but  positive  proof  that  the 
husband  was  among  the  victims  of 
the  disaster,  the  suit  was  com- 
menced, the  funds  enabling  her  to 
carry  it  on  being  supplied  by  a  kind- 
hearted  gentleman.  When  the  rail- 
road company's  attorneys  were  con- 
fronted with  the  proofs  of  the 
plaintiff's  case,  they  advised  a 
settlement  with  her  for  $4000. 
But  she  wanted  S5000  or  nothing, 
and  the  company's  lawyers  con- 
cluded to  let  the  matter  go  before 
the  Courts.  The  investigations  con- 
cerning the  fate  of  the  husband 
were  continued,  and  it  was  ascer- 
tained that  he  had  been  sent  by 
Gen.  Martindale,  his  former  superior 
officer  in  the  army,  to  the  Pension 
Home  in  Wisconsin,  several  days 
previous  to  the  Ashtabula  disaster, 
and  this  fact  soon  brought  to  light 
the  very  important  disclosure  that 
a  man  of  his  name,  answering  his 
description  exactly,  and  who  stated 
that  he  had  a  wife  and  two  children 
in  Rochester,  was  still  alive  and 
safe  in  that  institution,  and  that  he 
was  not  near  x\shtabula  at  the  time 
of  the  disaster.  The  case  is  a  most 
remarkable  one,  however,  from  the 
fact  that  no  person  doubted  the 
truthfulness  of  the  witnesses  whose 
evidence  formed  the  basis  on  which 
the  suit  was  commenced. 


20.    THE  TICHBORNE  CASE. 

The  Doctrine  of  Coincidoice.s'.  — 
[The  general  story  of  this  case  is 
stated  post,  in  No.  147.]  I  proceed 
to  state  the  leading  principle,  which 
governs    the    Tichborne    case    thus 


(Charles  Reade.  Rcadiana.  p.  72  ) 
narrowed,  and  —  always  impl  c  , 
though  unfortunately  never  state  1 
—  led  our  courts  to  a  reasonable 
conclusion.  That  principle  is :  tJ>e 
IJrogrcssive    value    of    proved    coinci- 


PART    1.       CIRClMSTWriAL    E\IDEXCE 


No.  23. 


dcnccs  all  po'nit'uig  to  one  conclu- 
ftion.  Pray  take  notice  that  by 
"provetl  eoineitlences"  I  mean  co'ui- 
cidences  that  are:  1.  Not  inerelx' 
seemiuj:.  I)iit  iiidepeiitleiit  and  real. 
2.  Kitlier  undi.sputed  or  dispiitaltle. 
o.  Either  extraetetl  from  a  hostile 
\vitne>.s  ;  w  hieli  is  the  hi^diest  kind 
of  evidence,  especially  wiurc  tlie 
witness  is  a  deliherate  liar;  or  4. 
Directly  sworn  to  hy  rcspcctahle 
witnesses  in  open  court,  and  then 
cross-examined  and  not  shaken  — 
which  is  the  next  best  evidence  to 
the  involuntary  admissions  of  a  liar 
interestcil  in  concealing:  the  truth. 

A  single  indisputalile  coincidence 
raises  a  prcsuniption  that  often 
points  towards  the  truth.  A  priori 
what  is  more  unlikely  than  that  the 
moon,  a  mere  satellite,  and  a  xory 
small  i)0(ly,  should  so  attract  the 
giant  earth  as  to  cause  our  tides  'f 
Indeed  for  years  .science  rejected 
the  theory;  l>ut  certain  ciianucs  of 
the  tide  coinciding  regularly  with 
changes  of  the  moon  wore  out  prej- 
udice, and  have  established  th? 
truth.  Vet  thesecoincident changes, 
though  repeated  ad  infinitum,  make 
but  one  logical  coincidence.  ()u 
the  other  hand,  it  must  be  owned 
that  a  single  coincidence  often  de- 
ceives. To  take  a  sublunary  and 
appropriate  example,  the  real  Mar- 
tin Guerre  had  a  wart  on  his  cheek  ; 
.so  had  the  sham  Martin  Guerre. 
The  coincidence  was  genuine  and 
remarkable:  yet  the  men  were  di.s- 
tinct.  Hut  mark  the  a.scending  ratio 
—  .'-ee  the  inHuence  on  the  mind  of  a 
double  coincidence  —  when  the  im- 
postor with  the  real  wart  told  the  sis- 
ters of  Martin(iuerre.some  particular 
of  their  family  history,  and  remindi'd 
Martin's  wife  i»f  something  he  had 
said  to  her  on  llieir  bridal  night,  in 
the  solitu«ie  of  the  miptial  clianibcr, 
this  seeming  knowledge,  e(»u])lcd  with 
that  real  wart,  struck  her  nn'nd  with 
the  force  of  a  double  coincidence; 
and  no  niore  was  needed  to  make  her 
accejjt  the  impostor, and  cohabit  with 
him  for  years. 

Does    not    this    enforce    what     I 


urged  in  luy  first  letter  as  to  the 
severe  caution  necessary  in  receiv- 
ing alleged,  or  seeming,  or  manipu- 
lated coincidences,  as  if  they  were 
proved  and  real  ones  ? 

However,  I  use  the  above  inci- 
dent at  i>resent  mainly  to  show  the 
ascending  power  on  the  mind  of 
coincidences  when  received  as  gen- 
uine. I  will  now  show  their  as- 
cending value  when  proved  in  open 
court  and  tested  by  cross-examina- 
tion. A  was  found  dead  of  a  gun- 
shot wound,  and  the  singed  paper 
that  had  been  used  for  wadding  lay 
near  him.  It  was  a  fragment  of 
the  Times.  B's  house  was  searched, 
and  they  found  there  a  gun  recently 
discharged,  and  the  copy  of  the 
Times,  from  which  the  singed  paper 
aforesaid  had  been  torn ;  the  pieces 
fitted  exactly.  The  same  thing 
happened  in  France  with  a  slight 
variation  ;  the  paper  used  for  wad- 
ding was  part  of  an  old  breviary 
subsequently  found  in  B's  house. 
The  salient  facts  of  each  case  made 
a  treble  coincidence  .sworn,  cross- 
examined,  and  unshaken ;  hanged 
the  Englishman,  and  guillotined  the 
Frenchman.  .  In  neither  case  was 
there  a  scintilla  of  direct  evi- 
dence ;  in  neither  case  was  the  ver- 
dict impugned.  I  speak  w^ithin 
bounds  when  I  say  that  a  genuine 
(loul)Ie  coincidence,  proved  l)eyond 
doubt,  is  not  twice,  but  two  hun- 
dred times,  as  strong,  as  one  such, 
coincidence,  and  that  a  genuine 
treble  coincidence  is  many  thousand 
tiiues  as  strong  as  one  such  coinci- 
dence. But,  when  we  get  to  a  five- 
fold coincidence  real  and  proved,  it 
is  a  million  to  one  against  all  these 
honest  circumstances  having  com- 
bined to  deceive  us.   .   .   . 

We  have  only  to  subject  this 
hodge-podge  of  real  and  sham  [in 
the  riaimant's  case]  to  the  approved 
test  laid  down  in  my  first  letter, 
and  we  shall  see  daylight;  for  the 
Claimant's  is  a  clear  case  luade  ob- 
scm-e  In-  verbosity  and  conjecture 
in  the  teeth  of  proof  ! 

A.    He  proved  in  court  a  genuine 


>Jo.  20. 


II. 


PROOF    OF    IDENTITY 


75 


coincidence  of  a  corporal  kind  — 
viz.,  that  Rogjer  Tichborne  was  in- 
kneed,  with  the  left  leg  turned  out 
more  than  the  right,  and  the  Claim- 
ant was  in-kneed  in  a  similar  way. 
This  is  a  remarkable  coincidence, 
and  cross-examination  failed  to 
shake  it.  But  when  he  attempted 
to  prove  a  second  coincidence  of 
corporal  peculiarities  like  the  above, 
which  being  the  work  of  nature, 
cannot  be  combated,  what  a  falling 
off     in     the     evidence.        B.  [They 

y  found  in  the  Claimant  a  congenital 
brown  mark  on  the  side ;  but  they 
could  only  assert  or  imagine  a 
similar  mark  in  Tichborne.  No 
viva  voce  evidence  by  eyewitnesses 
to  anything  of  the  sort.  C.  They 
proved,  by  Dr.  Wilson,  a  peculiar 
formation  in  the  Claimant ;  but 
instead  of  proving  by  some  doctor, 
surgeon,  or  eyeAvitness  a  similar 
formation  in  Tichborne,  they  went 
off  into  wild  inferences.  The  ec- 
centric Avoman,  who  kept  her  bo^' 

V  three  years  under  a  seton,  had  also 
kept  him  a  long  time  in  frocks ; 
and  the  same  boy  when  a  moody 
yoimg  man,  had  written  despondent 
phrases,  such  as,  in  all  other  cases, 
imply  a  dejected  mind,  but  here  are 
to  be  perverted  to  indicate  a  mal- 
formed body,  although  many  doc- 
tors, surgeons,  and  nurses  knew 
Tichborne's  body,  and  not  one  of 
all  these  ever  saw  this  malformation 
which,  in  the  nude  body,  must  have 
been  visible  fifty  yards  oft".  In 
short,  the  coincidences  B  and  C 
were  proved  incidences  with  un- 
proved "Co's." 

Failing  to  establish  a  double  coin- 
cidence of  congenital  features  or 
marks,  the  Claimant  went  off  into 
artificial  skin  marks.  Examples : 
Roger  had  marks  of  a  seton  :  the 
Claimant  showed  marks  of  a  similar 
kind.  Roger  had  a  cut  at  the  back 
of  his  head,  and  another  on  his 
wrist ;  so  had  the  Claimant.  Roger 
had  the  seams  of  a  lancet  on  his 
ankles ;  the  Claimant  came  pro- 
vided with  punctures  on  the  ankle. 
Roger  winked  and  blinked ;    so  did 


the  Claimant.  .  .  .  These  doul)tful 
coincidences  were/ also  encountered 
by  direct  dissidences  on  the  same 
line  of  observation.  Roger  was  bled 
in  the  temp^&l  artery,  and  the 
Claimant  showed  no  puncture  there. 
Roger  was  tattooed  with  a  crown, 
cross,  and  anchor  by  a  living  witness, 
who  faced  cross-examination,  and 
several  witnesses  in  the  cause  saw 
the  tattoo  marks  at  various  times  : 
and  it  was  no  answer  to  all  this 
positive  evidence  to  bring  witnesses 
who  did  not  tattoo  him,  and  other 
witnesses  who  never  saw  the  tattoo 
marks.  .  .  . 

But  the  Claimant  also  opened  a 
large  vein  of  apparent  coincidences 
in  the  knowledge  shown  by  him  at 
certain  times  and  places  of  numerous 
men  and  things  known  to  Roger 
Tichborne.  These  were  very  re- 
markable. He  knew  private  mat- 
ters known  to  Tichborne  and  A,  to 
Tichborne  and  B,  to  Tichborne  and 
C,  &c.,  and  he  knew  more  about 
Tichborne  than  either  A,  B,  C,  &c., 
individually  knew.  It  is  not  fair 
or  reasonable  to  pooh-pooh  this. 
But  the  defendants  met  this  fairly ; 
they  said  these  coincidences  were 
not  arrived  at  by  his  being  Tich- 
borne, but  by  his  pumping  various 
individuals  who  knew  Tichborne : 
and  they  applied  fair  and  sagacious 
tests  to  the  matter.  They  urged 
as  a  general  truth  that  Tichborne 
in  Australia  would  have  known  just 
as  much  about  himself,  his  relations, 
and  his  aft'airs  as  he  subsequently 
knew  in  England.  And  I  must  do 
them  the  justice  to  say  this  position 
is  impregnable.  They  went  into 
detail  and  proved  that  when  Gibbs 
first  spotted  the  Claimant  at  Wagga- 
Wagga,  he  was  as  ignorant  as  dirt  of 
Tichborne  matters ;  did  not  know 
the  Christian  names  of  Tichborne's 
mother,  nor  the  names  of  the  Tich- 
borne's estates,  nor  the  counties 
where  they  lay.  The^-  then  showed 
the  steps  by  which  his  ignorance 
might  have  been  partly  lessened 
and  much  knowledge  picked  up ; 
they  showed  a  lady,  who  longed  to 


76 


PART    I.       Clia  r.MSTANTIAL    EVIDENCE 


No.  20. 


be  deceived,  and  all  Init  said  so, 
putting  lii'H  by  letter  on  to  Bof,de  — 
Bojjle  startled,  and  pumjx'd  —  the 
Claimant  showing  the  upper  part 
of  his  face  in  Paris  to  the  lady  who 
wanted  to  l»e  deeeive<l,  and,  after 
recognition  on  those  terms,  pump- 
ing her  largely ;  then  coming  to 
England  with  a  large  stock  of  facts 
thus  ol)tained,  and  in  England 
pumping  Carter,  Hulpitt,  and  others, 
searching  Lloyd's,  ^:c.  Having 
proved  the  gradual  growth  of  knowl- 
edge in  the  claimant  between 
Wagga-Wagga  and  the  Court  of 
Common  Pleas,  they  took  him  in 
court  with  all  his  acquired  knowl- 
etlge.  and  cross-exam in<'d  him  on  a 
vast  number  of  things  well  known 
to  Tichborne.  I'mier  this  test,  for 
which  his  preparations  were  neces- 
sarily imperfect,  he  i)etrayed  a  mass 
of  ignorance  on  a  multitude  of 
things  familiar  to  Roger  Tichl)orne, 
and  he  betrayed  it  not  frankly  as 
honest  men  betray  ignorance,  or 
oblivion  of  what  they  have  once 
really  known,  but  in  spite  of  such 
fenc'ng,  evading,  shufHing  and  equiv- 
ocating, as  the  most  experienced 
have  seen  in  the  witness  l)ox.  Per- 
sonating a  gentleman  he  shuffled 
without  a  blush ;  personating  a 
collegian,  he  did  not  know  what  a 
quadrangle  is.  The  inscription  over 
the  Stonyhurst  cjuadrangle,  "  Laus 
Deo,"  was  strange  to  him ;  he 
thought  it  meant  something  about 
i  the  laws  of  Gofl.  He  knew  no 
I  French,  no  Latin.  He  thought 
Ca*sar  was  a  (Jreek.  .  .  .  To 
judge  his  whole  vein  of  coincidences, 
and  their  neutralising  dissidf'nces, 
the  jury  had  now  before  them  three 
streams  of  fact  :  1.  That  at  Wagga- 
\Vagga  the  Claimant  knew  nothing 
about  Tichborne  more  than  the  acl- 
vertisements  told  him  ;  2.  That  in 
England  he  knew  an  incredible 
number  of  things  about  Tichborne; 
'.i.  'I'hat  in  England  he  took  Mrs. 
Towneley  for  Roger's  sweetheart, 
and  even  at  the  trial  was  ignorant 
of  many  things  Tiehborne  could  not 
be  ignf)rant  «)f.     Now,   in  all  cases, 


where  there  are  several  facts  in- 
disputable, yet  seemingly  opposed, 
science  declares  the  true  solution  to 
be  that  which,  setting  aside  the 
doubtful  facts,  reconciles  all  the 
indisputable  facts.  This  maxim  is 
infallible.   ... 

I  will  now  show,  in  contrast,  the 
indisputable  coincidences,  which, 
converging  from  different  quarters, 
all  i)oint  to  one  conclusion  —  that 
the  Claimant  is  Arthur  Orton,  of 
Wapping. 

Arthur  Orton,  born  September 
13th,  1832,  was  the  youngest  son 
of  George  Orton,  a  shipping  butcher 
and  an  importer  of  Shetlantl  ponies. 
He  used  to  ride  the  ponies  from  the 
Dundee  steamers,  and  so  got  a 
horseman's  seat.  .  .  .  The  Claim- 
ant in  -Vustralia  lived  by  riding,  and 
slaughtering,  and  dressing  beasts. 
On  this  point,  his  own  evidence 
agrees  with  that  of  every  witness 
who  knew  him.  And  w^hen  he 
came  up  the  Thames  in  the  "Cella" 
to  personate  Tichborne,  he  asked 
the  pilot  what  had  become  of  Fer- 
guson, the  man  who  used  to  be  pilot 
of  the  Dundee  boats.  All  this 
taken  together  is  rather  a  strong 
coincidence.  It  may  seem  weak ; 
but  apply  a  test.  To  whom  does 
all  this,  as  a  whole,  apply  ?  The 
riding  —  the  slaughtering  —  and  the 
spontaneous  interest  in  an  old 
Dundee  pilot?  To  Castro?  To 
Tichl)orne  ?  To  anj'^  known  man 
not  an  Orton  ? 

In  1S48,  Arthur  Orton,  aged  16, 
sailed  to  \  alparaiso,  and  subse- 
quently, in  June,  1849,  made  his 
way  to  Melipilla.  He  was  young, 
fair,  the  only  English  boy  in  the 
place,  and  the  good  people  took  to 
him.  He  luade  friends  with  Dona 
Hayley,  wife  of  an  English  doctor, 
and  with  Thomas  Castro  and  his 
wife,  and  many  others.  They  were 
very  kind  to  him  in  1849  and  '50, 
particularly  Dona  Hayley,  and  in 
these  gentle  tninds  the  kindly  feel- 
ing survived  the  lapse  of  time,  and 
his  long  neglect  of  them.  Not  fore- 
seeing  in    1850   his   little   game   in 


No.  22. 


II.       PROOF    OF    IDEXTITY 


77 


1866,  Arthur  Orton  told  Dona  Hay- 
ley  he  was  the  .son  of  Orton,  the 
Queen's  butcher,  and  as  a  child  had 
played  with  the  Queen's  children. 
Not  bein^?  a  prophet,  all  this  bounce 
at  that  date  went  to  aggrandise 
Orton.  He  spoke  of  Arthur's  sisters 
by  name,  and  Dona  Hayley,  twenty 
years  after,  remembered  the  names 
with  slight  and  natural  variations. 
.  .  .  Tichborne's  alibi  during 
Arthur  Orton's  whole  visit  to  Meli- 
pilla  is  proved  by  a  cloud  oT  wit- 
nesses, and  his  own  writing,  and  is, 
indeed,  admitted ;  he  sailed  late  in 
1852,  and  reached  Chili  in  1853. 
Arthur  Orton  was  back  in  England, 
June.  1851.  Now  so  much  of  this 
as  respects  Arthur  Orton  is  the  first 
branch  of  a  pure,  imforeseen  coin- 
cidence. The  second  l)ranch  is  this 
—  The  Claimant  on  the  28th  August 
1867  wrote  from  his  solicitor's  office, 
25  Poultry,  to  prepare  the  good 
Melipillians  for  a  new  theory  — 
that  Arthur  Orton,  17  years  old 
to  the  naked  eye,  was  not  Castro  — 
(tliat  cock  might  fight  in  Hobart 
Town,  but  not  in  Melipilla) ;  not 
Castro,  but  Tichborne,  age  23.  He 
wrote  to  Thomas  Castro,  com- 
plained he  was  kept  out  of  his 
estates,  and  begged  to  be  kindly 
remembered  to  Don  Juan  Hayley, 
to  Clara  and  Jesusa,  to  Don  Ramon 
Alcade,  Dona  Hurtado,  to  Senorita 
Matilda,  Jose  Maria  Berenguel,  and 
his  brothers  and  others,  in  short,  to 
twelve  persons  besides  Castro  him- 
self. .  .  .  The  whole  coincidence  is 
this  :  The  Claimant  stayed  a  long 
time  at  Melipilla  in  1849  and  1850, 
and  called  himself  Arthur  Orton,  by 
giving  full  details  of  his  family,  and 
left  Chili  in  1850,  during  all  which 
time  an  alibi  is  proved  for  Tichborne, 
but  none  can  be  proved  nor  has 
ever  been  attempted,  for  Arthur  - 
Orton.     On  the  contrary,  a  non-alibi 


was  directly  proved  for  him.  He  was 
traced  from  Wapping  to  Valparaiso, 
and  Melipilla,  in  1848.  His  stay 
there  till  1850  was  proved,  and  then 
he  was  traced  in  1850  into  the  "Jessie 
Miller,"  and  home  to  Wapping  in 
1851  just  as  he  had  been  traced  out 
—  by  ships'  registers  and  a  cloud  of 
witnesses.  The  coincidence  rests 
on  the  two  highest  kinds  of  evidence, 
the  Claimant's  written  admission, 
and  the  direct  evidence  of  respect- 
able witnesses  unshaken  b^^  cross- 
examination  (see  scale  of  evidence), 
and  it  points  to  the  Claimant  as 
Arthur  Orton.  Those  who  can  see 
he  is  not  Tichborne,  but  are  deceived 
by  the  falsehoods  of  men  into  be- 
lieving he  is  not  Orton,  should  give 
special  study  to  this  coincidence ; 
for  here  the  Claimant  is  either  Tich- 
borne or  Orton.  No  third  alterna- 
tive is  possible.  At  Melipilla,  in 
1850,  he  was  either  Orton,  who  was 
there,  aged  17,  or  Tichborne,  who 
was  in  England,  aged  23.  .  .   . 

Your  readers,  especially  those  who 
have  paid  me  the  compliment  of 
drawing  the  circle  with  radii  con- 
verging to  one  center,  can  now  fill 
the  interstices  of  those  radii,  and 
so  possess  a  map  of  the  fifteen  het- 
erogeneous and  independent  coinci- 
dences, converging  from  different 
quarters  of  the  globe,  and  different 
cities,  towns  and  streets,  and  also 
from  different  departments  of  fact, 
material,  moral,  and  psychological, 
towards  one  central  point,  that  this 
man  is  Arthur  Orton.  Then,  if  3'ou 
like,  apply  the  exhaustive  method,  of 
which  Euclid  is  fond  in  his  earlier 
propositions.  Fit  the  fifteen  coinci- 
dences on  to  Roger  Tichborne  if  you 
can.  .  .  .  You  will  conclude  with 
Euclid,  "in  the  same  way  it  can  be 
proved  that  no  other  person  except 
Arthur  Orton  is  the  true  center  of 
this  circle  of  coincidences." 


21.    JOSEPH  LESURQUES'   CASE.      [Printed  post,  as  No.  359.] 


22.    THOMAS  HOAG'S  CASE.      [Printed  potit,  as  No.  302.] 


78  PAKT    I.       CIKCUMSTANTIAL    EVIDENCE 

23.    KARL  FRANZ'  CASE.      [Printeil  post,  as  No.  388.] 


No.  24. 


24.    THE  WEBSTER-PARKMAN  CASE.   (S.  M.  Phillipps.  Famoics 
Cases  of  Circiinustantiiil  Evidincr.     No.  ^  III.) 


This  was  an  instance  in  which 
the  guilt  of  a  crime  was  brought 
home  to  the  i)erpetrator  through  the 
intleniifying  of  a  ImkIv  after  it  had 
been  .separated  hmh  from  hmb,  sub- 
mittetl  to  chemical  jjroce.sses,  and 
to  the  iiKirdiiiate  heat  of  a  furnace, 
and  mingled  with  the  countless  bones 
of  anatomical  subjects  in  their  com- 
mon bur\  ing-place.  One  Professor 
Welister  was  brought  to  trial  for 
the  murder  of  Dr.  Parkman.  It 
was  shown  that  the  professor  had 
urgent  pecuniary  motives,  at  the 
time  when  the  crime  was  com- 
mitted, to  get  Dr.  Parkman  out  of 
the  way.  The  prisoner  had  a  resi- 
lience at  the  Medical  College,  Bos- 
ton. He  made  an  appointment  to 
meet  the  deceased  at  this  place  at 
two  o'clock  on  Friday,  the  23d  of 
November,  1S49,  in  order  to  discuss 
certain  money  matters.  Dr.  Park- 
man  was  seen  about  a  quarter  before 
two  o'clock  apparently  about  to 
enter  the  Medical  College,  and  after 
that  was  never  again  seen  alive. 
The  prisoner  afhrmed  that  Dr. 
Parkman  did  nf)t  keep  his  appoint- 
ment, and  di<i  not  enter  the  college 
at  all  on  that  day.  For  a  whole 
week  nothing  was  discovered,  and 
when  search  was  made  the  prisoner 
interfere<l  with  it,  and  threw  hin- 
drances in  the  way. 

On  the  Friday  week  and  the  day 
following  there  were  found  in  a 
furnace  connecte<i  with  the  prison- 
er's laboratory  in  the  college,  fused 
together  indiscriminately  with  the 
slag,  the  <inders,  and  the  refuse  of 
the  fuel,  a  large  mimber  of  bones 
aiicl  certain  blocks  of  mineral  teeth. 
\  (|uantity  of  gold,  which  had  been 
melted,  was  alsf)  fouiid.  Other 
bones  were  found  in  a  vault  under 
the  college.  There  wa.s  also  dis- 
covered in  a  tea  chest,  and  em- 
bedded ia  a  quantity  of  tan,  the 
entire  trunk  of  a  human  b(jdv  and 


other  bones.  The  parts  thus  col- 
lected together  from  difl'erent  places, 
made  the  entire  body  of  a  person 
of  Dr.  Parkman's  age,  about  sixty 
\ears,  and  the  form  of  the  body 
when  reconstructed  had  just  the 
])eculiarities  shown  to  be  possessed 
by  Dr'.  Parkman.  In  no  single  par- 
ticidar  were  the  parts  dissimilar  to 
tlicse  of  the  deceased,  nor  in  the 
tea  chest  or  the  furnace  were  any 
duplicate  parts  found  over  and 
above  what  was  necessary  to  com- 
pose one  body.  The  remains  were 
further  shown  to  have  been  sepa- 
rated by  a  person  possessed  of  ana- 
tomical skill,  though  not  for  ana- 
tomical purposes. 

Finally,  three  witnesses,  dentists, 
testified  to  the  mineral  teeth  found 
being  those  made  for  Dr.  Parkman 
three  years  before.  A  mold  of 
the  doctor's  jaw  had  been  made 
at  the  time,  and  it  was  produced, 
and  shown  to  be  so  peculiar  that 
no  accidental  conformity  of  the 
teeth  to  the  jaw^  could  possibly  ac- 
count for  the  adaptation.  This 
last  piece  of  evidence  was  conclusive 
against  the  prisoner,  and  he  was 
convicted.  Without  this  closing 
proof  the  evidence  would  certainly 
ha\e  been  unsatisfactory.  The 
character  of  the  prisoner,  the  pos- 
sible confusion  throughout  the  col- 
lege of  the  remains  of  anatomical 
subjects,  the  undistinguished  fea- 
tiM'cs,  and  the  illusiveness  of  evi- 
dence derived  from  the  likeness  of 
a  reconstructed  bo<]y,  were  all  facts 
of  a  nature  to  substantiate  assump- 
tions in  favor  of  the  prisoner's  in- 
nocence. It  is  singular  that  the 
block  of  mineral  teeth  was  only 
accidentally  preserved,  having  been 
found  so  near  the  bottom  of  the 
furnace  as  to  take  the  current  of 
cold  air,  whose  impact  had  prevented 
tli(»  thorough  combustion  that  would 
otherwise  liave  taken  place. 


No.  25. 


II.       PROOF   OF    IDENTITY 


79 


25.     FINGER-PRINT      IDENTIFICATION.         (C. 
Mitchell.      Science  and  the  Criminal.      1911.      p.  51.) 
The  system   of  identification   by      tiate    the   indivickials 


Ainsworth 


bodily  measurements,  which  has 
now  come  to  be  known  as  "  bertil- 
lonage,"  was  first  introduced  as  a 
method  of  police  registration  in 
Paris  in  1882.  During  the  first 
year  of  its  employment  it  detected 
forty-nine  criminals  gi^■ing  false 
names,  while  in  the  following  year 
the  number  rose  to  241.  In  18S9, 
]\I.  Bertillon  stated  that  there  had 
not  been  a  single  case  of  mistaken 
identity  since  the  system  had  been 
introduced,  and  that  in  the  previous 
year  31,849  prisoners  had  been 
measured  in  Paris,  615  of  whom 
were  in  this  way  recognized  as 
former  convicts,  while  14  were 
subsequently  recognized  in  prison. 
Of  the  latter,  10  had  never  pre- 
viously been  examined,  so  that 
the  failures  were  only  4  in  32,000, 
or  1  in  8000.  The  system,  as  de- 
scribed by  M.  Bertillon  himself  in 
a  pamphlet  on  The  Identification 
of  the  Criminal  Classes,  consists 
in  taking  the  measurements  of  the 
body  structure  of  each  individual. 
Although  such  measurements  might 
be  indefinitely  extended,  the  number 
is  usually  restricted  to  12,  including 
the  height,  length,  and  width  of  the 
head,  length  of  the  middle  finger, 
of  the  foot,  etc.  These  measure- 
ments are  rapidly  taken  with  stand- 
ard instruments  by  a  special  staff, 
and  are  recorded  upon  a  card  upon 
which  are  pasted  full-face  and  profile 
pliotographs  of  the  prisoner.  The 
data  obtained  enable  the  photo- 
graphs to  be  classified  into  different 
groups  of  short,  medium,  and  tall 
men,  and  these,  again,  may  be  sub- 
divided into  groups  of  short,  med- 
ium, and  long  heads,  while  further  ■ 
subdivisions  are  afforded  by  the 
width  of  the  head,  width  of  the 
arms  outstretched  at  an  angle  of 
the  body,  and  so  on.  The  color  of 
the  eyes  affords  the  means  for  a 
further  subdivision,  while  special 
birthmarks  or  peculiarities  difieren- 


still  further. 
In  this  way  alone,  ]M.  Bertillon 
claims  that  100,000  persons  can  be 
classified  into  groups  of  ten  each, 
the  portraits  in  which  would  offer 
no  difficulty  in  examination.  M. 
Bertillon  undoubtedly  puts  the  posi- 
tion too  favorably  here,  in  assum- 
ing division  into  eciiud  groups ;  for 
out  of  his  hypothetical  100,000 
individuals,  75  per  cent  might  con- 
cei\ably  be  tall  men,  and  75  per 
cent  of  these,  again,  have  long  heads, 
so  that  the  final  groups  would  in 
some  cases  have  no  representatives, 
while  in  the  other  groups  there 
might  be  1000  individuals.  .  .  . 
A  similar  method  is  employed  in  the 
United  States  for  recognizing  de- 
serters. .  .  .  During  the  first  five 
months  after  the  system  was  institu- 
ted (1891)  sixty-two  men  were  sus- 
pected of  concealing  their  identity, 
and  in  sixty-one  of  these  cases  the 
suspicion  was  justified  and  the 
identity  acknowledged.  A  draw- 
back of  the  Bertillon  system  of 
identification  is  that  much  depends 
upon  the  accuracy  of  the  person 
who  takes  the  measurements,  and 
that,  therefore,  a  permissible  error 
must  be  admitted.  In  the  United 
States  Army  an  error  of  one  inch 
in  either  direction  is  allowed  for 
the  recorded  height.  In  addition 
to  this,  some  degree  of  natural  varia- 
tion will  take  place  in  the  course  of 
years,  and  due  allowance  must  also 
be  made  for  this  influence  upon  the 
measurements. 

Striking  as  has  been  the  success 
of  M.  Bertillon's  system  of  anthro- 
pometrical  measurements  as  a  means 
of  identification,  it  has  been  al- 
together surpassed  in  certainty  by 
the  methods  of  recording  the  im- 
pressions of  the  fingers.  From 
time  to  time  in  the  past,  use  has 
been  made  of  a  finger  or  thumb 
impression  as  a  seal  or  to  give  a 
personal  mark  of  authenticity  to  a 
document.     One  of  the  earliest  ex- 


so 


PART    1.       CIRCI'MSTAXTIAL    EVIDENCE 


No.  25. 


ariiple.s  extant  of  tlie  u.-^e  of  the  man- 
ual .seal  is  to  he  seen  on  one  of  the 
Assyrian  clay  tablets  in  the  British 
Museum.  This  is  imprinted  in 
cuneiform  characters,  and  contains 
a  notice  of  the  sale  of  a  field,  which 
concludes  with  the  imprint  of  a 
finjier  nail,  anil  the  statement  that 
this  had  hcen  made  by  the  seller 
of  the  field  as  his  nail  mark.  .  .  . 
The  first  attempt  by  Europeans  to 
make  u.se  of  the  characteristic  rid«,a's 
of  the  fingers  to  record  the  identity 
of  individuals  appears  to  have  been 
that  of  Sir  William  Her.schel,  who 
introduced  a  method  ofKcially  into 
Bengal.  His  system  arose  out  of 
the  difficulty  of  checking  forgeries 
by  the  natives  in  India,  and  his 
having  made  two  of  them  record 
their  finger  impressions  upon  con- 
tracts, so  tliat  he  might  be  able  to 
frighten  them  should  they  sub.se- 
quently  deny  their  signatures. 
This  was  in  1858,  and  the  device 
proved  so  unexpectedly  successful, 
that  for  several  years  Sir  William 
Herschel  made  a  study  of  the  use 
of  finger  prints  in  identification, 
and  finally  found  them  so  satis- 
factory that,  in  1S77,  he  gave  in- 
structions for  their  systematic  use 
in    the    Hooghly.  .  .  . 

The  curious  markings  upon  which 
are  l)ased  these  systems  of  identifica- 
tion are  not  confined  to  the  human 
race,  but  are  also  shown  by  mon- 
keys and  to  a  less  ])ronounccd  ex- 
tent by  other  animals.  The  pattern 
upon  the  surface  of  the  skin  on  the 
palms  of  the  hands  and  soles  of  the 
feet  is  formed  by  the  arrangement 
of  what  is  known  as  the  papillary 
ridges.  It  is  readily  recorded  by 
can-fully  coating  the  finger-tips 
with  a  fine  layer  of  printing  or 
ordinary  ink  and  i>rcssing  them 
upon  paper  so  as  to  leave  an  im- 
print of  tlie  markings  upon  the  fin- 
ger. The  u.scs  of  these  ridges  is 
to  assist  the  delicacy  of  touch,  and 
also  to  excrete  persjjiration  through 
the  minute  pores  with  which  they 
are  covered.  The  effect  of  rough 
work  ujMMi  the  ridges  is  to  increa.se 


their  height,  and  eventually  they 
may  become  covered  up  by  the 
horny  accretions  known  as  callosi- 
ties. On  the  other  hand,  the  ridges 
upon  the  palms  of  people  who  do 
very  little  manual  labor  are  much 
less  apparent,  and  when  the  skin  is 
thin  are  ^•ery  low.  Hence,  in  the 
hands  of  bedridden  invalids  there  is 
only  a  slight  development  of  the 
ridges.  Several  circumstances  may 
lead  to  a  temporary  obliteration  of 
the  ridges,  such  as,  for  instance, 
the  constant  puncturing  of  the  skin 
by  the  head  of  a  needle  in  sewing 
and  the  imprint  of  the  forefinger 
of  a  tailor  will  therefore  often  pre- 
sent a  very  characteristic  mottled 
appearance.  ...  A  most  impor- 
tant point  in  the  application  of 
finger  prints  to  the  identification  of 
the  individual  is  the  persistence  of 
the  main  details  throughout  life, 
since  otherwise  much  of  the  value 
of  the  method  would  be  lost.  .  .  . 
As  is  the  case  with  all  the  other 
measurements  of  the  human  body, 
alterations  will  occur  in  the  size 
of  the  markings ;  for  the  pattern 
as  a  whole  increases  with  the  growth 
of  the  finger,  but  this  growth  does 
not  aft'ect  the  arrangement  of  the 
loops  and  ridges  that  make  up  the 
markings  upon  the  skin. 

In  no  other  way  than  a  study  of 
the  finger  prints  is  it  possible  to 
find  over  a  thousand  points  of  com- 
parison upon  which  to  establish 
the  identity  of  an  individual.  In 
estimating  the  value  of  finger  prints 
as  evidence  of  identity.  Sir  Francis 
Galton  fVnind  that  out  of  1000 
thumb  prints  the  collection  could 
be  classified  into  100  groups,  each 
containing  prints  with  a  more  or  less 
close  resem])lance  to  one  another. .  . . 
On  studying  the  minutije  of  the 
patterns,  and  calculating  the  chances 
that  the  print  of  a  single  finger 
should  agree  in  all  particidars  with 
the  print  of  another  finger,  he  con- 
cluded that  it  was  as  one  is  to  about 
sixty-four  millions;  so  that  the 
chance  of  two  persons  giving  similar 
prints   from   a   single   finger   would 


THE    STANDARD    PATTERNS    OF   PURKENJE 


CORES   OF   THE    ABOVE    PATTERNS 

1.  Transverse  flexures  5.  Almond 

2.  Ct-ntral  longitudinal  stria      6.  Spiral 

3.  Oblique  stria  7.  Ellipse 

4.  Oblique  sinus  8.  Circle 

9.  Double  Whorl 

By  kind  ptrmxaion  of  Mean.   Macmillan  &  Co.,  Ltd. 


Plate  A 


No.  25. 


II.       PROOF   OF    IDENTITY 


81 


be  less  than  one  in  four.  If  the 
comparisons  were  extended  to  two 
fingers,  the  improbahiHty  of  agree- 
ment in  all  details  would  be  squared, 
"  reaching  a  figure  altogether  beyond 
the  range  of  imagination."  The 
general  conclusion  drawn  from  these 
numerical  results  was  that  even 
after  making  all  allowance  for  am- 
biguities and  for  possible  alterations 
caused  by  accident  or  disease,  a 
complete,  or  nearly  complete,  agree- 
ment between  two  prints  of  one 
finger  and  infinitely  more  so  between 
two  or  more  fingers,  afforded  evi- 
dence, which  did  not  stand  in  need 
of  corroboration,  that  the  prints 
were  deriveti  from  the  fingers  of 
one  and  the  same  person.  In  finger 
prints,  therefore,  we  have  the  only 
means  of  proving  the  identity  of  an 
individual  beyond  all  question.  .  .  . 
The  first  attempt  to  classify  the 
various  patterns  formed  by  the 
(/  ridges  was  that  of  Purkenje,  a  doctor 
of  medicine,  who,  in  1823,  delivered 
a  thesis  upon  the  subject  at  the 
University  of  BiVslau.  He  con- 
cluded that  all  the  varieties  of 
curves  might  be  grouped  under  nine 
main  heads  or  standard  types,  which 
he  described  as  follows:  (1)  Trans- 
verse curves.  (2)  Central  longi- 
tudinal stria.  (3)  Oblique  stria. 
(4)  Oblique  sinus.  (5)  Almond. 
(6)  Spiral.  (7)  Ellipse  or  elliptical 
whorl.  (8)  Circle  or  circular  whorl ; 
and  (9)  Double  whorl.  The  differ- 
ences between  these  different  types 
are  best  shown  by  diagrams,  and  the 
accompanying  figure,^  reproduced 
by  permission  of  Sir  Francis  Galton, 
represents  the  cores  of  the  nine  stand- 
ard patterns.  This  classification, 
resting  as  it  does  upon  merely  super- 
ficial appearances,  does  not  afford  a 
certain  means  of  separating  the 
types,  since  factors,  such  as  ther 
depth  of  printing,  the  size  of  the  pat- 
terns, and  the  prominence  of  second- 
ary details  may  have  an  undue  influ- 
ence in  the  placing  of  a  particular 
print  in  one  or  the  other  group. 


After  numerous  futile  attempts  to 
make  use  of  Purkenje's  system.  Sir 
Francis  Galton  discarded  it  in  favor 
of  a  system  in  which  the  triangular 
space  or  spaces  found  in  the  majority 
of  finger  impressions  was  made  the 
basis  of  classification.  Starting 
upon  the  two  divergent  ridges  from 
these  spaces  an  outline  was  then 
drawn  as  far  as  it  could  be  traced, 
the  course  of  each  ridge  being  fol- 
lowed with  minute  fidelity.  In  this 
way  a  series  of  sharply-defined  out- 
line figures  were  obtained.  The 
various  patterns  may,  as  a  rule,  be 
classified  into  the  three  main  groups 
of  arches,  loops,  and  whorls,  while 
some  of  the  transitional  forms  may 
be  grouped  under  more  than  one 
of  these  heads.  Other  patterns, 
again,  which  are  of  rare  occurrence, 
are  not  suitable  for  inclusion  in  any 
of  the  three  groups.  A  system  of 
indexing  based  upon  this  method  of 
classification  was  also  devised  in 
which  letters  represented  the  varie- 
ties of  patterns.  Thus  a,  a,  a  indi- 
cate that  the  outline  upon  the  fore, 
middle,  and  ring  fingers  consists  of 
arches,  while  a,  u\  I  indicate  an 
arch  upon  the  forefinger,  a  whorl 
upon  the  middle  finger,  and  a  loop 
upon  the  ring  finger.  The  letters 
i  and  o  are  also  used,  the  former 
indicating  a  loop  with  an  inward 
slope  and  the  latter  one  with  an 
outer  slope  upon  the  forefinger. 
The  possible  variations  in'  such  a 
classification  of  the  impressions  of 
the  three  fingers  of  the  right  hand 
cannot  exceed  thirty-six,  and  a 
thousand  prints  may  therefore  be 
indexed  into  one  of  these  thirty- 
six  groups.  Subdivisions  of  these 
main  groups  may  then  be  based 
upon  the  characteristics  of  the  prints 
of  the  fingers  of  the  other  hand  and 
of  the  thumbs,  while  differences  in 
the  cores  of  the  patterns  afford  a 
means  of  forming  smaller  di\isions 
of   the   loop   patterns. 

From  observations  of  the  5000 
prints  of  500  individuals,  Sir  Francis 


'  [See  plate  A,  reproduced  by  consent  of  the  publishers,  Macmillan  &  Co.,  Ltd.  —  Ed.) 


82 


PAHT    I.       CIRCUMSTAXTIAL    EVIDENCE 


No.  25 


Galton  foiiin'  that  arches  were 
present  in  «i.")  per  cent  ;  Uiops  in 
07.5  per  cent ;  and  whirls  in  2(».0 
per  cent.  Each  ilijrit  and  hand, 
however,  had  its  own  pecuharities, 
and  the  variations  in  the  percentage 
of  arches  upon  different  (Hjrits 
ranjre  1  from  1  to  17;  that  of  the 
loops  from  53  to  90 ;  and  that  of  the 
whorls  from  13  to  45.  Loops  oc- 
curred with  most  frequency  upon  the 
little  finjrer  and  then  upon  tiie  middle 
finjier.  while  whorls  were  rarely 
met  with  upon  these  fingers,  but 
were  of  common  occurrence  upon 
the  thuml)  and  rinjj  finger.  The 
cla.ssification  employed  by  the  Eng- 
lish police  was  devised  by  Sir 
Edward  Henry  and  is  a  modification 
of  that  of  Sir  Francis  Galton,  from 
which  it  difi'ers  in  making  use  of 
four  types  instead  of  three.  The 
impressions  are  grouped  into  arches, 
loops,  whorls,  and  composites.  The 
last  group  includes  patterns  made 
up  of  combinations  of  the  other 
three,  or  those  which  might  be 
classified  either  as  loops  or  whorls. 
There  are  also  numerous  subdivi- 
sions of  the  group  into  patterns 
with  characteristics  in  common, 
such  as  "central  pockets"  and 
"accidentals,"  and  further  differ- 
entiation is  efi"ected  by  counting 
the  number  of  ridges  between  two 
fixefl  points  in  the  patterns.  Ex- 
amples of  these  four  groups  are 
shown  in  the  plate  facing  p.  82.^.  .  .\1 

-  Einally,  the  Argentine  Vucetich 
has  simplified  the  system  so  success- 
fully that  his  method  has  spread 
everywhere.  Vucetich  distinguishes 
only  the  following  four  main 
types:  a.  Arch  (A,  or  1).  b.  In- 
ternal loop  (I,  or  2).  c.  Exter- 
nal loop  (E,  or  3).  (I.  Vertical 
(V,  or  4).  An  impression  of  the 
five  fingers  of  each  hand  is  made 
ujjon  the  card  ;  then,  in  view  of  the 
dactylogram  obtained,  one  can  es- 
tablish the  dactylograjihic  formula 
of    the    subject,     representing    the 


type  to  which  each  finger  corre- 
sponds by  preestablished  figures. 
The  thumb  is  excluded  and  is  desig- 
nated always  by  the  letter  of  the 
type  to  which  it  belongs.  Take, 
for  instance  :  V  3242,  I  3343.  This 
formida  represents  a  subject  with 
the   following   papillary   structures : 


Thumb  —  Vertical  (V). 
Forefinger  —  External  loop 

(3). 
Middle    finger  —  Internal 

loop  (2). 
Ring-finger  —  Vertical  (4). 
Little    finger  —   Internal 

loop  (2). 


Right  Hand 


Left  Hand 


Thumb  — Internal  loop  (I). 
Forefinger  —  External   loop 

(3). 
Middle     finger  —  External 

loop  (3). 
Ring-finger —  Vertical  (4). 
Little       finger  —  External 

loop  (3). 

The  combined  ten  alphabetical 
or  numerical  designations  yield  a 
large  number  of  formula?  which 
allow  and  facilitate  the  classification 
of  the  cards. 

But  how  can  we  compare  two 
different  prints  of  the  same  type 
and  obtain  the  identification  ? 
Stockis  sums  up  the  various  methods 
in  his  lurcstigation  and  Idcniifica- 
tion  of  Finger  Prints.  According 
to  him,  Windt  enumerates  the 
papillary  lines  from  the  delta  to 
the  bifurcations,  the  ends  of  the 
lines,  and  the  points  or  lines  fastened 
among  the  others.  Galton  and 
Henry,  tracing  a  line,  join  the  center 
of  the  print  with  the  delta  and  count 
the  lines  thus  crossed,  the  points 
touching  one  another,  etc.  Sara- 
chaga  bases  his  comparison  of  the 
distinct  types  of  the  vertical  on  the 
number  of  lines,  the  elevation  of 
the  loop,  the  inclination  (horizontal, 
oblique,  vertical),  and  the  direction 

•  (Sof  platr-  n.  npHMliirci  l)y  consent  of  the  publishers,  Sir  Isaac  Pitman  &  Sons,  Lim- 
ited.—  KiJ.j 

MThe  foUowinu  piitwage  is  added  from  p.  214  of  C.  B.  dc  Quiros'  Modern  Theories  of 
CrimtTialilu  (traiud.  De  Sulvio,  1911,  Modern  CrimiQal  Science  Series).] 


5 


4 


TYPES   OF   FINGt,K   PRINTS 
Plate  B 


No.  26. 


II.      PROOF   OF    IDENTITY 


83 


(rectilinear  or  curvilinear)  of  the 
axis  of  the  drawing,  the  opening  of 
the  central  angle  of  the  print,  and, 
finally,  on  the  apparent  scars. 
Roscher  and  Gasti  emphasize  the 
number  of  the  lines  and  the  con- 
figuration of  the  crests  composing 
the  delta.  Vucetich  compares, 
above  all,  the  directive  lines  and  the 
characteristic  points  (bifurcations, 
pitchforks,  islands,  etc.).  Daaealso 
investigates  the  characteristic 
points.  Giribaldi  distinguishes  the 
varieties  of  verticals,  the  scars  that 
can  possibly  cross  the  print,  and  the 
details  of  the  lines.  Pottecher  bases 
his  observation  mainly  on  the 
enumeration  of  the  lines.  Niceforo 
recommends  the  investigation  of  the 
directive  lines,  the  number  of  the 
furrows,  the  characteristic  points 
(starting  point  of  the  lines,  bifurca- 
tions, rings,  points),  and  the  casual 
or    anomalous    peculiarities    (scars. 


pustules,  syndactylise,  etc.).  Fi- 
nally, Reiss  calls  attention  to  the 
photographic  method  of  the  super- 
position of  the  two  enlarged  pic- 
tures, the  first  on  paper  and  the 
second  on  a  transparent  film,  or  by 
passing  simultaneously  in  the  pro- 
jecting lantern  two  photographic 
plates  of  the  two  prints  natural 
size,  one  on  glass  and  the  other  on 
stiff  film.  In  either  case  the  identi- 
fication is  obtained  from  the  match- 
ing of  the  lines.  It  is  impossible  to 
discuss  the  advantages  and  the  in- 
conveniences of  all  these  methods. 
Their  multiplicity  offers  a  serious 
obstacle  for  international  investiga- 
tions. Yet,  the  advantages  offered 
by  Vucetich's  system  are  such  as  to 
win  him  popularity  in  both  hemi- 
spheres. A  place  seems  to  be  re- 
served for  his  system  in  the  inter- 
national dactyloscopic  catalogue 
which  some  are  planning. 


26.    PEOPLE  V.  JENNINGS.     (1911.     Supreme  Court  of  Illinois. 


252  111.  534,  96  N.E.  1077.) 

Error  to  Criminal  Court,  Cook 
County ;  Marcus  Kavanagh,  Judge. 
Thomas  Jennings  was  convicted  of 
murder,  and  he  brings  error. 
Affirmed.  William  G.  Anderson  and 
F.  L.  Barnetf,  for  plaintiff  in  error. 
W.  H.  Stead,  Atty.-Gen.,  and  Joh7i 
E.  W.  Wayman,  State's  Atty. 
{John  E.  Xorthrup,  of  counsel),  for 
the  People. 

Carter,  C.  J.  Plaintiff  in  error, 
Thomas  Jennings,  was  found  guilty 
in  the  criminal  court  of  Cook  county 
of  the  murder  of  Clarence  B.  Hiller, 
the  jury  fixing  the  penalty  at  death 
and  judgment  being  entered  on  the 
verdict  February  1,  1911.  This 
writ  of  error  is  sued  out  to  review  the 
record  in  that  case.  .  .  . 

At  the  time  of  the  murder,  Sep- 
tember 19,  1910,  Clarence  B.  Hiller, 
with  his  wife  and  four  children, 
lived  in  a  two-story  frame  house 
facing  north  on  West  104th  street, 
just  east  of  Waldon  parkway  in 
Chicago.  Immediately  west  of 
Waldon  parkway,  which  runs  north 


and  south,  and  separated  from  the 
street  by  a  wire  fence,  are  the  sub- 
urban tracks  of  the  Chicago,  Rock 
Island  &  Pacific  Railway  Company. 
East  of  the  Hiller  house  was  a 
vacant  lot,  and  east  of  that  was  the 
residence  of  a  family  named  Pickens. 
South  of  the  Hiller  house  was  a 
vacant  space,  beyond  which  were 
two  houses  facing  west  on  Waldon 
parkway,  the  southern  one  being 
occupied  by  the  McNabb  family. 
The  north  or  front  door  of  the  Hiller 
house  leads  into  a  hallway  on  the 
east  side  of  the  house  and  from  the 
south  end  or  rear  of  this  hallway  a 
stairway  leads  up  to  the  second 
floor.  The  south  bedroom  nearest 
the  head  of  the  stairs  was  occupied 
by  the  daughter  Florence,  13  years 
of  age.  Then  came  the  bedroom  of 
the  daughter  Clarice,  15  years  of 
age,  and  at  the  north  or  front  end 
of  the  second  floor  was  a  bedroom 
occupied  by  Mr.  and  Mrs.  Hiller 
and  the  two  younger  children.  At 
the  head  of  the  stairs,  near  the  door 


84 


I'ART    I.       (  IHt  rMSTANTIAL    EVIDENCE 


No.  26. 


leailing  to  Florence's  room,  a  gas 
light  was  kept  huniiiig  at  night. 
Shortly  after  2  o'clock  on  Monday 
morning  of  September  19,  1910, 
Mrs.  Hiller  was  awakened  and 
noticed  that  this  light  was  out. 
She  called  her  husband's  attention 
to  the  fact  anil  he  went  in  his  night 
clothes  to  the  head  of  the  stairway, 
where  he  encoinitered  an  intruder, 
with  whom  he  grappled,  and  in  the 
struggle  both  fell  to  the  foot  of  the 
stairway,  where  Hiller  was  shot 
twice,  dying  in  a  few  moments. 
Just  a  little  before  the  shooting  the 
daughter  Clarice  had  seen  the  form 
of  a  man  at  her  doorway,  holding  a 
lighted  match  by  his  body,  but  not 
so  as  to  show  his  face.  As  it  was 
the  practice  of  her  father  to  get  up 
and  see  if  the  children  were  all  right 
in  the  night,  she  was  not  frightened. 
The  form  disappeared  from  her 
doorway,  and  slie  heard  footsteps 
shuffling  toward  the  room  of  her 
sister  Florence,  after  which  she  heard 
a  little  sound  made  by  Florence. 
She  next  heard  her  father  going 
through  the  hallway.  Then  came 
the  struggle  and  tlie  shooting.  .  .  . 
The  Pickens  family  were  awakened 
by  the  screams  of  Mrs.  Hiller  and 
her  children,  and  tlie  father,  John 
('.  Piikens,  partially  dressed  and 
ran  to  the  Hiller  house.  He  reached 
there  at  about  the  same  time  as  his 
son,  Oliver  Pickens,  and  Officer 
Heanlsley.  The  son  had  been  visit- 
ing friends  on  the  north  side  in 
Chicago  and  had  left  the  train  at 
the  surbnrbaii  station,  about  a 
blo^-k  away,  and  was  walking 
towards  home  whci;  he  heard  the 
.screams  from  the  Hiller  house  and 
ran  there,  meeting  a  police  officer, 
Floyd  Heardsley,  who  had  also 
heard  the  screams,  and  was  searching 
for  the  cause.  They  were  let  in  by 
the  daughter  Clarice,  and  found 
the  bo  ly  (»f  Mr.  Hiller  lying  near 
the  l)ottom  of  the  stairway,  his 
nightgown  saturated  with  blood. 
The  shooting  occurred  al)out  2.2") 
A.M.  The  witiu'sses  who  n-ached 
the  hf)U.se  shortly  after  found  three 


revolver  cartridges  undischarged  and 
two  leaden  slugs.  Neither  of  the 
shots  fired  had  lodged  in  the  body 
of  the  deceased,  one  entering  the 
upper  part  of  the  left  arm  and  passing 
out  through  the  shoulder  and  neck, 
and  the  other  entering  the  right 
breast  and  passing  out  through  the 
hmg  and  heart.  Shortly  thereafter 
]\Irs.  Pickens,  going  upstairs  to  get 
a  cover  for  the  body,  found  particles 
of  sand  and  gravel  on  Florence's 
bed  near  the  foot. 

About  three  quarters  of  a  mile 
east  of  the  Hiller  house  is  Vincennes 
road,  running  southerly,  with  a 
slight  inclination  to  the  west,  and 
which  is  occupied  by  a  street  car 
line.  This  street  is  intersected  at 
103(1  street  by  the  tracks  of  the 
Panhandle  railroad,  which  run 
southerly,  with  a  slight  inclination 
to  the  east.  The  street  car  line 
connects  with  the  Chicago  City 
Railway  system  at  Seventy-ninth 
street,  and  extends  in  a  southerly 
direction  from  103d  street  through. 
Blue  Island  to  Harvey,  about  8^ 
miles  south  of  103d  street.  On  the 
west  of  Vincennes  road,  at  103d 
street,  is  a  crossing  gate.  Early 
in  the  morning  on  which  the  murder 
occurred,  four  police  officers,  who 
shortly  before  had  gone  off  duty  in 
that  neighborhood,  were  sitting  on 
a  bench  just  north  of  the  gate, 
waiting  for  a  north-bound  street 
car.  The  gate  was  up,  so  that  the 
officers  were  not  easily  seen  by  one 
approaching  from  the  south.  x\bout 
2.38  A..M.,  Jennings  approached  the 
place  from  the  south.  The  ofiicers 
si)oke  to  him,  and  he  continued 
walking  for  a  few  steps  with  his 
rigiit  hand  in  his  trousers  pocket, 
holding  a  loaded  revolver.  They 
searched  him  and  took  the  weapon 
away.  They  did  not  knowjit  this 
time  of  the  murder.  Jennings  was 
perspiring,  and  the  ofiicers  testified 
that  fresh  blood  appeared  at  differ- 
ent places  on  his  clothing.  About 
three  inches  above  his  left  wrist 
they  foimd  a  slight  wound,  fresh 
and  bleeding  slightly.     Jennings  told 


No.  26. 


II.       PROOF   OF   IDENTITY 


85 


the  policemen  that  the  blood  came 
from  a  wound  on  his  left  little  finger, 
received  from  falling  off  the  street 
car  at  Seventy-ninth  street  the 
evening  before,  when  he  was  on  his 
way  to  Harvey.  Dr.  Clement,  who 
examined  Jennings  about  half  past 
3  that  morning  at  the  police  station, 
found  the  wound  on  the  little  finger 
scabbed  over  and  not  of  recent 
origin.  He  also  found  the  wound 
on  the  left  arm  fresh  and  bleeding, 
clean  cut,  with  recent  blood  coming 
from  it,  not  coagulated.  The  doc- 
tor testified  that  it  looked  like  a 
bullet  wound  and  not  like  an  injury 
received  from  falling  off  a  street 
car.  Dr.  Springer  also  examined 
Jennings,  and  his  testimony,  so 
far  as  it  covered  the  same  ground, 
was  practically  to  the  same  effect. 
It  was  testified  that  the  holes  in  the 
sleeves  of  the  shirts,  which  were 
introduced  in  evidence  as  exhibits, 
were  continuous  with  this  fresh 
cut  in  the  arm.  The  officers  took 
Jennings  to  the  station  on  the  street 
cars,  and  when  examined  there, 
sand  was  found  in  his  shoes.  Jen- 
nings, when  arrested,  first  told  the 
officers  that  he  lived  at  1244  State 
street,  Chicago,  and  later  577 
Twelfth  street ;  that  he  left  for 
Harvey  about  7  or  8  o'clock  the 
evening  before  to  visit  friends,  and 
that  when  he  started  to  return  from 
Harvey,  about  12  o'clock,  not  find- 
ing a  street  car,  he  had  walked 
back  to  that  point. 

In  August,  1910,  Jennings  had 
been  released  on  parole  from  the 
penitentiary  at  Joliet,  where  he  had 
been  sentenced  on  a  charge  of  burg- 
lary. He  had  been  paroled  before, 
but  had  been  returned  for  a  viola- 
tion of  the  parole.  Two  weeks 
after  his  second  parole,  on  August 
16,  1910,  he  purchased  a  new  38 
caliber  revolver,  giving  his  name  as 
Will  Jones,  of  Peoria.  On  Sep- 
tember 9th  following  he  had  pawned 
this  revolver  for  $2  under  the  name 
of  Will  Jackson,  getting  it  back 
September  16th.  On  the  18th  he 
pawned  it  to  Elroy  Jones,  a  saloon- 


keeper, getting  it  back  about  7 
P.M.  on  the  night  of  September 
18,  1910.  It  was  this  revolver  that 
the  officers  found  on  Jennings' 
person  when  he  was  arrested.  It 
was  loaded  with  five  cartridges, 
which  were  marked,  "A.  P.  C.  38 
Smith  &  Wesson."  The  testimony 
showed  that  these  cartridges  were 
identical  in  appearance,  size,  and 
markings  with  the  three  undischarged 
cartridges  found  in  the  hallway  of 
the  Hiller  house  near  the  dead  body. 
Jennings  testified  that  he  had  not 
fired  the  revolver  since  he  owned  it 
and  knew  of  no  one  else  firing  it. 
The  officers  testified  that  in  their 
judgment  it  had  been  fired  twice 
within  an  hour  before  his  arrest, 
arri\'ing  at  this  conclusion  from  the 
smell  of  fresh  smoke  and  the  burned 
powder  in  two  chambers  of  the  cylin- 
der. Later,  chemical  tests  and  the 
evidence  of  a  gunsmith  corroborated 
this  testimony  that  the  chambers 
contained  burned  particles  of 
powder. 

Over  the  objection  of  the  plaintiff 
in  error  evidence  was  admitted  to 
the  effect  that  about  2  a.m.,  Sep- 
tember 19,  1910,  just  before  the 
shooting  of  Hiller,  some  one  entered 
the  McNabb  house.  Mrs.  McNabb 
was  awakened  and  saw  a  man  stand- 
ing in  the  door  with  a  lighted  match 
over  his  head.  The  man  was  tall, 
broad  shouldered,  and  very  dark. 
.  .  .  Jessie  McNabb,  a  daughter, 
who  occupied  the  same  bed  with  her 
mother,  was  awakened  and  saw  the 
intruder.  She  testified  he  wore  a 
light-colored  shirt  and  figured  sus- 
penders ;  that  he  was  large,  with 
broad  shoulders.  From  the  shirt 
and  suspenders  which  were  intro- 
duced in  evidence,  and  from  the 
build  of  Jennings,  she  was  of  the 
opinion  he  was  the  man  that  was 
in  their  room.  Mrs.  McNabb 
also  testified  that  she  thought  the 
man  in  the  room  was  Jennings,  from 
his  size  and  build  and  from  what  she 
saw  of  him.  Jennings  was  6  feet  tall 
and  weighed  about  175  pounds.  .  .  . 

While  Jennings  told  several  wit- 


S6 


PART    I.       CmCl-^ISTAXTIAL   EVIDENCE 


No.  26. 


nesse.s,  at  the  time  of  his  arrest,  tliat 
he  left  Chicajio  on  the  evening  of 
September  ISth  to  go  to  Harvey 
ahout  7  o'clock,  he  testified  on  the 
trial,  and  one  or  two  other  witnesses 
also  testified,  that  he  did  not  leave 
the  downtown  part  of  the  city  until 
after  10  o'clock  on  Sunday  evening, 
Septcnil)cr  ISth.  He  stated  once 
or  twice  after  his  arrest  that  he  went 
to  Harvey  to  visit  accpiaintances 
named  Robinson,  and  gave  the 
^  officers  to  understanil  that  after 
visiting  with  them  he  missed  the 
street  car  and  walked  back.  The 
state  proved  by  the  Robinsons  that 
he  did  not  call  on  them  on  the  night 
in  (juestion,  and  later  Jennings 
testified  in  his  own  behalf  that  he 
knocked  at  the  Robinsons'  door  and 
no  one  responded,  .so  he  went  to  a 
place  called  Pluenix,  a  short  dis- 
tance from  Harvey,  where  he  visited 
a  saloon.  Xo  other  witness  cor- 
roborated him  as  to  his  presence  in 
Harvey,  PhaMiix,  or  at  any  other 
point  south  of  the  Halsted  residence 
on  the  night  in  ({uestion.  He 
denied  being  at  the  Halsted  house, 
the  McNalib  house,  or  the  Hiller 
house,  or  having  anything  to  do 
with  the  shooting.  Wiien  arrested 
he  tlenied  that  he  had  ever  been 
arrested  before,  giving  his  name  as 
Will  Jones. 

Mrs.  Hiller  testified  that  their 
hou.se  had  but  recently  Ix'cn  painted, 
the  back  porch,  which  was  the  last 
j)art  done,  being  completed  on  the 
Saturday  preceding  the  shooting. 
Kntrance  to  the  house  had  been 
gained  by  the  nnirderer  through  a 
rear  window  of  the  kitchen,  from 
which  he  had  first  removed  the 
window  .screen.  Near  the  window 
was  a  porch,  on  the  railing  of  which 
a  person  entering  the  window  could 
support  himself.  On  the  railing 
in  the  fresh  paint  was  the  imprint 
of  four  fingrrs  of  some  one's  left 
hand.  This  railing  was  removed  in 
the  early  morning  after  the  murder 
by  ofliccrs  from  the  identification 
bureau  of  the  Chicago  police  force 
and  enlarged  photographs  were  nuide 


of  the  prints.  Jennings,  when  re- 
turned to  the  penitentiary  for  the 
\iolation  of  his  parole,  in  March, 
1910,  had  a  print  of  his  fingers 
taken  and  another  print  was  taken 
after  this  arrest.  These  impressions 
were  likewise  enlarged  for  the  pur- 
pose of  comparison  with  the  en- 
larged photographs  of  the  prints 
on  the  railing.  Four  witnesses, 
over  the  objection  and  exception  of 
counsel,  testified  that  in  their  opin- 
ion the  prints  on  the  railing  and  the 
prints  taken  from  Jennings'  fingers 
by  the  identification  bureau  were 
made  by  the  same  person.  .  .  . 

It  is  contended  that  the  evidence 
as  to  the  comparison  of  photographs 
of  the  finger  marks  on  the  railing 
with  the  enlarged  finger  prints  of 
plaintifi"  in  error  was  improperly 
admitted.  While  the  courts  of  this 
country  do  not  appear  to  have  had 
occasion  to  pass  on  the  question, 
standard  authorities  on  scientific 
subjects  discuss  the  use  of  finger 
prints  as  a  system  of  identification, 
concluding  that  experience  has 
shown  it  to  be  reliable.  10  Ency. 
Britannica  (11th  Ed.),  37G ;  5 
Nelson's  Ency.  28.  See,  also,  Gross' 
Crim.  Investigation  (Adams' 
Transl.),  277;  Fuld's  Police  Ad- 
mini.stration,  342 ;  Osborn's  Ques- 
tioned Documents,  479.  These 
authorities  state  that  this  system 
of  identification  is  of  very  ancient 
origin,  having  been  used  in  Egypt 
when  the  impression  of  the  mon- 
arch's thumb  was  used  as  his  sign 
manual,  that  it  has  been  used  in 
the  courts  of  India  for  many  years 
and  more  recently  in  the  courts 
of  several  European  countries  ;  that 
in  recent  years  its  use  has  become 
^ery  general  by  the  police  depart- 
ments of  the  large  cities  of  this 
country  and  Europe ;  that  the 
great  success  of  the  system  in  Eng- 
land, where  it  has  been  used  since 
1S91  ill  thousands  of  cases  without 
error,  caused  the  sending  of  an 
investigating  commission  from  the 
Ignited  States,  on  whose  favorable 
report  a  bureau  was  established  by 


No.  26. 


PROOF    OF    IDENTITY 


87 


the  United  States  government  in 
the  war  and  other  departments. 

Four  witnesses  testified  for  the 
state  as  to  the  finger  prints.  William 
M.  Evans  stated  that  he  beg^^ui  the 
study  of  the  subject  in  1904 ;  that 
he  had  been  connected  with  the 
bureau  of  identification  of  the 
Chicago  police  department  in  work 
of  this  character  for  about  a  year ; 
that  he  had  personally  studied  be- 
tween 4000  and  5000  finger  prints 
and  had  himself  made  about  2000 ; 
that  the  bureau  of  identification  had 
some  25,000  different  impressions 
classified ;  that  he  had  examined 
the  exhibits  in  question,  and  on  the 
forefinger  he  found  14  points  of 
identity,  and  on  the  second  finger 
1 1  points ;  that  in  his  judgment  the 
finger  prints  on  the  railing  were 
made  by  the  same  person  as  those 
taken  from  the  plaintiff  in  error's 
fingers  by  the  identification  bureau. 

Edward  Foster  testified  that  he 
was  inspector  of  dominion  police 
at  Ottawa,  Canada,  connected  with 
the  bureau  of  identification ;  that 
he  had  a  good  deal  to  do  with  finger 
prints  for  six  years  or  more ;  that 
he  had  special  work  along  that  line 
in  Vancouver  and  elsewhere  in 
Canada ;  that  he  had  studied  the 
subject  at  Scotland  Yard  ;  that  he 
began  the  study  in  St.  Louis  in  1904 
under  a  Scotland  Yard  man  and 
had  taken  about  2500  finger  prints  ; 
that  he  had  studied  the  exhibits 
in  question  and  found  14  points  of 
resemblance  on  the  forefinger ;  that 
the  two  sets  of  prints  were  made 
by  the  fingers  of  the  same  person. 

Mary  E.  Holland  testified  that 
she  resided  in  Chicago ;  that  she 
began  investigation  of  finger-print 
impressions  in  1904,  studied  at 
Scotland  Yard  in  1908,  passed  an 
examination  on  the  subject,  and 
started  the  first  bureau  of  identifica- 
tion in  this  country  for  the  United 
States  government  at  Washington ; 
that  they  have  over  100,000  prints 
at  Scotland  Yard ;  that  she  also 
had  studied  the  two  sets  of  prints 
and    believed    them    to    have    been 


made  by  the  fingers  of  the  same 
person. 

Michael  P.  Evans  testified  that 
he  had  been  in  the  bureau  of  identi- 
fication of  the  Chicago  police  depart- 
ment for  27  years  ;  that  the  bureau 
had  been  using  the  system  of  finger- 
print impressions  since  January  1, 
1905,  and  that  they  also  used  the 
Bertillon  system ;  that  he  had 
studied  the  question  since  1905  or 
190G  and  had  made  between  6000 
and  7000  finger  prints ;  that  he 
had  charge  of  the  making  of  the 
photographs  of  the  prints  on  the 
railing ;  that  in  his  judgment  the 
various  impressions  were  made  by 
the  fingers  of  the  same  person. 

All  of  these  witnesses  testified  at 
more  or  less  length  as  to  the  basis 
of  the  system  and  the  various 
markings  found  on  the  human  hand, 
stating  that  they  were  classified 
from  the  various  forms  of  markings, 
including  those  known  as  "  arches," 
"loops,"   "whorls,"   and    "deltas." 

It  was  further  insisted  on  oral 
argument  and  in  the  briefs  of  the 
plaintiff  in  error  that  the  evidence 
is  not  sufficient  to  support  the  ver- 
dict. 

W^e  deem  it  not  improper  to  say 
that  all  the  incriminating  proof 
points  to  the  accused.  There  is  abso- 
lutely nothing  in  the  record  tending  to 
showthat  the  crime  was  committed  by 
any  one  else.  Among  the  many  cir- 
cumstances which  must  have  con- 
vinced the  court  and  jury  that  the 
plaintiff  in  error  was  the  criminal 
agent  were  his  statements,  so  incon- 
sistent with  the  testimony  of  many 
other  witnesses,  in  explaining  his 
Avhereabouts  on  the  night  in  ques- 
tion ;  also  his  statements  as  to  ho\S 
the  blood  came  to  be  on  his  clothing, 
how  he  received  the  wound  on  his 
arm,  and  the  tearing  of  his  coat 
pocket.  Then,  too,  they  must  have 
considered  his  lack  of  motive  in 
going  to  Harvey  and  almost  im- 
mediately turning  around  and  com- 
ing back ;  the  improbability,  when 
he  had  sufficient  money  to  pay  his 
car  fare,  that  he  should  walk  that 


88 


PART   I.       CIRCrMSTANTIAL    EVIDENCE 


No.  26. 


distance  at  that  time  of  the  night 
when  the  cars  were  running  each 
hour  and  one  left  within  an  hour 
after  he  chiinis  he  started  ;  the  con- 
dition of  his  chithing  when  arrested  ; 
the  sand  in  his  shoes  and  on  the 
young  girl's  bed  ;  the  evidence  that 
his  revolver  had  recently  been  dis- 
charged ;  the  testimony  of  three 
witnesses  that  he  was  seen  in  the 
neighborhood  of  the  crime  just  be- 
fore its  commission ;    the  fact  that 


the  bullets  which  had  inflicted  the 
mortal  wounds  were  of  the  same  size 
and  kind  as  those  in  his  revolver. 
No  one  of  these  circumstances,  con- 
sidered alone,  would  be  conclusive 
of  his  guilt,  but  when  all  the  facts 
and  circumstances  introduced  in 
e\idence  are  considered  together, 
the  jury  w^ere  justified  in  beHeving 
that  a  verdict  of  guilty  should  follow 
as  a  logical  sequence. 


TITLE  III:     EVIDENCE  TO  PROVE  A  HUMAN  TRAIT, 
QUALITY,  OR    CONDITION 

27.   John  H.  Wigmore.      Principles  of  Judicial  Proof.      (1913.)^ 

The  reasons  for  dividing  into  four  groups  the  whole  subject  of  Circum- 
stantial Evidence  have  been  already  sta^od  {ante,  No.  3).  The  groups 
being  distinguished  according  to  the  probanda  to  be  proved,  the  third  group 
is  now  to  be  considered,  namely,  Evidence  to  prove  a  Human  Quality, 
Condition,  or  other  attribute.  This  group  of  Probanda  separates  itself 
from  the  fourth  (Human  Acts)  with  fair  distinctness,  because  the  circum- 
stances available  as  evidence  are  usually  distinct  for  the  two  groups.  Though 
the  distinction  between  the  two  groups  is  only  a  rough  and  practical  one, 
nevertheless,  it  is  in  essence  a  real  and  unavoidable  one,  and  by  no  means 
artificial. 

The  chief  kinds  of  human  qualities  or  conditions  to  be  proved  may  be 
reduced  to  the  following  sorts :  Moral  Character  or  Disposition ;  Physical 
and  Mental  Capacity ;  Design  or  Plan,  and  Intent ;  Knowledge,  Belief,  or 
Consciousness  ;   Motive  or  Emotion  ;   Habit  or  Custom. 

It  will  be  understood  that  we  are  here  not  concerned  how  the  above  human 
qualities  come  to  be  probanda.  We  are  concerned  only  to  learn  what  facts 
will  be  evidential  to  prove  the  quality  proposed  for  proof.  For  instance, 
character  may  be  in  issue  through  the  pleadings  in  a  suit  for  slander  on  a 
plea  of  justification,  or  in  an  action  for  personal  injury  as  an  element  of  the 
defendant's  liability  for  an  incompetent  servant ;  or  it  may  be  used,  not 
as  in  issue  through  the  pleadings,  but  as  evidential  to  prove  a  human  act, 
I  for  example,  the  good  character  of  a  defendant  in  a  criminal  case  or  his 
[bad  character  in  rebuttal.  So,  also,  knowledge  may  be  in  issue  in  a  suit 
to  set  aside  a  purchase  in  fraud  of  creditors,  or  it  may  be  evidential  only, 
as  when  it  is  offered  to  prove  the  doing  of  a  past  act  as  a  mark  of  identity. 
In  all  these  instances  the  quality  which  is  termed  character,  knowledge,  or 
the  like,  has  somehow  come  into  the  case  as  a  proposition  to  be  proved ; 
and  the  question  how  to  evidence  it  presents  itself  equally  whether  the  pro- 
bandum,  when  once  proved,  is  going  in  turn  to  be  used  itself  evidentially 
to  show  some  other  fact,  or  is  one  of  the  very  ultimate  propositions  made 
material  by  the  pleadings. 

Three  species  of  evidential  facts  are  available  to  show  a  human  quality 
or  condition:  (1)  Conduct;  this  is  the  expression,  in  outward  behavior  or 
acts,  of  the  cjuality  or  condition  operating  to  produce  effects.  These  results 
are  the  traces  by  which  we  may  infer  the  mo\"ing  cause.  In  point  of  time, 
conduct  is  closely  associated  with  the  internal  condition  giving  rise  to  it ; 
nevertheless,  the  indication  is  strictly  not  a  concomitant,  but  a  retrospectant 
one  {ante,  No.  3),  because  the  argument  is  backwards  in  time  from  effect 
(conduct)  to  cause   (internal  condition).     (2)  External  facts  pointing  for- 

•  Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     Vol.  I,  §  190.) 

89 


90  PART    I.       CIRCTMSTANTIAL    EVIDENCE  No.  27. 

ward  to  the  prohahle  coinin*:  into  existence  of  the  quality;  for  example, 
the  victim's  gold,  as  pointing  forward  to  the  defendant's  probable  desire 
to  rob  him,  or  the  reputation  of  A's  insolvency,  as  pointing  forward  to  B's 
probable  receipt  of  knowledge  of  it.  In  using  this  evidence,  we  take  our 
stand  beforehand  and  argue  that  the  evidential  fact  probably  gave  rise  to 
the  emotion,  knowledge,  or  intent  to  be  proved.  The  indication  is  thus 
prospectant ;  while  that  of  conduct  is  retrospectant.  (3)  There  is  also  a 
third  sort  of  fact,  having  either  a  prospectant  or  a  retrospectant  indication, 
and  not  exactly  corresponding  to  either  of  the  preceding  sorts,  namely, 
prior  or  sitbsequcnt  condifion,  as  showing  condition  at  a  given  time. 

Thus,  to  prove  insanity,  we  may  offer  (1)  conduct  as  the  effect  illustrat- 
ing its  cause,  mental  aberration,  (2)  circumstances  of  unsuccessful  business, 
domestic  troubles,  and  the  like,  tending  to  bring  on  insanity ;  and  (3)  prior 
or  subsequent  insanity,  pointing  forwards  or  backwards  to  insanity  at  the 
time  in  question.  So  also,  to  show  a  husband's  desire  or  motive  to  get  rid 
of  his  wife,  we  may  offer  (1)  his  conduct  exhibiting  such  a  desire,  (2)  the 
existence  of  a  paramour,  tending  to  create  such  a  desire,  and  (3)  a  prior 
desire,  as  pointing  forward  to  its  continued  existence  at  the  time  in  ques- 
tion. 


TITLE  III  {continued):  EVIDENCE   TO  PROVE  A  HUMAN 
TRAIT,   QUALITY,   OR   CONDITION 

SUBTITLE  A  :   EVIDENCE  TO  PROVE  MORAL  CHARACTER 

28.   John  H.  Wigmore.      Priuciplcs  of  Judicial  Proof.      (1913.)^ 

Inasmuch  as  heredity  and  environment  are  not  yet  defined  enough,  in 
their  known  influences,  to  be  available  as  evidence,  there  is  for  the  pro- 
spectant class  of  evidence  practically  nothing  to  be  considered  under  this 
head. 

Under  the  retrospectant  class,  on  the  other  hand,  there  is  an  abundance, 
namely,  the  conduct  of  the  person,  exhibiting  his  moral  traits.  But  for 
present  purposes  it  will  be  sufficient  to  note  several  distinctions,  which  in 
practice  limit  the  scope  of  the  subject. 

At  the  outset  of  this  entire  class  of  inferences,  it  must  be  noted  that, 
where  the  doing  of  an  act  is  the  ultimate  proposition  to  be  proved,  there 
can  never  be  a  direct  inference  from  an  act  of  former  conduct  to  the  act 
charged ;  there  must  always  be  a  double  step  of  inference  of  some  sort,  a 
"tertium  quid."  In  other  words,  it  cannot  be  argued:  "Because  A  did 
an  act  X  last  year,  therefore  he  probably  did  the  act  X  as  now  charged." 
Human  action  being  infinitely  varied,  there  is  no  adequate  probative  con- 
nection between  the  two.  A  may  do  the  act  once,  and  may  never  do  it 
again  ;  and  not  only  may  he  not  do  it  again,"  but  it  is  in  no  degree  probable 
that  he  will  do  it  again.  The  conceivable  contingencies  that  may  intervene 
are  too  numerous. 

Thus,  whenever  resort  is  had  to  a  person's  past  conduct  or  acts  as  the 
basis  of  inference  to  a  subsequent  act,  it  must  always  be  done  intermediately 
through  another  inference.  It  may  be  argued  :  "  A  once  committed  a  rob- 
bery ;  (1)  therefore  he  probably  has  a  thieving  disposition  ;  (2)  therefore 
he  probabl^y  committed  this  robbery"  ;  or  "  (1)  therefore  he  had  some  general 
design  to  commit  certain  robberies ;  (2)  therefore  he  probably  carried  out 
that  design  and  committed  this  robbery."  Or  it  may  be  argued  :  "A  gave 
money  to  his  poor  friend  B;  (l)  therefore  A  probably  is  of  a  benevolent 
disposition  ;  (2)  therefore  A  probably  did  not  commit  the  present  robbery"  ; 
or  "  (1)  therefore  he  probably  had  a  kindly  feeling  towards  B  ;  (2)  therefore 
he  probably  did  not  rob  B."  The  impulse  to  argue  from  A's  former  bad 
deed  or  good  deed  directly  to  his  doing  or  not  doing  of  the  bad  deed  charged 
is  perhaps  a  natural  one;  but  it  will  always  be  found,  upon  analysis  of  the 
process  of  reasoning,  that  there  is  involved  in  it  a  hidden  intermediary  step 
of  some  sort,  resting  on  a  second  inference  of  character,  motive,  plan,  or  the 
like.     This  intermediate  step  is  always  implicit,  and  must  be  brought  out. 

'  Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     Vol.  I,  §  192.) 

91 


92  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  28. 

To  make  axailahle  siuh  evidence  of  past  conduct  or  acts,  some  use  for  it 
must  be  founil  as  evidencinj:  character,  design,  or  other  quahty. 

Moral  Character  of  an  Acrmid. — That  specific  acts  of  misconduct  have 
probative  value  in  lea(Hng  to  a  belief  as  to  the  existence  of  a  moral  trait  of 
more  or  less  constant  nature  is  undoubted  : 

State  v.  Lopoge.  (1876.  57  N.  H.  275,  299).  On  a  charge  of  murder  committed 
in  an  attempt  to  rape,  the  fact  of  the  defendant's  recent  rajie  of  another  person  was  of- 
fered ;  Mr.  y  orris,  arguing  for  the  defense  :  "Making  no  {)oint  of  remoteness  in  time  or 
space,  let  us  see  how  well  this  evidence  will  hear  analyzing.  Premise  to  be  proved  : 
he  committed  a  rape,  in  no  way,  except  in  kind,  connected  with  this  crime.  Infer- 
ence :  a  general  disposition  to  commit  this  kind  of  offense.  Next  i)remise  :  this 
general  disposition  in  him.  Inference :  he  committed  this  particular  offense.  .  .  . 
It  may  be  tried  by  the  common  test  of  the  validity  of  arguments.  Some  men  who 
commit  a  single  crime  have,  or  thereby  acquire,  a  tendency  to  commit  the  same  kind 
of  crimes ;  if  this  man  committed  the  rape,  he  might  therefore  have  or  thereby  ac- 
quire a  tendency  to  commit  other  rapes ;  if  he  had  or  so  acquired  such  a  tendency, 
and  if  another  rape  was  committed  within  his  reach,  he  might  therefore  be  more 
likely  to  be  guilty  :  if  more  likely  to  be  guilty  of  rape,  and  if  there  was  a  murder 
conmiitted  in  perpetrating  or  attempting  to  perpetrate  rape,  he  might  therefore  be 
more  likely  to  l>e  guilty  of  tliis  rape,  and  hence  of  this  murder ;  a  sort  of  an  '  ex-])arte ' 
conviction  of  a  single  rajje,  from  which  the  jury  are  to  find  a  general  disposition  to 
that  kind  of  crimes,  in  order  to  lielp  them  out  in  presuming  the  commission  of  another 
rape  as  a  motive  or  occasion  of  the  murder.  We  can  find  nothing  like  it  in  the  books." 
Ladd,  J. :  "  It  is  argued  on  behalf  of  the  State  (if  I  have  not  wholly  misapprehended 
the  drift  of  the  argument)  that  the  evidence  was  admitted  because,  as  matter  of  fact, 
its  natural  tendency  was  to  produce  conviction  in  the  mind  that  the  prisoner  com- 
mitted rape  upon  his  victim  at  the  time  lie  took  her  life.  ...  I  shall  not  undertake 
to  deny  this.  If  I  know  a  man  has  broken  into  my  house  and  stolen  my  goods,  I  am 
for  that  reason  more  ready  to  believe  him  guilty  of  breaking  into  my  neighbor's 
house  and  committing  the  same  crime  there.  We  <lo  not  trust  our  property  with 
a  notorious  thief.  We  cannot  helj)  suspecting  a  man  of  evil  life  and  infamous  char- 
acter sooner  than  one  who  is  known  to  be  free  from  every  taint  of  dishonesty  or  crime. 
We  naturally  recoil  with  fear  and  loathing  from  a  known  murderer,  and  watch  his 
conduct  as  we  would  the  motions  of  a  beast  of  prey.  When  the  community  is  startled 
by  the  commission  of  some  great  crime,  our  first  search  for  the  perpetrator  is  natu- 
rally directed,  not  among  those  who  have  hitherto  lived  blameless  lives,  but  among 
those  whose  conduct  lias  been  such  as  to  create  the  belief  that  they  have  the  depravity 
of  heart  to  do  the  deed.  Tiiis  is  human  nature  —  the  teaching  of  human  experience. 
If  it  were  the  law,  that  everytliing  which  has  a  natural  tendency  to  lead  the  mind 
towards  a  conclusion  that  a  j)erson  charged  with  crime  is  guilty  must  be  admitted  in 
evidence  against  him  on  the  trial  of  that  charge,  the  argument  for  the  State  would 
doubtless  be  hard  to  answer.  If  I  know  a  man  has  once  been  false,  I  cannot  after 
that  believe  in  his  trutli  as  I  did  before.  If  I  know  he  has  committed  the  crime  of 
perjury  once,  I  more  readily  believe  he  will  commit  the  same  awful  crime  again,  and 
I  cannot  accord  the  same  trust  and  confidence  to  his  statements  under  oath  that  I 
otherwise  should.  .  .  .  Suppose  the  general  character  of  one  charged  with  crime 
is  infamous  and  degra<ied  to  the  last  degree;  thafhis  life  has  been  nothing  but  a 
succession  of  crimes  of  the  most  atrocious  and  revolting  sort :  does  not  the  knowledge 
of  fill  tin's  inevitably  r  arry  the  min<l  in  thedirection  of  a  conclusion  that  he  has  added  the 
particular  crime  for  which  he  is  heinj;  tried  to  the  list  of  those  that  have  gone  before  ? 
Why,  then,  should  not  the  i)rosecutor  l)e  jHTmitted  to  show  facts  which  tend  so  natu- 
rally to  i)roduce  a  conviction  of  his  guilt '!  " 

Inasmuch,  however,  as  tlu'  settled  rule  of  law  of  Admissibility  prohibits  the 
use  of  this  class  of  evidence  for  an  accused's  character,  there  is  at  present  no 


No.  28.  III.       PROOF   OF   HUMAN   TRAIT.      A.    CHARACTER  93 

utility  in  seeking  for  its  principles  of  proof;  nor  is  there  adequate  material 
for  studying  them.  At  some  future  stage  of  the  law,  such  principles  may  be 
developed.  In  its  present  stage  we  are  confined  to  using  the  moral  trait 
itself  {post,  No.  84).  This  we  usually  arrive  at  by  reputation.  To  the 
extent  that  the  accused's  former  specific  misdeeds  become  disclosed  at  the 
trial,  our  inference  nominally  is  still  from  his  supposed  trait ;  though  actually 
it  may  be  a  hazy  double  inference  from  contluct  to  trait  and  from  trait  to 
act  in  issue. 

Moral  Character  of  Other  Persons.  The  above-named  exclusionary  rule 
of  law  applies  to  an  accused's  character  only.  What  of  other  persons' 
moral  character  ?  In  two  not  uncommon  classes  of  cases,  the  moral  trait 
may  be  evidentially  relevant  to  the  doing  of  an  act,  and  not  prohibited  by 
any  artificial  rule  ,  —  the  woman-complainant  in  rape,  and  the  civil  party 
charged  with  negligence.  Here  the  probative  force  would  naturally  be 
dependent  somewhat  on  the  circumstances  of  each  former  act,  the  number 
of  them,  and  the  similarity  of  them  to  the  trait  involved  in  the  case  in 
hand.  But  as  mere  Admissibility  has  almost  invariably  been  the  subject 
of  the  judicial  rulings,  practically  no  material  exists  for  studying  the  pro- 
bative value  of  such  evidence. 

The  same  is  true  of  conduct  evidence  when  the  moral  trait  is  in  issue 
under  the  pleadings.  Hence,  no  further  consideration  of  the  subject  is  here 
feasible. 


TITLE  III  (continued):  EVIDENCE   TO  mOVE  A  HUMAN 
TRAIT,   QUALITY,   OB   CONUITIOH 

SUBTITLE    B  :     EVIDENCE    TO    PROVE    MOTIVE 

29.   John  H.  WiGMORE.      Principles  oj  Judicial  Proof.      {I'dl'i. Y  Motive. 

The  term  "  motive"  is  commonly  used  in  a  confusing  way,  as  if  there  were 
l)ut  one  thing  anil  one  evidential  question  involved.  But  there  are  two 
things,  and  two  distinct  evidential  steps.  (1)  We  may  argue,  first,  that 
since  a  specific  emotion  or  passion  is  likely  to  lead  to  the  doing  of  the  ap- 
propriate act  —  for  example,  desire  for  money  to  theft  or  robbery,  or  angry 
hostility  to  an  act  of  \iolence  —  the  presence  of  such  an  emotion  in  the 
person  in  question  is  likely  to  lead  to  the  deed  in  question.  In  this  step  of 
the  argument  we  assume  the  emotion  as  a  fact,  proved  somehow  or  other. 
Just  as  a  specific  sort  of  disposition,  of  habit,  of  plan,  is  likely  to  lead  to 
the  appropriate  act,  so  a  specific  sort  of  emotion  or  passion  has  a  similar 
evidential  bearing.  The  basis  of  this  inference  is  the  living,  impelling, 
active  emotion,  seeking  for  an  outlet  in  volition.  (2)  But  this  emotion 
must  in  its  turn  be  proved,  —  just  as  character,  design,  capacity,  must  be 
proved.  This  is  the  next  step,  and  evidential  by  a  very  difli'erent  one.  Usually 
the  evidence  is  circumstantial ;  and  of  two  sorts,  (a)  conduct  of  the  per- 
son, and  {b)  events  about  him  tending  to  excite  the  emotion.  In  (a)  his 
conduct  is  the  expression  and  effect  of  the  existing  internal  emotion.  In 
(h)  the  outward  facts  are  such  as  may  be  the  stimulus  and  cause  of  the 
ertiotion.  But  whether  a  person's  conduct  or  outer  events  have  shown  the 
existence  of  the  emotion  is  a  different  question  from  the  questign  whether 
a  proved  emotion  did  actually  culminate  in  an  act  induced  by  it. 

The  unfortunate  ambiguity  in  the  word  "motive"  thus  reveals  itself. 
That  which  has  value  to  show  the  doing  or  not  doing  of  the  act  is  the  in- 
ward emotion,  passion,  feeling,  of  the  appro])riate  sort ;  but  that  which 
shows  the  prol)al)le  existence  of  tJiis  emotion  is  termed  — when  it  is' of  the 
sort  {b)  al)ove,  i.e.  some  outer  fact  —  the  "motive."  For  example,  the 
prosecution  of  .V  by  B  in  a  suit  at  law  may  be  said  to  have  been  a  "motive" 
for  A's  sul)sequent  burning  of  B's  house.  But  in  strictness  the  external 
fact  of  B's  suit  cannot  be  A's  "  motive"  ;  for  the  motive  is  a  state  of  mind 
of  A ;  the  external  fact  does  tend  to  show  the  excitement  of  the  hostile  and 
vindictive  emotion,  but  it  is  not  identical  with  that  emotion.  This  use  of 
the  word  "motive"  thus  tends  to  obscure  the  double  evidential  step  in- 
volved ;  for  when  it  is  said  that  B's  suit  may  be  offered  in  evidence  as  the 
"motive"  for  .\'s  burning,  we  are  apt  to  conceive  ourselves  as  inferring 
flirectly  from  the  suit  (as  the  evidentiary  fact)  to  the  burning  (as  the  propo- 
.sition  to  \>v  proved);    wlicii  in  triitli  there  are  two  steps  involved,  —  from 

'Adapted  from  tho  same  author's  Treatise  on  Evidence.     (1905.     Vol.  I,  §  117.) 

94 


No.  29.  III.       PROOF   OF    HUMAN    TR.VIT.       B.    MOTIVE  95 

the  lawsuit  to  the  emotion,  and  the  emotion  to  the  act.  It  ought,  there- 
fore, to  be  clearly  understood  that  the  "motive,"  in  the  correct  sense,  is 
the  emotion  supposed  to  have  led  to  the  act,  and  that  the  external  fact  is 
merely  the  possible  exciting  cause  of  this  "  motive,"  and  not  identical  with 
the  "motive"  itself. 

The  opportunities  for  erroneous  inference  being  therefore  of  a  double 
nature,  the  illustrative  cases  can  therefore  not  well  be  separated  ;  the  skill 
to  distinguish  the  precise  point  of  weakness  of  the  inference  can  best  be 
cultivated  by  studying  them  together.  Accordingly  they  are  all  placed 
post,  Title  IV,  Doing  of  a  Human  Act,  Subtitle  B,  Prospectant  Circum- 
stances, Topic  2,  Motive  (Nos.  101-115). 


TITLE  III  icontimied):  EVIDENCE   TO  PROVE  A  HUMAN 
TRAIT,   QUALITY,   OR   CONDITION 

SUBTITLE    C:     EVIDENCE    TO    PROVE    KNOWLEDGE,    BELIEF,     OR 

CONSCIOUSNESS 

30.   John  H.  AVigmore.      Principles  of  Judicial  Proof.      (1913.)^ 

General  Analijf<is  of  the  Subject.  The  notions  of  Knowledge,  Be- 
lief, and  Consciousness  are  not  precisely  identical ;  but  they  have  a  com- 
mon feature,  which  is  the  typical  one  so  far  as  concerns  the  modes  of  evi- 
dencing these  mental  states.  That  feature  is  most  nearly  expressed  by 
the  term  Consciousness,  i.e.  presence  in  the  mind  of  an  impression  as  to  a 
given  fact.  Thus,  a  person's  Knowledge  of  a  city's  streets  may  be  inferred 
from  his  conduct  in  finding  his  way  through  them  unerringly ;  his  Con- 
sciousness of  guilt  may  be  inferred  from  his  conduct  in  fleeing  from  arrest ; 
his  Belief  in  a  friend's  innocence  of  embezzlement  may  be  inferred  from  his 
conduct  in  trusting  him  with  money.  The  term  Belief  is  used  commonly 
when  the  impression  is  thought  of  as  bearing  on  a  past,  present,  or  future 
external  fact,  Consciousness  when  thought  of  as  bearing  on  past  action,  and 
Knowledge  when  thought  of  in  connection  with  a  present  or  past  external 
fact.  We  are  here  not  concerned,  in  theory  at  least,  with  the  way  in  which 
one  of  these  states  of  mind  has  come  to  be  an  object  of  proof,  either  as 
being  in  issue  or  as  being  itself  evidential  of  something  else.  It  is  assumed 
that  somehow  this  kind  of  state  of  mind  —  impression,  consciousness,  knowl- 
edge, belief  —  is  in  the  case,  either  as  material  to  the  issue  or  as  relevant 
to  prove  something  ;  and  the  (juestion  is  how  it  is  in  its  turn  to  be  evidenced. 

Of  the  three  modes  of  evidencing  a  state  of  mind  {ante),  the  first  two  are 
here  the  commonest.  {A)  External  circumstances,  calculated  by  their 
presence  or  occurrence  to  bring  about  the  state  of  mind  in  question,  are  also 
availa!)le  to  show  the  prol lability  that  consciousness,  knowledge,  or  belief 
subseciuently  ensued.  {B)  Conduct  or  behavior  (including  language  not 
used  assertively)  illustrates  and  points  back  to  the  state  of  mind  pro- 
ducing it.  (C)  A  prior  or  subsequent  state  of  mind  indicates,  within  cer- 
tain limits,  its  existence  at  the  time  in  question. 

{A)  External  Circumstance.i,  a.s  crideucing  Knowledqe,  Belief,  or  Con- 
sciousne.1.1.  There  are,  in  a  broad  analysis,  four  kinds  of  circumstances 
(events  or  things)  wiiieh  may  point  forward  to  the  probability  that  a  given 
person  received  a  given  impression  (i.e.  obtained  knowledge,  formed  a 
belief,  or  was  made  conscious) :  (1)  The  direct  exposure  of  the  fact  to  his 
sen.se  of  sight,  hearing,  or  the  like;  (2)  The  e.rpress  making  of  a  communi- 
cation to  him;  (3)  The  reputation  in  the  community  on  the  .subject,  as 
leading  probably  to  an  express  connnunication ;  (4)  The  quality  of  the  oc- 
currence, as  leading  either  to  actual  perception  by  his  senses,  or  to  express 

'  Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     Vol.  I,  §§  244,  265.) 

90 


No.  30.  III.       PROOF   OF   HUMAN   TRAIT.      C.    KNOWLEDGE,    ETC.  97 

communication.  Throughout  all  these  four  modes  there  run  two  considera- 
tions, affecting  some  modes  more  strongly  than  others  :  (a)  The  probability 
that  the  person  received  an  impression  of  any  fact  at  all ;  and  (b)  The 
probability  that  from  tlie  particular  occurrence  he  would  gain  an  impression 
as  to  the  specific  fact  in  question.  Doubt  may  arise  upon  either  of  these 
points,  and  the  various  modes  above  are  stronger  or  weaker  in  one  or  the 
other  of  these  considerations.  The  four  modes  may  now  be  examined  more 
in  detail. 

(1)  Direct  exposure  of  the  fact  to  the  senses.  Here  there  is  seldom  any 
doubt  as  to  the  element  (6)  above  ;  the  question  usually  is  whether  the  fact 
in  question  was  brought  within  the  range  of  the  senses  so  as  probably  to  be 
perceived  at  all.  The  typical  case  is  the  possession  of  a  document.  If  a 
deed  or  a  notice  was  laid  on  A's  desk,  the  probability  (greater  or  less  accord- 
ing to  circumstances)  is  that  A  read  it.  But  actual  possession  by  A  is  not 
necessary ;  the  posting  of  a  placard  in  a  street  through  which  A  habitually 
passes  is  some  evidence  that  A  ultimately  came  to  see  and  understand  its 
contents.  Occasionally  the  element  (6)  above  is  the  emphatic  one ;  for 
example,  where  A  is  charged  with  selling  liquor  to  B,  a  minor,  the  appear- 
ance of  B,  as  indicating  A's  knowledge  of  B's  minority  or  his  belief  in  B's 
maturity,  was  the  fact  brought  before  A,  and  the  question  is  whether  it 
would  probably  have  informed  him  as  to  the  further  specific  fact,  namely, 
B's  age. 

(2)  Express  communication.  Little  difficulty  can  arise  here.  There  may 
be  a  question  as  to  whether  the  communication  came  from  a  source  which 
the  person  was  fairly  bound  to  consider  authentic ;  but  this  would  be  a 
question  of  substantive  law,  involving  the  elements  of  good  faith,  construc- 
tive notice,  or  the  like. 

(3)  Reputation.  Here  the  element  (a)  is  the  important  one.  The  pro- 
bative considerations  are  that,  when  a  matter  is  so  much  talked  of  in  a 
community  that  a  reputation  arises  about  it,  a  member  of  that  community, 
in  his  ordinary  intercourse  with  others,  will  come  to  hear  it  mentioned,  i.e. 
by  express  communication ;  and  the  question  is  whether  the  probability  is 
that  there  would  be  such  a  general  discussion  and  whether  the  person  is 
likel}'  to  have  learned  of  that  discussion. 

(4)  Quality  of  the  occurrence,  in  general.  Sundry  cases  here  combine  the 
considerations  of  all  the  preceding  modes,  as  well  as  of  both  the  elements 
(o)  and  {h)  above.  Thus,  a  former  accident  to  apparatus  owned  by  A  may 
indicate  that  A  learned  of  the  defect  in  the  apparatus,  either  because  he 
probably  observed  the  former  accident  or  because  he  probably  was  told  of 
it  by  his  subordinate  having  charge  of  the  apparatus,  or  because  complaint 
was  probably  made  to  him  ;  and  not  only  is  the  probability  {a)  of  his  hav- 
ing learned  of  the  former  accident  thus  involved,  but  also  the  prol)ability 
{h)  that  the  former  accident  would  have  revealed  to  him  specifically  the  ex- 
istence of  the  defect.  So,  also,  a  former  act  of  violence  by  the  deceased, 
in  order  to  have  any  value  to  show  the  slayer's  ground  for  apprehension 
of  an  attack,  must  (a)  not  only  have  been  communicated  to  the  slayer, 
(6)  but  also  must  be  such  as  would  create  a  belief  in  the  deceased's  probable 
aggression. 

Such  being  the  various  modes  in  which  the  evidence  may  operate,  never- 
theless in  a  given  situation  (as  where  an  employer  is  to  be  charged  with 


98  PART    I.      CIRCUMSTANTIAL    EVIDENCE  No.  30. 

knowledge  of  an  employee's  incompetency,  or  a  defendant  accused  of  mur- 
der is  to  show  belief  in  the  deceased's  probable  aggression)  the  knowledge, 
belief,  or  consciousness  may  be  sought  to  be  evidenced  by  more  than  one 
of  the  above  modes. 

(B)  Conduct,  as  Evidence  of  Knowledge,  Belief,  or  Consciousness.  In 
this  sort  of  e\idence,  we  argue  from  an  observed  effect  —  conduct  —  to 
the  probai)le  cause  —  a  specific  mental  state ;  and  not,  as  in  the  preceding 
sort,  from  cause  to  effect,  i.e.  from  outward  events  to  an  ensuing  mental 
state.  Conduct  and  word  utterances  may  betray  the  knowledge  or  belief 
of  the  actor  or  speaker,  in  so  far  as  the  specific  act  or  utterance  is  of  a 
tenor  which  cannot  well  be  supposed  to  have  been  willed  without  the  inner 
existence  of  that  knowledge  or  belief.  For  example,  A's  act  of  boarding  a 
railroad  train  is  some  evidence  of  his  belief  as  to  the  destination  of  the 
train ;  B's  act  of  taking  a  purse,  found  by  him  in  the  street,  to  the  house 
of  X,  is  some  evidence  that  he  knows  or  believes  X  to  be  the  loser  of  the 
purse.  So,  also,  for  the  verbal  utterance  ;  A's  mention  of  Charles  the  Great 
or  Roentgen  rays  or  the  Klondike  is  some  evidence  that  he  knows  or  is 
aware  of  the  existence  of  such  a  person,  thing,  or  place.  Ordinary  experi- 
ence usually  suffices,  without  controversy,  to  tell  us  whether  the  inference 
is  a  strong  one. 

§  267.  Same:  Conduct  as  Eridencr  of  Belief,  and  thus  of  the  Fact  Believed. 
In  the  foregoing  cases  the  knowledge  or  belief — i.e.  the  mental  condition 

—  to  be  evidenced  was  of  itself  material  to  the  issue  as  a  factum  prohandum, 

—  e.g.  whether  an  insured  knew  of  his  illness,  or  whether  the  public  were 
made  to  believe  in  a  certain  defamatory  meaning.  There  is,  however,  a 
large  class  of  cases  where  the  belief  or  knowledge  or  consciousness  is  of 
service  only  evidentially,  as  forming  a  second  step  of  inference  to  some 
other  fact  which  forms  the  ultimate  object  of  the  trial,  —  usually  an  act 
done  by  the  person.  For  example,  on  an  issue  of  the  existence  of  a  lost 
will,  suppose  the  fact  to  be  offered  that  the  deceased  on  his  death  bed 
told  his  daughter,  "My  will  was  made  in  town  yesterday"  ;  or,  on  an  issue 
of  legitimacy,  suppose  the  fact  to  be  offered  that  the  parents  always  treated 
the  child  as  their  own.  In  these  instances  suppose  it  to  be  argued  that  the 
deceased's  utterance  indicates  circumstantially  his  belief  in  the  will's  exe- 
cution, and  that  his  belief  in  turn  indicates  the  fact  of  the  will's  execution  ; 
or  that  the  parents'  conduct  leads  to  the  inference  that  they  believed  the 
child  to  have  l)een  born  to  them  after  marriage,  and  that  this  belief  evi- 
dences the  fact  of  such  birth.  Such  a  double  circumstantial  inference  is  in 
theory  perfectly  possiljle  and  proper.  But  in  practice  it  opens  up  two 
possil)ilities  of  error,  one  for  each  of  the  two  inferences.  Hence  it  can  best 
be  considered  in  dealing  with  the  second  inference,  i.e.  Mental  Traces  of 
an  Act  (post,  Xo.  147). 


31.  EUGENE  ARAM'S  CASE.  (W.  Wills.  Circumstantial  Evi- 
dence.     (Amer.  ed.  190').     p.  104.) 

In  the  memorable  case  of  Eugene  in   the    conduct   of    his   accomplice 

Aram  [j)0.it,So.  05|,  who  was  tried  in  led  to  his  conviction  and  execution. 

1759  for  the  murder  of  Daniel  Clark,  AI)out  thirteen  years  after  the  time 

an   apparently    slight   circumstance  of  Clark's  being  missing,  a  laborer, 


No.  33. 


III.       PROOF   OF   HUMAN    TRAIT.      C.    KNOWLEDGE,    ETC. 


99 


employed  in  digging  for  stone  to 
supply  a  limekiln  near  Knaresbor- 
ough,  discovered  a  human  skeleton 
near  the  edge  of  the  cliff.  It  soon 
became  suspected  that  the  body  was 
that  of  Clark,  and  the  coroner  held 
an  inquest.  Aram  and  Houseman 
were  the  persons  who  had  last  been 
seen  with  Clark,  on  the  night  before 
he  was  missing.  The  latter  was 
summoned  to  attend  the  inquest, 
and  discovered  signs  of  uneasiness : 
at  the  request  of  the  coroner  he 
took  up  one  of  the  bones,  and  in  his 
confusion  dropped  this  unguarded 
expression,  "This  is  no  more  Daniel 
Clark's  bone  than  it  is  mine"  ;  from 
which  it  was  concluded,  that  if  he 
was  so  certain  that  the  bones  before 


him  were  not  those  of  Clark,  he 
could  give  some  account  of  him.  He 
was  pressed  with  this  observation, 
and,  after  various  evasive  accounts, 
he  stated  that  he  had  seen  Aram 
kill  Clark,  and  that  the  body  was 
buried  in  St.  Robert's  Cave,  with 
the  head  to  the  right  in  the  turn 
at  the  entrance  of  the  cave,  and 
upon  search,  pursuant  to  his  state- 
ment, the  skeleton  of  Clark  was 
found  in  St.  Robert's  Cave,  buried 
precisely  as  he  had  described  it. 
Aram  was  consequently  appre- 
hended and  tried  at  York  in  1759, 
Houseman  being  the  sole  witness 
against  him.  He  was  convicted 
and  executed. 


32.    THE  PERREAUS'  CASE.     [Printed  post,  as  No.  361. 


33.    iorrf  CAance//or  MACCLESFIELD'S  CASE.      (1725.     Howell's 


State  Trials.      XVI,  870). 

[The  Chancellor  was  impeached 
on  the  charge  of  having  exacted 
money  as  the  price  of  appointments 
to  masterships  in  chancery  and 
other  offices.  Whether  the  Chan- 
cellor was  privy  to  the  dealings  and 
bargains  had  by  some  of  these  ap- 
pointees beforehand  with  the  Chan- 
cellor's secretary,  Mr.  Cottingham, 
and  others,  was  a  part  of  the  issue.] 

Mr.  FJde  called. 

Mr.  Luticyche.  —  My  lords,  we 
desire  that  Mr.  Elde  be  sworn. 
(Sworn  accordingly.) 

Mr.  Lutwyche.  —  My  lords,  we 
desire  ]Mr.  Elde  may  be  asked  when 
it  was  he  was  admitted  a  Master 
in  Chancery  ? 

Elde.  —  My  lords,  I  was  admitted 
the  first  day  of  February  last  was 
twelvemonth. 

Mr.  Lutwyche.  —  We  desire  he 
may  be  asked,  whether  he  applied 
in  person  to  my  lord  Macclesfield 
to  be  admitted  into  this  office,  and 
whether  it  was  upon  death  or  resig- 
nation ? 

FJde.  —  Upon  the  death  of  Mr. 
William  Fellowes  some  of  my  friends 
came  to  me,  and  put  it  into  my  head 


that  this  office  might  be  a  proper 
office  for  me,  and  I  took  some  time 
to  consider  of  it.  I  had  some  en- 
couragement at  the  bar,  and  was 
very  unwilling  to  quit  it,  but  after 
two  days'  consideration  I  went  to 
my  lord  himself ;  I  told  his  lordship 
an  office  was  fallen  by  the  death  of 
Mr.  Fellowes  ;  if  his  lordship  thought 
me  a  proper  person ;  and  I  should 
be  glad  to  have  it.  I  was  come  to 
wait  upon  him  about  it.  His  lord- 
ship said,  he  had  no  manner  of  ob- 
jection to  me,  he  had  known  me  a 
considerable  time,  and  he  believed 
I  should  make  a  good  officer. 

Mr.  Lutwyche.  —  What  further 
discourse  was  there  ? 

Elde.  —  My  lord  at  that  time 
desired  me  further  to  consider  of  it, 
and  come  to  him  again  :  and  so  I 
did.  I  went  back  from  his  lord- 
ship, and  I  came  again  in  a  day  or 
two,  I  believe  it  was  the  second 
after  I  came  back  from  his  lordship, 
and  told  him  I  had  considered  of  it, 
and  desired  to  know  if  his  lordship 
thought  fit  to  admit  me ;  and  I 
would  make  him  a  present  of  4  or 
5000  /.     I  cannot  say  which  of  the 


100 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  33. 


two  I  said,  hut  I  believe  it  was 
5000  /. 

Mr.  Liifu'i/rhc.  —  Wliat  answer 
tlid  my  lord  return,  when  you  made 
him   that   proposal  ? 

Elde. —  My  lord  said,  Thee  and 
I,  or  you  and  I,  my  lord  was  pleased 
to  treat  me  as  a  friend,  nuist  not 
make  barjjains. 

Mr.  Luiwi/clw.  —  My  lords,  we 
desire  he  may  he  asked,  whether 
my  lord  Macclesfield  said  in  what 
manner  he  would  treat  with  him, 
whether  in  a  more  beneficial  manner 
than  anybody  else  ? 

Elde. — My  lord  Macclesfield  did 
say,  that  if  I  was  desirous  of  having 
the  office,  he  would  treat  with  me 
in  a  different  manner  than  he  would 
with  any  man  living;  those  were 
the  words  my  lord  used,  to  the  best 
of  my  remembrance. 

Serj.  Pengclh/.  —  After  this  an- 
swer of  my  lord  Macclesfield,  that 
they  must  not  make  bargains,  what 
further   application   did    he   make  ^ 

Elde.  —  I  made  no  further  appli- 
cation at  all,  but  spoke  to  Mr. 
Cottingham,  meeting  him  in  West- 
minster-hall and  told  him  I  had 
been  at  my  lord's,  and  my  lord  was 
pleased  to  speak  very  kindly  to  me, 
and  I  had  proposed  to  give  him 
5000  /.  Mr.  Cottingham  answered, 
Guineas  are  handsomer. 

Mr.  Luticyche. — We  desire  to 
know  what  he  paid,  and  in  what 
manner,    and    in    what   specie  ? 

Elde.  —  My  lords,  I  paid  my  lord 
—  I  cannot  say  I  pai(l  it  him,  but 
I  paid  5f)()()  guineas. 

Mr.  Lufiri/rlif.  —  In  what  man- 
ner ?     Who  did  you   pay   it   to  ? 

Serj.  Prngrlli/.  —  After  this 
agreement  with  Mr.  Nottingham  to 
make  it  guineas,  as  being  handsomer  : 
we  desire  he  may  inform  your  lord- 
ships what  he  did  pursuant  to  this, 
and   what   he  carried    with   him  ? 

Elde. —  Upon  this,  I  immediately 
went  to  my  lord's;  I  was  willing 
to  get  into  the  office  as  soon  as  I 
could.  I  did  carry  with  me  5000 
guineas  in  gold  and  Ijank  notes : 
I  am  not  certain  whether  there  was 


;iOO[)  guineas  in  gold,  or  2000,  but 
1  think  there  was  three,  and  the 
residue  of  the  money  was  in  Bank 
notes.  This  I  brought  to  my  lord's 
house. 

Serj.  Pengclly.  —  My  lords,  we 
desire  he  may  be  asked,  what  they 
were  put  into,  or  in  what  they  were 
carried  ? 

Elde.  —  I  had  the  money  in  my 
chambers.  I  could  not  tell  how  to 
convey  it:  it  was  a  great  burthen 
and  weight ;  but  recollecting  I  had 
a  basket  in  my  chamber,  I  put  the 
guineas  into  the  basket,  and  the 
notes  with  them ;  I  went  in  a  chair 
and  took  with  me  the  basket  in  my 
chair.  When  I  came  to  my  lord's 
house  I  saw  Mr.  Cottingham  there, 
and  I  gave  him  the  basket,  and  de- 
sired him  to  carry  it  up  to  my  lord. 

Serj.  Pengclly.  —  What  answer 
did  he  return  ? 

Elde.  —  I  saw  him  go  upstairs 
with  the  basket,  and  when  he  came 
down  he  intimated  to  me  that  he 
had  delivered  it. 

Mr.  Lutivyt  he.  —  My  lords,  we 
desire  he  may  be  asked,  whether 
he  accpiainted  Mr.  Cottingham  with 
what   was  in   the  basket  ? 

Elde.  —  I  did  not. 

Serj.  Pengelly.  —  After  Mr.  Cot- 
tingham came  and  acquainted  you 
he  had  delivered  the  basket,  how 
long  after  that  was  it  before  you  saw 
my  lord  ? 

Elde.  —  I  did  not  see  my  lord 
after  that  till  I  was  sworn  in. 

Serj.  Pengelly.  —  How  long  was 
that  after  ? 

Elde.  —  I  cannot  be  positive ;  but 
it  was  within  a  day,  either  the  same 
day,  or  if  not,  it  was  the  next  day 
after. 

Serj.  Pengelly.  —  I  desire  he 
may  be  asked,  when  Mr.  Cotting- 
ham returned  downstairs,  after 
the  delivery  of  the  basket,  what  he 
said  to  him  about  the  time  of  his 
being  admitted  ? 

Elde.  —  I  do  not  remember  he 
said  anything  to  me  about  my  being 
admitted  :    I  took  that  for  granted. 

Serj.    Pengelly.  —  And    when  he 


III.       PROOF   OF   HUMAN    TRAIT.      C.    KNOWLEDGE,    ETC. 


101 


was  admitted,  whether  he  was  ad- 
mitted in  the  closet,  or  in  what 
room  ? 

Elde.  —  When  I  was  to  be  ad- 
mitted, my  lord  invited  me  to  dinner, 
and  some  of  my  friends  with  me ; 
and  he  was  pleased  to  treat  me,  and 
some  members  of  the  House  of  Com- 
mons, in  a  very  handsome  manner : 
I  was  after  dinner  sworn  in  before 
them. 

Serj.  PcngcUy.  —  I  desire  to  ask, 
whether  he  had  the  basket  again  ? 

Elde.  —  Some  months  after  I 
spoke  to  my  lord's  gentleman, 
and  desired  him,  if  he  saw  such  a 
basket,  that  he  would  give  it  me 
back ;  and  some  time  after  he  did 
so. 

Serj.  PcngcUi/.  —  Was  any 
money  returned  in  it  ? 

Elde. — No,  my  lords,  there  was 
not.  .  .  . 

Sir  William  Strickland.  —  I  de- 
sire to  know  what  Mr.  Cottingham 
did  say,  after  he  had  carried  up  the 
basket  and  came  down  again  ? 

Elde.  —  To  the  best  of  my  remem- 
brance, he  said  nothing  to  me,  but 
(as  I  repeated  before)  he  intimated 
to  me  that  he  had  delivered  it  to 
my  lord  Macclesfield.  I  cannot  say 
as  to  any  particular  discourse ;  but 
I  understood  that  he  had  delivered 
it.  .  .  . 

(Mr.  Cottingham  called  again.) 

Serj.  Pcngelly.  —  My  lords,  we 
left  the  basket  in  the  hands  of  Mr. 


Cottingham ;  therefore  it  is  neces- 
sary that  Mr.  Cottingham  inform 
your  lordships  what  became  of  it 
afterwards ;  what  he  did  with  the 
basket  after  he  had  it  from  Mr. 
Elde  ? 

Cottingham.  —  My  lords,  I  car- 
ried it  up  to  my  lord,  and  set  it 
down   in   his   study. 

Serj.  Pcngelly. — -What  did  you 
say  to  my  lord  ? 

Cottingham.  —  Nothing.  Mr. 

Elde  ordered  me  to  carry  up  the 
basket ;  I  carried  it  up,  and  there 
I  set  it  down :  I  never  saw  it  after- 
wards. 

Serj.  Pengelly.  - —  Whether  do 
you  remember  what  answer  my  lord 
Macclesfield  made  at  that  time  ? 

Cottingham.  —  None  that  I  re- 
member. 

Serj.  Pengelly.  —  Whether  did 
he  open  the  basket  ? 

Cottingham  —  No  ;  the  basket 
was  covered  up,  and  I  set  it  down  in 
my  lord's  closet. 

Serj.  Pengelly.- — Whether,  after 
that  time,  he  appointed  any  time  for 
Mr.   Elde  to  be  admitted? 

Cottingham. — I  think  he  was 
admitted  that  very  same  day. 

Serj.  Pengelly.  —  I  desire  this 
witness  may  be  asked,  whether  he 
recei^•ed  anything  from  Mr.  Elde, 
besides  what  was  in  the  basket  ? 

Cottingham.  —  Not  a  farthing, 
except  my  fees  :  nor  no  more  of  any 
of  the  Masters  than  mv  usual  fees. 


34.    MARY    BLANDY'S    CASE. 
XVIII,  1148.) 

[The  accused's  father  had  refused 
to  let  Captain  Cranstoun  pay  court 
to  the  accused,  his  daughter  Mary. 
The  Captain  was  an  adventurer, - 
and  turned  out  later  to  have  had  a 
wife  already.  Nevertheless,  Mary 
Blandy  was  in  love  with  him,  and 
corresponded  clandestinely.  The 
father  was  taken  ill,  and  died  of 
arsenic  poisoning.  Some  said  that 
the  daughter  had  threatened  his 
life,  and  poisoned  him  to  obtain  the 
estate   and   marry  Captain   Crans- 


(1752.      Howell's    State    Trials. 

toun.  The  daughter  herself  ad- 
mitted putting  a  white  powder  into 
his  tea  and  gruel,  but  insisted  that 
the  powder  had  been  sent  to  her  by 
Captain  Cranstoun  as  a  love  powder 
to  change  her  father's  mind.  A 
domestic  testifies.]  .  .  . 

What  conversation  passed  be- 
tween Miss  Blandy  and  her  father 
[when  he  became  ill]  ?  —  She  fell 
down  on  her  knees,  and  said  to  him, 
"  Banish  me,  or  send  me  to  any  re- 
mote part  of  the  world ;    do  what 


102 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  34. 


you  please,  so  you  forgive  me ;  and 
as  to  Mr.  Cranstoun,  I  will  never 
see  him,  speak  to  him,  nor  write  to 
him  more  so  long  as  I  live,  so  you 
will   forgive   me." 

Wliat  answer  did  lie  make  ?  He 
said,  "  I  forgive  thee,  my  dear,  and 
I  hope  God  will  forgive  thee ;  but 
thee  shouldst  have  considered  better, 
than  to  have  attempted  anything 
against  thy  father;  thee  shouldst 
have  considered,  I  was  thy  own 
father." 

What  said  she  to  this?  —  She 
answered,  "  Sir,  as  for  your  illness, 
I  am  entirely  innocent."  I  said, 
"Madam,  I  believe  you  must  not 
say  you  are  entirely  innocent,  for 
the  powder  that  was  taken  out  of  the 
water-gruel,  and  the  paper  of  pow- 
der that  was  taken  out  of  the  fire 
are  now  in  such  hands,  that  they 
must  be  publicly  produced."  I 
told  her,  I  believed  I  had  one  dose, 
prepared  for  my  master  in  a  dish 
of  tea,  about  six  weeks  ago. 

Did  you  tell  her  this  before  her 
father  'f  —  I  did. 

What  answer  did  she  make  ?  — 
She  said,  "  I  have  put  no  powder 
into  tea  ;  I  have  put  powder  into 
water-gruel,  and  if  you  are  injured, 
I  am  entirely  innocent,  for  it  was 
given  me  with  another  intent."   .   .   . 

Did  he  treat  her,  as  if  she  herself 
was  innocent  ?  —  He  did,  Sir. 

Then  all  he  said  afterwards  was 
as  thinking  his  daughter  very  inno- 
cent ?  —  It    was.    Sir. 

As  to  the  ruin  of  his  daughter, 
did  he  think  it  was  entirely  owing  to 
Cranstoun?  —  Mr.  Blandy  said,  he 
believed  his  daughter  entiri'ly  in- 
nocent of  what  had  happent'd.    .    .   . 

Do  you  imagine,  from  the  whole 
conversation  that  passed  between 
her  father,  and  her,  that  she  was 
entirely  innocent  of  the  fact,  of  the 
powder  being  given? — I  do  not 
think  so;   she  said  she  was  innocent. 

What  was  your  opinion,  did  the 
father  think  her  wholly  unac- 
(|uaintcd  with  the  effect  of  the 
powder? —  I  i)elieve  he  thought  so; 
that  is  as  much  as  I  can  say.  .   .  . 


King's  Counsel.  —  What  did  he 
mean  when  he  said,  "Poor  unfor- 
tunate girl !  That  ever  she  should 
be  imposed  upon,  and  led  away  by 
such  a  villain,  to  do  such  a  thing  !" 
What  do  you  suppose  he  meant  by 
such  a  thing  ? 

Gunncll. —  By  giving  him  that 
which  she  did  not  know  what  it  was. 
.  .  .  Here  Dr.  Addington  is  ap- 
pealed to  by  the  Counsel  for  the 
Prisoner.  .  .  . 

Prisoner's  Counsel.  —  Did  not  Miss 
Blandy  declare  to  you,  that  she 
had  always  thought  the  powder  in- 
nocent ?  —  Yes. 

Did  she  not  always  declare  the 
same  ?  —  Yes. 

The  King's  Counsel  then  inter- 
posed, and  said,  that  he  had  not 
intended  to  mention  what  had 
passed  in  discourse  between  the 
prisoner  and  Dr.  Addington ;  but 
that  now,  as  her  own  counsel  had 
been  pleased  to  call  for  part  of  it, 
he  desired  the  whole  might  be  laid 
before  the  Court. 

Dr.  Addington.  —  On  Monday 
night,  August  12th,  after  Miss 
Blandy  had  been  secured,  and  her 
papers,  keys,  etc.,  taken  from  her, 
she  threw  herself  on  the  bed  and 
groaned  .  .  .  saying  that  she  had 
mixed  a  powder  with  the  gruel, 
which  her  father  had  drank  on  the 
foregoing  Monday  and  Tuesday 
nights ;  that  she  was  the  cause  of 
his  death,  anfl  that  she  desired  life 
for  no  end,  but  to  go  through  a 
painful  penance  for  her  sin.  She 
protested  at  the  same  time,  that 
she  had  never  mixed  the  powder 
with  anything  else  that  he  had  swal- 
lowed ;  and  that  she  did  not  know 
it  to  be  poison,  till  she  had  seen  its 
effects.  She  said,  that  she  had 
received  the  powder  from  IVIr.  Cran- 
stoun, with  a  present  of  Scotch 
pebbles  ;  that  he  wrote  on  the  paper 
that  held  it,  "The  powder  to  clean 
the  pebbles  with";  that  he  had 
assured  her  it  was  harmless ;  that 
he  had  often  taken  it  himself ;  that 
if  she  would  give  her  father  some  of 
it  now  and  then,  a  little  and  a  little 


III.       PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC. 


103 


lit  a  time,  in  any  liquid,  it  would 
make  him  kind  to  him  and  her.  .  .  . 

King's  Counsel.  —  Was  anything 
more  said  by  the  prisoner  and  you  ? 

Dr.  A.  —  I  asked  her,  whether  she 
had  been  so  weak  as  to  l)elieve  the 
powder  that  she  had  put  into  her 
father's  tea  and  f;ruel  to  be  so  harm- 
less as  Mr.  Cranstoun  had  repre- 
sented it  ?  Why  Mr.  Cranstoun 
had  called  it  a  powder  to  clean 
pebbles,  if  it  was  intended  only  to 
make  Mr.  Blandy  kind  ?  Why  she 
had  not  tried  it  on  herself  before  she 
ventured  to  try  it  on  her  father  ? 
Why  she  had  flung  it  into  the  fire  ? 
Why,  if  she  had  really  thought  it 
innocent,  she  had  been  fearful  of  a 
discovery,  when  part  of  it  swam  on 
top  of  the  tea  ?  Why,  when  she 
had  found  it  hurtful  to  her  father, 
she  had  neglected,  so  many  days,  to 
call  proper  assistance  to  him  ?  And 
why,  when  I  was  called  at  last,  she 
had  endeavored  to  keep  me  in  the 
dark,  and  hide  the  true  cause  of 
his  illness  ? 

What  answers  did  she  make  to 
these  questions  ?  —  I  cannot  justly 
say ;  but  very  well  remember,  that 
they  were  not  such  as  gave  me  any 
satisfaction. 

Prisoner's  Counsel.  —  She  said 
then,  that  she  was  entirely  ignorant 
of  the  effects  of  the  powder. 

Dr.  Addington.  —  She  said,  that 
she  did  not  know  it  to  be  poison, 
till  she  had  seen  its  effects.   .  .  . 

Mr.  Baron  Legge.  [Summing 
up  the  evidence  for  the  jury].  —  Gen- 
tlemen of  the  jury :  Mary  Blandy, 
the  prisoner  at  the  bar,  stands  in- 
dicted before  you  for  the  murder  of 
Francis  Blandy,  her  late  father,  by 
mixing  poison  in  tea  and  water- 
gruel,  which  she  had  prepared  for 
him.  To  which  she  has  pleaded, 
that  she  is  Not  Guilty.  .  .  .  Thus 
far  is  undeniably  true  and  agreed  on 
all  sides,  that  Mr.  Blandy  died  by 
poison  ;  and  that  that  poison  was 
administered  to  him  by  his  daughter, 
the  prisoner  at  the  bar.  Wliat  you 
are  to  try,  is  reduced  to  this  single 
question.  Whether  the  prisoner,  at 


the  time  she  gave  it  to  her  father, 
knew  that  it  was  poison,  and  what 
effect  it  would  have  ?  '  If  you  be- 
lieve that  she  knew  it  to  be  poison, 
the  other  part,  viz.  that  she  knew 
the  effect,  is  consequential,  and  you 
must  find  her  guilty.  On  the  other 
hand,  if  you  are  satisfied,  from  her 
general  character,  from  what  has 
been  said  by  the  evidence  on  her 
part,  and  from  what  she  has  said 
herself,  that  she  did  not  know  it  to 
be  poison,  nor  had  any  malicious 
intention  against  her  father,  you 
ought  to  acquit  her.  But  if  you 
think  she  knowingly  gave  poison  to 
her  father,  you  can  do  no  other  than 
find  her  guilty. 

The  jury  consulted  together  about 
five  minutes,  and  then  turned  to  the 
Court. 

CI.  of  Arr.  —  Gentlemen,  are  you 
all    agreed    on    your   verdict  ? 

Jury.  —  Yes. 

CI.  of  Arr.  —  Who  shall  say  for 
you? 

Jury.  —  Our  foreman. 

CI.  of  Arr.  —  Mary  Blandy,  hold 
up  thy  hand  (Which  she  did). 
Gentlemen  of  the  jury,  look  upon 
the  prisoner  :  How  say  you,  is  Mary 
Blandy  guilty  of  the  felony  and  mur- 
der whereof  she  stands  indicted,  or 
Not  Guilty? 

Jury.  —  Guilty.  .  .  . 

On  Monday,  April  6th,  1752,  the 
day  destined  for  her  execution,  .  .  . 
about  nine  o'clock  she  came  out  of 
her  bedchamber,  and  was  attended 
by  the  minister  to  the  place  of  execu- 
tion. .  .  .  She  then  addressed  her- 
self to  them,  with  a  clear  and  audible 
voice,   in  the  following  terms : 

"Good  people,  give  me  leave  to 
declare  to  you,  that  I  am  perfectly 
innocent,  as  to  any  intention  to 
destroy,  or  even  hurt  my  dear 
father ;  that  I  did  not  know,  or 
even  suspect,  that  there  was  any 
poisonous  quality  in  the  fatal  pow- 
der I  gave  him  ;  though  I  can  never 
be  too  much  punished  for  being 
even  the  innocent  cause  of  his 
death.".  .  . 


104 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  35. 


DOWNIE'S  CASE.     (1794.     Howell's  State    Trials. 


35.    DAVID 
XXIV,  89). 

[IiKlictment  for  treason  l)y  a  con- 
spiracy to  subvert  the  government 
by  force ;  one  of  the  issues  was 
whether  Downie  knew  anything  of 
the  pikes  prepared  by  order  of  the 
Committee  of  which  he  was  a  mem- 
ber.] .   .   .     Robert   Orrocic   sworn. 

Mr.  SoUcitor-Gcncrul.  —  You  hve 
at  the  Water  of  Leith  ?  —  At  Dean. 

Were  you  a  member  of  the  British 
Convention    tliat    met   hist   winter  ? 

—  Yes.  .  .  . 

Did  you  ever  hear  of  such  a  thing 
as   a  Committee  of   Union  ?  —  Yes. 

Who  composed  it  ?  —  I  do  not 
know. 

Do  vou  know  anv  of  them  at  all  ? 

—  YeJ.  ... 

Who  else?  — Mr.  Watts,  Mr. 
Downie,  Mr.  Stoke. 

Were  you  yourself  a  member  of 
that   committee  ?  —  Yes,   I   was. 

Where  did  the  committee  meet 
when  the  society  was  sent  to  ?  —  I  do 
not  know  whether  word  came  to, 
but  our  society  met,  and  delegated 
me  for  to  go. 

Where  was  that  ?  —  At  George 
Ross's. 

Were  you  e\er  present  at  more 
than  one  meeting  ?  —  I  was  present 
at  many  —  at  different  ones.  I 
was  not  present  every  night  there ; 
often  from  business  I  could  not  get 
to  attend. 

Were  you  there  when  there  was 
any  conversation  al)out  arming?  — 
Yes  I  was.  .  .  .  Some  one  there 
said  that  we  had  i)etter  apply  for 
arms,  and  it  was  said  again,  by  whom 
I  cannot  say,  there  need  no  appli- 
cation ;  for,  if  the  Friends  of  the 
People  applied  to  government,  they 
would  get  none.  It  was  then  said, 
I  believe  by  Mr.  Watt,  I  could  not, 
as  I  have  now  sworn,  say  he  was  the 
person,  that  there  was  no  law  in 
exi.stence  to  hinder  us  from  getting 
arms  for  the  defense  of  the  country  ; 
at  the  time  uj)r)n  which  I  was  saying 
this  conversation  passed,  I  said  I 
would  make  one.  .  .  . 


Tell  now  who  were  present.  Was 
Downie  present  at  this  meeting  of 
the  committee  ?  —  Yes,  Mr.  Downie, 
Mr.  M'Ewan,  Mr.  Bonthrone.  .  .  . 

You  accordingly  made  such  a 
weapon?  —  Yes,  I  did.  .  .  .  After 
I  had  made  it,  I  was  in  the  Com- 
mittee of  Union. 

Did  you  produce  the  two  weapons 
in  the  committee  or  the  other  room  ? 
—  In  the  other  room. 

Who  desired  you  to  come  there  ?  — 
A  lad  came  to  me,  I  am  sure  I  could 
not  recollect  his  name ;  I  produced 
them  in  the  other  committee,  not 
the  Committee  of  Union. 

What  do  you  call  the  Committee 
of  Union  ?  —  It  was  the  Sub-Com- 
mittee. There  was  Watt,  Downie, 
Bonthrone,  M'Ewan,  and  another 
man    I    did    not    know.   .   .   . 

You  were  desired  to  make  some 
more  ?  —  They  asked  me  what  would 
be  the  price. 

Who  asked  you?  — Mr.  Watt: 
after  that,  Mr.  Downie  said  not  a 
word,  he  spoke  no  more,  and  the 
conversation  was  carried  on  by 
Watt,  it  was  not  long,  it  was  a  few 
minutes.  Watt  said,  what  is  the 
price  of  them  ?  I  said,  I  cannot 
say ;  I  had  only  made  that  on  the 
stick,  and  this  part  of  it ;  I  had  not 
made  any  more  of  them,  I  desired 
to  go  out,  which  I  did,  and  I  went 
into  the  other  room,  and  he  told 
me,  says  he,  3'ou  will  make  a  few  of 
these.  .  .  . 

Was  Downie  with  you,  when  Mr. 
Watt  gave  you  orders  to  make  a 
few  ?     Yes,  says  he,  make  a  few.  .  .  . 

Court.  —  Were  you  paid  by  any- 
body ? —  I  was  paid,  not  then:  I 
suspected  Watt  to  be  my  pay- 
master, but  M'Ewan  came  to  me 
that  night,  and  said,  I  was  to  be 
paid  by  Mr.  Downie,  and  he  was  to 
pay  me  the  whole  I  had  the  com- 
mission for,  which  was  5  dozen ;  he 
l)rought  me  that  word. 

Did  you  ever  go  to  Downie's  in 
consequence  of    that  order?  —  No. 


No.  35. 


III.       PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC. 


105 


You  made  those  pikes  in  conse- 
quence of  that  order  ?  —  The  only 
order,  when  Downie  was  present, 
was  only  to  make  a  few. 

Court.  —  You  say  now  to  make 
two  or  three  dozen.  Robert  Or- 
rock,  I  beg  you  will  pay  attention, 
for  you  said  "only  a  few." 

Did  you  ever  go  to  Mr.  Downie  ? 

—  No. 

Did  you  ever  deliver  any  to  Mr. 
Watt  ?  —  No  more  than  the  two  to 
the  committee.  .  .  . 

William  Brown  sworn. 

Mr.  Ansindhcr.  —  Mr.  Brown, 
had  you  ever  an  order  to  make 
any  of  these  things  ?  —  Yes. 

Did  you  ever  make  any  ?  —  Yes. 

How  many  did  you  make  ?  —  I 
made  14  of  that  kind,  and  one  like 
this. 

Show  which  ?  —  I  made  14  of  that 
kind,  and  one  of  that  (the  single 
spear  14,  the  other  the  halberd). 

Did  you  deliver  these  pikes  ? 
Yes,  I  took  them  to  Mr.  Watt  one 
afternoon ;  IVIr.  Watt,  when  I  took 
them  in,  told  me  he  was  sorry  he  had 
not  money  to  pa}^  me ;  I  told  him  I 
was  needing  the  money ;  he  seemed 
as  if  he  would  borrow  the  money  — 
he  said  Mr.  Downie  would  pay  me ; 
he  gave  me  a  line  to  Mr.  Downie  to 
pay  me.  .  .  . 

Was  there  no  other  order  ?  —  No 
order  what  it  was  for. 

Had  you  any  conversation  about 
it  with  Mr.  Downie  ?  —  I  am  not 
certain  but  Mr.  Downie  might  have 
asked  me  how  INIr.  Watt  was,  but 
there  was  no  altercation  between 
Mr.  Downie  and  me.  I  got  the 
money  upon  Mr.   Watt's  line. 

You  did  not  say  to  Downie  what 
it  was  for  ?  —  No,  he  never  asked 
me. 

Cross-exa  m  in  ation . 

Mr.  Clerk.  —  Did  Downie  ask  you 
what  the  money  was  for  ?  —  No, 
he  did  not. 

Mr.  Ansiruthcr.  —  Your  evi- 
dence is  this  —  Watt  gave  you  an 
order  upon  Downie,  and  Downie 
paid  vou  the  monev  ;  is  not  that  it  ? 

—  Yes. 


Downie  paid  you  the  money  ? 
Yes.  .  .  . 

Defense. 

Mr.  Cullen. —  Gentlemen  of  the 
Jury  ;  —  ...  With  regaril  to  the 
circumstance  of  making  these  arms, 
I  will  endeavor  to  state  to  you  the 
substance  of  the  evidence ;  and  I 
trust  I  shall  do  it  fairly.  The  first 
witness  is  William  Orrock,  a  smith, 
who  was  a  member  of  the  society 
of  the  Friends  of  the  People,  at  the 
Water  of  Leith,  and  one  of  their 
delegates  to  the  Committee  of 
Union.  He  gives  you  a  history  of 
these  pikes  from  the  beginning.  .  .  . 
Orrock  next  tells  you,  of  his  being 
one  day  sent  for  by  Watt  to  come 
and  speak  to  him  in  the  house  of 
Arthur  M'Ewan  at  the  Water  of 
Leith,  and  he  then  told  W^att  what 
kind  of  weapon  he  had  made.  Upon 
this.  Watt  said,  a  different  one 
would  be  better,  and  accordingly 
Orrock  made  one  agreeable  to  Watt's 
directions.  .  .  .  He  next  tells  you, 
that  after  he  had  left  the  room,  and 
before  he  quitted  the  house.  Watt 
came  to  him,  and  repeated  the  same 
directions,  and  that  Downie  was 
then  along  with  Watt ;  and  he 
farther  says,  that  afterwards  Watt 
came  to  him  at  his  own  house,  and 
desired  him  to  make  towards  three 
dozen  of  them.  The  next  witness 
was  William  Brown,  likewise  a 
smith ;  and  he  tells  you,  that,  by 
the  orders  of  Mr.  Watt,  he  made 
fourteen  pikes  of  one  kind,  and  one 
of  another  kind,  and  brought  them 
all  home  to  Watt.  Upon  asking 
payment,  Watt  said,  he  was  sorry 
he  had  not  money  then  to  give  him, 
but  the  witness  mentioning  that  he 
needed  money  at  the  time,  Watt  said, 
that  although  he  had  not  then  money 
himself,  he  would  get  it  from  another 
person,  and  accordingly  he  wrote, 
and  gave  him  an  order  upon  Downie, 
for  the  money,  which  was  1/.  2s.  M. 
This  order  did  not  in  the  least  men- 
tion what  the  money  was  for,  and 
when  Brown  went  to  Downie  and 
got  the  money,  he  tells  you,  that  he 
did  not  sav  a  single  word  to  Downie 


106 


PART    I.       CIRCUMSTAXTIAL   EVIDENXE 


No.  35. 


a.s  to  what  the  money  was  for,  nor 
(lid  Downie  ask  him.  It  was  an 
order  in  the  same  way,  as  if  Watt 
had  been  borrowing  the  money  from 
Downie.  .  .  .  Brown  tells  you, 
that  all  those  whieli  were  made  by 
him,  he  carried  home  to  Watt. 
Tiiose  again  made  by  Orrock,  were 
seized  while  they  were  still  in  ()r- 
roc'k's  own  pos.session.  The  slieritt"- 
otficers  tell  you,  that  although  they 
made  the  strictest  search,  yet  they 
could  find  no  such  thing  in  Downie's 
house.  .  .  .  Brown  tells  you,  that 
it  was  Mr.  Watt  alone  who  employed 
and  directed  him  to  make  those 
pikes,  and  that  no  other  person  ever 
spoke  to  him  on  the  subject  He 
nuule  them  for  Watt,  and  when  they 
were  made,  he  carried  them  home 
to  Watt.  Downie  was  not  present 
when  the  orfler  was  given,  nor  is 
there  the  least  reason  to  su])pose 
that  he  knew  anything  at  all  of  the 
matter.  As  to  the  circumstance  of 
Brown's  receiving  payment  from 
Downie,  you  have  heard  how  it 
happened.  Watt,  not  having  the 
money  when  Brown  pressed  for  it, 
gave  an  order  upon  Downie  for  it; 
but  that  order  did  not  express  what 
the  money  was  for ;  and  Brown  ex- 
pressly tells  you,  that  he  neither 
told  Downie  what  it  was  for,  nor 
did  Downie  ask  him.  In  short,  it 
was  nothing  more  than  the  trifling 
sum  of  1/.  2.V.  {)(l.  which  Downie 
advanced  for  Watt,  without  incjuir- 
ing  or  knowing  what  it  was  for  ;  and 
you  have  no  reason  to  sui)i)os(',  and 
still  less  any  right  to  conclude,  that 
Downie  knew  the  money  he  thus 
advanced    was    for    making    pikes. 


Anything  said  by  Brown,  therefore, 
does  not,  in  the  most  distant  degree, 
affect  Mr.  Downie.  ...  As  to  his 
afterwards  l)ringing  up  two  to 
George  Ross's,  and  showing  them 
there  one  e\ening  in  a  company 
where  Mr.  Downie  was  present,  you 
will  remark,  he  does  not  say  that 
he  had  been  desired  to  do  so,  nor 
that  he  had  any  sort  of  orders  for 
these  pikes,  either  from  the  Com- 
mittee of  Union,  or  from  the  Sub- 
Committee  of  Ways  and  IMeans. 
Indeed,  you  have  not  the  least  evi- 
tience,  that  either  of  those  com- 
mittees did  ever  authorize  any  such 
thing,  or  know  anything  about  the 
making  these  weapons ;  and  you 
have  not  only  no  evidence,  but  you 
have  not  even  the  shadow  oj  reason 
to  suppose,  that  ^Ir.  Downie  ever 
heard  of,  or  knew  anything  about 
the  i)ikes,  till  they  were  accidentally 
brought  in  the  way  I  have  mentioned, 
and  shown  to  the  company  in  which 
he  happened  to  be  at  Ross's.  .  .  . 
And  it  is  of  great  importance  for 
you  to  remark,  gentlemen,  that, 
excepting  upon  this  single  occasion 
at  George  Ross's,  there  is  not  so 
much  as  a  word  in  the  evidence, 
either  of  Orrock,  or  of  any  other 
witness,  which  can  tend  to  show  that 
Mr.  Downie  gave  any  orders,  had 
any  concern,  or  knew  anything 
whatever  regarding  those  pikes.  In 
short,  if  you  are  to  fix  any  guilt 
upon  him  as  to  this  business,  it 
must  be  founded  on  the  solitary 
testimony  of  this  Mr.  Orrock,  swear- 
ing to  casual  words  passing  at  a 
tavern  meeting,  where  Mr.  Downie 
happened  to  be  present. 


30.    LonI   COCHRANE'S    CASE. 
of  Police  and  Crime.      bS!)S.      \o\.  I, 

The  pro.secution  and  conviction  of 
Lord  Cochrane  in  IS! 4  may  well  be 
classe<l  under  this  head,  for  it  was 
distinctly  an  error  of  "la  haute 
police,"  of  the  (lovcrnmcnt,  which 
as  the  head  of  all  p(»lice,  authorizes 
the  pursuit  of  all  wrongdoing,  and 
sets    the    criminal    law    in    motion 


(Arthur  Griffiths.     Mysteries 
p.  223.)  .  .  . 

against  all  supposed  offenders.  It 
has  now  been  generally  accepted 
that  the  trial  and  prosecution  of 
Lord  Cochrane  (afterwards  the  Earl 
of  Dundonald)  was  a  gross  case  of 
judicial  error. 

He  was  charged  with  having  con- 
spired to  cause  a  rise  in  the  public 


No    36. 


III.       PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC. 


lo: 


Funds  by  disseminating  false  news. 
There  were,  no  (loul)t,  suspicious 
circumstances  connecting  him  with 
the  frauds  of  which  he  was  wrong- 
fully convicted,  hut  he  had  a  good 
answer  to  all.  His  conviction  and 
severe  sentence,   after  a  trial   that 

i  showed  the  l)itter  animosity  of  the 
judge  (Ellenborough)  against  a  po- 
litical foe,  caused  a  strong  revulsion 
of  feeling  in  the  public  mind,  and 
it  was  generally  believed  that  he 
had  not  had  fair  play.  The  law, 
indeed,  fell  upon  him  heavily.  He 
was  found  guilty,  and  sentenced  to 
pay  a  fine  of  £500,  to  stand  in  the 
pillory,  and  to  be  imprisoned  for 
twelve  months.  These  penalties  in- 
volved the  forfeiture  of  his  naval 
rank,  and  he  had  risen  by  many 
deeds  of  conspicuous  gallantry  to 
be  one  of  the  foremost  officers  in 
the  British  navy.  His  name  was 
erased  from  the  list  of  Knights  of 
the  Bath,  and  he  was  socially  dis- 
,  graced.  How  he  lived  to  be  re- 
Hiabilitated  and  restored  to  his  rank 
I  and  dignities  is  the  best  proof  of 
his  wrongful  conviction. 

The  story  as  told  by  Lord  Coch- 
rane himself  in  his  affidavits  will 
best  describe  what  happened.  Hav- 
ing just  put  a  new  ship  in  commis- 
sion, H.  M.  S.  Tonnauf,  he  was  pre- 
paring her  for  sea  with  a  convoy. 
He  was  an  inventive  genius,  and  he 
had  recently  patented  certain  lamps 
for  the  use  of  the  ships  sailing  with 
him.  He  had  gone  into  the  city 
one  morning,  the  21st  of  February, 
1814,  to  supervise  their  manufac- 
ture, when  a  servant  followed  him 
with  a  note.  It  had  been  brought 
to  his  house  by  a  military  officer  in 
uniform,  whose  name  was  not 
known,  nor  could  it  be  deciphered 
from  the  illegible  scrawl  of  the  letter. 
Lord  Cochrane  was  expecting  news 
from  the  Peninsula,  where  a  brother 
of  his  lay  desperately  wounded,  and 
he  sent  back  word  to  his  house  that 
he  would  come  to  see  the  officer 
at  the  earliest  possible  moment. 
When  he  returned  he  found  a  person 
he  barely  knew,  who  gave  the  name 


of  Raudon  de  Berenger,  and  told  a 
strange  tale.  He  was  a  prisoner 
for  debt,  he  said,  within  the  rules 
of  the  King's  Bench,  and  he  had 
come  to  Lord  Cochrane  to  implore 
him  to  release  him  from  his  diffi- 
culties and  carry  him  to  America 
in  his  ship.  His  request  was  re- 
fused —  it  could  not  be  granted, 
indeed,  according  to  naval  rules ; 
and  de  Berenger  was  dismissed. 
But  before  he  left  he  urged  piteously 
that  to  return  to  the  King's  Bench 
prison  in  full  uniform  would  attract 
suspicion.  It  was  not  stated  how 
he  had  left  it,  but  he  no  doubt  im- 
plied that  he  had  escaped  and 
changed  into  uniform  somewhere. 
Why  he  did  not  go  back  to  the  same 
place  to  resume  his  plain  clothes 
did  not  appear.  Lord  Cochrane 
only  knew  that  in  answer  to  his 
urgent  entreaty  he  had  lent  him 
some  clothes.  The  room  was  at 
that  instant  littered  with  clothes, 
which  were  to  be  sent  on  board  the 
Tonnant,  and  he  unsuspiciously  gave 
de  Berenger  a  "civilian's  hat  and 
coat."  This  was  a  capital  part  of 
the  charge  against  Lord  Cochrane. 
De  Berenger  had  altogether  lied 
about  himself.  He  had  not  come 
from  within  the  rules  of  the  King's 
Bench  but  from  Dover,  where  he 
had  been  seen  the  previous  night 
at  the  Ship  hotel.  He  was  then  in 
uniform,  and  pretende<l  to  be  an 
aide-de-camp  to  Lord  Cathcart,  the 
bearer  of  important  dispatches.  He 
made  no  secret  of  the  transcendent 
news  he  brought,  viz.,  that  Bona- 
parte had  been  killed  by  the  Cos- 
sacks, Louis  XVm  proclaimed,  and 
the  allied  armies  were  on  the  point 
of  occupying  Paris.  To  give  greater 
publicity  to  the  intelligence,  he  sent 
it  by  letter  to  the  port-admiral  at 
Deal,  to  be  forwarded  to  the  govern- 
ment in  London  by  means  of  the 
semaphore  telegraph.  The  effect 
of  this  startling  news  was  to  send 
up  stocks  10  per  cent,  and  many 
speculators  who  sold  on  the  rise 
realized  enormous  sums.  De  Ber- 
enger, still  in  uniform,  followed   in 


lOS 


PART   I.      CIRCUMSTANTIAL   EVIDENCE 


No.  36. 


a  post  chaise,  but  on  reaching  Lon- 
don he  dismissed  it,  took  a  hackney 
coach,  and  (h'ove  straight  to  Lord 
C'ochranc's.  He  had  some  shght 
accjuaintance  with  liis  lordship,  and 
had  ah-eady  petitioned  him  for  a 
passage  to  America,  an  apphcation 
which  had  been  refused.  There 
was  nothing  extraordiiuiry,  then, 
in  de  Berenger's  visit.  His  hardship, 
again,  claimed  that  de  Berenger's 
call  on  him,  instead  of  going  straight 
to  the  Stock  Exchange  to  commence 
operations,  indicated  that  he  had 
weakened  in  his  plot,  and  did  not 
see  how  to  carry  it  through.  "Had 
I  been  his  confederate,"  says  Lord 
Cochrane,  in  his  affidavit,  "it  is 
not  within  the  liounds  of  credibility 
that  he  would  have  come  in  the 
first  instance  to  my  house,  and 
waited  two  hours  for  my  return 
home,  in  place  of  carrying  out  the 
plot  he  had  imdertaken,  or  that  I 
should  have  been  occupied  in  per- 
fecting my  lamp  invention  for  the 
use  of  the  convoy,  of  which  I  was  in 
a  few  days  to  take  charge,  instead 
of  being  on  the  onli/  spot  where  any 
advantage  to  be  derived  from  the 
Stock  Exchange  hoax  could  be  real- 
ized, had  I  been  a  participator  in  it. 
Such  advantage  must  have  been 
immediate,  before  the  truth  came 
out ;  and  to  have  reaped  it,  had  I 
been  guilty,  it  was  necessary  that  I 
should  not  lose  a  moment.  It  is 
still  more  improbable  that  being 
aware  of  the  hoax,  I  should  not  have 
speculated  largely  for  the  special 
risk    of    that    day." 

We  may  take  Lord  Tochrane's 
word,  as  an  officer  and  a  gentleman, 
that  he  had  no  guilty  kntnvledge  of 
de  Berenger's  .scheme;  but  here 
again  the  luck  was  against  him,  for 
it    came    out    in    evidence    that   his 


brokers  had  sold  stock  for  him  on 
the  day  of  the  fraud.  Yet  the 
operation  was  not  an  isolated  one 
made  on  that  occasion  only.  Lord 
Cochrane  dcclai>ed  that  he  had  for 
some  time  past  anticipated  a  fav- 
orable conclusion  to  the  war.  "I 
had  held  shares  for  the  rise,"  he 
said,  "and  had  made  money  by 
sales.  The  stock  I  held  on  the  day 
of  the  fraud  was  less  than  I  usually 
had,  and  it  was  sold  under  an  old 
order  given  to  my  brokers  to  sell 
at  a  certain  price.  It  had  neces- 
sarily to  be  sold."  It  was  clear  to 
Lord  Cochrane's  friends  —  who,  in- 
deed, and  rightly,  held  him  to  be 
incapable  of  stooping  to  fraud  — 
that  had  he  contemplated  it  he 
would  have  been  a  larger  holder 
of  stock  on  the  day  in  question, 
when  he  actually  held  less  than 
usual.  On  these  grounds  alone  they 
were  of  opinion  he  should  have  been 
absolved  from  the  charge. 

Great  lawyers  like  Lords  Camp- 
l)ell.  Brougham,  and  Erskine  have 
commented  on  this  case,  all  of  them 
expressing  their  belief  in  Lord  Coch- 
rane's innocence.  The  late  Chief 
Baron,  Sir  Fitzroy  Kelly,  in  criti- 
cizing the  trial,  ends  by  expressing 
his  regret  that  "  we  cannot  blot  out 
this  dark  page  from  our  legal  and 
judicial  history."  These  are  the 
opinions  of  legal  luminaries  in  the 
fullest  mental  vigor  and  acumen 
at  the  time  of  the  trial.  They  were 
intimately  acquainted  with  all  the 
facts,  and  we  may  accept  their 
judgment  that  a  great  and  grievous 
wrong  has  been  done  to  a  nobleman  of 
high  character,  who  had  not  spared 
himself  in  the  service  of  the  State. 
Their  view  was  tardily  supjiorted  by 
the  Government  in  restoring  Lord 
Cochrane  to  his  rightful  position. 


37.    FORBES  v.    MORSE.     (1896.     Supreme  Court  of  Vermont. 
69  Vt.  L'_'0.; 

_  Case  for  enticing  away  the  plain-  J.,  presiding.  Verdict  directed,  and 
tiff's  servant.  I'lea,  the  general  judgment  thereon  rendered,  for  the 
issue.  Trial  by  jury  at  the  March  defendant.  Tlie  plaintiff  excepted. 
Term,  ISOO,  Rutland  County,  Taft,  On  July  30,  1890,  a  contract  was 


No.  37. 


III.      PKOOF   OF   HUMAN   TR.\IT.       C.    KNOWLEDGE,    ETC. 


109 


made  between  the  plaintiflF  and  Lucy 
Wells  that  she  should  keep  the 
plaintiff's  house  and  look  after  his 
children  so  long  as  they  should  need 
a  home  there  and  that  the  plaintiff 
should  treat  her  kindly  and  dis- 
continue certain  law  suits  between 
them.  She  was  not  to  begin  until 
her  parents  ceased  to  need  her  care. 
Her  father  having  died  September 
24,  1890,  she  entered  upon  her  per- 
formance of  the  contract  November 
8,  1890,  and  continued  thereunder 
until  about  May  1,  1891,  when  she 
left  the  plaintiff's  service  without 
his  consent.  The  plaintiff'  testified 
that  he  found  the  letter  recited  be- 
low upon  a  stand  in  Miss  Wells' 
room  during  her  stay  at  his  house ; 
that  it  was  in  the  defendant's  [her 
brother's]  handwriting,  and  that  the 
copy  produced  was  made  by  him  and 
is  correct ;  that  many  letters  passed 
between  the  defendant  and  Miss 
Wells  while  she  was  at  his  house ; 
that  there  was  an  envelope  with  the 
letter  in  question  which  was  new  in 
appearance,  but  that  he  did  not  copy 
it  and  could  not  remember  its  date. 
The  plaintiff  produced  no  other 
testimony  as  to  the  time  when  the 
letter  was  written  or  received.  The 
letter  read  as  follows :  "  Home, 
Sabbath  p.m.  My  Dear  Sister  :  — 
Having  a  postal  to  send  you,  thought 
you  would  pardon  me  if  I  should 
add  a  few  lines.  I  am  lonely  to-day 
and  should  be  so  happy  if  you  were 
here  to  chat  with  me.  Since  I 
wrote  you  I  have  taken  a  very  short 
vacation.  Left  home  Thursday  at 
3.40  for  Holyoke,  Mass.,  stopped 
over  night  with  cousins  in  North 
Adams.  Next  day  went  on  to 
Holyoke  and  returned  last  eve.  I 
had  as  pleasant  a  time  as  one  would 
naturally  have  all  alone.  Bought 
quite  a  bill  of  stationery.  Saw  Mr. 
Dr.  Hemner  a  few  moments. 
Weather  was  terrible  hot  and  some 
rain.  Tuesday  has  been  more  com- 
fortable. My  dear  sister,  it  does 
seem  so  strange  to  have  you  away 
from  here  and  Castleton  too.  It 
grows    more    lonely    each    day.     It 


seems  some  times  as  if  I  never  was 
to  see  you  again.  Saw  Judge  Brom- 
ley on  the  train  last  eve.,  says  he 
heard  from  pretty  good  source  that 
Prof.  Leavenworth  and  Miss 
Wards  worth  were  to  be  married 
before  school  opened.  This  is  all 
a  secret.  What  do  you  think  about 
it,  wouldn't  we  have  some  talking 

to  do    if was  to  carry  you  to 

Castleton  to-night  ?  Must  not 
write  more  now.  Wish  you  could 
see  my  sweet  peas ;  they  are  just 
immense.  Wish  I  could  pick  you 
some  to-night.  Lucy,  I  wish  you 
could  have  heard  Mr.  B.  last  night. 
It  seemed  just  the  thing  for  you. 
Of  course  we  always  find  some  one 
else  for  the  coat  to  fit.  He  said 
rash  promises  were  far  better  broken 
than  kept.  I  do  so  wish  you  were 
back  at  Castleton.  You  cannot 
think  how  strange  it  seems  to  me 
coming  through  there  one  week  ago 
Sunday  eve.,  to  think  I  could  per- 
haps never  stop  there  as  I  have  so 
many  times  and  receive  your  pleas- 
ant welcome.  I  think  you  had 
better  come  back.  I  mean  just 
what  I  say  and  I  am  sure  unless 
you  feel  different  from  what  I  think 
you  do  that  it  is  your  solemn  duty 
to  come.  Wouldn't  we  all  try  to  be 
happy  once  more  ?  You  do  not 
know  how  much  I  miss  you.  But 
I  must  not  say  so,  must  I  ?  Would 
send  you  some  sweet  peas  if  it 
would  do.  W'e  have  lots  of  them 
and  they  do  look  so  fine  from  my 
window  where  I  am  writing.  But 
I  must  close.  I  will  only  add,  that 
if  you  do  not  like  Mr.  Forbes  I 
think  it  very  unkind  in  him  to  ask 
you  to  leave  your  school  and  sacri- 
fice so  much  for  him.  Love  to  Her- 
■  bert  and  much  for  j^ourself,  from 
Brother  Frank."  The  court  ruled 
that  there  was  no  evidence  tending 
to  show  that  the  letter  was  written 
or  received  between  July  30,  1890, 
when  the  contract  was  made,  and 
the  May  following,  when  Miss  Wells 
left  the  plaintiff's  service,  and  ex- 
cluded the  letter;  to  which  the 
plaintiff  excepted.     The  court  also 


no 


PAPvT   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  37 


excluded,  against  the  plaintiff's  ex- 
ception, the  deposition  of  B.  G. 
Howe,  the  substance  of  which  is 
stated  in  the  opinion.  Miss  Wells 
and  a  deceased  wife  of  the  plaintiff 
and  a  deceased  wife  of  the  defendant, 
were  sisters.  The  defendant  was 
married  to  Miss  Wells  in  May, 
1S92. 

Horace  W.  Love,  for  the  plaintiff". 
Henry  A.  Harman  and  George  E. 
Lawrence,  for  the  defendant. 

MuNSON,  J.  —  On  the  thirtieth 
day  of  July,  1890,  Lucy  Wells  con- 
tracted with  the  plaintiff  to  be- 
come his  housekeeper  upon  the 
happening  of  a  certain  contingency. 
She  entered  the  plaintiff"s  ser- 
vice under  this  contract  on  the 
eighth  day  of  November,  1890,  and 
remained  in  it  until  the  first  of  May, 
1891.  The  plaintiff'  claims  that  she 
was  enticed  from  his  service  by  the 
defendant.  The  plaintiff  offered 
evidence  of  the  contents  of  an  un- 
dated letter  in  the  defendant's 
handwriting,  which  was  found  on 
a  stand  in  Miss  Wells'  room  during 
her  stay  at  the  plaintiff"s,  having 
with  it  an  envelope  which  had  the 
appearance  of  being  new.  The 
court  excluded  this  evidence  on  the 
ground  that  there  was  no  testimony 
tending  to  show  that  the  letter  was 
written  after  the  thirtieth  of  July, 
1890,  the  date  of  Miss  Wells'  con- 
tract with  the  plaintiff.  It  doubt- 
less might  have  been  held  that  there 
was  no  evidence  tending  to  show 
that  it  was  written  after  the  eighth 
of  November,  the  day  Miss  Wells 
entered  upon  her  service ;    for  the 


letter  itself  shows  that  it  was  written 
just  after  a  period  of  extreme  heat, 
and  while  the  sweet  peas  visible 
from  the  writer's  window  were  in 
full  bloom.  But  a  further  consid- 
eration is  necessary  to  determine 
whether  there  was  evidence  tending 
to  show  that  it  was  written  after 
July  thirtieth,  the  date  of  the  con- 
tract. The  whole  burden  of  the 
letter  is  the  writer's  regret  for  Miss 
Wells'  absence,  and  for  the  prospect 
of  her  continued  absence  from 
Castleton,  where  she  had  been  teach- 
ing. The  last  sentence  connects 
the  plaintiff'  by  name  with  the  sub- 
ject matter  of  the  writer's  regret. 
"  If  you  do  not  like  Mr.  Forbes,  I 
think  it  very  unkind  in  him  to  ask 
you  to  leave  your  school  and  sacri- 
fice so  much  for  him."  If  this 
stood  alone,  it  might  seem  to  point 
to  some  proposition  made,  rather 
than  to  an  arrangement  actually 
entered  into.  But  the  writer  had 
just  before  expressed  his  regret 
that  she  had  not  heard  the  recent 
remark  of  another,  that  "rash 
promises  were  far  better  broken 
than  kept,"  saying,  "it  seemed  just 
the  thing  for  you."  ^^'hen  the  two 
are  taken  together  they  seem  to 
refer  to  something  which  Miss 
Wells  has  agreed  to  do  for  the  plain- 
tiff which  is  inconsistent  with  the 
continuance  of  her  work  as  a  teacher. 
It  nujst  therefore  be  held  that  the 
letter  itself  affords  evidence  that  it 
was  written  after  the  contract  above 
referred    to   was    made.  .  .  . 

Judgment     reversed     and     cause 
remanded. 


38.    WILLIAM  BARNARD'S  CASE.     (1758.     Howell's  S«a/c  Tria/^. 


XIX,  824). 

[Attempted  blackmail  by  sending 
threatening  letters.  The  Duke  of 
^Marlborough  had  received  three 
threatening  letters,  in  close  succes- 
sion, demanding  benefits,  and  ap- 
pointing an  interview.  The  Duke 
kept  the  appointments.  Each  letter 
showefl  apparently  a  knowledge  of 
the    Duke's    conduct    at    the    prior 


occasion.  The  accused  being  pres- 
ent on  all  three  occasions,  and  no 
other  person,  he  was  arrested  and 
charged].   .   .   . 

The  Duke  of  Marlhoronfih  sworn. 

Duke  of  Marlborough.  —  I  re- 
ceived this  letter  from  an  unknown 
hand,  dated  the  29th  of  November, 
and  directed  to  me,  appointing  me 


No.  38. 


III.       PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC. 


Ill 


to  meet  the  writer  on  a  certain  spot 
in  Hyde  Park. 

The  first  Letter  read :  "  To  his 
Grace  the  Duke  of  Marlborough. — 
With  care  and  speed.  My  lord : 
November  29th.  As  ceremony  is 
an  idle  thing  upon  most  occasions, 
more  especially  to  persons  in  my 
state  of  mind,  I  shall  proceed  im- 
mediately to  acquaint  you  with  the 
motive  and  end  of  addressing  this 
epistle  to  you,  which  is  equally 
interesting  to  us  both.  You  are  to 
know,  then,  that  my  present  situa- 
tion in  life  is  such,  that  I  should 
prefer  annihilation  to  a  continuance 
in  it ;  desperate  diseases  require 
desperate  remedies ;  and  you  are 
the  man  I  have  pitched  upon,  either 
to  make  me,  or  to  unmake  yourself. 
...  It  has  employed  my  in- 
vention for  some  time  to  find  out  a 
method  to  destroy  another,  without 
exposing  my  own  life ;  that  I  have 
accomplished,  and  defy  the  law. 
Now  for  the  application  of  it.  I 
am  desperate,  and  must  be  provided 
for ;  you  have  it  in  your  power ; 
it  is  my  business  to  make  it  your 
inclination,  to  serve  me ;  which  you 
must  determine  to  comply  with,  by 
procuring  me  a  genteel  support  for 
my  life ;  or  your  own  will  be  at  a 
period  before  this  sessions  of  parlia- 
ment is  over.  I  have  more  motives 
than  one  for  singling  jou  out  first 
upon  this  occasion  ;  and  I  give  you 
this  fair  warning,  because  the  means 
I  shall  make  use  of  are  too  fatal  to 
be  eluded  by  the  power  of  physic. 
If  you  think  this  of  any  consequence, 
you  will  not  fail  to  meet  the  author 
on  Sunday  next,  at  ten  in  the  morn- 
ing, or  on  Monday  (if  the  weather 
should  be  rainy  on  Sunday),  near 
the  first  tree  beyond  the  stile  iii 
Hyde  Park,  in  the  foot-walk  to 
Kensington ;  secrecy  and  compli- 
ance may  preserve  you  from  a  double 
danger  of  this  sort ;  as  there  is  a 
certain  part  of  the  world,  where 
your  death  has  more  than  been 
wished  for,  upon  other  motives.  I 
know  the  world  too  well  to  trust 
this  secret  to  anv  breast  but  my  own. 


A  few  days  determines  me  your 
friend  or  enemy.  Felton."  "  You 
will  apprehend  that  I  mean  you 
should  be  alone ;  and  depend  upon 
it,  that  a  discovery  of  any  artifice 
in  this  affair  will  be  fatal  to  you ; 
my  safety  is  insured  by  my  silence ; 
for  confession  only  can  condemn  me." 

Q.  What  did  your  grace  do  upon 
receipt   of   this   letter  ? 

Duke  of  Marlborough.  —  I  went 
to  the  place  at  the  time  appointed. 
It  was  at  the  first  tree  near  the  stile 
in  Hyde  Park,  in  the  way  to  Ken- 
sington, at  the  end  of  the  Serpentine 
water,  betwixt  that  water  and  a 
little  pond.  I  was  there  some  time, 
and  saw  nobody  stop  that  I  could 
suspect  to  be  the  person;  upon 
which  I  was  going  away ;  but  as  I 
came  to  Hyde  Park  corner,  I  turned 
my  horse,  and  saw  a  person  stand 
loitering,  and  looking  at  the  water 
over  the  bridge.  This  was,  I  be- 
lieve, within  twenty  yards  of  the 
tree,  and  this  induced  me  to  go  back 
again.  I  rode  up  to  the  person 
very  gently,  and  passed  by  him  once 
or  twice,  expecting  him  to  speak  to 
me,  but  he  did  not.  I  made  him  a 
bow,  and  asked  him,  if  he  had  some- 
thing to  say  to  me  ?  He  said,  No, 
I  don't  know  you.  I  said,  I  am  the 
Duke  of  IMarlborough ;  now  you 
know  me,  I  imagine  you  have  some- 
thing to  say  to  me.  He  said,  No, 
I  have  not.     Then  I  rode  away. 

Was  your  grace  armed  ?  —  I  had 
pistols  before  me. 

Had  your  grace  any  great  coat 
on  ?  —  No,  I  had  not.  My  star 
might    easily    be    seen. 

Does  your  grace  see  anybody 
here  that  you  saw  there  ?  —  It  was 
the    prisoner    at    the    bar. 

Had  your  grace  any  servant  or 
attendant  with  you  ?  —  I  had  no 
servant  with  me ;  there  was  a  per- 
son, a  friend  of  mine,  at  a  good  dis- 
tance in  the  Park.  A  day  or  two 
after,  I  cannot  be  sure  whether  it 
was  the  next  day,  or  the  day  after 
that,  I  received  a  second  letter. 

Counsel  for  the  prisoner.  —  I  am 
under    a    great   difficulty,    whether 


112 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  3J>. 


I    shall    object    against    this    letter 
being    read    or   not.  .  .  . 

Court.  —  The  use  made  of  this 
letter  is  to  support  the  evidence  of 
the  first  letter,  let  the  contents  be 
what  they  will.  The  use  they  make 
of  it  is  to  show,  that  the  prisoner 
at  the  l)ar  was  the  writer  or  sender 
of  the  first  letter. 

The  second  Letter  read  : 

"  To  his  grace  the  Duke  of  ]\Iarl- 
borough.  —  My  lord;  You  receive 
this  as  an  acknowledgment  of  your 
punctuality  as  to  the  time  and  place 
of  meeting  on  Sunday  last,  though 
it  was  owing  to  you  that  it  answered 
no  purpose.  The  pageantry  of 
being  armed,  and  the  ensign  of  your 
order,  were  useless,  and  too  con- 
spicuous ;  you  needed  no  attendant ; 
the  place  was  not  calculated  for 
mischief,  nor  was  any  intended. 
If  you  walk  in  the  west-isle  of  West- 
minster Abbey,  towards  eleven 
o'clock  on  Sunday  next,  your  sagac- 
ity will  point  out  the  person,  whom 
you  will  address  by  asking  his  com- 
pany to  take  a  turn  or  two  with  you. 
You  will  not  fail,  on  inquiry,  to  1)6 
acquainted  with  the  name  and  place 
of  abode,  according  to  which  direc- 
tions you  will  please  to  send  two 
or  three  hundred-pound  Bank  notes 
the  next  day  by  the  penny-post. 
Exert  not  your  curiosity  too  early ; 
it  is  in  your  power  to  make  me 
grateful  on  certain  terms.  I  have 
friends  who  are  faithful ;  but  they 
do  not  bark  before  they  bite.  I  am, 
&c.  &c.     F." 

(^.  What  did  your  grace  do  upon 
the  receipt  of  this  second  letter  ? 

D.  of  Marlborough.  —  I  went  to 
Westminster  Abbey  at  the  time  the 
letter  appointed.  I  had  been  walk- 
ing there  about  five  or  six  minutes 
before  I  saw  anybody  that  I  sus- 
pected ;  then  I  saw  the  person  I  had 
seen  before  in  Hyde  Park,  and  an- 
other person  who  seemed  to  be  a 
good-looking  man,  a  .substantial 
tradesman  ;  they  came  in  and  looked 
on  the  monuments.  I,  knowing 
the  person  again,  went  and  stood 
by    them ;     but    the    prisoner    said 


nothing  to  me ;  soon  after  they  both 
of  them  went  towards  the  choir ; 
the  stranger,  I  may  call  him,  went 
into  the  choir,  and  the  prisoner 
turned  back  and  came  towards  me, 
but  did  not  speak  to  me.  Then 
I  asked  him,  if  he  had  anything  to 
say  to  me,  or  any  connnands  for 
me  ?  He  said.  No,  my  lord,  I  have 
not.  I  said.  Sure  you  have  ?  He 
said.  No,  my  lord.  He  walked  up 
and  down  one  side  the  isle  and  I 
the  other  to  give  him  a  little  more 
time ;  but  he  did  not  speak ;  then 
I  went  out  at  the  great  door  and 
left  him  in  the  Al)bey.  I  looked 
back  to  see  if  he  watched  me  going 
out,  but  I  did  not  see  him. 

Q.  Had  your  grace  anybody  with 
you  in  the  Abbey  ?  A.  There  were 
two  or  three  people  placed  in  dis- 
guise, ready,  if  I  had  given  them  the 
signal,  to  have  him  taken  up. 
Though  I  was  certain  it  was  the  same 
person  whom  I  had  seen  and  spoken 
to  in  the  Park,  I  thought  not  proper 
to  give  the  signal,  but  to  run  a  little 
longer  risk  rather  than  to  take  up 
an  innocent  man.  Very  soon  after 
this  I  received  another  letter;  this 
is  it. 

The  third  Letter  read:  "To  his 
Grace  the  Duke  of  Marlborough . — 
My  lord.  —  I  am  fully  convinced 
you  had  a  companion  on  Sunday.  I 
interpret  it  as  owing  to  the  weakness 
of  human  nature ;  but  .such  pro- 
ceeding is  far  from  being  ingenuous, 
and  may  produce  bad  effects  ;  whilst 
it  is  impossible  to  answer  the  end 
proposed.  You  will  see  me  again 
soon,  as  it  were  by  accident,  and 
may  easily  find  where  I  go  to.  .  .  . 
These  and  the  former  terms  com- 
plied with,  insure  your  safety ;  my 
revenge,  in  case  of  non-compliance 
(or  any  scheme  to  expose  me)  will 
be  slower,  but  not  less  sure.  .  .  . 
The  family  of  the  BLOODS  is  not 
extinct,  though  they  are  not  in  my 
scheme." 

Duke  of  Marlborough.  —  At  about 
two  months  after  the  receipt  of 
this,  I  received  another  letter ;  this 
is  it. 


No.  38. 


III.       PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC. 


lU 


The  fourth  Letter  read  :  "  To  his 
Grace  the  Duke  of  Marlborough.  — 
May  it  please  your  grace ;  I  have 
reason  to  believe,  that  the  son  of  one 
Barnard,  a  surveyor  in  Abingdon 
buildings,  Westminster,  is  acquainted 
with  some  secrets  that  nearly  con- 
cern your  safety ;  his  father  is  now 
out  of  town,  which  will  give  you  an 
opportunity  of  questioning  him  more 
privately.  It  would  be  useless  to 
your  grace,  as  well  as  dangerous  to 
me,  to  appear  more  publicly  in  this 
affair.  Your  sincere  friend.  Anony- 
mous." "He  frequently  goes  to 
Storey's  Gate  coffee  house." 

Duke  of  Marlborough.  —  There 
is  no  date  to  this  letter.  About  a 
week  or  ten  days  after  I  received 
this  letter,  I  sent  a  message  to  the 
coffee-house,  by  Mr.  Merrick,  who 
returned  and  told  me  he  found  ]Mr. 
Barnard  there,  and  that  he  said, 
''What  could  the  Duke  of  Marl- 
borough want  with  him  ?"  He  had 
spoke  with  him  once  in  Hyde  Park, 
and  another  time  in  W'estminster 
Abbey.  The  messenger  told  me, 
he  said  he  would  wait  on  me,  which 
he  did  at  Marlborough  House,  about 
half  an  hour  after  ten  o'clock,  I 
thirik,  on  the  Friday  following. 

Prisoner.  —  It  was  Thursdav,  my 
lord. 

Duke  of  Marlborough.  —  I  can- 
not be  sure  as  to  the  day.  When  he 
came  in,  I  knew,  at  first  sight,  it  was 
the  same  person  that  I  had  seen  in 
the  Park  and  in  the  Abbey.  I 
desired  him  to  walk  with  me  into 
a  room,  and  immediately  shut  the 
door  when  we  were  in.  I  asked 
him  as  before;  he  said,  he  had 
nothing  to  say  to  me ;  then  I  told 
him  of  the  last  letter  I  received, 
that  it  mentioned  his  name,  and 
that  he  knew  something  concerning 
my  safety  ;  he  said  he  knew  nothing 
of  it.  Then  I  recapitulated  all 
the  letters,  beginning  with  the  first, 
and  remarked  to  him,  that  it  was 
strange  to  me,  that  a  man  that 
wrote  so  very  correct,  without  false 
English  in  any  shape,  should  be 
guilty  of  so  low  an  action  ;   he   said. 


A  man  may  be  very  learned  and 
very  poor.  I  then  took  notice  of 
the  second  letter,  and  said,  there 
must  be  something  very  odd  in  the 
man ;  he  said,  I  imagine  the  man 
must  be  mad.  I  said,  he  seems  sur- 
prised that  I  should  have  pistols ; 
said  he,  I  was  surprised  to  see  your 
grace  with  pistols,  and  your  star  on. 
I  said,  why  was  you  surprised  at 
that  ?  His  answer  was,  after  stop- 
ping a  moment,  it  was  so  cold  a  day ; 
I  wondered  you  had  not  a  great  coat 
on  ;  then  I  afterwards  showed  him 
the  letter  again  where  his  name  was 
mentioned,  and  walked  with  him 
to  the  window ;  and  as  I  read  it, 
when  I  came  to  that  part  where  it 
said  his  father  was  out  of  town,  he 
said,  it  is  very  odd,  my  father  was 
then  out  of  town.  I  said  nothing 
to  him  of  that,  though  it  struck  me 
a  good  deal,  as  there  was  no  date  to 
the  letter.  I  said,  if  you  are  inno- 
cent, it  behooves  you  much  more  than 
me  to  find  out  the  author  of  those 
letters,  particularly  the  last ;  for  it 
was  an  attempt  to  blast  his  character 
behind  his  back ;  he  seemed  to  give 
me  a  smile,  and  away  he  went.  I 
did  not  apprehend  him  then.  .  .  . 

Counsel  for  defense.  —  In  con- 
sequence of  the  first  letter,  your 
grace  went  into  the  Park  on  horse- 
back, and  was  there  some  time  with- 
out seeing  anybody  you  suspected. 
Were  there  not  people  there  ?  — 
D.  of  Marlb.  I  saw  several  people 
on  horseback,  and  some  few  walk- 
ing in  a  hurry  on  foot. 

Pray,  my  lord  duke,  after  you 
had  seen  this  person  loitering,  was 
there  anything  going'  forward,  such 
as  hunting  a  duck,  or  the  like  ? 
No,  nothing  in  the  world  as  I  saw; 
it  was  a  very  cold  day. 

Your  lordship  said  there  was  an- 
other person  at  a  distance,  an  attend- 
ant on  your  grace ;  How  far  might 
that  person  be  off  when  you  was 
speaking  to  the  prisoner  ?  I  can- 
not tell  exactly.  I  had  spoke  to 
him  to  keep  a  great  way  off. 

Was  he  in  view  of  your  grace  ?  I 
dare  say  he  was. 


114 


PART   I.       CTRCUMSTAXTIAL    EVIDENCE 


No.  38. 


]Might  not  any  person  ociually 
see  that  person  as  well  as  your  grace  ? 
—  I  suppose  he  might. 

Was  your  grace  there  at  the 
time? — I  was  there  rather  before 
the  time,  I  believe. 

Did  he  in  the  least  offer  to  follow 
your  grace?  —  No,  he  seemed  to  go 
the  otlier  way. 

With  respect  to  the  second  letter, 
your  grace  went  according  to  ap- 
pointment to  Westminster  Abbey, 
and  saw  the  pri.soner  and  another 
person  come  into  the  Abbey ;  before 
that  other  person  had  left  him,  had 
your  grace  been  near  him  ?  I  had  ; 
I  stood  by  him  in  hopes  he  would 
speak  to  me,  if  he  was  the  person 
that  wrote  the  letters. 

Whether  the  circumstance  was 
not  such,  that  that  other  person 
might  very  well  believe  your  grace 
wanted  to  speak  to  the  prisoner  ?  — 
That  I  cannot  tell.  I  stood  very 
near  the  prisoner,  wanting  him  to 
speak  to  me.  It  is  possible  he 
might  think  so. 

Whether  there  were  not  at  that 
time  several  persons  attending  on 
your  grace  ?  -=—  There  were  two  or 
three. 

Did  your  grace  speak  to  either  of 
them  in  the  Abbey  ? — No,  I  did  not. 

Whether,  if  there  was  any  other 
person  in  Westminster  Abbey  at 
that  time,  whether  that  third 
person  might  not  have  taken  Mr. 
Barnard  for  your  grace's  companion, 
as  your  grace  spoke  to  him  ?  —  Upon 
my  word,  I  cannot  tell  that.  .  .  . 

Did  your  grace  know  Mr.  Barnard 
before  you  received  these  letters  ? 
No,  I  did  not  at  all.  .  .  . 

Then,  abstracted  from  these  cir- 
cumstances, should  your  grace  have 
entertained  any  suspicion  of  him 
more  than  of  any  other  person  ?  — 
I  did  not  know  there  was  such  a  man 
in  the  world. 

Wiien  he  came  to  your  grace's 
house,  did  he  come  in  very  readily  ? 
He  did.   .   .   . 

Your  grace  mentioned  he  said, 
It  is  very  odd,  my  father  was  out 
of   town    then  I     Could   your  grace 


apply  that,  in  the  manner  it  was 
spoke,  that  his  father  was  out  of 
town  when  the  message  came  to 
him  ?  I  really  understood  him, 
that  he  knew  his  father  was  out  of 
town  at  the  time  of  his  writing  the 
letter. 

Did  your  grace  mention  the  time 
you  received  it? — No,  I  did  not 
mention  any  time.  .  .  . 

It  has  l)een  said  he  went  away 
with  a  smile ;  Pray,  my  lord  duke, 
might  not  that  smile  express  the 
consciousness  of  his  innocence  as 
well  as  anything  else  ?  —  I  shall 
leave  that  to  the  Great  Judge.  .  .  . 

James  Merrick  sworn. 

Merrick.— -I  was  directed  from 
his  grace  to  carry  a  message  to 
Storey's  Gate  coffee  house ;  I  went, 
and  there  was  the  prisoner  at  the 
bar;  I  told  him,  the  duke  of  Marl- 
borough wanted  to  speak  with  him ; 
he  expressed  some  surprise  at  what 
the  duke  should  want  with  liim,  but 
no  fear. 

When  was  this?  —  This  was  on 
Tuesday  the  25th  of  April,  in  the 
evening ;  and  he  said,  he  woidd 
wait  on  the  duke  on  the  Thursday 
following,  between  ten  and  eleven 
o'clock. 

Cross-e.va  m  in  ntion. 

What  reason  did  he  give  for  not 
waiting  on  his  grace  sooner?  —  His 
excuse  was,  he  was  going  out  of 
town. 

Did  he  say  anything  to  you  of  his 
having  seen  the  duke  before? — He 
did,  he  said,  he  had  seen  his  grace 
three  times  in  his  life,  once  in  Hyde 
Park,  and  once  in  Westminster 
Abbey,  and  once  at  the  camp  at 
Byfleet ;  he  said,  he  did  not  know 
the  duke  when  he  saw  him  in  Hyde 
Park,  till  the  duke  himself  told  him 
who  he  was.  .  .  . 

William  Marsden  sworn. 

Marsden.  —  I  was  appointed  l)y 
his  grace  the  duke  and  justice  Field- 
ing to  watch  the  duke  in  Westmin- 
ster Al)bey,  and  had  two  constables 
there  in  order  to  apprehenfl  the  per- 
son, if  his  grace  had  thought  proper 
to  give  the  signal.  .  .  .     He  would 


No.  38. 


III.       PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC. 


115 


rather  let  it  be  a  little  longer,  than 
to  take  up  an  innocent  man ;  he 
should  hear  of  him  again,  he  appre- 
hended, for  he  seemed  to  be  afraid 
to  speak  to  him  at  that  time. 

Was  he  apprehended  after  this  ?  — 
He  was.  I  procured  him  to  come 
before  justice  F'ielding,  by  a  sham 
summons,  in  which  he  was  accused 
with  assault  and  battery ;  he  was 
not  taken  up  till  he  came  there, 
then  he  seemed  surprised. 

Did  he  tell  you  about  anything 
that  happened  in  Westminster 
Abbey  ?  —  I  was  with  him  in  the 
dining  room  at  Mr.  Fielding's,  in 
order  to  take  his  examination ;  I 
went  as  it  were  out  of  complaisance 
to  him  not  to  leave  him  alone ;  he 
talked  a  great  deal,  but  I  did  not 
make  such  observations  of  it  as  I 
should  have  done  if  I  had  thought 
of  his  coming  here ;  I  remember  he 
said  he  ordered  his  friend  to  walk 
off,  that  he  might  see  what  the  duke 
wanted  with  him ;  and  said  he 
thought  the  duke  must  come  there 
by  appointment ;  he  mentioned 
something  about  the  duke's  giving 
him  a  place  or  post ;  I  think  he  said 
he  ordered  his  friend  to  walk  off, 
to  see  if  the  duke  would  give  him 
some  place ;  or,  perhaps  the  duke 
wants  to  give  me  a  place. 

Are  you  sure  he  said  the  duke 
wanted  to  give  him  a  place  ?  or  that 
his  friend  said,  go  towards  him,  per- 
haps the  duke  wants  to  give  you 
some  place  ?  —  I  cannot  be  sure 
which;  I  know  the. word  "place" 
was  mentioned. 

Cross-e.va  m  ination . 

Where  is  the  summons  ?  —  This  is 
the  summons  (producing  one) ;  I 
did  not  serve  it  on  the  day  it  bears 
date ;  it  was  made  out  on  Saturday 
the  29th  of  April ;  I  was  to  have 
given  him  it  that  afternoon,  but  I 
was  told  he  was  gone  to  Brentford  ; 
so  I  went  early  on  Alonday  morning 
following,  and  gave  it  to  him ;  this 
was  only  made  out  as  a  decoy ;  the 
name  in  it  is  one  of  the  constables 
that  was  fixed  in  Westminster  Ab- 
bey, named  Roger  Boucher. 


Did  he  show  any  unwillingness  to 
come  ?  —  No,  none  at  all ;  he  looked 
at  it,  and  said,  it  is  a  summons  from 
Mr.  Fielding ;  he  read  it  over  and 
said,  Roger  Boucher  !  I  know  noth- 
ing of  him ;  give  him  my  compli- 
ments, and  tell  him  I  will  wait  on 
him.  .  .  . 

Prisoner.  —  I  am  entirely  in- 
nocent of  this  affair  with  which  I 
am  charged.  I  leave  it  to  the  court 
and  the  jury,  with  the  evidence 
that  will  be  produced. 
■   Evidence  for  the  Prisoner. 

John  Barnard  sworn. 

J.  Barnard.  —  I  am  father  to  the 
prisoner  at  the  bar. 

What  is  his  employ  ?  —  He  is  em- 
ployed in  my  business  as  a  builder 
and  surveyor  principally ;  in  not 
only  that,  and  drawing  plans,  but 
also  in  receiving  great  sums  of 
money. 

Have  his  accounts  always  stood 
right  and  clear  ?  —  They  always  have. 

Do  you  look  upon  him  to  be  a 
sober  man  ?  —  I  have  had  great 
reason  to  believe  him  such,  more 
particularly  lately. 

Has  he  been  possessed  of  large 
sums  of  money?  —  He  has,  of  con- 
siderable sums ;  I  have  oftener 
asked  him  for  money  than  he  me. 

Had  you  any  occasion  to  send 
him  to  Kensington  on  Sunday  the 
4th  of  December? — I  had  nothing, 
but  circumstances  brought  the  day 
to  my  mind  since ;  I  gave  him  an 
order  on  that  Sunday  morning,  when 
we  were  at  breakfast,  to  go  to 
Kensington,  to  know  whether  there 
was  some  money  paid  by  the  treas- 
urer of  the  turnpikes  for  gravel ;  I 
have  a  brother  there,  named  Joseph  ; 
he  went  there  and  did  his  business, 
and  dined  with  my  brother. 

How  do  you  know  that? — Be- 
cause he  told  me  so ;  and  the  solici- 
tor of  the  turnpike  told  me  he  had 
been  with  him,  and  in  consequence 
of  which  I  had  my  money  afterwards. 

Have  you  ever  heard  your  son 
take  any  notice  of  his  meeting  with 
the  duke  of  ]\Iarlborough  that  day  ? 
—  \Mien  he  came  home,  he  told  me, 


IIG 


PART    I.       CIRCUMSTAXTIAL    EVIDENXE 


lie  had  met  the  ckike  of  Marlborough, 
and  these  circumstances  of  his  grace's 
taking  notice  of  him  ;  he  mentioned 
it  as  an  extraordinary  thing.  I 
asked  him,  if  he  had  not  looked 
a  little  impudently  (as  he  has  a  near 
sight)  at  him,  or  pulled  his  glass  out  ? 
He  said,  he  saw  another  gentleman 
at  a  distance,  and  the  duke  was 
armed ;  and  he  imagined  there 
might  be  a  duel  going  forwards ;  he 
has  from  that  time  to  this  mentioned 
it  as  a  very  strange  event  several 
times  in  my  house,  without  any 
reserve  at  all. 

Cross-examination.  .  .  . 

Did  you  hear  him  mention  his 
seeing  the  duke  of  Marlborough  in 
Westminster  Abbey?  —  I  have  very 
often,  and  very  publicly,  and  with 
some  surprise ;  as  he  has  that  in 
Hyde  Park.  I  said  to  him,  I  would 
not  have  you  be  public  in  speaking 
of  things  of  this  kind,  lest  a  use 
be  made  of  it  to  your  disadvantage. 

Thomas  Banjard  sworn. 

T.  Barnard. —  I  am  first  cousin 
to  the  prisoner  at  the  bar.  On 
Saturday,  the  3d  of  December,  I 
was  at  Kensington,  and  lay  at  my 
uncle's  house  there  and  dined  there. 
On  the  Sunday  the  prisoner  came 
there  before  dinner,  he  said  he  had 
been  to  do  some  business  that  way. 
He  dined  with  us ;  there  were  my 
uncle,  aunt,  he,  and  I ;  he  related 
that  circumstance  to  us  of  meeting 
with  the  duke  of  Marlborough  in 
Hyde  Park ;  he  said  he  rode  up  to 
him,  and  asked  if  he  knew  who  he 
was  ;  he  answered,  No  ;  he  replied, 
I  am  the  duke  of  Marlborough. 
He  related  it  with  some  cheerful- 
ness, though  as  a  matter  of  surprise. 

How  long  have  you  known  the 
prisoner  ?  —  From  his  birth  ;  he  is  in 
business  with  his  father ;  I  always 
understood  he  would  succeed  his 
father;  I  never  knew  him  to  behave 
any  otherwise  than  well  in  my  life. 
I  never  thought  him  extravagant, 
nor  never  heard  so ;  I  had  always 
looked  upon  him  to  be  an  honest 
man ;  his  father  is  in  very  great 
business.  .  .  . 


Joseph  Barnard  sworn. 

J.  Barnard.  —  I  am  uncle  to  the 
prisoner  at  the  bar ;  I  live  at 
Kensington ;  my  nephew  Thomas 
Barnard  lay  at  my  house  on  the 
Saturday  night,  and  dined  with  the 
prisoner  at  the  bar  on  the  Sunday. 
I  remember  he  then  mentioned 
having  met  with  the  duke  of  Marl- 
borough in  Hyde  Park,  while  we 
were  sitting  at  dinner.  I  said  I 
was  surprised  he  should  meet  with 
him  that  day ;  he  said  he  saw  but 
one  gentleman  at  a  distance,  and 
that  the  duke  was  armed ;  and  his 
grace  looked  him  full  in  the  face, 
very  earnestly  (which  he  seemed  to 
speak  with  a  great  deal  of  pleasure 
to  me) ;  he  is  very  nearsighted,  he 
can  see  nothing  at  a  distance  with- 
out the  use  of  a  glass.  I  have  heard 
him  since  speak  four  or  five  times 
of  seeing  the  duke  in  Westminster 
Abbey.  .  .  . 

Thomas  Calcut  sworn. 

T.  Calcut.  —  I  live  at  Kensing- 
ton ;  I  remember  the  prisoner  com- 
ing there  on  a  Sunday  morning; 
a  very  cold,  foggy  morning ;  with 
some  message  from  his  father  to  me, 
to  know  whether  the  solicitor  had 
paid  some  money  or  not.  He  was 
under  his  father,  as  I  am  under 
mine ;  he  desired  me  to  go  with 
him  ;  I  said,  stay  and  dine  with  me ; 
he  said,  he  could  not  promise,  be- 
cause he  had  promised  to  dine  with 
his  imcle  Joseph  ;  he  went  into  the 
parlor,  and  said,  it  is  vastly  cold  ; 
there  has  been  the  oddest  accident 
happened  as  I  came  over  the  Park  ! 
the  duke  of  Marlborough  came  up 
to  me,  and  asked  me,  if  I  knew  him  ? 
I  said.  No  ;  He  asked  me,  if  I  wanted 
anything  with  him  '!  I  told  him. 
No.  He  said,  I  am  the  duke  of 
Marlborough,  if  you  want  anything 
with  me ;  then  the  duke  went  away, 
and  he  came  there.  He  expressed 
a  great  surprise  at  it,  and  I  thought 
it  a  very  odd  affair.  .  .  . 

Mrs.   Mary   Wilson  sworn. 

Mrs.  Wilson.  —  I  dined  at  Mr. 
Barnard's  on  Thursday,  the  8th  of 
December ;    the  prisoner  I  remem- 


No.  38. 


III.       PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC. 


117 


ber  said  he  had  been  in  Hyde  Park 
some  days  before,  and  there  he  saw 
a  gentleman  on  horseback  come  up 
to  him,  and  asked  him,  if  he  had 
anything  to  say  to  him  ?  He  said. 
No ;  then  he  said,  I  am  the  duke  of 
Marlborough,  now  you  know  me, 
have  you  anything  to  say  to  me  ? 
He  said,  No.  He  talked  of  this  very 
freely  to  us  all. 

James  Greemoood  sworn. 

Greenwood.  —  I  live  at  Deptford, 
with  a  relation  in  the  brewing  way ; 
I  came  from  Deptford  on  Saturday 
to  the  prisoner's  father's ;  and  on 
the  Sunday  following  I  was  there  at 
breakfast ;  I  solicited  the  prisoner 
to  get  himself  dressed  to  go  with  me 
into  the  Park,  being  to  meet  a  per- 
son at  twelve  o'clock ;  I  with  a  good 
deal  of  difficulty  got  him  to  dress 
himself;  I  put  my  shirt  on  in  the 
parlor,  and  after  that  he  put  on  his ; 
I  fancy  we  breakfasted  about  nine 
o'clock ;  when  we  got  to  the  end  of 
Henry  VH's  chapel,  the  prisoner 
would  ha\'e  gone  the  other  way  into 
the  Park  without  going  through  the 
Abbey ;  I  took  hold  of  his  sleeve, 
and  said,  Barnard,  you  shall  go 
through  the  Abbey.  .  .  .  After  we 
had  stayed  there  some  time,  I  saw 
his  grace  the  duke  of  Marlborough, 
who  was  got  pretty  near  us ;  upon 
seeing  the  duke,  I  jogged  him  by 
the  elbow,  and  said,  step  this  way ; 
he  seemed  to  look  at  him. 

Had  you  heard  what  happened 
in  Hyde  Park  previous  to  this  ?  — 
I  had ;  I  believe  it  was  told  me  by 
the  prisoner  at  the  bar;  on  my 
jogging  him  we  walked  up  the  middle 
isle  towards  the  choir.  I  said,  did 
you  see  that  gentleman  in  the  blue 
coat,  or  do  you  know  him  ?  No, 
said  he,  not  I.  No  ?  said  I,  it 
is  the  duke  of  Marlborough ;  we 
will  walk  to  the  monument  again. 
The  duke  came,  and  placed  himself 
pretty  near  me  a  second  time ;  after 
this  we  walked  away.  .  .  . 

"Why  did  you  jog  him  ? — Because 
he  is  very  nearsighted.  At  last  I 
think  it  so  happened,  we  passed  the 
duke   between   two   of   the   pillars; 


and  as  I  had  hold  of  his  arm  walk- 
ing together,  there  was  barely  room 
for  three  people  to  pass  abreast ; 
the  duke  rather  gave  way,  and  made, 
as  I  thought,  a  kind  of  bow.  Upon 
this  I  said,  the  duke  of  Marlborough's 
behavior  is  extremely  particular ;  he 
certainly  has  something  to  say  to 
you ;  I  suppose  he  does  not  choose 
to  say  it  while  I  am  with  you,  I  will 
go  into  the  choir,  and  do  you  walk 
up  and  down  here,  and  he  will 
possibly  speak  to  you.  While  I  was 
there,  I  looked  ;  the  first  thing  I  saw 
was  the  duke  of  Marlborough  and 
the  prisoner  at  the  bar,  with  their 
heads  bowing  together,  as  if  it  was 
the  first  salutation. 

Had  the  prisoner  the  least  in- 
clination to  go  into  the  Abbey 
before  you  proposed  it  to  him  ?  — 
No ;    he  did  not  discover  any. 

Did  he  discover  any  inclination 
to  be  left  alone,  when  you  proposed 
to  go  into  the  choir?  —  No,  he  did 
not  in  the  least ;  in  some  few 
minutes  after,  the  prisoner  and  I 
met  together,  he  told  me  the  duke 
of  Marlborough  was  gone  out  of 
the  Abbey,  he  had  seen  him  go  out. 
I  said,  What  passed  ?  To  which 
he  replied,  the  duke  said,  did  you 
speak  to  me  ?  or  who  spoke  first  I 
cannot  tell. 

In  this  transaction  did  the  prisoner 
appear  openly,  or  as  if  he  had  some 
secret  transaction  to  do  with  the 
duke  ?  —  No,  it  was  open  and  clear. 

Did  you  see  the  duke  come  in  ?  — 
No,  I  did  not;  we  were  employed 
in  looking  at  the  monuments ;  we 
looked  at  several.  .  .  . 

Where  did  you  go  when  you  went 
out  of  the  Abbey  ? — We  went  im- 
mediately into  the  Park  ;  and  after 
walking  there,  we  met  with  two 
ladies  whom  I  knew,  and  to  whom 
Mr.  Barnard  was  not  unknown,  to 
whom  we  related  this  affair;  he 
always  related  these  things,  that 
is,  this  and  that  in  Hyde  Park,  as 
matter  of  great  curiosity. 

How  long  have  you  been  ac- 
quainted with  him?  —  I  have  been 
acquainted  with  him  seven  years. 


lis 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  38. 


What  is  his  character  ?  —  I  know 
nothing  to  the  contrary  but  that  he 
is  an  industrious,  sober  young  man. 

Did  you  ever  hear  that  he  was  a 
profligate,  expensive  young  man  ?  — 
No,  never. 

His  father  is  in  great  business,  is 
he  not?  —  His  fatlier's  business  is 
a  very  consitlerable  thing.  .  .  . 

The    Rev.    Dr.    Markka m   sworn. 

Dr.  Markham.  —  I  have  known 
the  prisoner  some  years ;  I  ha\e 
always  considered  him  as  a  young 
man  of  remarkable  sobriety  and 
attention  to  business.  I  have  had 
some  experience  of  him  ;  I  intrusted 
him  with  the  execution  of  some 
matters  of  importance  relating  to 
myself.  ...  If  he  had  come  to 
me  wanting  money,  he  might  easily 
have  imposed  on  me  ;  he  might  have 
had  anything  of  me ;  he  is  one  of 
the  chief  persons  I  trusted,  and  I 
don't  know  a  man  on  whom  I  would 
have  had  a  greater  reliance ;  I 
thought  him  remarkably  able  in  his 
business,  and  very  likely  to  be  a 
considerable  man  ;  and  I  never  was 
more  astonished  in  my  life  than  when 
I  heard  this  strange  story.  .  .  . 

Mr.  Serjeant  Davy  (for  the  prose- 
cution) : 

My  lord,  and  gentlemen  of  the 
jury;  I  am  sorry  to  take  up  any 
more  of  your  time  ;  but  the  defense 
consisting  of  various  parts,  I  would 
beg  leave  to  trespass  a  little  longer 
on  your  patience.  ...  I  do  not 
mean  to  draw  your  attention  back 
to  the  several  circumstances  of  the 
prosecution  ;  they  are  all  before  you, 
and  they  are  too  strong  and  strik- 
ing to  be  easily  forgot.  ...  It  will 
remain  for  your  consideration,  it  is 
now  the  capital  question,  whether 
these  circumstances  laid  before  you, 
consisting  of  five  or  six  parts  on  the 
part  of  the  prisoner,  may  be  rec- 
onciled with  the  suspicion  of  his 
guilt  ?  Because,  if  they  may,  it  is 
no  defense  at  all.  Gentlemen,  the 
first  is,  the  prisoner  being  sent  by 
his  father  to  Kensington  on  this 
Sunchiy  on  which  he  met  the  duke 
in     Hyde    Park.  .  .  .     His    father 


talked  of  his  going ;  he  did  go  — 
what  does  that  prove?  Does  it 
prove  he  was  not  to  go  to  Hyde  Park 
any  other  way  ?  Whoever  was  the 
writer  of  these  letters,  certainly  in- 
tended to  have  a  meeting  on  both 
the  Simdays,  in  the  Park  and  in  the 
Abbey,  in  a  very  pul)lic  manner.  .  .  . 
Gentlemen,  the  next  part  of  the  de- 
fense is,  that  he  at  several  times 
and  to  several  people  related  the 
meetings  he  had  had  with  the  duke, 
and  the  extraordinary  occurrences. 
This  indeed  corresponds  with  the 
observations  I  made :  the  writer  of 
these  letters  proposed  to  meet  the 
duke  at  a  time  that  people  were 
walking  out  on  a  Sunday,  and  in 
the  Abbey,  the  most  public  places, 
and  at  the  most  public  times :  is 
that  irreconcilable  with  the  suspi- 
cion that  the  prisoner  (if  he  was  the 
author  of  these  letters)  might  have 
been  contriving  with  other  persons, 
telling  people  of  the  several  meet- 
ings he  had  had  with  the  duke,  and 
the  substance  of  those  meetings  ? 
.  .  .  The  next  circumstance  is,  Mr. 
Greenwood's  evidence  of  going  with 
him  to  Westminster  Abbey.  .  .  . 
There  is  not  a  circumstance  in  all 
that  part  of  the  story  of  Mr.  Green- 
wood's evidence,  which  suits  so 
well  as  this  of  his  guilt ;  first  he 
wanted  to  get  rid  of  Mr.  Greenwood, 
and  when  he  could  not  do  that, 
then  making  no  secret  of  having  seen 
the  duke,  and  make  that  tally  with 
his  telling  him  he  had  met  him.  .  .  . 
These  are  all  the  circumstances 
that  they  have  insisted  upon  as 
proofs  of  his  innocence,  except  one, 
that  is  his  character.  .  .  .  Gentle- 
men, when  you  come  to  consider 
that,  character  goes  but  a  very  little, 
and  indeed  no  way  at  all,  towards 
proving  his  innocence.  .  .  .  IMight 
it  not  happen  that,  a  man  betwixt 
twenty  and  thirty  years  of  age,  de- 
pendent in  some  measure  upon  his 
father,  might  have  a  secret  call  for 
money,  which  he  would  wish  his 
father,  and  those  friends  that  are- 
fond  of  lending  money,  not  to  be 
acquainted  with  ?     We   know  very 


No.  38.                III.      PROOF   OF   HUMAN   TRAIT.       C.    KNOWLEDGE,    ETC.  119 

well,  there  are  certain  circumstances,  if   you  think   him    guilty,  3'ou  will 

some  in  this  capital  city  of  London,  find  him  so ;    if  not,  you  will  acquit 

where  a  man  might  be  very  hard  him.     With  regard  to  the  duke,  his 

driven    for    the    want    of    money,  grace  has  discharged  his  duty  which 

which  he  would  choose  to  hide  from  '  he  owed  to  the  public,  which  he  will 

his  friends.  .  .  .     Gentlemen,  he  is  at    all    times    do,    and    is   perfectly 

safe  in   your  hands.     I   doubt  not  indifferent  about  the  issue  of  it. 

but   that  you  will   do  your  duty;  The  jury  acquitted  the  prisoner. 


SUBTITLE  D:     EVIDENCE  TO  PROVE  PLAN   (DESIGN,   INTENTION) 

39.    Joiix  H.  WiGMORE.      Principles  of  Judicial  Proof.      (1913.)^ 

General  Principle.  The  existence  of  a  design  or  plan  is  usually  em- 
ployed evidentially  to  indicate  the  subsequent  doing  of  the  act  designed  or 
planned  {post,  Nos.  121—129).  The  question  here  is  how  such  a  design  or 
plan  may  be  evidenced  circumstantially.  Of  the  three  conceivable  sorts  of 
circumstantial  evidence  {ante,  No.  3),  only  two  are  practically  available,  viz.  : 
(1)  Conduct,  as  indicating  the  inward  existence  of  a  design ;  (2)  Prior  or 
subsequent  existence  of  the  design,  as  indicating  its  existence  at  the  time 
in  question. 

Design  or  Plan  is  to  be  carefully  distinguished  from  Intent.  In  many 
parts  of  the  substantive  law,  particularly  in  the  criminal  law,  the  state  of 
mind  accompanying  an  act  becomes  legally  important,  and  is  for  such 
purposes  one  of  the  propositions  in  issue.  This  may  be  termed  Intent.  It 
is  not  used  evidentially  to  prove  something  else ;  it  is  one  of  the  ultimate 
parts  of  the  issue.  Design  or  Plan,  on  the  other  hand,  has  almost  invariably 
(except  where  a  conspiracy  is  charged)  a  purely  evidential  use ;  the  infer- 
ence is  to  be  from  the  Design  to  the  Act,  and  thus  the  Design  must  in  its 
turn  be  evidenced. 

Design  must  also  l)e  distinguished  from  Emotion  or  Motive  (anger, 
jealousy,  and  the  like).  Thus,  threats  of  violence  may  evidence  both  a 
Design  and  an  Emotion. 

Sundry  Instances  {Tools,  Materials,  Liquor  Licenses,  Preparations,  Journeys, 
E.vperiments,  Inquiries,  Prophecies,  and  the  Like).  The  kinds  of  conduct 
which  may  evidence  a  design  are  innumerable  in  their  variety. 

The  acquisition  or  possession  of  instruments,  tools,  or  other  means  of 
doing  the  act,  is  admissible  as  a  significant  circumstance ;  the  possession 
signifies  a  probable  design  to  use ;  e.g.  the  possession  of  the  apparatus  or  a 
license  for  gaming  or  for  selling  liquor,  evidences  a  design  to  game  or  to  sell. 
The  presence  of  a  person  at  a  place  or  a  journey  towards  it,  together  with 
behavior  showing  a  desire  for  secrecy,  may  indicate  a  design  to  commit  an 
unlawful  act  there.  Where  a  person  makes  inquiries,  either  by  word  of 
mouth  or  l)y  messenger,  or  by  experimentation  searches  for  knowledge,  it 
is  natural  to  infer  that  he  designs  to  use  the  knowledge  thus  sought ;  and 
if  the  knowledge  is  needed  or  is  adapted  to  help  in  doing  the  act  in  ques- 
tion, the  inquiries  or  experiments  are  thus  evidential  of  a  design  to  do  the 
act.  Ob.scure  intimation  and  allusions  are  often  significant ;  words  of  a 
person,  uttered  l)eforehand,  indicating  a  knowledge  that  an  event  is  al)out 
to  occur  or  an  act  to  happen,  tend  to  show  a  design  to  do  it  or  to  cooperate 
in  it,  so  far  as  it  was  not  definitely  expected  or  foreknown  l)y  others,  because 

'Adapted  from  the  same  author's  Treatise  on  Evidence  (1905,  Vol.  I,  §§  237,  238). 

120 


No.  40.  III.       PROOF   OF   HUMAN   TRAIT.      D.    PLAN  121 

in  that  case  the  knowledge  could  be  possessed  only  by  the  one  planning  it 
or  privy  to  the  plan  ;  and  the  probative  value  of  such  evidence  would  vary 
with  the  particularity  and  exclusiveness  of  the  foreknowledge  thus  indicated. 

Explicit  threats  to  do  injury,  and  other  express  declarations  of  a  design 
or  plan,  have  of  course  probative  value,  but  are  rather  to  be  classed  as  testi- 
monial evidence. 

Note  that  we  are  here  not  yet  concerned  with  the  use  of  Design  or  Plan 
as  evidence  of  the  Doing  of  an  Act  (post,  No.  121),  but  only  with  conduct  as 
circumstantial  evidence  that  a  Design  or  Plan  existed. 

40.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(1868.     p.  545.) 

InfirmatiiH'-  Hypotheses  explaining  away  the  Evidence  of  an  Intention.  .  .  . 
2.  In  regard  to  predictions  of  approaching  mischief  to  an  individual  who  is  after- 
wards found  murdered,  it  may  have  been  the  fact  that  the  accused  was  really 
speaking  the  conviction  of  his  own  mind,  and  without  any  criminal  intention. 
And  it  has  been  well  remarked  that  idle  prophecies  of  death  are  quite  as 
frequently  the  offspring  of  superstition,  as  of  premeditated  assassination. 

3.  Expressions  of  illwill.  .  . .  Supposing  them  to  have  been  actually  uttered 
as  proved,  they  may  have  been  uttered  on  some  sudden  provocation,  or  in 
the  extremity  of  momentary  passion,  or  during  a  state  of  intoxication,  without 
any  real,  settled,  and  abiding  feeling  of  malice  against  the  subject  of  them. 

4.  Declarations  of  intention. ...  It  does  not  necessarily  follow,  because  a 
man  has  avowed  an  intention  to  commit  a  crime,  that  such  intention  really 
existed  in  his  mind.  The  words  may  have  been  spoken  in  mere  bravado,  or 
with  the  view  of  alarming  or  annoying  the  object  of  them  ;  or,  like  expres- 
sions of  illwill,  may  have  been  uttered  in  a  moment  of  passion,  or  state  of 
intoxication,  without  any  settled  evil  purpose. 

5.  Threats.  The  infirmative  suppositions  applicable  to  these  circum- 
stances are  the  same  with  those  just  enumerated  ;  with  the  addition  of  the 
following.  Threats  being  considered  to  be  either  uttered  in  the  presence 
and  hearing  of  the  person  threatened,  or  intended  to  come  to  his  knowledge, 
the  sole  intention  may  have  been  to  alarm  and  intimidate  him.  If  the  ac- 
cused really  intended  the  mischief  avowed  and  threatened,  it  is  not  reasonable 
that  he  would  make  it  known  to  the  object,  and  thereby  naturally  put  him 
on  his  guard  against  the  intended  act.  .  .  . 

6.  Preparations  for  crime.  The  infirmative  suppositions  applicable  to  cir- 
cumstances of  this  class  comprise  the  following.  .  .  .  The  appearances  indic- 
ative of  preparation  may  have  been  correctly  observed,  .  .  .  and  yet  may  have 
no  real  connection  with  the  accused,  having  emanated  from  no  conduct  on 
his  part,  but  having  been  whoWy  fabricated  by  the  real  criminal  or  some  other 
person  ;  as  by  conveying  into  the  possession  of  the  accused  (so  as  to  become 
a  subject  of  observation)  a  poison  of  the  same  description  as  that  after- 
wards used  in  committing  the  crime,  or  perhaps  the  identical  instrument 
used  in  committing  it.  .  .  .  Again,  the  appearances  supposed  to  be  indicative  of 
preparation  may  be  .  .  .  devoid  of  any  real  criminal  quality  whatever.  Thus, 
it  may  be  true  not  only  that  the  accused  had  the  poison  in  his  possession 
before  the  crime,  but  that  he  had  it  knowingly,  having  actually  procured  it 
with  his  own  hands.  And  yet,  even  in  this  case,  the  important  psycho- 
logical fact  of  intention  may  be  wholly  wanting. 


122 


PART   I.       CIRCUMSTANTIAL    EVIDENCE 


No.  41. 


41.    THE  CASE  OF   THE    DRYAD.     (Arthur  Griffiths.     Mys- 


teries of  Police  and  Crime.      1898. 

Frauds  upon  underwriters  and 
marine  insurance  officers  cannot  be 
said  to  have  ceased  to  this  day.  A 
story  of  the  sea  that  would  serve  as 
the  foundation  of  an  exciting  sea 
romance  is  to  be  found  in  the  loss 
of  the  brig  Dryad,  in  1840.  The 
plot  was  cle\erly  laid,  and  proved 
perfectly  successful  for  a  time.  The 
ship  was  lost,  the  insurances  paid ; 
the  delinquents  —  two  brothers 
named  Wallace,  one  a  merchant, 
the  other  a  sea  captain  —  might 
have  enjoyed  their  ill-gotten  gains 
to  the  end,  but  for  the  inconvenient 
return  of  some  of  the  crew.  Then 
suspicions  that  had  been  only  vague 
became  certainty,  and  one  brother, 
Patrick  Wallace,  was  forthwith  ar- 
rested. The  other,  Michael,  who 
had  been  living  in  the  Commercial 
Road,  absconded,  abandoning  his 
house  and  furniture.  He  was  traced, 
in  due  course,  to  Lancaster,  where 
he  was  taken.  .  .  . 

The  brothers  had  set  about  their 
fraud  with  all  the  skill  of  old  hands. 
Michael  purchased  the  preponderat- 
ing share  in  the  brig  Dryad  —  three 
fourths,  in  fact,  £1600  in  all  —  and 
had  expended  another  £600  making 
her  "a  first-class  ship."  Patrick 
Wallace  took  the  part  of  securing  a 
complaisant  shipmaster,  and  found 
him  in  Edmund  Loose,  who  was 
appointed  to  the  Dryad  with  'Jie 
clear  understanding  that  he  should 
lose  her  somewhere,  somehow,  the 
sooner  the  better.  While  these  es- 
sential preliminaries  were  being  set- 
tled, ]SIichael  Wallace  sought  out 
a  merchant  to  ship  a  cargo,  and  the 
Messrs.  Zulueta  chartered  the  Dryad 
to  carry  goods  to  the  value  of  £300 
to  Santa  Cruz,  in  the  West  Indies. 
Heavy  insurances  were  next  ef- 
fected on  the  ship  and  the  freight. 
The  owners  got  a  policy  for  £2200 
from  the  Marine  Insurance  on  the 
first,  and  £300  on  the  latter.  But 
the  Wallaces  insured  the  Dryad  and 
her  cargo  further   in   other  offices. 


Vol.  I,  p.  389.) 
and  these  policies  standing  in  their 
names  amounted  to  £6617,  a  sum 
far  exceeding  their  actual  holding 
in  the  ship  and  what  she  carried. 
The  chief  testimony  against  the 
Wallaces  was  that  of  the  mate  of 
the  Dryad,  who  escaped  the  ship- 
wreck, and  who  described  the  whole 
proceeding.  He  described  the  lad- 
ing of  the  ship  at  Liverpool,  and  how, 
when  Messrs.  Zulueta's  goods  were 
all  on  board,  quite  one  third  of  the 
hold  remained  unfilled.  Michael 
Wallace  was  to  have  shipped  a  con- 
signment of  flannels,  cloths,  beef, 
pork,  butter,  and  earthenware,  but 
never  did  so,  although  Captain 
Loose  had  signed  bills  of  lading  as 
having  received  them.  A  suspi- 
cious circumstance  was  the  insuffi- 
cient quantity  of  provisions  sent 
for  the  crew.  It  was  usual  to  send 
enough  for  both  outward  and  home- 
ward voyages,  but  barely  enough  for 
the  first  was  provided.  The  ship 
was  also  badly  found.  There  was 
no  proper  log-line  on  board ;  the 
pump  was  never  made  to  suck ; 
the  longboat  was  fitted  with  tackle, 
and  ready  to  launch  at  a  moment's 
notice.  Nothing  happened,  as  the 
weather  continued  "set  fair,"  but 
they  steered  a  strange  course,  north- 
ward, deviating  from  the  customary 
track,  and  first  sighted  land  at 
Virgin  Gorda,  and,  holding  on,  ran 
close  to  the  breakers  off  Anagada, 
both  of  them  rocky  reefs  on  the 
outer  fringe  of  the  West  Indies. 
The  captain  was  called  up  from  be- 
low, while  the  mate  put  the  ship's 
head  about.  But  the  captain,  com- 
ing on  deck,  seized  the  helm  and  ran 
her  straight  for  the  breakers.  Now 
the  crew  interposed,  swearing  they 
did  not  mean  to  lose  their  lives  for 
the  captain's  pleasure,  whereupon 
he  left  the  wheel,  and  one  of  the 
crew  raking  it,  put  the  ship's  head 
round.  Two  days  the  course  was 
between  the  Silver  Keys  and  the 
north  of  St.  Domingo,  but  so  much 


No.  42. 


III.      PROOF   OF  HUMAN   TRAIT,      D.    PLAN 


123 


too  near  the  former,  which  are  dan- 
gerous rocks,  that  the  Dryad  struck 
upon  one  of  them,  but  again  she 
escaped,  this  time  with  the  loss  of 
her  rudder.  They  then  coasted 
along  the  coast  of  St.  Domingo, 
close  in  shore,  and  after  passing 
Cape  Hayti  struck  on  a  reef  at  Cape 
Cruz.  She  might  have  been  got 
off,  for  she  was  making  no  water, 
but    no    efforts    were    made.     The 


crew  with  the  captain  deserted  her, 
but  not  before  one  of  them  had 
detected  a  large  hole  under  her  stern 
which  could  not  have  been  made 
by  a  rock,  but  was,  no  doubt,  the 
captain's  work  from  one  of  the  state- 
rooms. He  was  never  brought  to 
trial,  however,  for  he  died  before 
proceedings  were  taken. 

Both    the    Wallaces    were    found 
guilty  and  sentenced  for  life. 


42.    THE  CHICAGO  ANARCHISTS'  CASE 

stantial  Evidence.      Amer.  ed.  1905,  p.  154.) 

In  the  Chicago  Criminal  Court, 
eight  anarchists  were  found  guilty 
of  murder,  seven  of  them  being 
condemned  to  death.  [The  judg- 
ment was  affirmed  in  122  111.  1.] 
The  seven  were  August  Spies, 
Michael  Schwab,  Samuel  Fielden, 
Albert  R.  Parsons,  Adolph  Fischer, 
George  Engel,  and  Louis  Lingg. 
The  other,  condemned  to  fifteen 
years'  imprisonment,  was  Oscar  W. 
Neefe. 

On  May  1,  1886,  many  workmen 
in  Chicago  struck  to  obtain  a  re- 
duction of  their  working  day  to  eight 
hours.  There  was  great  excitement, 
and  many  meetings  and  speeches. 
On  the  4th  of  May,  such  a  meeting 
held    at    the    Haymarket    on 


(W.  Wills.     Circum- 


was 

Randolph  St.,  in  Chicago.  This 
meeting  was  addressed  by  several 
of  the  defendants,  and  during  the 
address  of  Spies  a  charge  was  made 
on  the  crowd  by  180  policemen. 
Bombs  were  thrown  and  guns  fired 
at  the  policemen,  and  six  policemen 
were  killed  and  six  wounded.  The 
defendants  were  tried  for  the  mur- 
der of  one  of  these  policemen, 
Michael  J.  Degan. 

The  corpus  delicti  was  established 
by  undisputed  evidence.  Degan 
was  killed  by  a  bomb  ;  of  that  there 
was  no  doubt.  It  seemed  equally 
well  established  that  not  one  of  the 
defendants  threw  the  bomb,  but  they 
were  charged  as  accessories. 

It  was  shown  that  they  were  all 
members  of  several  anarchistic 
societies,  particularly  one  known  as 


the  International  Arbeiter  Associa- 
tion, often  called  the  "Internation- 
als" and  the  "I.  A.  A."  This  as- 
sociation was  divided  into  groups,  of 
which  there  were  about  eighty  in 
the  United  States.  Certain  mem- 
bers of  each  group  were  armed  and 
drilled  regularly.  The  most  pro- 
ficient of  these  armed  groups,  in- 
cluding the  defendants,  were  also 
members  of  a  more  exclusive  organ- 
ization known  as  the  "  Lehr  und 
Wehr  Verein."  Each  member  had 
a  Springfield  rifle  and  other  weapons, 
and  each  was  known  by  number  only. 
The  object  of  these  societies  was  the 
destruction  of  organized  society 
and  the  right  of  private  property. 
The  members  openly  and  secretly 
advocated  the  destruction  of  prop- 
erty, the  murder  of  officers  of  the 
law  and  of  property  owners,  and  the 
general  use  of  deadly  weapons, 
dynamite,  bombs,  and  other  ex- 
plosives. 

The  group  of  defendants  published 
three  incendiary  newspapers,  —  The 
Arbeiter  Zeitung  in  German,  pub- 
lished by  Spies,  Schwab,  Fischer, 
and  Neebe ;  The  Alarm  in  English, 
published  by  Parsons  and  Fielden ; 
and  a  still  more  inflammable  sheet 
called  The  Anarchist,  published  by 
Engel.  These  papers  published  the 
signals  by  which  the  anarchists  were 
called  together  at  various  times, 
the  signal  for  the  meeting  of  May 
4th  being  "Ruhe."  They  constantly 
advocated  social  revolution  and 
war  upon  the  police  and  the  militia. 


124 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  42. 


Their  articles,  written  by  the  de- 
fendants, contained  hundreds  of 
expressions  hke  the  followinji; :  "  Dag- 
gers and  re\olvers  are  easily  to  he 
gotten,  hand-grenades  are  cheaply 
to  be  produceti ;  explosives  too  can 
be  obtained."  "  Workingnien,  arm 
yourselves."  "We  wonder  whether 
the  workingmen  will  at  last  supply 
themselves  with  weapons,  dynamite, 
and  prussic  acid."  "  If  we  do  not 
bestir  ourselves  for  a  bloody  rev- 
olution, we  cannot  leave  anything 
to  our  children  but  poverty  and 
slavery."  "One  man  armed  with 
a  dynamite  bomb  is  ecjual  to  one 
regiment  of  militia."  "  Dynamite  is 
the  emancipator."  "  Assassination 
will  remove  the  evil  from  the  face 
of  the  earth."  Articles  were  pub- 
lished on  "  How  to  use  dynamite 
properly,"  "  Manufacturing  Bombs," 
"Exercise  in  Arms,"  and  extracts 
were  published  from  the  book  of 
Herr  ^lost,  giving  detailed  instruc- 
tions in  the  manufacture  and  use 
of  bombs  and  other  weapons.  In 
many  public  speeches  the  defendants 
had  advocated  the  killing  of  the 
police  and  the  militia,  using  the 
same  arguments  and  the  same  lan- 
guage as  in  their  written  editorials. 
The  date  for  beginning  the  "social 
revolution  "  was  May  1 ,  1886,  for  the 
reason  that  various  labor  unions  were 
to  strike  at  that  time  for  the  eight- 
hour  day.  These  defendants  did 
not  approve  of  the  eight-hour  agita- 
tion, except  as  a  means  that  they 
could  use  to  bring  about  total  de- 
struction of  society.  They  ex- 
pected the  discontent  and  want  ac- 
companying the  strike  to  drive 
many  workmen  to  the  ranks  of  the 
Internationals.  The  defendants 
urged  all  to  procure  arms  for  the 
successful  resistance  of  the  authori- 
ties during  the  continuance  of  the 
strike.  They  even  made  arrange- 
ments to  purchase  guns  in  large 
quantities. 

In  the  meantime  they  had  all  been 
experimenting  in  the  manufacture 
and  expIosif)n  of  bombs.  Partic- 
ularly the  defendant  Lingg  had  been 


so  employed.  It  became  material 
to  show  that  the  bomb  with  which 
Policeman  Degan  was  killed  had 
been  manufactured  by  Lingg.  To 
this  end  it  was  proved  first  that 
the  bomb  was  round.  Several  wit- 
nesses who  saw  it  thrown  so  de- 
scribed it,  and  moreover,  it  was  not 
of  the  material  of  which  ordinary 
gas-pipe  bombs  are  made.  The 
manufacture  of  round  bombs  re- 
quires greater  skill  and  greater 
secrecy.  Lingg  was  shown  to  have 
manufactured  such  round  bombs  in 
large  numbers.  It  was  also  shown 
that  a  basketful  of  his  bombs  had 
been  carried  to  the  Haymarket 
meeting.  In  the  next  place,  the 
bomb  was  exploded  by  means  of  a 
fuse.  The  bombs  that  Lingg  had 
constructed  were  all  made  of  two 
semiglobular  shells  fastened  to- 
gether, filled  with  dynamite,  and 
fired  by  means  of  a  fuse  passed 
through  a  hole  bored  for  the  pur- 
pose and  attached  to  a  fulminating 
cap.  Further,  the  pieces  of  the 
bomb  taken  from  Degan's  body 
were  of  the  same  chemical  composi- 
tion as  the  bombs  made  by  Lingg. 
They  were  composed  of  tin  and  lead, 
with  traces  of  antimony,  iron,  and 
zinc.  There  is  no  commercial  sub- 
stance containing  all  these  ingredi- 
ents. In  Lingg's  bombs  the  tin 
had  been  added  to  the  lead  to  procure 
sufficient  resistance  for  explosion. 
The  bomb  that  exploded  had  on 
it  a  small  iron  nut,  which  was  ex- 
tracted from  the  body  of  a  by- 
stander. This  indicated  that  the 
two  semiglobular  halves  of  the 
bomb  had  been  fastened  together 
with  a  bolt.  Practically  all  of  the 
bombs  made  by  Lingg,  and  later 
discovered,  were  made  of  the  two 
semiglobular  halves,  l)olted  to- 
gether, and  this  nut  taken  from  the 
body  of  the  bystander  exactly  fitted 
those  bolts.  Lingg  himself  had  been 
seen  making  such  bombs,  with  a 
handkcrciiicf  over  his  face  to  pre- 
vent the  iniialation  of  gas.  He  had 
bought  dynamite.  A  poisonous  gas 
exhales   from  dynamite.     The  con- 


No.  43. 


III.       PROOF   OF   HUMAN   TRAIT.       D.    PLAN 


125 


elusion  follows  that  he  put  dyna- 
mite in  the  bombs  that  he  was  seen 
to  make. 

In  Lingg's  room,  after  the  murder, 
were  found  various  articles,  among 
them  the  following :  a  cold  chisel, 
a  file,  shells,  loaded  cartridges,  sheets 
of  lead,  bolts,  two  empty  gas-pipe 
bombs  and  two  loaded  with  dyna- 
mite, a  rifle,  a  round  l)omb  loaded 
with  dynamite,  a  piece  of  block  tin, 
a  piece  of  candlestick  composed 
of  tin,  lead,  antimony,  and  zinc, 
fuse  of  various  lengths,  and  fulminat- 
ing caps.  He  had  every  ingredient 
necessary  for  the  making  of  bombs 
like  the  one  that  killed  Degan.  Dif- 
ferences in  the  exact  amounts  of 
these  ingredients  in  the  different 
bombs  would  be  accounted  for  by 
the  fact  that  he  made  each  semi- 
globe  separately  with  a  small  ladle 
over  the  kitchen  stove,  casting  each 
in  a  small  clav  mold  made  bv  him- 
self. 

Lingg's  purpose  in  making  the 
bombs  is  to  be  found  from  the  pur- 
poses for  which  the  International 
Arbeiter  Association  existed.  These 
have  been  before  stated,  and  were 
made  apparent  from  the  publica- 
tions and  speeches  of  the  other  de- 
fendants. There  was  evidence  of 
a  distinct  plan  on  the  part  of  the 
defendants  to  attack  the  police  of 


the  whole  city  on  the  night  in 
question.  jNIembers  of  the  Associa- 
tion helped  themselves  to  bombs 
brought  by  Lingg  to  the  rendez- 
vous, and  were  to  make  separate 
attacks  upon  the  police  stations, 
gradually  concentrating  to  fight 
in  the  center  of  the  city.  This  plan 
had  to  be  changed  because  the  police 
were  concentrated  near  the  neigh- 
borhood of  the  Haymarket. 

There  was  a  vast  array  of  evidence 
of  the  foregoing  sorts,  and  the  de- 
fendants were  convicted  under  a 
I  statute  of  Illinois  making  accessories 
punishable  as  principals.  The 
Court  found  that  Degan 's  death  was 
directly  brought  about  by  the  con- 
spiracies and  plans  of  the  defendants  ' 
and  other  "Internationals."  The 
bombs  were  made  and  obtained  in 
pursuance  of  the  plan.  The  meeting 
was  called  at  the  Haymarket  on  the 
appointed  evening.  That  day  the 
signal  "Ruhe"  was  printed,  to  begin 
the  revolution.  In  pursuance  of  the 
plan,  and  varying  from  it  only  as 
was  made  necessary  by  the  location 
of  the  police,  a  bomb  was  first 
hurled  at  them  and  then  the  "In- 
ternationals" opened  fire  with  guns. 
The  jury  were  justified  in  believing 
that  the  bomb  was  thrown  either  by 
a  member  of  the  conspiracy  or  by 
an  agent  employed  to  throw  it. 


43.    MADAME      LAFARGE'S 

Mysteries  of  Police  and  Crime.      1898 

One  of  the  greatest  poisoning 
trials  on  record  in  any  country  is 
that  of  ]Madame  Lafarge,  and  its 
interest  is  undying,  for  to  this  day 
the  case  is  surrounded  in  mystery. 
Although  the  guilt  of  the  accused 
was  proved  to  the  satisfaction  of 
the  jury  at  the  time  of  the  trial, 
strong  doubts  were  then  entertained, 
and  still  possess  acute  legal  minds, 
as  to  the  justice  of  her  conviction. . .  . 
In  the  month  of  January,  1840, 
an  iron-master,  Lafarge,  residing 
at  Glandier,  in  the  Limousin,  died 
suddenly  of  an  unknown  malady. 
His  family,  friends,  and  immediate 


CASE.  (Arthur  Griffiths. 
.  Vol.  I,  p.  193.) 
neighbors  at  once  accused  his  wife 
of  having  poisoned  him.  This  wife 
differed  greatly  in  breeding  and  dis- 
position from  the  deceased.  Marie 
Fortunee  Capelle  was  the  daughter 
of  a  French  artillery  colonel,  who 
had  served  in  Napoleon's  Guard. 
She  was  well  connected,  her  grand- 
mother having  been  a  fellow  pupil 
of  the  Duchess  of  Orleans  under 
Madame  de  Genlis ;  her  aunts 
were  well  married,  one  to  a  Prussian 
diplomat,  the  other  to  M.  Garat, 
the  well-known  general  secretary 
of  the  Bank  of  France.  She  had 
been  delicately  nurtured ;  her  father 


12G 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  43. 


held  good  military  commands,  and 
was  intimate  with  the  best  people 
about,  many  of  them  nobles  of  the 
First  Empire,  and  the  child  was 
petted  by  the  Duchess  of  Dalmatia 
(Madame  Soult),  the  Princess  of 
Echmuhl  (Madame  Ney),  Madame 
de  Cambaceres,  and  so  forth.  Colo- 
nel Capelle  died  early,  and  Marie's 
mother,  having  married  again,  also 
died.  Marie  was  left  to  the  care 
of  distant  relations ;  she  had  a 
small  fortune  of  her  own,  which  was 
applied  to  her  education,  and  she 
was  sent  to  one  of  the  best  schools 
in  Paris.  .  .  .  Marie  grew  up  dis- 
tinguished looking,  if  not  absolutely 
pretty ;  tall,  slim,  with  dead-white 
complexion,  jet-black  hair  worn  in 
straight  shining  plaits,  fine  dark 
eyes,  and  a  sweet  but  somewhat  sad 
smile.  These  are  the  chief  features 
of    contemporary    portraits. 

To  marry  her  was  now  the  wish 
of  her  people,  and  she  was  willing 
enough  to  become  independent. 
Some  saj^  that  a  suitor  was  sought 
through  the  matrimonial  agents, 
others  deny- it  positively.  In  any 
case,  a  proposal  came  from  a  cer- 
tain Charles  Pouch  Lafarge  of 
dandier,  a  man  of  decent  family 
but  inferior  to  the  Capelles,  not 
much  to  look  at,  about  thirty,  and 
supposed  to  be  prosperous  in  his 
l)usiness.  The  marriage  was  hastily 
arranged,  and  as  cjuickly  solemnized 
—  in  no  more  than  five  days. 

Lafarge  drew  a  rosy  picture  of 
his  house :  a  large  mansion  in  a 
wide  park,  with  beautiful  views, 
where  all  were  eager  to  welcome  the 
bride  and  make  her  happy.  As 
they  traveled  thither  the  scales 
fell  quickly  from  Marie's  eyes.  Her 
new  husband  changed  in  tone ; 
from  beseeching  he  became  rudely 
dictatorial,  and  he  seems  to  have 
soon  wounded  the  delicate  suscepti- 
bilities of  his  wife.  The  climax 
was  reachcfi  on  arrixal  at  dandier, 
a  dirty,  squalid  place.  Threading 
its  dark,  narrow  streets,  they  reached 
the  mansion  -^  only  a  poor  place, 
after  all,  surrounded  with  smoking 


chimneys :  a  cold,  damp,  dark 
house,  dull  without,  bare  within. 
The  shock  was  terrible,  and  Madame 
Lafarge  declared  she  had  been 
cruelly  deceived.  Life  in  such  sur- 
roundings, tied  to  such  a  man, 
seemed  utterly  impossible.  She  fled 
to  her  own  room,  and  there  in- 
dicted a  strange  letter  to  her  hus- 
band, a  letter  that  was  the  starting 
point  of  suspicion  against  her,  and 
which  she  afterwards  explained  away 
as  merely  a  first  mad  outburst  of 
disappointment  and  despair.  Her 
object  was  to  get  free  at  all  costs 
from  this  hateful  and  unbearable 
marriage. 

This  letter,  dated  August  25, 
1839,  began  thus  :  "  Charles,  —  I  am 
about  to  implore  pardon  on  my 
knees.  I  have  betrayed  you  cul- 
pably. I  love  not  you,  but  another. 
..."  And  it  continued  in  the 
same  tone  for  several  sheets.  Then 
she  implored  her  husband  to  re- 
lease her  and  let  her  go  that  very 
evening.  "Get  two  horses  ready, 
I  will  ride  to  Bordeaux  and  then 
take  ship  to  Smyrna.  I  will  leave 
you  all  my  possessions.  May  God 
turn  them  to  your  advantage,  you 
deserve  it.  As  for  me,  I  will  live 
by  my  own  exertions.  Let  no  one 
know  that  I  ever  existed.  ...  If 
this  does  not  satisfy  you,  I  will 
take  arsenic,  /  have  some  .  .  .  spare 
me,  be  the  guardian  angel  of  a  poor 
orphan  girl,  or,  if  you  choose,  slay 
me,  and  sav  1  have  killed  mvself. 
Marie." 

This  strange  effusion  was  read 
w'ith  consternation  not  only  by 
Lafarge,  but  by  his  mother,  his 
sister,  and  her  husband.  A  stormy 
scene  followed  between  Lafarge  and 
his  wife,  but  he  won  her  over  at 
length.  She  withdrew  her  letter, 
declaring  that  she  did  not  mean 
what  she  wrote,  and  that  she  would 
do  her  best  to  make  him  happy. 

"  I  have  accepted  my  position," 
she  WTote  to  M.  Garat,  "although  it 
is  difficult.  But  with  a  little 
strength  of  mind,  with  patience, 
and  my  husband's  love,  I  may  grow 


No.  43. 


III.       PROOF   OF   HUMAN    TRAIT.       D.    PLAN 


127 


contented.  Charles  adores  me  and 
I  cannot  but  be  touched  by  the 
caresses  hivished  upon  me."  To 
another  she  wrote  that  she  struggled 
hard  to  be  satisfied  with  her  life. 
Her  husband  under  a  rough  shell 
possessed  a  noble  heart ;  her  mother- 
in-law  and  sister-in-law  over- 
whelmed her  with  attentions. 

Now  she  gradually  settled  down 
into  domesticity,  and  busied  herself 
with  household  affairs.  M.  La- 
farge  made  no  secret  of  his  wish  to 
employ  part  of  his  wife's  fortune 
in  developing  his  works.  He  had 
come  upon  an  important  discovery 
in  iron  smelting,  and  only  needed 
capital  to  make  it  highly  profitable. 
His  wife  was  so  persuaded  of  the 
value  of  this  invention  that  she 
lent  him  money,  and  used  her  in- 
fluence with  her  relatives  to  secure 
a  loan  for  him  in  addition.  Hus- 
band and  wife  now  made  wills 
whereby  they  bequeathed  their 
separate  estates  to  each  other. 
Lafarge,  however,  made  a  second 
will,  almost  immediately,  in  favor 
of  his  mother  and  sister,  an  under- 
hand proceeding,  of  which  his  wife 
was  not  told.  Then  he  started  for 
Paris,  to  secure  a  patent  for  his 
new  invention,  taking  with  him  a 
general  power  of  attorney  to  raise 
money  on  his  wife's  property.  Dur- 
ing their  separation  many  affection- 
ate letters  passed  between  them. 

The  first  attempt  to  poison, 
according  to  the  prosecution,  was 
made  at  the  time  of  this  visit  to 
Paris.  Madame  Lafarge  conceived 
the  tender  idea  of  her  having  her 
portrait  painted,  and  sending  it 
to  console  her  absent  spouse.  At 
the  same  time  she  asked  her  mother- 
in-law  to  make  some  small  cakes 
to  accompany  the  picture.  They 
were  made  and  sent,  with  a  letter, 
written  by  the  mother,  at  Marie 
Lafarge's  request,  begging  Lafarge 
to  eat  one  of  the  cakes  at  a  partic- 
ular hour  on  a  particular  day.  She 
would  eat  one  also  at  Glandier 
at  the  same  moment,  and  thus  a 
mysterious    affinity   might    be    set 


up  between  them.  A  great  deal 
turned  on  this  incident.  The  case 
containing  the  picture  and  the  rest 
was  dispatched  on  December  16th, 
by  diligence,  and  reached'  Paris  on 
the  18th.  But  on  opening  the  box, 
one  large  cake  was  found,  not 
several  small  ones.  How  and  when 
had  the  change  been  effected  ?  The 
prosecution  declared  it  was  Marie's 
doing.  The  box  had  undoubtedly 
been  tampered  with ;  it  left  GJan- 
dier,  or  was  supposed  to  leave, 
fastened  down  with  small  screws. 
On  reaching  Paris  it  w^as  secured 
with  long  nails,  and  the  articles 
inside  were  not  placed  as  they  had 
been  on  departure.  But  the  object 
of  the  change  was  evidently  evil. 
For  now  Lafarge  tore  off  a  corner 
of  the  large  cake,  ate  it,  and  the 
same  night  was  seized  with  violent 
convulsions.  It  was  presumably  a 
poisoned  cake,  although  the  fact 
was  never  verified,  but  Marie  La- 
farge was  held  responsible  for  it, 
and  eventually  charged  with  an 
attempt  to  murder  her  husband. 

In  support  of  this  grave  charge 
it  was  found  that  on  the  12th  of 
December,  two  days  before  the 
box  left,  she  had  purchased  a  quan- 
tity of  arsenic  from  a  chemist  in 
the  neighboring  town.  Her  letter 
asking  for  it  was  produced  at  the 
trial,  and  it  is  worth  reproducing. 
"Sir,"  she  wrote,  "I  am  overrun 
with  rats.  I  have  tried  nux  vomica 
quite  without  effect.  Will  you, 
and  can  you,  trust  me  with  a  little 
arsenic  ?  You  may  count  upon  my 
being  most  careful,  and  I  shall  only 
use  it  in  a  linen  closet."  At  the 
same  time  she  asked  for  other  harm- 
less drugs.  Further  suspicious  cir- 
cumstances were  adduced  against 
her.  It  was  urged  that  after  the  case 
had  been  dispatched  to  Paris  she 
was  strangely  agitated,  her  excite- 
ment increasing  on  the  arrival  of 
news  that  her  husband  was  taken 
ill,  that  she  expressed  the  gravest 
fears  of  a  bad  ending,  and  took  it 
almost  for  granted  that  he  must  die. 

Yet,    as     the    defense    presently 


128 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  43. 


showed,  there  were  points  also  in 
her  favor.  Would  Marie  have  made 
her  mother-in-law  write  referring 
to  the  small  cakes,  one  of  which 
the  son  was  to  eat,  if  she  knew  that 
no  small  cakes  hut  one  large  one 
would  he  found  within  ?  How  could 
she  have  substituted  the  large  for 
the  small '!  There  was  as  much 
evidence  to  shOw  that  she  could  not 
have  effected  the  exchange  as  that 
she  had  done  so.  Might  not  some 
one  else  have  made  the  change  ? 
(Here  was  the  first  importation  of 
another  possible  agency  in  the  mur- 
der, which  never  seems  to  have  been 
investigated  at  the  time,  but  to 
which  I  shall  return  presently,  to 
explain  how  Marie  Lafarge  may  have 
borne  the  brunt  of  another  person's 
crime.)  Again,  if  she  wanted  thus 
to  poison  her  husband,  it  would 
have  been  at  the  risk  of  injuring 
her  favorite  sister  also.  For  this 
sister  lived  in  Paris,  and  Lafarge 
had  written  that  she  often  called 
to  see  him.  She  might  then  have 
been  present  when  the  case  was 
opened,  and  might  have  been 
poisoned  too. 

Lafarge  so  far  recovered  that  he 
was  able  to  return*  to  dandier, 
which  he  reached  on  the  5th  of 
January,  1840.  That  same  day 
Madame  Lafarge  wrote  to  the  same 
chemist's  for  more  arsenic.  It  was 
a  curious  letter,  and  certainly  cal- 
culated to  prejudice  people  against 
her.  She  told  the  chemist  that  her 
servants  had  made  the  first  lot  into 
a  clever  paste  which  her  doctor 
had  seen,  and  had  given  her  a 
prescription  for  it ;  she  said  this 
"so  as  to  quiet  the  chemist's  con- 
science, and  lest  he  should  think 
she  meant  to  poison  the  whole 
province  of  Limoges."  She  also 
informed  the  chemist  that  her  hus- 
band was  indisposed,  but  that  this 
same  doctor  attributed  it  to  the 
shaking  of  the  journey,  and  that 
with  rest  he  woukl  soon  be  better. 
But  he  got  worse,  rapidly  worse. 
His  .symptoms  were  alarming,  and 
pointed    undoubtedly    to    arsenical 


poisoning,  judged  by  our  modern 
knowledge. 

Madame  Lafarge,  senior,  now  be- 
came strongly  suspicious  of  her 
daughter-in-law,  and  she  insisted 
on  remaining  always  by  her  son's 
bedside.  Marie  opposed  this,  and 
wished  to  be  her  husband's  sole 
nurse,  and,  according  to  the  prosecu- 
tion, would  have  kept  every  one 
else  from  him.  She  does  not  seem 
to  have  succeeded,  for  the  relatives 
and  servants  were  constantly  in  the 
sick  room.  Some  of  the  latter  were 
very  much  en  the  mother's  side,  and 
one,  a  lady  companion,  Anna  Brun, 
afterwards  deposed  that  she  had 
seen  Marie  go  to  a  cupboard  and 
take  a  white  powder  from  it,  which 
she  mixed  with  the  medicine  and 
food  given  to  Lafarge.  Madame 
Lafarge,  senior,  again,  and  her 
daughter,  showed  the  medical  at- 
tendant a  cup  of  chicken  broth  on 
the  surface  of  which  white  powder 
was  floating.  The  doctor  said  it 
was  probably  lime  from  the  white- 
washed wall.  The  ladies  tried  the 
experiment  of  mixing  lime  with 
broth,  and  did  not  obtain  the  same 
appearance.  Yet  more,  Anna  Brun, 
having  seen  Marie  Lafarge  mix 
powder  as  before  in  her  husband's 
drink,  heard  him  cry  out,  "What 
have  you  given  me  ?  It  burns  like 
fire."  "I  am  not  surprised,"  re- 
plied Marie,  quietly.  "They  let 
you  have  wine,  although  you  are 
suffering  from  inflammation  of  the 
stomach." 

Yet  IMarie  Lafarge  made  no  mys- 
tery of  liaving  arsenic.  Not  only 
did  she  speak  of  it  in  the  early  days, 
but  during  the  illness  she  received  a 
(|uantity  openly  before  them  all.  It 
was  brought  her  to  Lafarge's  bed- 
side by  one  of  his  clerks,  Denis 
Barbier  (of  whom  more  directly), 
and  she  put  it  into  her  pocket. 
She  told  her  husband  she  had  it. 
He  had  been  complaining  of  the 
rats  that  disturbed  him  overhead, 
and  the  arsenic  was  to  kill  them. 
Lafarge  took  the  poison  from  his 
M'ife,    handed    it   over    to    a    maid- 


No.  43. 


III.       PROOF   OF   HUMAN    TRAIT.       D.    PLAN 


129 


servant,  and  desired  her  to  use  it 
in  a  paste  as  a  vermin  killer.  Here 
the  facts  were  scarcely  against 
Marie  Lafarge. 

Matters  did  not  improve,  how- 
ever, and  on  the  13th  Madame  La- 
farge, senior,  sent  a  special  messenger 
to  fetch  a  new  doctor  from  a  more 
distant  town.  On  their  way  back 
to  dandier,  this  messenger,  the 
above-mentioned  Denis  Barbier  con- 
fided to  the  doctor  that  he  had  often 
bought  arsenic  for  Marie  Lafarge, 
but  that  she  had  begged  him  to  say 
nothing  about  it.  The  doctor,  Les- 
pinasse,  by  name,  saw  the  patient, 
immediately  ordered  antidotes,  while 
some  of  the  white  powder  was  sent 
for  examination  to  the  chemist 
who  had  originally  supplied  the 
arsenic.  He  does  not  seem  to  have 
detected  poison,  but  he  (the  chemist) 
replied  that  nothing  more  should  be 
given  Lafarge  unless  it  had  been 
prepared  by  a  sure  hand.  On  this 
the  mother  denounced  Marie  to 
the  now  dying  Lafarge  as  his 
murderess.  The  wife,  who  stood 
there  with  white  face  and  streaming 
eyes,  heard  the  terrible  accusation, 
but  made  no  protest. 

From  that  till  his  last  moments 
he  could  not  bear  the  sight  of  his 
wife.  Once,  when  she  offered  him  a 
drink,  he  motioned,  horror  stricken, 
for  her  to  leave  him,  and  she  was  not 
present  at  his  death  on  the  14th  of 
January.  A  painful  scene  followed 
between  the  mother  and  Marie 
by  the  side  of  the  still  warm  corpse. 
High  words,  upbraidings,  threats 
on  the  one  side,  indignant  denials 
on  the  other.  Then  Marie's  private 
letters  were  seized,  the  lock  of  her 
strong  box  having  been  forced,  and 
next  day,  the  whole  matter  having 
been  reported  to  the  officers  of  the 
law,  a  post  mortem  was  ordered, 
on  suspicion  of  poisoning.  "  Im- 
possible," cried  the  doctor,  who  had 
regularly  attended  the  deceased. 
"You  must  all  be  wrong.  It  would 
be  abominable  to  suspect  a  crime 
without  more  to  go  upon." 

The  post  mortem  was,  however, 


made,  yet  with  such  strange  care- 
lessness that  the  result  was  valueless. 
It  may  be  stated  at  once  that  the 
presence  of  arsenic  was  never  satis- 
factorily proved.  There  were 
several  early  examinations  of  the 
remains,  but  the  experts  never  fully 
agreed.  Orfila,  the  most  eminent 
French  toxicologist  of  his  day,  was 
called  in  to  correct  the  first  autopsy, 
and  his  opinion  was  accepted  as 
final.  He  was  convinced  that  there 
were  traces  of  arsenic  in  the  body. 
They  were,  however,  infinitesimal ; 
Orfila  put  it  at  half  a  milligram. 
Raspail,  another  distinguished 
French  doctor,  called  it  the  hun- 
dredth part  of  a  milligram,  and 
for  that  reason  declared  against 
Orfila.  His  conclusion,  arrived  at 
long  after  her  conviction,  was  in 
favor  of  the  accused.  The  jury, 
he  maintained,  ought  not  to  have 
found  her  guilty,  because  no  definite 
proof  was  shown  of  the  presence  of 
arsenic  in  the  corpse. 

This  point  was  not  the  only  one 
in  the  poor  woman's  favor.  Even 
supposing  that  Lafarge  had  been 
poisoned  —  which,  in  truth,  is  highly 
probable  —  the  evidence  against  her 
was  never  conclusive,  and  there  were 
many  suspicious  circumstances  to 
incriminate  another  person.  This 
was  Denis  Barbier,  Lafarge's  clerk, 
who  lived  in  the  house  under  a  false 
name,  ^and  whose  character  was 
decidedly  bad.  Lafarge  was  not  a 
man  above  suspicion  himself,  and 
he  long  used  this  Barbier  to  assist 
him  in  shady  financial  transactions 
—  the  manufacture  of  forged  bills 
of  exchange  which  were  negotiated 
for  advances.  Barbier  had  con- 
ceived a  strong  dislike  to  Marie 
Lafarge  from  the  first ;  it  was  he 
who  originated  the  adverse  reports. 
At  the  trial  he  frequently  contra- 
dicted himself,  as  when  he  said  at 
one  time  he  had  volunteered  the 
information  that  he  had  been  buying 
arsenic  for  Marie,  and  at  another,  a 
few  minutes  later,  that  he  only  con- 
fessed this  when  pressed.  Barbier 
then  was  Lafarge's   confederate  in 


130 


PART    I.       CIRCUMSTAXTI.VL    KVIDKXCE 


No.  43. 


forgery ;  had  these  frauds  been  (Hs- 
covered  he  would  have  shared  La- 
farge's  fate.  It  came  out  that  he 
had  been  in  Paris  when  Lafarge  was 
there,  but  secretly.  Why  ?  When 
the  illness  of  the  iron-master  proved 
mortal,  Barbier  was  heard  to  say, 
"Now  I  shall  be  master  here!" 
All  through  that  illness  he  had  ac- 
cess to  the  sick-room,  and  he  could 
easily  have  added  the  poison 
to  the  various  drinks  and  nutri- 
ment given  to  Lafarge.  Again, 
when  the  possibilities  of  murder  were 
first  discus.sed,  he  was  suspiciously 
ready  to  declare  that  it  was  not  he 
who  gave  the  poison.  Finally,  the 
German  jurists,  already  quoted, 
wound  up  their  argument  against 
him  by  saying,  "We  do  not  actually 
accuse  Barbier,  but  had  we  been  the 
public  prosecutors  we  would  rather 
have  formulated  charges  against 
him  than  against  Madame  Lafarge." 
Summing  up  the  whole  question, 
they  were  of  opinion  that  the  case 
was   full   of   mystery.     There   were 


suspicions  that  Lafarge  had  been 
poisoned,  but  so  vague  and  uncer- 
tain that  no  conviction  was  justified. 
The  proofs  against  the  person  ac- 
cused were  altogether  insufficient. 
On  the  other  hand,  there  were 
many  conjectures  fa\orable  to  her. 
Moreover,  there  was  the  very 
gravest  circumstantial  evidence 
against  another  person.  The  \er- 
dict  should  decidedly  have  been 
"not   proven."  .  .  . 

Marie  Lafarge  was  sentenced  to 
hard  labor  for  life,  after  exposure  in 
the  public  pillory.  The  latter  was 
remitted,  but  she  went  into  the  Mont- 
pellier  prison  and  remained  there 
many  years.  Not  long  after  her  con- 
viction there  was  a  strong  revulsion 
of  feeling,  and  during  her  seclusion 
she  recei\'ed  some  six  thousand 
letters  from  outside.  ...  At  last, 
having  suffered  seriously  in  health, 
she  appealed  to  Napoleon  III,  the 
head  of  the  Second  Empire,  and 
obtained  a  full  pardon  in  1852. 


Boslon  Transcript,  Paris  Dispatch 
of  Dec.  10,  1912.  An  effort  to  ob- 
tain the  revision  of  the  trial  of  Mme. 
LaFarge,  a  young  and  beautiful  so- 
ciety woman,  who  was  sentenced  to 
imprisonment  for  life  in  1840  for 
the  murder  of  her  husband  by  poi- 
soning him  with  arsenic,  is  to  be 
made  by  a  powerful  committee  of 
scientific  men,  writers,  and  politi- 
cians which  has  just  been  formed. 
The  case  of  Mme.  LaFarge  was  very 
similar  to  that  of  Mrs.  Maybrick. 
It  caused  a  great  sensation  at  the 
time.  The  conviction  was  due  prin- 
cipally to  the  evidence  of  the  great 
chemist  Matthieu  Orfila,  who  swore 
to  the  presence  of  arsenic  in  the  dead 
man's  ])ody.     Another  leading  scien- 


tist of  the  period,  Francois  Raspail, 
hastened  to  Tulle,  where  the  trial 
took  place,  in  order  to  declare  to  the 
jury  that  Orfila's  evidence  was  in- 
sufficient as  arsenic  was  present  in 
all  bodies,  but  he  arrived  too  late. 

Raspail's  contention  is  supported 
to  some  extent  by  later  experiments 
carried  out  by  Armand  Gautier,  and 
Professor  Gabriel  Bcrtrand  has  just 
concluded  a  series  of  studies  in  every 
living  organism,  and  further  that  the 
methods  hitherto  employed  to  test 
the  presence  of  arsenic  in  bodies  had 
had  the  effect  of  introducing  arsenic 
into  those  bodies.  Mme.  LaFarge 
died  in  1855,  two  years  after  she  had 
been  pardoned  by  Napoleon  III. 


SUBTITLE  E:    EVIDENCE  TO  PHOVE  INTENT 

46.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^  The 
state  of  mind  accompanying  a  forbidden  act  is  frequently  an  element 
material  to  make  the  act  a  crime.  The  notion  of  Intent,  in  crimes,  may 
be  also,  in  a  broad  sense,  that  of  ultimate  purpose  or  object,  but  it  is 
regarded  simply  as  a  state  of  mind  coexisting  with  the  act,  and  is  of  a 
conglomerate  nature  peculiar  to  itself.  Thus,  when  A  shoots  a  pistol 
whose  ball  strikes  X,  A's  state  of  mind  as  he  shot  may  have  been  that  he 
was  pulling  the  trigger  of  a  pistol  whose  ball  would  (a)  strike  a  tree,  (b) 
strike  Z,  (c)  strike  a  person,  X,  who  was  about  to  assault  A  himself.  The 
criminal  law  tells  us  whether  either  of  these  states  of  mind  is  criminal ;  but 
it  does  not  need  to  generalize  in  one  phrase  or  term  the  exact  nature  of  all 
possible  criminal  states  of  mind  ;  it  merely  defines  the  criminal  state  of  mind 
essential  for  each  respective  crime. 

The  idea  of  criminal  Intent,  then,  usually  partakes  of  Knowledge,  Plan, 
Hostijity,  and  the  like ;  its  absence  is  often  indicated  by  the  ideas  of  igno- 
rance, reasonable  belief,  and  the  like.  So  far  as  evidence  of  it  is  concerned. 
Intent  as  a  separate  proposition  for  proof  does  not  commonly  exist.  Knowl- 
edge, Emotion,  and  Design,  are  distinct  from  each  other,  and  have  more  or 
less  distinct  modes  of  proof.  But  so  far  as  Intent  is  constituted  of  one  or 
more  of  these  as  ingredients,  it  forms  no  separate  title  of  proof ;  for  each  of 
the  ingredients  is  to  be  proved  in  the  way  proper  to  itself. 

There  is,  however,  one  element  in  Intent  which  is  distinct  from  any  of 
those  above,  and  may  thus  have  to  be  shown  by  different  evidence.  This  is 
the  element  of  dcUberotcuess  or  willfulness,  —  the  negative  of  inadvertence, 
accident.  Thus  one  who  incorrectly  writes  the  addition  of  a  column  of 
figures  may  do  so  either  inadvertently  or  intentionally ;  one  who  knocks 
over  a  lamp  and  sets  fire  to  a  house  may  do  so  either  inadvertently  or  deliber- 
ately. This  element  is  distinct  from  that  of  ignorance,  or  mistake  through 
ignorance  {i.e.  the  absence  of  knowledge).  For  instance,  one  who  utters  a 
counterfeit  bill  may  have  known  it  to  be  counterfeit,  but  may  pay  it  out  by 
inadvertence,  having  drawn  from  the  wrong  part  of  his  pocketbook.  So, 
on  the  other  hand,  one  who  sells  tainted  milk  does  not  do  it  by  accident, 
though  he  is  ignorant  of  its  bad  quality.  In  other  words,  one  may  lack 
knowledge  and  yet  act  deliberately,  or  one  may  have  knowledge  and  yet 
act  inadvertently.  Thus,  this  distinct  element  in  criminal  Intent  consists 
not  alone  in  the  voluntary  movement  of  the  muscles  {i.e.  in  action),  nor  yet 
in  a  knowledge  of  the  nature  of  an  act,  but  in  the  combination  of  the  two,  — 
the  specific  will  to  act,  i.e.  the  volition  exercised  with  conscious  reference  to 

1  Adapted  from  the  same  author's  Treatise  on  Evidence  (1905,  Vol.  I,  §§  242,  301). 

131 


132  PART   I.       CIRCUMSTANTIAL   EVIDENXE  No.  46. 

whatever  knowledge  the  actor  has  on  tlic  .sul)ject  of  the  act.  We  do  not  neces- 
sarily show  this  in  showing  Knowledge ;  and,  conversely,  we  may  find 
Knowledge  conceded  and  still  have  to  show  criminal  knowledge.  For 
instance,  on  the  one  hand,  a  person  might  know  arsenic  to  he  poisonous,  and 
yet  might  administer  it  inadvertently  to  another;  so  that  independently  of 
showing  his  past  knowledge  of  its  nature,  it  might  also  be  necessary  to  nega- 
tive his  inadvertence.  On  the  other  hand,  a  person  might  deliberately  pull 
the  trigger  of  a  firearm  though  ignorant  that  it  was  loaded ;  and  thus  the 
delil)erateness  of  the  act  —  i.e.  the  combination  of  voluntary  action  with  all 
the  knowledge  which  the  person  had  —  would  be  imciuestioned,  and  the 
further  proof  required  would  be  that  peculiar  to  showing  knowledge  of  the 
particular  firearm's  contents.  There  may  always  thus  be  a  residuum, 
apart  from  Knowledge,  which  remains  to  l)e  proved. 

This  residuum,  or  Intent,  the  element  of  deliberateness,  the  negative  of 
inadvertence  or  accident,  may  of  course  be  evidenced  by  the  surrounding 
circumstances  and  the  conduct,  as  other  mental  states  are.  It  may  also  be 
e\idenced  by  Design ;  for,  e.g.,  one  who  has  planned  to  kill  another  is  very 
unlikely  to  have  acted  inadvertently  in  shooting  at  him.  It  may  also  be 
e\idenced  by  Knowledge,  for  one  who  knows,  e.g.,  that  arsenic  is  poisonous 
is  less  likely  than  otherwise  to  administer  it  inadvertently.  It  may  also  be 
evidenced  by  Emotion ;  for  one  who  is  angry  with  another  is  less  likely 
than  otherwise  to  strike  him  inadvertently.  All  these  elements,  independ- 
ently useful  and  provable  as  bearing  on  the  doing  of  the  act,  help  also  to 
throw  light  on  the  intent  accompanying  the  act. 

Other  Similar  Acts.  But  there  is  one  peculiar  mode  of  evidencing  this 
deliberateness  which  stands  by  itself  in  the  sense  that  it  may  have  no  bearing 
distinctively  on  a  previous  Design  or  on  a  previous  Knowledge,  and  yet  may 
help  to  throw  light  on  Intent ;  namely,  other  .similar  acts.  Such  acts  may 
be  used  as  evidencing  either  of  those  three  mental  states.  Hence  it  is  neces- 
sary to  discriminate,  and  to  examine  here  the  probative  Aalue  of  similar 
offenses  or  acts  {i.e.  similar  to  the  one  charged)  offered  for  the  purpose  of 
showing  such  a  Knowledge,  Intent,  or  Design.  The  conditions  may  differ 
under  which  the  same  conduct  will  e\'idence  one  or  another  of  these 
probanda. 

(a)  Theory  of  evidencing  Knowledge.  In  resorting  to  former  offenses  or 
other  similar  acts  to  show  Knowledge,  it  is  sufficient  to  in\'oke  the  general 
principles  of  proving  Knowledge.  It  has  been  seen  {ante,  No.  30)  that  this 
mode  of  proof  rests  on  the  following  process  of  thought.  When  fact  X  is 
used  to  show  a  person's  knowledge  of  fact  A,  it  is  assumed  (a)  that  through 
fact  X  there  probably  was  received  an  impression  by  the  person ;  and  {b) 
that  this  impression  would  probal)ly  result  in  notice  or  warning  of  fact  A. 
Thus,  (a)  a  prior  injury  to  an  employee  by  a  machine  would  j)r()bal)ly  have 
come  to  the  employer's  notice  in  some  way,  and  (6)  the  notice  of  the  accident 
would  probably  reveal  to  him  the  defect  in  the  machine.  These  two  ele- 
ments may  not  both  be  doubtful  in  a  given  case,  but  they  are  always  im- 
pliedly present  if  the  inference  is  to  have  any  validity.  Api)ly  this  to  the 
class  of  cases  we  are  now  concerned  with.  Suppose  A's  knowledge  of  the 
poisonous  nature  of  a  substance  X  is  to  be  shown  ;  suppose  the  fact  offered 
that  he  once  gave  it  to  a  sick  dog  and  that  the  dog  died  ;  if  we  are  to  base  an 
inference  of  probable  knowledge  upon  this,  it  is  because  we  believe  it  prob- 


No.  46.  III.       PROOF   OF   HUMAN   TRAIT.       E.    INTENT  133 

able  (a)  that  the  dog's  death  came  to  his  notice,  and  (b)  that  the  fact  of  the 
death  would  suggest  to  him  that  it  was  the  substance  X  and  not  the  illness 
that  caused  the  dog's  death.  Again,  suppose  A's  knowledge  of  the  counter- 
feit nature  of  a  certain  silver  dollar  is  to  be  shown ;  suppose  the  fact  offered 
that  he  twice  passed  counterfeit  ten-dollar  bank  notes ;  if  we  are  to  base  on 
this  an  inference  of  probable  knowledge,  it  is  because  we  believe  it  probable 

(a)  that  in  the  course  of  using  the  bank  notes,  at  one  time  or  another  up  to 
their  final  disposal,  some  one  probably  doul)ted  to  him  their  genuineness 
and  (b)  that  a  doubt  as  to  the  genuineness  of  the  bank  notes  would  probablj' 
suggest  a  doubt  as  to  the  genuineness  of  the  silver  dollar.  Again,  if  A's 
knowledge  of  the  stolen  character  of  a  bar  of  iron  is  to  be  shown,  and  the 
fact  is  offered  that  he  has  also  received  and  possessed  a  stolen  Ijicycle,  then 
our  inference  must  assume  (a)  that  A's  receipt  of  the  bicycle  was  under  such 
circumstances  as  to  suggest  its  vendor  or  pledgor  to  be  a  thief,  or  as  to  re- 
sult in  a  reclamation  by  the  owner  and  a  warning  to  the  defendant ;  so  that 

(b)  when  the  bar  of  iron  was  offered  to  A,  by  the  same  or  another  vendor  or 
pledgor,  the  circumstances  were  such  that  the  former  transaction  would 
naturally  suggest  that  this  bar  of  iron  also  was  stolen. 

Such,  then,  is  the  strict  and  legitimate  scope  of  evidence  of  other  similar 
acts  to  show  Knowledge.  The  process  of  thought  is  :  The  other  act  must 
probably  have  resulted  in  some  sort  of  warning  or  knowledge ;  this  warning 
or  knowledge  must  probably  have  led  to  the  knowledge  in  question. 

(b)  Theory  of  evidencing  Intent.  To  prove  Intent,  there  is  employed  an 
entirely  different  process  of  thought.  The  argument  here  is  purely  from  the 
point  of  view  of  the  doctrine  of  chances,  —  the  instinctive  recognition  of 
that  logical  process  which  eliminates  the  element  of  innocent  intent  by 
multiplying  instances  of  the  same  result  until  it  is  perceived  that  this  ele- 
ment cannot  explain  them  all.  Without  formulating  any  accurate  test,  and 
without  attempting  by  numerous  instances  to  secure  absolute  certainty  of 
inference,  the  mind  applies  this  rough  and  instinctive  process  of  reasoning. 
Thus,  if  A  while  himting  with  B  hears  the  bullet  from  B's  gun  whistling  past 
his  head,  he  is  willing  to  accept  B's  bad  aim  or  B's  accidental  tripping  as  a 
conceivable  explanation  ;  but  if  shortly  afterwards  the  same  thing  happens 
again,  and  if  on  the  third  occasion  A  receives  B's  bullet  in  his  body,  the  im- 
mediate inference  {i.e.  as  a  probability,  perhaps  not  a  certainty)  is  that  B 
shot  at  A  deliberately ;  because  the  chances  of  an  inadvertent  shooting  on 
three  successive  similar  occasions  are  extremely  small ;  or  (to  put  it  in  an- 
other way)  because  inadvertence  or  accident  is  only  an  abnormal  or  occa- 
sional explanation  for  the  discharge  of  a  gun  at  a  given  object,  and  therefore 
the  recurrence  of  a  similar  result  {i.e.  discharge  towards  the  same  object.  A) 
excludes  the  fair  possibility  of  such  an  alinormal  cause  and  points  out  the 
cause  as  probably  a  more  natural  and  usual  one,  i.e.  a  deliberate  discharge  at 
A.  In  short,  similar  results  do  not  usually  occur  through  abnormal  causes ; 
and  the  recurrence  of  a  similar  result  (here  in  the  shape  of  an  unlawful  act) 
tends  (increasingly  with  each  instance)  to  negative  accident  or  inadvertence 
or  self-defense  or  good  faith  or  other  innocent  mental  state,  and  tends  to 
establish  (provisionally,  at  least,  though  not  certainly)  the  presence  of  the 
normal,  i.e.  criminal,  intent  accompanying  such  an  act ;  and  the  force  of  each 
additional  instance  will  vary  in  each  kind  of  offense  according  to  the  proba- 
bility that  the  act  could  be  repeated,  within  a  limited  time  and  under  given 


134  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  46- 

circumstances,  with  an  innocent  intent.  The  general  canon  of  logical  in- 
ference already  examined  {ante,  No.  2,  §  3)  is  here  applied  and  illustrated. 

Yet,  in  order  to  satisfy  this  principle,  it  is  at  least  necessary  that  prior  acts 
should  be  similar.  Since  it  is  the  improbability  of  a  like  result  being  repeated 
by  mere  chance  that  carries  probative  weight,  the  essence  of  this  probative 
effect  is  the  similarity  of  the  instance.  Suppose  the  blowing  up  of  an  Ameri- 
can warship  in  Havana  Harbor  to  be  in  question  ;  the  blowing  up  of  various 
ships  of  various  Other  nations  in  the  preceding  fifty  years  would  have  no  sig- 
nificance as  to  the  accidental  nature  of  the  occurrence  (except  to  show  that 
such  an  accident  is  possible) ;  the  l)lowing  up  of  an  American  warship  in  the 
preceding  year  in  Algiers  would  have  scarcely  more  significance ;  but  the 
blowing  up  of  an  American  warship  in  the  same  year  in  Cadiz  or  in  the  same 
harbor  of  Havana  would  have  striking  significance.  So,  where  the  intent  of 
an  erroneous  addition  in  a  bookkeeper's  accounts  is  in  issue,  the  erroneous 
addition  of  a  l)ill  rendered  to  a  former  employer  ten  years  l)efore  would  have 
no  significance,  because  it  is  still  within  the  limits  of  ordinary  casual  error 
that  such  things  should  occur  at  intervals  ;  but  several  other  erroneous  addi- 
tions in  the  bookkeeper's  own  favor  in  the  same  year  and  the  same  book  of 
accounts  go  to  exclude  the  explanation  of  casual  error,  and  leave  deliberate 
intent  as  the  more  probal)le  explanation. 

(c)  Theory  of  evidencing  Design  or  System.  The  object  here  is  not  merely 
to  negative  an  innocent  Intent  at  the  time  of  the  act  charged,  but  to  prove  a 
preexisting  Design,  system,  plan,  or  scheme,  directed  forwards  to  the  doing 
of  that  act.  In  the  former  case  (of  Intent)  the  attempt  is  mereh'  to  negative 
the  innocent  state  of  mind  at  the  time  of  the  act  charged  ;  in  the  present  case 
the  effort  is  to  establish  a  definite  prior  Design  or  system  which  include^  the 
doing  of  the  act  charged  as  a  part  of  its  consummation.  In  the  former 
case,  the  result  is  to  give  a  complexion  to  a  conceded  act,  and  ends  with  that ; 
in  the  present  case,  the  result  is  to  show  (by  probability)  a  positi\e  design 
which  in  its  turn  is  to  evidence  (by  probability)  the  doing  of  the  act  designed. 
The  added  element,  then,  must  be,  not  merely  a  similarity  in  the  results,  but 
such  a  concurrence  of  common  features  that  the  various  acts  are  naturally  to  be 
explained  as  caused  by  a  general  plan  of  which  they  are  the  individual  mani- 
festations. Thus,  where  the  act  of  passing  counterfeit  money  is  conceded, 
and  the  intent  alone  is  in  issue,  the  fact  of  two  previous  utterings  in  the  same 
month  might  well  tend  to  negative  innocent  intent ;  but  where  the  very  act  of 
uttering  is  disputed  —  as,  where  the  defendant  claims  that  his  identity  has 
been  mistaken  —  and  the  object  is  to  show  that  he  had  a  general  system  or 
plan  of  working  off  a  quantity  of  counterfeit  money  and  did  carry  it  out  in 
this  instance,  the  fact  of  two  previous  utterings  may  be  in  itself  of  trifling 
and  inadequate  significance.  So,  on  a  charge  of  assault  with  intent  to  rape, 
where  the  intent  alone  is  disputed,  a  prior  assault  on  the  ])revious  day  upon 
the  same  woman,  or  even  upon  another  meml)er  of  her  family,  might  have 
probative  value  ;  but  if  the  assault  itself  its  disputed,  and  the  defendant  at- 
tempts, for  example,  to  show  an  alibi,  the  same  facts  might  be  of  little  or  no 
value,  and  it  might  be  necessary  to  go  further  and  to  show  (for  example) 
that  the  defendant  on  the  same  day,  with  a  confederate  guarding  the  house, 
assaulted  other  women  in  the  same  family,  who  escaped,  leaving  the  com- 
plainant as  the  only  woman  accessible  to  him  for  his  purpose. 

It  will  be  seen  that  the  difference  between  requiring  similarity,  for  acts 


No.  47 


III.       PROOF   OF   HUMAN   TRAIT.       E.    INTENT 


135 


negativing  innocent  Intent,  and  requiring  common  fraturcs  indicating  com- 
mon design,  for  acts  showing  Design,  is  a  difference  of  degree  rather  than  of 
kind ;  for  to  be  similar  involves  having  common  features,  and  to  have  com- 
mon features  is  merely  to  have  a  high  degree  of  similarity.  Nevertheless  the 
distinction  is  a  real  one.  The  clew  to  the  difference  is  best  gained  by  re- 
membering that  in  the  one  class  of  cas^s  the  act  charged  is  assumed  as  done, 
and  the  mind  asks  only  for  something  that  will  negative  innocent  intent ; 
while  in  the  other  the  very  act  is  the  object  of  proof,  and  is  desired  to  be 
inferred  from  a  plan  or  system. 


47.    HODGES'  AND  PROBIN'S 

Chronicles  of  Crime,      ed.  1891.      Vol. 

The  trick  of  crossj^dropping  has 
become  so  notorious  of  Tate  years, 
that  any  description  of  the  mode  in 
which  it  was  practiced  is  almost 
unnecessary.  As,  how^ever,  this  is 
the  first  case  of  the  kind  with  which 
w^e  have  met  in  the  course  of  our 
search  in  the  records  of  crime,  we 
shall  give  it  a  place  in  our  calendar. 

The  dupe,  in  this  instance,  was 
William  Headley,  an  ironmonger  at 
Cambridge,  who,  on  the  trial  of 
these  robbers,  deposed  that  on  the 
7th  of  July,  1796,  he  w^as  in  town, 
going  from  Shoelane  to  the  Angel 
Inn,  St.  Clement's,  to  take  a  place 
on  the  outside  of  the  coach  to  go 
into  Wiltshire  :  when  he  met  Hodges, 
who  was  a  stranger  in  Butcher 
row,  and  left  him  to  take  his 
place.  He  went  on  to  Clare  Market, 
wdiere  Hodges  overtook  him,  and 
they  walked  together  through  Por- 
tugal street.  While  in  that  street 
Hodges  suddenly  stopped,  and  clap- 
ping his  cane  on  a  parcel  which  was 
lying  on  the  ground,  said  that  he  had 
a  "  finding."  He  picked  up  the 
parcel,  and  opened  the  outer  covering, 
and  the  witness  saw  in  it  something 
like  a  red  pocketbook.  He  in- 
quired what  it  was  ?  but  the  prisoner 
refused  to  show  him  in  the  street, 
and  they,  in  consequence,  went 
into  a  public  house  in  order  to  open 
it.  Having  called  for  some  licpior, 
the  prisoner  opened  the  parcel,  and 
produced  from  it  what  looked  like 
a  diamond  cross,  and  a  receipt  in 
the  following  terms :  "  London, 
20th  June,  1796.     Received  of  John 


CASE.      (Camden  Pelham.     The 

I,  p.  351.) 

King,  Esq.,  the  sum  of  three  hun- 
dred and  twenty  pounds,  for  one 
brilliant  diamond  cross,  by  me, 
William  Smith."  The  prisoner 
seemed  much  alarmed  and  confused 
on  seeing  this,  but  the  witness  having 
read  the  receipt,  suggested  that  the 
parcel  should  be  taken  to  Mr. 
Smith.  This,  however,  was  opposed 
by  Hodges,  who  asked  whether 
they  had  not  better  inquire  of  the 
gentleman  sitting  by  (the  prisoner 
Probin)  what  his  opinion  was  ? 
This  was  assented  to,  and  upon  his 
being  addressed,  he  suggested  that 
Hodges  ought  to  give  the  witness  a 
present,  as  having  been  by  when  the 
cross  was  found,  and  that  he  should 
keep  it.  The  cross  was  then  taken 
out  and  examined,  and  Hodges 
said  that  he  did  not  mind  giving  the 
witness  something,  but  he  must  go 
to  his  banker's  first,  and  get  some 
drafts  changed.  He  then  w^ent  out, 
leaving  the  {5ross  with  the  witness 
and  Probin,  but  returned,  saying 
that  his  banker  was  out,  and  could 
not  be  seen  until  four  o'clock,  and 
a  meeting  at  that  hour  was  even- 
tually appointed  to  take  place  at  the 
Angel  Inn,  St.  Clement's.  Each 
party  then  gave  his  name.  Hodges 
said  that  he  came  from  W^orcester, 
and  was  a  hop  merchant ;  and 
Probin  said  that  his  name  was  Wil- 
liam Jones,  and  that  he  lived  at 
No.  7,  Charing  Cross.  A  discussion 
now  took  place,  to  whom  the  care 
of  the  cross  should  be  intrusted ; 
and  Probin  suggested,  that  the  wit- 
ness perhaps  would  be  better  satis- 


136 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  47. 


fied  if  it  were  left  in  his  hands,  and 
that  if  he  deposited  something,  he 
might  carry  it  away  until  four 
o'clock.  He  asked  what  would  be 
required,  and  they  said  that  he 
ought  to  leave  one  hundred  pounds 
at  least.  He  then  produced  a 
Bank  bill,  payable  on  demand,  for 
that  amount  from  his  stocking, 
"where  he  had  concealed  it,  and  hand- 
ing it  to  Hodges,  he  said  that  that 
would  do.  The  witness  then  went 
away,  but  subsequently  showing 
the  cross  to  a  friend,  he  found  that 
it  was  quite  valueless.  Information 
was,  in  consequence,  given  at  Bow 


street  of  the  robbery,  and  both 
prisoners  were  apprehended  in  the 
course  of  the  ensuing  day,  money 
to  the  amount  of  nearly  fifty  pounds 
being  found  on  each.  It  afterwards 
turned  out  that  the  prisoner 
Hodges  changed  Mr.  Headley's  Bank 
bill  almost  immediately  after  he 
had  received  it.  In  his  possession 
was  found  a  second  cross,  precisely 
similar  to  that  palmed  off  upon  the 
prosecutor. 

The  prisoners  being  found  guilty, 
were  sentenced  to  be  transported  for 
seven  vears. 


48.    CAPTAIN  KIDD'S  CASE. 

Militnnj  Trials.      186G.      p.  21.) 

Captain  ^Yilliam  Kidd  the  hero 
of,  as  it  may  be  called,  this  polit- 
ical and  nautical  romance,  was 
born  in  the  town  of  Greenock,  in 
Scotland,  and  bred  up  for  a  sea- 
man's life.  Having  quitted  his 
native  country,  he  resided  at  New 
York,  where  he  became  owner  of  a 
small  vessel,  with  which  he  traded 
among  the  pirates,  and  thus  ob- 
tained a  thorough  knowledge  of  their 
haunts,  and  could  give  a  better 
account  of  them  than  any  other 
person  whatever.  He  was  a  man 
not  particularly  remarkable  for 
courage,  but  very  avaricious.  He 
could  never  resist  the  tempting 
influence  of  the  rapid  profits  made 
by  pirates,  and  to  this  was  owing 
his  connection  with  them.  While 
in  their  company,  he  used  to  converse 
and  act  as  they  did  ;  yet  at  other 
times  he  wouUl  make  singular  pro- 
fessions of  honesty,  and  intimate 
how  easy  a  matter  it  would  be  to 
extirpate  sea  robbers,  and  prevent 
their  future  depredations.  His  fre- 
quent remarks  on  this  subject 
engaged  the  notice  of  several  con- 
siderable planters  in  the  state  of 
New  \  ork,  who,  forming  a  more 
favorable  opinion  of  him  than  his 
true  character  would  warrant,  pro- 
cured him  the  patronage  with 
which   he  was   afterwards   honored. 


(P.  Burke,      Celebrated  Naval  and 

For  a  series  of  years  complaints 
had  been  made  of  the  piracies  com- 
mitted in  the  West  Indies,  which 
had  been  greatly  encouraged  by 
some  of  the  inhabitants  of  North 
America,  on  account  of  the  advan- 
tage from  purchasing  effects  thus 
fraudulently  obtained.  This  com- 
ing to  the  knowledge  of  King 
William  III,  he,  in  the  year  1695, 
bestowed  the  government  of  New 
England  and  New  York  on  his 
devoted  follower,  Richard  Coote, 
Earl  of  Bellamont.  ...  A  royal 
commission  in  the  usual  form  was 
granted  to  Captain  Kidd,  to  take 
and  seize  pirates,  and  bring  them  to 
justice ;  but  though  a  second  com- 
mission was  added,  there  was,  be- 
yond the  general  direction  not  to 
molest  the  king's  friends,  and  to 
bring  ships  taken  to  legal  trial,  no 
special  clause  or  proviso  to  restrain 
his  conduct,  or  regulate  the  mode 
of  his  proceeding.  ...  A  ship  was 
purchased  and  equipped  in  the  port 
of  London ;  it  received  the  name, 
which  this  affair  made  so  known,  of 
the  Adventure  Galley.  In  tliis  ves- 
sel Captain  Kidd  crossed  the  At- 
lantic, and  then  towards  the  close 
of  the  year  1G95  sailed  from  New 
York  and  made  prize  of  a  French 
ship.  .  .  .  .\t  the  expiration  of 
five    weeks    fell    upon    and    seized 


No.  48. 


III.       PROOF   OF   HUMAN   TRAIT.       E.    INTENT 


137 


the  Qucdagh  Merchant,  a  ship  of 
four  hundred  tons  burthen,  the 
master  of  which  was  an  Enghshman, 
named  Wright,  who  had  two  Dutch 
mates  on  board,  and  a  French 
gunner ;  but  the  crew  consisted  of 
Moors,  natives  of  Africa,  and  were 
about  ninety  in  number.  .  .  . 
Kidd,  therefore,  on  his  arrival,  was 
seized  by  order  of  his  lordship, 
when  all  he  had  to  urge  in  his  de- 
fense was,  that  he  thought  the 
Quedagh  Merchant  a  lawful  prize, 
as  she  was  manned  with  Moors, 
though  there  was  no  kind  of  proof 
that  this  vessel  had  committed  any 
act    of    piracy.   .   .   . 

The  trials  of  Kidd  and  his  com- 
panions came  on  at  the  Old  Bailey 
in  May,  1701.  The  proceedings 
were  very  lengthy,  and  consisted 
of  several  distinct  trials ;  the  first 
was  for  murder  against  Kidd  alone, 
the  other  trials  were  for  various 
acts  of  piracy  committed  by  him 
and  different  members  of  his  crew.  . . 

On  Kidd's  urging  that  he  acted 
under  a  royal  commission,  Mr. 
Justice  Powell  properly  observed 
to  the  jury,  "  I  understand  that  he 
had  a  commission ;  therefore  if 
any  one  has  a  commission,  and  he 
acts  according  to  it,  he  is  not  a 
pirate  ;  but  if  he  takes  a  commission 
for  a  color,  that  he  may  be  a  pirate, 
it  will  be  bad  indeed  :  and  therefore, 
if  the  crown  can  prove  that  he  was 
a  pirate  all  along,  this  will  be  a 
great   evidence   against   him."  .  .  . 

Lord  Chief  Baron  Ward  : 
"  Gentlemen  of  the  jury,  —  The 
prisoners  at  the  bar,  William  Kidd, 
Nicholas  Churchill,  James  Howe, 
Robert  Lamley,  William  Jenkins, 
Gabriel  Loff,  Hugh  Parrot,  Richard 
Barlicorn,  Abel  Owens,  and  Darby 
Mullins,  in  number  ten,  stand  all 
here  indicted  for  the  crime  of  piracy, 
charged  to  be  committed  by  them. 
And  the  instance  of  the  crime  is 
for  feloniously  and  piratically  seizing 
and  taking  the  ship  called  the 
Quedagh  Merchant,  with  the  apparel 
and  tackling  thereof,  to  the  value  of 
400     (pounds),    and     divers    goods 


mentioned  in  the  indictment  to  the 
value  of  4500  (pounds),  the  goods 
of  several  persons  unknown,  from  the 
mariners  of  the  said  ship,  and  this 
at  high  sea  within  the  jurisdiction 
of  the  Court  of  Admiralty,  about 
ten  leagues  from  Cutsheen  in  the 
East  Indies,  the  30th  of  January, 
1697,  and  in  the  eighth  year  of  his 
Majesty's  reign.  .  .  .  To  make 
good  this  accusation,  the  king's 
counsel  have  produced  their  evi- 
dence, and  two  witnesses  have  been 
examined  in  this  case ;  each  of 
them  were  in  the  ship  which  took 
the  Quedagh  Merchant,  and  very 
well  acquainted  with  all  the  pro- 
ceedings ;  that  is,  Robert  Brandin- 
ham  and  Joseph  Palmer.  The  first 
has  given  you  an  historical  account 
of  the  whole  proceedings  of  Captain 
Kidd,  from  his  first  going  out  of 
England  in  the  Adventure  Galley, 
to  the  time  of  this  fact  charged  on 
them.  They  tell  you  that  about 
May,  1696,  the  king  intrusted  this 
Captain  Kidd  with  two  commissions, 
and  they  were  both  read  to  you. 
By  one  of  them  under  the  Admir- 
alty seal,  he  was  authorized  to 
set  out  as  a  privateer  the  Adventure 
Galley,  and  therewith  to  take  and 
seize  the  ships  and  goods  belonging 
to  the  French  king,  or  his  subjects, 
and  such  other  as  were  liable  to 
confiscation.  And  by  the  other 
commission,  under  the  broad  seal 
of  England,  authority  was  given 
for  the  taking  of  some  pirates  by 
name,  and  all  pirates  in  the  several 
places  therein  mentioned ;  but  in 
no  sort  to  ofl^end  or  molest  any  of 
the  king's  friends  or  allies,  their 
ships  or  subjects,  by  color  thereof. 
And  by  both  commissions  command 
was  given  to  bring  all  such  ships 
and  goods,  as  should  be  taken,  to 
legal  trials  and  condemnations. 
They  tell  us  that  this  ship  set  out 
for  Plymouth  about  May,  1696, 
and  that  in  their  passage  they  did 
take  a  French  ship,  and  they  did 
condemn  that  ship.  Now,  gentle- 
men, you  must  bear  this  in  your 
minds,   that   to   make   it   piracy   it 


138 


PART    I.       CIRCUMSTAXTIAL    EVIDENCE 


No.  48. 


must  be  tlie  taking  piratically  and 
feloniously  upon  the  high  sea,  within 
the  jurisdiction  of  the  Admiralty 
of  England,  the  goods  of  a  friend  — 
that  is,  such  as  are  in  amity  with  the 
king.  Now,  you  see  what  way 
they  went  to  work,  and  wliat 
measures  they  took.  Captain  Kidd 
goes  out,  and  goes  to  New  York ; 
and  when  he  was  there  he  has  a 
project  in  his  head,  of  setting  up 
articles  between  himself  and  the 
people  that  were  willing  to  be  con- 
cerned with  him  :  for  now,  whether 
it  seems  more  probaljle  from  what 
followed,  that  Captain  Kidd  de- 
signed to  manage  himself  according 
to  the  measures  given  him,  and  the 
powers  of  his  commissions,  or  any 
other  way,  you  nmst  consider : .  for 
it  is  told  you,  that  between  one 
hundred  and  fifty  and  one  hundred 
and  sixty  men  came  in  under  these 
articles,  whereof  the  other  prisoners 
were  part,  and  concerned  in  them. 
And  as  to  those  articles,  the  import 
of  them  was,  that  whatever  should 
be  taken  by  these  people  in  their 
expeditions  should  be  divided  into 
one  hundred  and  sixty  parts, 
whereof  Captain  Kidd  was  to  haNe 
forty  shares  for  his  part,  and  the 
rest  were  to  have  according  to  the 
merits  of  each  party,  some  whole 
shares,  and  some  half  shares. 

"Now,  after  these  articles,  you 
perceive  what  progress  they  made, 
and  what  course  they  took ;  they 
went  from  one  place  to  another, 
and  used  a  great  deal  of  severity 
w^herever  they  came.  A  design 
they  had  to  go  into  the  Red  Sea, 
and  they  had  expectations  of  the 
Mocca  fleet  that  lay  at  Mocca, 
and  they  sent  their  spies  three 
times  to  get  intelligence :  the  two 
first  times  they  could  make  no  dis- 
covery, but  the  third  time  they 
made  an  effectual  discovery  that 
the  fleet  was  ready  to  .sail ;  and  in 
the  meantime  Captain  Kidd  lay 
there  in  expectation  of  this  fleet ; 
and  as  the  first  witness  tells  you. 
Captain  Kidd  said,  he  intended  to 
make   a   voyage   out   of   this   fleet. 


Well,  he  had  a  discovery  of  this 
fleet,  and  they  came  accordingly ; 
and  they  tell  you,  that  he  and  his 
men  did  attack  one  of  the  ships ; 
but  these  ships  being  guarded  by 
two  men-of-war,  he  could  make 
nothing  of  them ;  however,  he 
showed  what  his  intention  and 
design  was.  Could  he  have  proved 
that  what  he  did  was  in  pursuance 
of  his  commissions,  it  hatl  l)een 
something ;  but  what  had  he  to  do 
to  make  any  attack  on  these  ships, 
the  ow^ners  and  freighters  whereof 
were  in  amity  with  the  king  ?  This 
does  not  appear  to  be  an  action 
suitable  to  his  commissions.  After 
he  had  done  this,  he  came  to  land, 
and  there,  and  afterwards  at  sea, 
pursued  strange  methods,  as  you 
have  heard.  The  seeming  justifica- 
tion he  depends  on  is  his  commissions. 
Now  it  must  be  observed  how  he 
acted  with  relation  to  them,  and 
what  irregularities  he  went  by.  He 
came  to  a  place  in  the  Indies,  and 
sent  his  cooper  ashore,  and  that 
cooper  was  killed  by  the  natives ; 
anfl  he  uses  barbarity,  and  ties  an 
Indian  to  a  tree,  and  shoots  him  to 
death.  Now  he  went  from  place 
to  place,  and  committed  hostilities 
upon  several  ships,  dealing  very 
severely  with  the  people. 

"  But  this  being  something  foreign 
to  the  indictment,  and  not  the  facts 
for  which  the  prisoners  at  the  bar 
are  indicted,  we  are  confined  to  the 
Qurdagh  Merchant.  But  what  he 
did  l)efore  show^s  his  mind  and  inten- 
tion not  to  act  by  his  commi.ssions, 
which  warrant  no  such  things. 
Gentlemen,  you  have  an  account, 
that  he  met  with  this  ship,  the 
Qiicdagh  Merchant,  at  sea,  and  took 
her;  that  this  ship  belonged  to 
people  in  amity  with  the  king  of 
England  ;  that  he  .seized  this  ship 
and  divers  goods  were  taken  out  of 
her  and  .sohl,  and  the  money  di\ided 
pursuant  to  the  heads  contained  in 
those  articles  set  up  in  New  York. 
The  witnesses  that  speak  to  that 
come  home  to  every  one  of  the 
prisoners ;    they   tell   you   that   the 


No.  49. 


III.       PROOF   OF   HUMAN    TRAIT.       E.    INTENT 


139 


dividend  was  made ;  that  Captain 
Kidd  had  forty  shares  of"  the  money, 
and  the  rest  of  the  prisoners  had 
their  proportions  according  to  the 
articles,  some  a  whole  share,  and 
some  a  half  share  of  that  money. 
After  they  had  seized  the  ship,  you 
hear  of  a  certain  sort  of  project, 
that  a  Frenchman  should  come  and 
pretend  himself  the  master,  and 
procure,  or  pretend  to  procure  a 
French  pass,  under  a  color  that 
these  people's  ship  and  goods,  who 
were  Moors,  should  be  Frenchmen's 
ship  and  goods,  or  sailed  under  a 
French  pass,  and  so  justify  what 
he  did  under  the  color  of  his  com- 
mission from  the  king.  Now,  no 
man  knows  the  mind  and  intentions 
of  another,  but  as  it  may  be  dis- 
covered by  his  actions.  If  he  would 
have  this  to  be  understood  to  be 
his  intention,  or  that  it  was  in 
reality,  that  he  took  this  as  a  French 
ship,  or  under  a  French  pass,  then 


he  ought  to  have  had  the  ship  and 
goods  in\entoried,  and  condemned 
according  to  law,  that  he  might 
have  had  what  portion  belonged 
to  him,  and  that  the  king  might 
have  had  what  belonged  to  him,  as 
his  commissions  directed ;  but  here 
was  nothing  of  that  done,  but  the 
money  and  goods  which  were  taken 
were  shared,  and  you  have  an  account 
likewise  how  some  of  the  goods 
were  sold,  and  the  money  disposed 
of;  and  one  witness  speaks  posi- 
ti\ely  of  the  distribution  of  the  goods 
that  remained  unsold,  that  they 
were  divided  according  to  the  same 
proportions  as  the  articles  mentioned, 
a,nd  every  one  of  the  prisoners  had 
his  share ;  there  belonged  forty 
shares  to  Captain  Kidd,  and  shares 
and  half  shares  to  the  rest. 

"Now,  this  is  the  great  case  that 
is  before  you,  on  which  the  indict- 
ment turns."  ... 


49.    BRADFORD  v.  BOYLSTON  FIRE    AND  MARINE  INSUR- 
ANCE COMPANY.      (1831.     Supreme  Judicial  Court  of  Massachu- 
11  Pick.  162.) 


setts 

Assumpsit  on  a  policy  of  insur- 
ance underwritten  by  the  defen- 
dants, upon  property  of  the  plain- 
tiffs shipped  on  board  a  vessel, 
from  a  port  in  England  to  a  port 
of  discharge  in  the  United  States ; 
"partial  loss  to  be  computed  upon 
each  package  as  if  separately  in- 
sured." The  plaintiffs  allege  in  their 
declaration,  that  on  May  5,  1828, 
they  shipped  on  board  the  Aspasia, 
at  Liverpool,  certain  goods,  to  be 
conveyed  to  New  York,  and  that 
owing  to  tempests  on  the  voyage 
the  salt  water  found  access  to  the 
goods  and  injured  them ;  and  the 
plaintiffs  claimed  a  partial  loss 
amounting  to  33  per  cent  upon  the 
value  of  the  goods. 

At  the  trial  before  Wilde,  J.,  it 
appeared,  that  the  goods  alleged  to 
have  been  damaged  consisted  of 
thirty-two  bales  of  point  and  duffil 
blankets  and  that  the  blankets 
were  manufactured  for  the  plaintiffs 


by  one  Wood,  in  the  kingdom  of 
Great  Britain.  The  plaintiffs  of- 
fered evidence  tending  to  prove 
that  the  blankets  were  damaged  on 
board,  by  the  perils  alleged  in  their 
declaration.  The  defendants  con- 
tended that  the  damage  arose  from 
some  defect  in  the  manufacture  of 
the  blankets,  or  from  their  having 
been  fraudulently  packed  by  Wood 
in  a  wet  state,  for  the  purpose  of  in- 
creasing their  weight,  the  blankets 
having  been  purchased  by  the  plain- 
tiffs by  weight.  The  defendants 
offered  in  evidence  two  depositions 
of  one  Russell,  to  prove  that  during 
the  year  1828  he  imported  into  New 
York  certain  bales  of  point  and  duffil 
blankets  manufactured  by  W'ood, 
which  proved  to  be  damaged,  and, 
in  the  opinion  of  Russell,  by  being 
packed  in  a  wet  state  for  the  purpose 
of  increasing  their  weight.  The 
defendants  also  offered  the  testi- 
mony of  one  Lee,  who  stated  that 


140 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  49. 


in  1828,  the  firm  of  which  he  was  a 
partner,  received  a  consignment  of 
point  and  duffil  hhmkets  from 
Wood,  and  also  some  which  they 
purchased  of  Wood  ;  that  the  hhm- 
kets came  in  tliree  different  vessels, 
and  were  all  damaged ;  that  the 
blankets  in  the  inside  of  the  bales 
were  slightly  damp  and  very  much 
spotted,  and  the  outside  blankets 
were  perfectly  dry  ;  that  the  damage 
to  the  blankets  exhibited  as  part  of 
the  Aspasias  cargo,  was  of  a  similar 
character,  and  he  would  have  sup- 
posed they  were  a  part  of  his  own  ; 
that  the  damage  was  of  a  peculiar 
kind  and  not  like  that  produced  by 
salt  water.  There  was  evidence  in 
the  case  tending  to  show  that  the 
damage  was  caused  by  sulphuric 
acid.  To  the  admission  of  the 
depositions  of  Russell  and  of  the 
testimony  of  Lee,  the  plaintiffs  ob- 
jected, on  the  ground  that  it  was 
an  attempt  to  prove  that  Wood  had 
fraudulently  damaged  the  blankets 
in  question,  by  proving  that  he  had 
in  other  cases  damaged  blankets  by 
packing  them  in  a  wet  state  to 
increase  their  weight ;  which  the 
plaintiffs  contended  it  was  not  com- 
petent for  the  defendants  to  do.  But 
the  Judge  overruled  the  objection 
and  permitted  the  evidence  to  go  to 
the  jury.  .  .  . 

The  jury  found  a  verdict  for  the 
defendants,  and  no  inquiry  was  made 
or  moved  for  by  the  plaintiffs'  coun- 
sel at  the  time,  as  to  the  principles 
upon  which  the  verdict  was  founded. 
The  plaintiffs  moved  for  a  new  trial  : 
1.  Because  the  depositions  of  Rus- 
sell and  the  testimony  of  Lee  were 
admitted  in  evidence.  ...  S.  D. 
Ward,  in  support  of  the  motion.  .  .  . 
S.  Ihihhard  and  Cook,  contra.  .  .  . 

Putnam,  J.,  delivered  the  opin- 
ion of  the  Court.  —  The  main  ob- 
jection which  has  been  made  to  the 
proceedings  at  the  trial,  is,  that  the 
testimony  of  Lee  and  the  deposi- 
tions of  Russell  ought  not  to  have 
been  received  for  the  defendants. 
It  is  contended  that  the  evidence 
proves  that  Wood  made  bad  blank- 


ets for  other  persons  and  that  this 
circumstance  has  no  tendency  to 
prove  that  he  made  bad  blankets 
for  the  plaintiffs ;  that  it  is  no 
better  than  to  offer  e\idence  of 
general  bad  reputation,  when  a 
party  should  be  held  to  prove  the 
particular  fraud.  And  the  case  of 
Holcombe  v.  Hewson,  2  Campb. 
391,  has  been  much  relied  upon,  and 
is  the  strongest  which  we  have  seen 
for  the  plaintiffs.  In  that  case 
Holcombe  was  l)ound  to  pro\e  that 
he  had  supplied  Hewson  with  good 
beer,  and  he  offered  to  prove  that 
several  other  persons  who  dealt 
with  him  while  he  supplied  the  de- 
fendant, were  satisfied  with  his 
beer,  as  being  of  excellent  cjuality ; 
but  Lord  Ellenborougii  held  the 
evidence  to  be  inadmissible,  be- 
cause he  might  have  dealt  well  with 
some,  but  not  well  with  other  cus- 
tomers. This  case  was  properly 
decided ;  the  evidence  oft'ered  by 
the  plaintiff  w^as  of  his  own  doings 
and  conduct  in  regard  to  strangers, 
from  which  it  was  intended  to  be 
inferred  that  his  conduct  towards 
the  defendant  had  been  similar  ;  that 
would  be  clearly  a  non  sequitur. 

But  in  the  case  at  bar  the  evidence 
objected  to  does  not  arise  between 
the  party  who  furnished  the  dam- 
aged goods  and  the  purchaser,  but 
between  strangers  to  the  manufac- 
turer. The  evidence  comes  in  col- 
laterally, and  is  greatly,  if  not  un- 
avoidably, connected  with  other 
testimony  which  is  admitted  to  be 
material  and  competent.  The  point 
to  be  proved  by  the  defendants  was, 
that  the  blankets  were  injured  by 
some  other  cause  than  the  perils 
of  the  sea.  They  had  a  peculiar 
appearance  ;  they  were  so  singularly 
sjjotted  and  marked,  that  Lee,  who 
had  importefl  blankets  from  Eng- 
land, of  similar  appearance,  would 
ha\e  supposed  they  were  the  same. 
This  happened  in  1828,  the  same 
year  that  the  plaintiffs  imported 
those  now  in  question.  It  happened 
also,  that  a  great  many  bales  of 
blankets     exactly     resembling     the 


No.  50. 


III.       PROOF   OF   HUMAN   TRAIT.       E.    INTENT 


141 


plaintiffs'  were  imported  that  year 
from  England  into  New  York.  Now 
it  is  conceded  that  it  would  be  per- 
fectly competent  to  compare  the 
plaintiffs'  blankets  with  the  other 
damaged  blankets,  in  order  to  satisfy 
the  jury  that  it  was  not  the  damage 
of  the  sea  which  operated  so  pe- 
culiarly and  injuriously.  It  is  not 
contended  but  that  it  would  be 
proper  to  prove  that  they  all  came 
from  England ;  but  that  evidence 
would  be  much  less  satisfactory 
than  to  trace  them  to  one  manu- 
factory in  England.  If  you  may 
properly  go  to  the  manufactory,  why 
not  to  the  name  of  the  manu- 
facturer ?  It  is  not  easy  to  draw 
the  line.  They  are  marked  and 
injured  as  no  other  blankets  were, 
which  have  been  imported.  They 
may  have  been  injured  by  persons 
at  Wood's  manufactory,  without 
his  knowledge,  and  so  without  any 
intention  of  fraud  on  his  part ;  it 
may  have  been  done  by  some  enemy, 
with  a  view  to  prejudice  Wood  in  his 
business.     In  the  case  of  Holcombe  v. 


Ilcwson,  before  cited,  Lord  Ellen- 
borough  said,  "  let  the  plaintiff'  call 
those  who  frequented  the  defend- 
ant's house  and  drank  the  beer 
which  he  sent  in."  Why  not,  in 
the  case  at  bar,  call  those  who 
bought  of  Wood,  blankets  marked 
in  this  extraordinary-  manner  at 
the  same  time  ?  The  object  is  not 
to  impute  a  fraud  to  the  manufac- 
turer (for  we  do  not  see  any  motive 
he  could  have  to  destroy  the  blan- 
kets), but  to  prove  in  a  suit  between 
other  parties,  that  the  injury  did 
not  arise  from  sea  damage.  And 
the  evidence  that  the  great  number 
of  bales  of  blankets  which  came  that 
year,  in  six  ships,  from  Wood's 
manufactory,  had  these  distinguish- 
ing marks  upon  them,  which  are 
ascertained  to  have  been  such  as 
would  be  occasioned  by  sulphuric 
acid,  is  we  think  admissible  as  tend- 
ing to  disprove  the  allegation  of  the 
plaintiffs,  that  the  injur}'  arose 
from  the  perils  of  the  sea.  .  .  .  We 
are  all  of  opinion  that  the  judgment 
should  be  rendered  upon  the  verdict. 


50.  LIST  PUBLISHING  CO.  y.  KELLER.  (1887.  Federal  Dis- 
trict Court.     New^  York.     30  Fed.  772.)  .  .  . 

In  Equity.  Bill  for  injunction  names  and  addresses  given  in  the 
to  restrain  infringement  of  com-  "  Social  Register "  from  the  "  List.  " 
plainant's   copyright.  j  If  he  has   copied  any  part,  of   the 

Wallace  MacFarland,  for  com-  complainant's  book,  he  has  infringed 
plainant.  Edmund  Wetmorc,  ior  de-  '  the  copyright.  He  has  no  right  to 
fendant.  take,  for    the    purposes  of    a   rival 

Wallace,  J.  —  The  parties  are  publication,  the  results  of  the  labor 
the    proprietors    and    publishers    of      and  expense  incurred  by  the  com- 


rival  "society"  directories,  which 
purport  to  give  the  names  and  ad- 
dresses of  those  persons  in  New 
York  City  who  are  supposed  to  be 
people  of  fashion.  The  complainant 
asserts  that  its  copyrighted  direc- 
tory, "The  List,"  is  infringed  by  the 
defendant's  directory,  the  "  Social 
Register,"  and  has  made  a  motion 
for  a  preliminary  injunction.  The 
question  in  the  case  is  whether  the 
defendant,  in  compiling  his  directory, 
has  done  so  by  his  own  original  labor, 
or  whether,  in  order  to  spare  himself 
time  and  expense,  he  has  copied  the 


plainant,  and  thereby  save  himself 
the  labor  and  expense  of  working 
out  and  arriving  at  these  results 
by  some  independent  road.  .  .  . 
The  compiler  of  a  general  directory 
is  not  at  liberty  to  copy  any  part, 
however  small,  of  a  previous  di- 
rectory, to  save  himself  the  trouble 
of  collecting  the  materials  from 
original  sources.  .  .  .  Either  of  the 
present  parties  could  lawfully  use 
the  general  city  directory  to  obtain 
the  correct  addresses  of  the  selected 
persons ;  nor  is  it  doubted  that  the 
defendant  had  the  right  to  use  the 


142 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  50. 


complainant's  book  for  the  pur- 
pose of  verifying  the  orthography  of 
the  names,  or  the  correctness  of  the 
addresses,  of  the  persons  selected. 
But  if  the  defendant  has  used  the 
"  List "  to  save  himself  the  trouble 
of  making  an  independent  selection 
or  classification  of  the  persons  whose 
names  appear  in  the  "  Social  Regis- 
ter, "  although  he  may  have  done  so 
only  to  a  \'ery  limited  extent,  he 
has  infringed  the  complainant's 
copyright. 

In  a  case  like  this,  when  a  close 
resemblance  is  the  necessary  conse- 
quence of  the  use  of  common  mate- 
rials, the  existence  of  the  same  errors 
in  the  two  publications  affords  one 
of  the  surest  tests  of  copying.  The 
improl)ability  that  both  compilers 
would  have  made  the  same  mistakes, 
if  both  had  derived  their  information 
from  independent  sources,  suggests 
such  a  cogent  presumption  of  copy- 
ing by  the  later  compiler  from  the 
first  that  it  can  be  overcome  only 
by  clear  evidence  to  the  contrary. 
Mawman  v.  Tegg,  2  Russ.  393 ; 
Spiers  v.  Brown,  31  Law  T.  16; 
Lawrence  v.  Dana,  2  Amer.  Law  T. 
(N.  S.)  402.  The  complainant  re- 
lies upon  this  criterion  here.  The 
"List"  contains  a  selection  of  about 
6000  names  and  addresses  of  per- 
sons residing  in  New  York  City  out 
of  the  313,000  names  which  appear 
in  the  general  city  directory.  The 
"Social  Register"  contains  about 
3500  names  and  addresses  of  persons 
residing  in  New  York  City,  and  of 
this  number  over  2800  appear  in 
the  "List."  The  fact  that  2800 
of  the  names  and  addresses  in  the 
defendant's  book  originally  appeared 
in  the  complainant's  book  would, 
standing  alone,  be  quite  inconclusive. 
But  when  it  is  shown  that  39  errors 


in  complainant's  book,  consisting  of 
misprints,  erroneous  addresses,  in- 
sertion of  names  of  persons  who 
never  existed,  and  insertions  of 
names  of  deceased  persons,  are  re- 
produced in  the  defendant's  book, 
although  it  was  not  published  until 
more  than  a  year  after  the  com- 
plainant's book  was  published,  a 
strong  presumptive  case  of  piracy 
is  made  out.  The  depositions  on 
the  part  of  the  defendant  are  ad- 
dressed in  part  to  an  explanation  of 
his  reproduction  of  these  errors 
consistently  with  the  theory  that 
they  were  not  copied  from  the  com- 
plainant's book.  These  depositions 
have  been  carefully  read  and  con- 
sidered, and  the  conclusion  has  been 
reluctantly  reached  that  the  ex- 
planation is  inadequate.  It  will 
not  be  profitable  to  analyze  the 
depositions.  It  suffices  to  state 
that  the  case  for  the  complainant 
is  such  as  to  call  for  a  full  and  ex- 
plicit vindication  on  the  part  of  the 
defendant.  If  it  is  true  that  his 
directory  was  prepared  from  several 
private  visiting  lists  furnished  to 
Ashmore  for  the  purpose,  these  lists 
should  have  been  produced  or  their 
non-production  accounted  for ;  and, 
if  they  could  not  be  produced,  cor- 
roborative testimony  of  their  ex- 
istence, the  sources  from  which  they 
were  obtained,  and  their  contents 
should  have  been  adduced.  It  may 
be  that  the  presumption  which  at 
present  must  prevail  will  be  over- 
thrown by  the  proofs  at  the  final 
hearing  of  the  cause,  but,  as  the  case 
now  appears,  the  complainant  is 
entitled  to  an  injunction.  The  in- 
junction will  be  limited  to  the  extent 
to  which  the  defendant's  book  is 
identical  with  the  complainant's 
book. 


TITLE  IV:    EVIDENCE   TO    PROVE   THE  DOING   OF  A 

HUMAN  ACT 

53.  John  H.  Wigmore.      Principles  of  Judicial  Proof.      (1913.) 

The  general  classification  of  Circumstantial  Evidence^a«/f,  No.  3)  is 
into  three  groups  :  Concomitant,  Prospectant,  and  Retrospectant.  When 
the  doing  of  a  Human  Act  is  the  probandum,  this  classification  is  to  be 
understood  thus  :  Place  yourself  at  a  time  before  the  Act,  if  any,  was 
done ;  note  any  circumstance  {e.g.  a  plan)  that  points  forward  to  the  act 
probably  being  about  to  be  done  or  not  done  or  done  by  a  specific  person  ; 
such  circumstances  are  Prospectant.  Then  place  yourself  at  the  time 
and  place  of  the  Act,  if  any ;  note  the  circumstances  {e.g.  a  knife  with  ini- 
tials) which  point  to  the  doing  or  not  doing  of  the  act  then  and  there, 
or  its  doing  by  a  specific  person ;  these  form  the  Concomitant  evidence. 
Then  place  yourself  at  a  time  subsequent  to  the  Act,  if  any,  and  note  the 
circumstances  {e.g.  stolen  goods  found  on  the  accused)  which  point  back 
in  time  to  the  doing  or  not  doing  of  the  act,  if  any,  or  its  doing  by  a  specific 
person. 

No  exact  line  can  be  or  need  be  drawn  between  the  three  groups  ;  they  are 
merely  useful  for  grouping  typical  cases. 

54.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(1868.     p.  586.) 

Taking  for  the  subject  of  investigation,  a  case  of  murder,  the  following  may 
be  supposed  to  present  the  corpus  delicti,  as  fully  proved.  A  woman  has 
been  found  at  night,  dead  in  her  bed,  with  several  wounds  on  the  head, 
apparently  inflicted  with  a  hatchet  or  similar  implement,  and  the  bed  itself 
partially  consumed  by  fire.  In  the  effort  to  discover  the  perpetrator  of  this 
offense,  the  following  series  of  facts  may  be  supposed  to  appear. 

A.  On  examining  the  premises,  during  the  night,  and  soon  after  the  discov- 
ery of  the  crime,  a  man's  hat  or  cloak  is  found  on  the  ground  in  the  rear  yard 
of  the  house.  .  .  .  The  questions  which  immediately  and  naturally  suggest 
themselves,  in  reference  to  the  article  found,  are  :  "  How  came  it  to  be  there  ?" 
and  "What  does  it  mean  ?"  Viewed  with  reference  to  its  ordinary  uses,  it 
indicates,  as  the  reasonable  cause  of  its  existence,  the  presence  of  a  man  at 
the  spot  where  it  was  found.  But  the  fact  has  a  more  important  aspect  than 
this.  The  cvtraor dinar y  position  of  the  article  gives  to  it  an  extraordinary 
character,  indicating,  as  its  immediate  cause,  the  existence  of  some  unusual 
occasion,  and  a  correspondingly  unusual  condition  on  the  part  of  the  sup- 
posed wearer.  .  .  .  The  principal  fact  of  the  crime  affords  the  only  means, 
yet  known,  of  accounting  for  the  minor  fact  just  shown,  and  aids  in  giving  to 
it  the  interpretation  sought,  which  is  this  :  that   the  wearer  of  the  hat  or 

143 


144  PART   I.       CIRCUMSTANTIAL    EVIDENCE  No.  54. 

cloak  was  present  at  the  scene  of  the  crime,  on  the  night  of  its  commission  ; 
and  that  he  escaped  from  it  in  haste,  and  by  an  unusual  way,  in  order  to 
avoid  observation.  So  far  as  the  finding  of  the  article  in  question  is  regarded 
as  a  purely  physical  fact,  it  implies,  indeed,  two  successive  presumptions  or 
inferences :  first,  that  the  article  actually  belonged  to,  or  was  habitually 
worn  by  the  individual  supposed  to  be  designated ;  and  next,  that  such 
indivitlual  was  the  person  who  wore  it  on  the  night  of  the  murder.  Each  of 
these  is  liable  to  be  met  by  what  has  already  been  explained  as  an  infirmative 
supposition.  .  .  .  The  article  may  not  be  satisfactorily  and  fully /f/r«^?]^«/; 
or,  if  identified,  it  does  not  necessarily  follow  that  it  was  worn  by  the  in- 
dividual on  the  occasion ;  another  person,  really  connected  with  the  crime, 
may,  accidentally  or  intentionally,  have  obtained  possession  of  it  and  worn 
it.   .   .   . 

Another  fact  of  the  same  physical  class  comes  to  light.  A  hatchet,  with 
which  a  blow  competent  to  have  inflicted  the  wounds  observed  on  the  body 
might  have  been  given,  and  itself  apparently  stained  with  blood,  is  found 
(with  indications  of  having  been  recently  thrown  there)  in  a  corner  of  the 
yard  of  the  premises,  and  not  far  from  the  spot  where  the  other  article  was 
discovered  :  and  this  hatchet,  also,  is  believed,  or  indeed  proved  to  have  be- 
longed to  the  same  individual.  This  is  a  still  more  important  fact  than  the 
one  already  noticed.  It  indicates  what  is  always  necessary  to  be  shown 
against  any  accused  party,  —  the  general  fact  of  the  possessio7i  of  the  means 
of  crime. 

Viewed  by  itself,  the  supposed  bearing  and  meaning  of  this  last  circum- 
stance might  be  met  and  explained  or  avoided  by  the  same  species  of  sup- 
positions as  were  applied  to  the  first  one  ;  going  to  show  that  the  appearance 
observed  might  not,  or,  indeed,  did  not  proceed  from  the  cause  assigned. 
The  implement  may  have  been  mistaken  for  another;  it  may  have  been 
accidentally  thrown  where  it  was  found ;  what  has  been  taken  for  blood 
upon  it  may  be  nothing  more  than  rust ;  or,  if  actually  the  party's  hatchet, 
possession  of  it  may  have  been  acquired  l)y  another  person.  But  the  fact  of 
convergent  and  united  bearing,  which  now,  for  the  first  time,  presents  itself 
as  an  element  of  proof,  begins  to  show  that  this  common  determinate  tend- 
ency from  two  distinct  points  upon  another,  is  not  accidental,  but  must  be 
due  to  the  operation  of  some  real,  inducing  cause,  common  to  both.   .   .   . 

A  third  fact  is  brought  to  light.  The  individual  supposed  to  have  been  the 
owner  or  wearer  of  the  article  or  instrument  found,  or,  at  least,  a  person 
strongly  resembling  him,  and  by  some  sworn  to  have  been  the  same  person, 
is  ascertained  to  have  })een  actually  on  the  premises  where  the  crime  was  com- 
mitted, on  the  night  of  its  commission.  This  is  a  more  important  fact  than 
either  of  those  yet  discovered.  ...  It  presents  the  particular  human 
agent  sought  for,  not  presumptively  and  inferentially,  as  the  other  facts  did, 
but  directly  and  absolutely.  It  presents  him  as  possessing  opportunity  to 
commit  the  crime ;  a  fact  always  necessary  to  be  made  out  against  every 
accused  party.  .  .  . 

The  facts,  thus  apparently  united  as  discovered,  are  reasonably  supposed 
to  have  actually  occurred  in  the  same  connection  ;  and  the  interpretation 
which  the  discoverer  and  observer  naturally  give  to  them  is  this  :  that  the 
individual  indicated  was  concerned  in  the  commission  of  the  crime  ;  and 
that,  seeking  to  escape  by  a  back  way,   in  order  to  avoid  observation,  he 


No.  54.  IV.       PROOF   OF   HUMAN   ACT  145 

accidentally  dropped  his  hat  or  cloak,  in  his  haste,  or  purposely  threw  it 
off  as  an  encumbrance  to  motion  ;  and  that  the  implement  was  disposed  of 
in  a  similar  way.  This  interpretation  gives  to  each  fact  a  natural  mean- 
ing. ... 

The  probability  on  which  it  rests  may  still  be  met  and  qualified  by  the 
following  infirmative  suppositions.  First,  it  may  be  a  case  of  mistaken 
identity.  .  .  .  Next,  conceding  the  point  of  identity,  and  that  the  individual 
supposed  to  have  been  seen  was  actually  present,  so  long  as  an  exclusive 
presence  is  not  shown,  it  is  possible  that  the  crime  might  have  been  com- 
mitted by  another  also  present.  But,  here,  again,  the  associated  facts  of 
the  articles  found  present  difficulties  in  the  way  of  such  an  infirmative  sup- 
position. Still,  there  is  room  left  for  the  following  infirmative  supposition, 
or  rather  hypothesis  of  the  case,  as  it  may,  with  stricter  propriety,  be  termed, 
from  its  involving  the  assumption  of  several  connected  facts.  The  real 
criminal  may  have  fabricated  all  the  physical  evidence  hitherto  discovered  ; 
and  having  possessed  himself  of  the  criminative  articles,  and  finding  the 
accused  present  on  the  premises,  took  advantage  of  that  as  a  circumstance 
to  aid  his  plans  against  him ;  and  having  waited  until  the  accused  had  left 
the  house,  committed  the  crime  and  then  threw  the  articles  where  they 
might  seem  to  indicate  the  presence  of  the  owner  in  the  act  of  secretly  making 
his  escape. 

But  this  whole  hypothesis  is  subject  to  be  overturned  by  a  single  addi- 
tional fact.  For,  supposing  it  proved  that  the  accused,  towards  whom  all 
the  previously  discovered  facts  uniformly  pointed,  was  seen,  on  the  night 
of  the  crime,  leaving  the  premises,  or  their  immediate  vicinity,  by  an  un- 
usual way,  as  over  a  fence ;  or  in  an  unusual  manner,  as  in  great  secrecy  or 
in  great  haste ;  or  in  an  unusual  personal  condition,  as  without  a  hat,  —  the 
case  would  be  restored  to  the  original  criminative  supposition  that  he  did 
escape  by  the  way  indicated  by  the  position  of  the  articles,  and  that  he 
dropped  or  threw  them  where  they  were  found  ;  the  coincidence  in  regard  to 
the  hat,  if  such  were  the  article,  materially  increasing  its  probability.  .  .  . 

Additional  facts  are  brought  to  light.  The  accused,  when  seen  on  the 
premises,  was  observed  to  wear  a  cloak  similar  to  the  one  found,  and  ap- 
peared to  have  something  concealed  under  it.  This  favors  the  idea  that  he 
may  have  thus  concealed  the  hatchet  which  was  found,  and  evidently  used. 
In  the  course  of  further  inquiry,  a  piece  of  string  is  found  to  have  been  at- 
tached to  the  handle  of  the  hatchet.  A  piece  of  string  is  now  found  at- 
tached to  the  cloak,  and  these  two  pieces,  on  being  brought  together,  are 
ascertained  to  be  of  precisely  the  same  kind,  showing  that  they  were  once 
united.  This  close  physical  coincidence  converts  the  conjecture  just  men- 
tioned into  a  reasonable  presumption,  amounting  almost,  if  not  quite,  to  a 
certainty.  And  the  bearing  of  these  last  circumstances,  taken  together, 
reveals  a  new  and  most  material  fact ;  showing  that  the  accused  went  to  the 
premises,  prepared  for  the  commission  of  the  crime,  and  having  adequate 
means  of  its  commission,  which  means  were  actually  used. 

B.  The  circumstances  which  have  thus  far  been  supposed  to  be  developed 
by  a  course  of  investigation  are,  almost  exclusively,  those  of  the  concomitant 
class.  .  .  .  There  is  generally  a  disposition  to  carry  this  process  a  step  further, 
by  ascending  to  the  ultimate  origin  of  the  whole  transaction,  and  inquiring 
what  could  have  induced  or  instigated  the  individual  to  whom  the  facts 


146  PART    I.       CIRCUMSTANTIAL    EVIDENXE  No.  54. 

point,  as  the  cause  of  the  crime,  to  have  committed  it ;  or,  in  other  words, 
what  motive  he  coukl  have  had  for  it.  It  is  found  that  the  inchvidual  in 
question  had  recently  been  on  ill  terms  with  the  deceased,  and  had  been 
heard  to  utter  threats  against  her.  Facts  like  these,  showing  not  only  a 
disposition  and  aptitude,  but  the  elements  of  an  actual  intention  to  injure 
the  deceased,  have  a  peculiarly  important  influence  in  singling  out  one  in- 
dividual from  among  se\eral  others  who  might  be  supposed  to  have  had  equal 
opportunity  and  equal  means  of  committing  the  same  crime. 

C.  In  order  to  render  the  case,  as  thus  hypothetically  constructed,  the 
more  entirely  convincing,  let  it  next  be  supposed  that  the  following  sub- 
sequent circumstances  are  discovered.  Upon  search  being  made  after  the 
suspected  individual,  he  is  found  to  have  fled.  He  is  pursued,  and  with 
some  difficulty  apprehended.  On  being  questioned,  he  denies  his  name 
and  all  knowledge  of  the  deceased,  or  of  the  crime ;  but  on  being  searched, 
his  name  is  found  on  various  articles  of  his  clothing,  partially  erased.  A 
letter  is  also  found  from  the  deceased,  requesting  a  meeting  at  the  very 
time  and  place  of  the  murder.  On  being  interrogated  where  he  was,  on  the 
night  of  the  crime,  he  makes  a  statement  which  is  found  to  be  palpably  false. 
On  being  committed  to  custody,  he  is  detected  in  attempting  to  procure 
the  destruction  of  the  important  physical  evidence  first  discovered,  and  in 
endeavoring  to  prevail  on  a  friend  to  have  a  false  alibi  sworn  to,  in  his  behalf. 

Such  are  the  various  groups  of  facts  available  to  indicate  an  act  of  crime. 


TITLE  IV  (continued):    EVIDENCE   TO  PROVE   THE 
DOING   OF  A  HUMAN  ACT 

SUBTITLE   A:    CONCOMITANT    CIRCUMSTANCES    TO    PROVE    THE 
DOING  OF  A  HUMAN  ACT 

55.  John  H.  WiGMOEE.  Principles  of  Judicial  Proof.  (1913.)^  A  fact 
having  a  Concomitant  indication  is  one  which  is  thought  of  as  being  in 
existence  at  the  time  of  and  in  connection  with  the  act  to  be  proved ;  the 
logical  indication  or  inference  is  that  the  person  bearing  that  fact  as  a  mark 
is  thereby  to  be  associated  more  or  less  closely  with  the  act.  There  is  a  nega- 
tive as  well  as  an  aifirmaiive  form  of  inference  ;  in  the  affirmative  form,  e.g.  X 
was  at  the  place  of  the  murder,  therefore  he  may  have  committed  it ;  and 
the  negative  form,  e.g.  X  was  at  a  different  place  at  the  time  of  the  murder, 
therefore  he  did  not  commit  it. 

The  various  subvarieties  of  this  class  of  Evidence  may  be  grouped  into 
two : 

1.  Time  and  Place  (Opportunity) ; 

2.  Physical  and  Mental  Capacity,  Tools,  Clothes,  etc. 

1.  Time  and  Place,  (a)  Opportunity.  When  an  act  is  done,  and  a  particu- 
lar person  is  alleged  to  have  done  it  (not  through  an  agent,  but  personally),  it 
is  obvious  that  his  physical  presence,  within  a  proper  range  of  time  and  place, 
forms  one  step  on  the  way  to  the  belief  that  he  did  it.  It  is  true  that  an- 
other person  may  have  done  it,  but  the  former  is  at  least  within  the  limited 
number  of  persons  who  could  have  done  it,  and  thus  is  fit  to  become  a  sub- 
ject for  further  investigation. 

Explanation.  On  the  principle  of  Explanation  {ante,  No.  2,  §  5),  if  A  is  shown 
to  have  been  in  a  building  when  a  murder  was  committed,  he  may  admit  this 
fact,  and  seek  to  diminish  its  probative  significance  by  showing  that  there 
were  in  the  same  building,  at  the  same  time,  two  or  ten  or  five  hundred  other 
persons.  In  so  doing,  he  has  pointed  out  the  possibility  of  two  or  ten  or  five 
hundred  other  hypotheses,  equally  possible  with  that  charged  against  him. 
The  strength  of  these  other  hypotheses  takes  away  the  significance  of  the 
fact  of  his  opportunity,  just  in  proportion  to  the  number  and  degree  of  natural- 
ness of  the  other  hypotheses  —  i.e.  the  hypotheses  that  each  of  the  other 
persons  had  an  equal  opportunity.  Such  is  the  principle  of  explaining  away 
Opportunity. 

Since  the  showing  of  Opportunity  leaves  open  all  the  hypotheses  of  other 
persons'  equal  opportunity,  it  is  proper  for  the  proponent  of  the  evidence  to 
strengthen  it  by  cutting  off  in  advance,  so  far  as  possible,  these  other  hy- 
potheses, i.e.  by  showing  that  the  person  charged  was  one  of  a  few  only,  or 
the  sole  person,  having  the  opportunity.  In  other  words,  while  the  pro- 
ponent need  not,  he  may  always  show  exclusive  opportunity. 

'  Adapted  from  the  same  author's  Treatise  on  Evidence.    (1905.    Vol.  I,  §§  130-144,  83-89.) 

147 


148  PART    I.       CmCUMSTAXTIAL   EVIDENCE  No.  56^. 

(b)  Essential  lucousistcnci/  {Alibi).  The  negative  form  of  the  Con- 
comitant inference,  is,  if  not  the  more  common,  at  least  the  more  effective 
one.  It  may  be  termed  the  argument  from  Essential  Inconsistency.  Its 
usual  theory  is  that  a  certan  fact  cannot  coexist  with  the  doing  of  the  act  in 
question,  and,  therefore,  that  if  that  fact  is  true  of  a  person  of  whom  the  act 
is  alleged,  it  is  impossible  that  he  should  have  done  the  act.  The  form  some- 
times varies  from  this  statement ;  but  its  nature  is  the  same  in  all  forms. 
The  inconsistency,  to  be  conclusive  in  proof,  must  be  essential,  i.e.  absolute 
and  universal ;  and  its  evidentiary  strength  will  increase  with  its  approach 
to  absolute  or  essential  inconsistency.  There  are  five  common  cases  of  this 
form  of  the  argument  (though  more  are  conceivable)  :  1.  The  absence  of 
the  person  charged  in  another  place  (Alibi) ;  2.  The  absence  of  a  husband 
(non-access),  —  a  variety  of  the  preceding ;  3.  The  survival  of  an  alleged 
deceased  person  after  the  supposed  time  of  death  ;  4.  The  doing  of  a  crime 
by  a  thinl  person  ;  and,  5.  The  self-infliction  of  the  harm  alleged. 

2.  Capacity,  Tools,  Clothes,  etc.  («)  For  the  doing  of  an  act,  certain  traits 
or  features  physical  or  corporal  may  have  been  essential ;  the  act  shows  that 
it  was  done  by  a  person  possessing  them.  Thus,  physical  strength  (to  wield 
a  weapon),  mental  power  (to  execute  a  will),  technical  skill  (to  give  poison, 
imitate  handwriting,  etc.),  may  be  found  to  have  been  requisite;  specific 
clothes  or  corporal  marks  may  be  found  to  have  been  an  essential  circum- 
stance in  the  person  who  did  the  act ;  hence,  the  possession  of  such  strength, 
power,  skill,  tools,  clothes,  or  other  marks  is  a  circumstance  pointing  to  a 
given  person's  share  in  the  act. 

Explanation  here  follows  the  usual  lines  of  that  principle. 

(6)  Essential  Inconsistency.  The  negative  argument  of  the  present 
species  is  that  since  a  particular  mark  is  essentially  concomitant  to  the  act, 
a  person  lacking  that  mark  could  not  have  done  it.  E.g.  a  person  lacking 
poison  could  not  have  given  it  to  the  deceased;  a  person  lacking  money 
could  not  have  loaned  it  to  the  alleged  debtor. 

The  following  passages  illustrate  Concomitant  evidence  in  various  aspects. 


Topic  1.      Time  and  Place 

56.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence, 
(1868.  pp.  368,  549.)  This  division  may,  without  impropriety,  be  ex- 
tended so  far  as  to  include  not  only  those  circumstances  which  are 
strictly  contemporaneous  with  the  criminal  act,  but  those  also  which 
immediately  precede  and  follow  it. 

The  great  leading  circumstance  of  this  class,  the  one  which  first 
occurs  for  consideration,  and  the  one  of  which  evidence  is  always  spe- 
cially sought,  is  that  of  presence,  on  the  part  of  the  accused,  at  the  scene  of 
crime,  or  company  or  juxtaposition  with  the  subject  of  it,  at  the  time  of  its 
commission  ;  or,  at  least,  of  proximity  or  vicinity  of  the  accused  to  the  scene 
or  subject  of  the  crime,  about  such  time.  The  force  of  the  evidence,  in 
these  cases,  consists  in  the  concurrence  or  coincidence  of  the  three  leading 
circumstances  of  person,  time,  and  place.  The  closer  these  are  brought  to 
the  subject  of  the  crime,  the  stronger  their  effect  to  demonstrate  the  pres- 
ence of  the  accused,  and  to  show  such  presence  to  have  been  exclusive. 


No.  56.  IV.       PROOF    OF   HUMAN   ACT.      A.    1.    TIME,    PLACE  149 

1.  Proximity,  on  the  part  of  the  accused,  as  thus  presented  for  considera- 
tion, may  be,  in  itself,  of  various  degrees,  from  mere  vicinity,  up  to  actual 
juxtaposition  or  contact.  It  may  also  be  of  various  kinds,  such  as  prox- 
imity to  the  person  of  the  deceased,  or  to  the  scene  of  the  crime,  or  to  both ; 
and  it  may  exist  at  different  stages  ;  as  before  the  commission  of  the  crime, 
or  afterwards,  or  both  before  and  after. 

The  strongest  form  in  which  this  circumstance  can  be  presented,  and 
the  one  which  requires  the  least  reasoning  to  give  it  eflect,  is  un- 
doubtedly that  of  the  juxtaposition  of  the  persons  of  the  accused  and 
deceased,  proved,  by  actual  observation,  to  have  existed  both  im- 
mediately before  and  immediately  after  the  crime  is  perpetrated.  These 
show  presence  at  the  moment  of  actual  perpetration,  with  the  great- 
est effect  possible,  short  of  direct  evidence.  .  .  .  The  circumstance 
of  time  is  here  of  the  utmost  importance ;  for  if  the  room  were  not  entered 
immediately,  but  only  after  an  interval  sufficient  to  allow  the  escape 
of  another  person,  the  e.vclimve  character  and  effect  of  the  circumstances 
would  be  destroyed.  This  may  be  illustrated  by  the  well-known  case  of 
Jonathan  Bradford,  in  which  the  person  who  committed  the  murder  found 
means  to  escape  from  the  chamber  of  the  deceased,  only  the  instant  before 
Bradford  entered  it. 

The  character  of  the  place,  also,  is  essential  to  the  exclusive  effect  just 
mentioned.  .  ,  .  Lord  Coke's  example  of  a  violent  presumption  is  of  a  house 
in  which  a  man  is  run  through  with  a  sword  and  dies,  and  another  is  seen 
coming  out  of  it  with  a  bloody  sword ;  and  no  other  person  was  at  the  time 
in  the  house.  This  last  fact  undoubtedly  constitutes  the  foundation  of  the 
presumption  spoken  of.  Where  this  fact  is  clearly  proved,  it  is  not,  indeed, 
necessary  that  the  persons  of  the  accused  and  deceased  should  be  actually 
seen-together,  either  before  or  after  the  commission  of  the  crime.  If  they 
were  in  different  parts  of  the  same  house,  it  would  be  sufficient ;  or  even  if 
the  accused  were  only  seen  entering  the  house  just  before,  and  coming  out 
of  it  immediately  after ;  or  only  in  the  act  of  coming  out,  as  in  Lord  Coke's 
example. 

It  is  seldom,  however,  that  cases  occur,  presenting  merely  these  leading 
circumstances  of  personal  proximity,  time,  and  place.  On  the  contrary, 
they  are  almost  uniformly  associated  with  other  minor  circumstances, 
immediately  precedent  or  subsequent,  or  both,  which  have  the  double  effect 
of  proving  a  corpus  delicti,  and  fixing  the  guilt  of  it  upon  the  particular  party 
whose  exclusive  presence  is  shown.  As  where  a  person  is  seen  going  into  the 
apartment  of  another,  with  a  loaded  pistol ;  and,  soon  after,  a  shot  is  heard 
from  within ;  and  the  apartment  is  immediately  entered,  and  the  occupant 
is  found  dead  or  dying  from  a  mortal  wound  ;  and  the  other  person  is 
seen  standing  near,  with  a  discharged  pistol ;  and  the  wound  is  conclusively 
shown  to  have  been  inflicted  with  a  pistol  in  the  hands  of  some  other 
person  than  the  deceased ;  and  no  third  person  is  found  in  the  apart- 
ment. 

The  next  form  of  personal  juxtaposition,  from  which  a  presumption  of 
guilt  may  be  deduced  against  an  accused  party,  is  where  it  is  observed  to 
exist  only  after,  and  not  before  the  commission  of  the  crime.  As  where  a 
man  is  found  in  a  house,  or  in  the  open  air,  recently  dead  or  dying 
from  a  mortal  wound ;  and  another  is  seen  standing  by  him,  or  stooping 


150  PART   I.      CIRCUMSTANTIAL    EVIDENCE  No.  56. 

over  him,  or  busied  about  him,  or  even  just  leaving  him.  If  the 
circumstances  of  time  and  place  concur  (as  they  may)  in  excluding 
the  presence  of  any  other  person,  the  result  would  be  the  same 
as  in  the  preceding  description  of  cases ;  a  previous  juxtaposition  being 
necessarily  inferred.  Ix)rd  Coke's  example  is  of  a  person  escaping 
from  a  house  in  which  another  is  found  dead  by  violence ;  and 
yet  it  assumes  an  exclusive  presence.  Bradford's  case  was  one  of  sub- 
sequent actual  juxtaposition  of  persons,  belonging  strictly  to  the  division 
now  under  consideration. 

The  next  form  of  actual  juxtaposition  of  the  persons  of  an  accused  and 
deceased  individual,  from  which  a  presumption  of  guilt  may  be  deduced, 
is  that  which  has  been  ol)served  to  exist  only  previous  to  the  commission  of 
the  crime ;  as  where  the  body  of  a  murdered  person  is  found  in  a  building, 
or  in  the  open  air,  and  no  one  is  or  has  been  seen  near  it ;  but,  some  time 
before  the  body  is  found,  or  the  crime  ascertained  to  have  been  committed, 
the  deceased  was  seen  in  company  with  the  accused,  and  not  far  from  the 
spot.  The  criminative  effect  of  these  circumstances  is  dependent,  as  in  the 
cases  before  considered,  upon  those  of  time  and  place.  .  .  .  Hence,  where  a 
person  has  been  found  dead  by  violence,  and  no  one  near  the  body,  or  has 
suddenly  and  unaccountably  disappeared,  the  first  inquiry  which  naturally 
suggests  itself,  and  the  one  which,  in  fact,  is  always  made,  is  :  "  In  whose 
company  was  he  last  seen  alive?"  In  Corder's  case,  the  deceased  was  last 
seen  walking  with  the  accused  towards  a  barn,  under  the  floor  of  which 
the  dead  body  of  the  former  was  afterwards  found  buried.  In  the  cele- 
brated case  of  Spencer  Cowper,  much  stress  was  laid  on  this  circumstance  to 
criminate  the  accused.  In  Thornton's  case,  the  prisoner  and  the  deceased 
were  seen  walking  together,  at  a  very  late  hour  of  the  night  on  which  the 
latter  came  to  her  death ;  and  they  were  proved,  by  the  physical  evidence  of 
footprints,  to  have  been  in  the  same  field  with  the  pit  in  which  the  dead 
body  was  found,  and  in  the  immediate  vicinity  of  such  pit.  But  the  evi- 
dence as  to  the  important  circumstance  of  time  failed  to  give  to  the  facts 
their  full  criminative  effect ;  and  upon  this  ground,  together  with  a  doubt 
as  to  the  corpus  delicti,  the  accused  was  acquitted. 

We  come  next  to  that  description  of  cases  in  which  no  actual  juxtaposi- 
tion of  persons  has  l)een  observed,  either  before  or  after  the  commission  of 
the  crime,  but  only  proximity  to  the  scene  of  crime,  of  various  degrees  of 
closeness  ;  this  may  be  of  very  various  degrees.  In  Barbot's  case,  the  pris- 
oner was  not  observed  on  his  way  to  the  scene  of  the  crime,  —  the  time 
being  a  late  hour  of  the  night ;  but  he  was  seen,  the  next  morning,  return- 
ing from  the  spot  in  a  canoe ;  and  was  satisfactorily  traced  all  the  way  to 
his  home.  In  Stewart's  case,  the  accused  was  seen  in  the  neighborhood  of  a 
ferry  over  which  the  deceased  was  expected  to  pass,  inquiring  of  the  ferry- 
man, if  he  had  passed.  Soon  after  the  deceased  had  come  across  the  ferry, 
he  was  shot  and  killed  by  some  person  concealed  in  a  wood  through  which 
the  road  lay  ;  and,  a  few  hours  afterwards,  at  nightfall,  the  accused  was  seen 
and  spoken  with,  on  a  hill  just  above  the  spot.  ...  In  Wood's  case,  the 
deceased  was  seen  on  the  road,  resting  against  a  fence,  and  the  prisoner 
about  forty  yards  oft",  approaching  him. 

The  next  and  last  description  of  cases  remaining  to  be  considered  under 
the  present  general  head  embraces  those  in  which  such  care  has  been  taken 


No.  56.  IV.      PROOF   OF   HUMAN   ACT.      A.    1.    TIME,    PLACE  151 

by  the  criminal  to  avoid  observation,  that  he  has  not  been  seen,  either  at  or 
near  the  scene  of  the  crime,  or  going  towards  it,  or  going  from  it,  but  his 
proximity,  and  indeed  his  presence  are  inferred  from  his  movements  at  other 
points,  before  and  after  the  crime  was  committed.  ...  In  Rush's  case, 
the  prisoner  left  his  house  in  the  evening,  not  long  before  the  deceased,  who 
lived  in  the  neighborhood,  was  shot,  and  returned  at  about  nine  o'clock. 

The  weight  and  force  of  facts  like  these,  when  considered  by  themselves, 
consist  merely  in  the  coincidences  and  correspondences  of  time  which  they 
present ;  rendering  the  fact  of  presence  probable  in  various  degrees,  but  pos- 
sessing no  exclusive  efficacy.  .  .  . 

2.  The  principal  infirmative  supposition  applicable  to  the  circumstance  of 
opportunity  to  commit  a  crime,  is  that,  admitting  it  proved  to  have  existed, 
it  does  not  necessarily  follow  that  it  was  actually  taken  advantage  of  by 
the  party  shown  to  have  possessed  it ;  or  that  it  was  not  taken  advan- 
tage of  by  another  person.  In  order  to  give  it  this  effect,  where  it  is  solely 
or  chiefly  relied  on,  the  circumstances  tending  to  show  its  existence  must  be 
exclusive  in  their  operation,  by  demonstrating  that  no  other  person  had,  or 
could  have  had  the  opportunity  possessed  by  the  accused,  and  that,  there- 
fore, by  a  necessary  consequence,  none  but  he  could  have  committed  the 
crime. 

Its  whole  tendency  is  merely  to  show  a  possibility  that  the  act  might  have 
been  committed  by  the  person  supposed  to  be  indicated  ;  without  any  of 
that  quality  of  positive  probability  in  which  the  essence  of  the  force  of  pre- 
sumptive evidence  resides.  .  .  .  Another  person  may  have  been  present. 
The  real  murderer  may  have  left  the  dead  body,  and  escaped  from  the  room 
or  the  house  in  which  it  is  found,  only  the  moment  before  the  accused  entered 
it.  The  real  incendiary  may  have  fled  from  the  building  fired,  only  the 
moment  before  the  accused  approached  it.  The  presence  of  the  accused 
himself,  on  such  an  occasion,  may  be  accounted  for  upon  grounds  of  humane 
and  laudable  intention  to  render  assistance,  or  mere  innocent  curiosity, 
or  even  mere  accident.  The  exclusive  character  of  the  accompanying  cir- 
cumstances, in  regard  to  means  and  modes  of  entrance  upon  and  exit  from  the 
scene  of  the  crime,  however  apparently  satisfactory,  may  not  be  real.  The 
murderer  may  have  escaped  from  the  room  or  house,  by  a  door,  or  even  a 
window,  the  existence  or  capacity  of  which  has  been  entirely  overlooked. 
Supposing  the  exclusive  presence  of  one  particular  person  to  be  satisfactorily 
established,  such  person  may  not  have  been  the  accused,  but  another  person 
more  or  less  closely  resembling  him.  In  a  case  of  supposed  murder  the 
circumstance  that  the  accused  was  the  last  person  seen  in  company  with  the 
deceased,  previous  to  his  death  or  disappearance ;  or,  in  other  words,  that 
the  deceased  when  last  seen  alive  was  seen  in  his  company,  does  not,  of  itself, 
necessarily  exclude  the  possibility  that  another  and  unseen  person  may  have 
joined  the  deceased,  after  the  accused  left  him,  perpetrated  the  crime,  and 
effectually  escaped.  The  circumstances  of  the  accused  leaving  his  residence 
just  before,  and  returning  to  it  just  after  the  perpetration  of  a  crime  in  the 
vicinity,  merely  show  a  coincidence  of  action,  without  any  necessary  crimina- 
tive effect. 

Hastiness  of  movement  towards  the  scene  of  the  supposed  crime  may  have 
been  prompted  by  a  desire  to  render  assistance,  on  hearing  alarming  sounds 
or  cries  from  the  spot.     And  hastiness  of  movement /row  the  spot  may  have 


152 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  57. 


been  dictated  by  a  similar  desire  to  call  for  more  adequate  aid,  or  by  a  fear 
of  impending  danger  to  the  party  himself. 

Secrecy  of  movement  near  the  scene  of  the  crime,  even  including  the  dis- 
guise of  the  person,  may  be  explained  on  other  suppositions  than  that  of 
guilty  intent.  The  lovers  of  servants  are  apt  to  be  stealthy  in  their  visits, 
and  in  this  way  are  sometimes  taken  for  thieves.  And  secrecy  and  disguise 
have  sometimes  been  assumed  and  practiced  out  of  mere  sport. 


y  57.    JONATHAN  BRADFORD' 

Subjects  of  Inquiry  by  a  J ury.  3d 
Jonathan  Bradford,  in  173G,  kept 
an  inn,  in  Oxfordshire,  on  the  Lon- 
don road  to  Oxford.  He  bore  a 
very  unexceptionable  character. 
Mr.  Hayes,  a  gentleman  of  fortune, 
being  on  his  way  to  Oxford,  on  a 
visit  to  a  relation,  put  up  at  Brad- 
ford's. He  there  joined  company 
with  two  gentlemen,  with  whom  he 
supped,  and,  in  conversation  un- 
guardedly mentioned  that  he  had 
then  about  him  a  sum  of  money. 
In  due  time  they  retired  to  their 
respective  chambers ;  the  gentle- 
men to  a  two-bedded  room,  leaving, 
as  is  customary  with  many,  a  candle 
burning  in  the  chimney  corner. 
Some  hours  after  they  were  in  bed, 
one  of  the  gentlemen,  being  awake, 
thought  he  heard  a  deep  groan  in 
an  adjoining  chamber ;  and  this 
being  repeated,  he  softly  awaked  his 
friend.  They  listened  together,  and 
the  groans  increasing,  as  of  one  dying 
and  in  pain,  they  both  instantly 
arose  and  proceeded  silently  to  the 
door  of  the  next  chamber,  whence 
they  had  heard  the  groans,  and,  the 
door  being  ajar,  saw  a  light  in  the 
room.  They  entered,  and  perceived 
a  per.son  weltering  in  his  blood  in 
the  bed,  and  a  man  standing  over 
him  with  a  dark  lantern  in  one  hand 
and  a  knife  in  the  other  I  The  man 
seemed  as  petrified  as  themselves 
but  his  terror  carried  with  it  all  the 
terror  of  guilt.  The  gentlemen  soon 
discovered  that  the  murdered  person 
was  the  stranger  with  whom  they 
had  that  night  supped,  and  that  the 
man  standing  over  him  was  their 
host.  They  seized  Bradford  di- 
rectly, disarmed  him  of  his  knife,  and 


S  CASE.     (James  Ram.     On  Facts  as 

Amer.  ed.,  1863.     p.  449.) 

charged  him  with  being  the  mur- 
derer. He  assumed,  by  this  time, 
the  air  of  innocence,  positively 
denied"  the  crime,  and  asserted  that 
he  came  there  with  the  same  humane 
intentions  as  themselves ;  for  that, 
hearing  a  noise,  which  was  succeeded 
by  a  groaning,  he  got  out  of  bed, 
struck  a  light,  armed  himself  with 
a  knife  for  his  defense,  and  was  but 
that  minute  entered  the  room  before 
them.  These  assertions  were  of 
little  avail ;  he  was  kept  in  close 
custody  till  the  morning,  and  then 
taken  before  a  neighboring  justice 
of  the  peace.  Bradford  still  denied 
the  murder,  but,  nevertheless,  with 
such  apparent  indications  of  guilt, 
that  the  justice  hesitated  not  to 
make  use  of  this  most  extraordinary 
expression,  on  writing  out  his  mit- 
timus, "  Mr.  Bradford,  either  you 
or  my.self  committed  this  murder." 
This  extraordinary  affair  was  the 
conversation  of  the  whole  country. 
Bradford  was  tried  and  condemned, 
over  and  over  again,  in  every  com- 
pany. In  the  midst  of  all  this  pre- 
determination, came  on  the  assizes 
at  Oxford.  Bradford  was  brought 
to  trial ;  he  pleaded  —  not  guilty. 
Nothing  could  be  stronger  than  the 
evidence  of  the  two  gentlemen. 
They  testified  to  the  finding  Mr. 
Hayes  murdered  in  his  bed ;  Brad- 
ford at  the  side  of  the  body  with  a 
light  and  a  knife ;  that  knife,  and 
the  hand  which  held  it,  bloody ; 
that,  on  their  entering  the  room,  he 
betrayed  all  the  signs  of  a  guilty 
man  ;  and  that,  but  a  few  moments 
preceding,  tliey  had  heard  the  groans 
of  the  deceased. 


No.  58. 


IV.       PROOF   OF   HUMAN    ACT.      A.    1.    TIME,    PLACE 


153 


Bradford's  defense  on  his  trial 
was  the  same  as  before  the  gentle- 
men :  he  had  heard  a  noise ;  he 
suspected  some  villainy  was  trans- 
acting ;  he  struck  a  light ;  he 
snatched  the  knife,  the  only  weapon 
near  him,  to  defend  himself  ;  and  the 
terrors  he  discovered,  were  merely 
the  terrors  of  humanity,  the  natural 
effects  of  innocence  as  well  as  guilt, 
on  beholding  such  a  horrid  scene. 

This  defense,  however,  could  be 
considered  but  as  weak,  contrasted 
with  the  several  powerful  circum- 
stances against  him.  Never  was 
circumstantial  evidence  more 
strong !  There  was  little  need  of 
the  prejudice  of  the  county  against 
the  murderer  to  strengthen  it ;  there 
was  little  need  left  of  comment  from 
the  judge,  in  summing  up  of  the 
evidence ;  no  room  appeared  for 
extenuation ;  and  the  jury  brought 
in  the  prisoner  guilty,  even  without 
going  out  of  their  box. 

Bradford  was  executed  shortly 
after,  still  declaring  that  he' was  not 
the  murderer,  nor  privy  to  the  mur- 
der of  Mr.  Hayes ;  but  he  died  dis- 
believed by  all. 

Yet  were  these  assertions  not 
untrue  !  The  murder  was  actually 
committed  by  Mr.  Hayes'  footman  : 
who,  immediately  on  stabbing  his 
master,    rifled    his    breeches    of   his 


money,  gold  watch,  and  snuffbox, 
and  escaped  back  to  his  own  room ; 
which  could  have  been,  from  the 
after  circumstances,  scarcely  two 
seconds  before  Bradford's  entering 
the  unfortunate  gentleman's  cham- 
ber. The  world  owes  this  knowl- 
edge to  a  remorse  of  conscience  in 
the  footman  (eighteen  months  after 
the  execution  of  Bradford)  on  a  bed 
of  sickness.  It  was  a  death-bed 
repentance,  and  by  that  death  the 
law  lost  its  victim. 

It  is  much  to  be  wished  that  this 
account  could  close  here,  but  it 
cannot !  Bradford,  though  inno- 
cent, and  not  privy  to  the  murder, 
was,  nevertheless,  the  murderer  in 
design :  he  had  heard,  as  well  as 
the  footman,  what  Mr.  Hayes  de- 
clared at  supper,  as  to  the  having  a 
sum  of  money  about  him ;  and  he 
went  to  the  chamber  of  the  deceased, 
with  the  same  diabolical  intentions 
as  the  servant.  He  was  struck  with 
amazement !  he  could  not  believe  his 
senses !  and,  in  turning  back  the 
bedclothes,  to  assure  himself  of  the 
fact,  he,  in  his  agitation,  dropped  his 
knife  on  the  bleeding  body,  by  which 
both  his  hands  and  the  knife  became 
bloody.  These  circumstances  Brad- 
ford acknowledged  to  the  clergy- 
man who  attended  him  after  his 
sentence. 


58.    WILLIAM  SHAW'S  CASE. 

Remarkable  Trials  of  All  Countries. 
William  Shaw  was  an  upholsterer 
at  Edinburgh,  in  the  year  1721. 
He  had  a  daughter  Catherine  Shaw, 
who  lived  with  him.  She  en- 
couraged the  addresses  of  John 
Lawson,  a  jeweler,  to  whom  William 
Shaw  declared  the  most  insuperable 
objections,  alleging  him  to  be  a 
profligate  young  man,  addicted  to 
every  kind  of  dissipation.  He  was 
forbidden  the  house  ;  but  the  daugh- 
ter continuing  to  see  him  clandes- 
tinely, the  father  on  the  discovery, 
kept  her  strictly  confined.  William 
Shaw  had,  for  some  time,  pressed  his 
daughter   to   receive   the   addresses 


(T.   DuNPHY  AND  T.  J.  Cummins. 
1873.     p.  457.) 

of  a  son  of  Alexander  Robertson, 
a  friend  and  neighbor ;  and  one 
evening,  being  very  urgent  with  her 
thereon,  she  peremptorily  refused, 
declanng  that  she  preferred  death 
to  being  young  Robertson's  wife. 
The  father  grew  enraged,  and  the 
daughter  more  positive ;  so  that  the 
most  passionate  expressions  arose 
on  both  sides,  and  the  words  "bar- 
barity," "cruelty,"  and  "death," 
were  frequently  pronounced  by  the 
daughter !  At  length  he  left  her, 
locking  the  door  after  him. 

The  greater  part  of  the  buildings 
in    Edinburgh,  are   formed    on    the 


154 


PART   I.      CIRCUMSTANTIAL   EVIDENCE 


No.  58. 


plan  of  chambers  in  English  inns  of 
court,  so  that  many  families  in- 
habit rooms  on  the  same  floor, 
having  all  one  common  staircase. 
William  Shaw  dwelt  in  one  of  these, 
and  a  single  partition  only  divided 
his  room  from  that  of  James  Morri- 
son, a  watch-case  maker.  This  man 
had  indistinctly  overheard  the  con- 
versation and  quarrel  between 
Catherine  Shaw  and  her  father,  but 
was  particularly  struck  with  the 
repetition  of  the  above  words,  she 
having  pronounced  them  loudly  and 
emphatically  I  For  some  little  time 
after  the  father  had  gone  out,  all 
was  silent,  but  presently  ^Morrison 
heard  se\eral  groans  from  the  daugh- 
ter. Alarmed,  he  ran  to  some  of 
his  neighbors  under  the  same  roof. 
These,  entering  Morrison's  room, 
and  listening  attentively,  not  only 
heard  the  groans,  but  distinctly 
heard  Catherine  Shaw  faintly  ex- 
claim :  "  Cruel  father,  thou  art  the 
cause  of  my  death!"  Struck  with 
this,  they  flew  to  the  door  of  Shaw's 
apartment ;  they  knocked  —  no  an- 
swer was  given.  The  knocking  was 
still  repeated  —  still  no  answer.  Sus- 
picions had  before  risen  against  the 
father  ;  they  were  now  confirmed  : 
a  constable  was  procured,  an  en- 
trance forced  ;  Catherine  was  found 
weltering  in  her  blood,  and  the  fatal 
knife  by  her  side.  .  .  .  Just  at 
the  critical  moment,  William  Shaw 
returns  and  enters  the  room.  All 
eyes  are  on  him !  He  sees  his 
neighbors  and  a  constable  in  his 
apartment,  and  seems  much  dis- 
ordered thereat ;  })ut  at  the  sight  of 
his  daughter,  he  turns  pale,  trembles, 
and  is  ready  to  sink.  The  first  sur- 
prise and  the  succeeding  horror  leave 
little  doubt  of  his  guilt  in  the  breasts 
of  the  beholders ;  and  even  that 
little  is  done  away  on  the  constable 
discovering  that  the  shirt  of  William 
Shaw  is  bloody. 

He  was  instantly  hurried  before 
a  magistrate,  and  upon  the  deposi- 
tions of  all  the  parties,  committed  to 
prison  on  suspicion.  He  was  shortly 
after  brought  to  trial,  when,  in  his 


defense,  he  acknowledged  the  having 
confined  his  daughter  to  prevent  her 
intercourse  with  Lawson ;  that  he 
had  frequently  insisted  on  her  marry- 
ing Robertson  ;  and  that  he  quarreled 
with  her  on  the  subject  the  evening 
she  was  found  murdered,  as  the 
witness,  Morrison,  had  deposed : 
but  he  averred,  that  he  left  his  daugh- 
ter unharmed  and  untouched  ;  and 
that  blood  found  upon  his  shirt  was 
there  in  consequence  of  his  having 
bled  himself  some  days  before,  and 
the  bandage  becoming  untied. 
These  assertions  did  not  weigh  a 
feather  with  the  jury,  when  opposed 
to  the  strong  circumstantial  evi- 
dence of  the  daughter's  expressions, 
of  "  barbarity, "  "  cruelty, "  "  death," 
and  of  "cruel  father,  thou  art  the  cause 
of  my  death,"  —  together  with  that 
apparently  affirmative  motion  with 
her  head,  and  of  the  blood  so  seem- 
ingly providentially  discovered  on 
the  father's  shirt.  On  these  several 
concurring  circumstances,  was  Wil- 
liam Shaw  found  guilty,  was  ex- 
ecuted, and  was  hanged  in  chains, 
at  Leith  Walk,  in  November,  1721. 

There  was  not  a  person  in  Edin- 
burgh who  believed  the  father  guilt- 
less, notwithstanding  his  latest  words 
were,  "  I  am  innocent  of  my  daugh- 
ter's murder."  But  in  August,  1722, 
as  a  man,  who  had  become  possessor  of 
the  late  William  Shaw's  apartments, 
was  rummaging  by  chance  in  the 
chamber  where  Catherine  Shaw  died, 
he  accidentally  perceived  a  paper 
fallen  into  a  cavity  on  one  side  of 
the  chimney.  It  was  folded  as  a 
letter,  which,  on  opening,  contained 
the  following  :  "  Barl)arous  father, 
your  cruelty  in  having  put  it  out  of 
my  power  ever  to  join  my  fate  to 
that  of  the  only  man  I  could  love, 
and  tyrannically  insisting  upon  my 
marrying  one  whom  I  always  hated, 
has  made  me  form  a  resolution  to  put 
an  end  to  an  existence  which  is 
become  a  burthen  to  me.  .  .  .  My 
death  I  lay  to  your  charge :  when 
you  read  this,  consider  yourself  as 
the  inhuman  wretch  that  plunged  the 
murderous  knife  into  the  bosom  of 


No.  59. 


IV.       PROOF    OF   HUMAN    ACT.      A.    1.    TIME,    PLACE 


155 


the  unhappy  —  Catherine  Shaw." 
This  letter  being  shown,  the  hand- 
writing was  recognized  and  avowed 
to  be  Catherine  Shaw's  by  many  of 
her  relations  and  friends.  It  became 
the  public  talk  ;  and  the  magistracy 
of  Edinburgh,  on  a  scrutiny,  being 
convinced    of   its    authenticity,    or- 


dered the  body  of  William  Shaw  to 
be  taken  from  the  gibbet,  and  given 
to  his  family  for  interment ;  and 
as  the  only  reparation  to  his  memory 
and  the  honor  of  his  surviving  re- 
lations, they  caused  a  pair  of  colors 
to  be  waved  over  his  grave,  in  token 
of  his  innocence. 


59.    DOWNING'S    CASE.      (W. 
Amer.  ed.      1905.     p.  240.) 

Two  brothers-in-law,  Joseph 
Downing  and  Samuel  Whitehouse, 
in  the  year  1822,  met  by  appoint- 
ment to  shoot,  and  afterwards  to 
look  at  an  estate,  which  on  the  death 
of  Whitehouse's  wife  without  issue 
would  devolve  on  Downing.  They 
arrived  at  the  place  of  meeting  on 
horseback.  Downing  carrying  a  gun 
barrel  and  leading  a  colt.  After 
the  business  of  the  day,  and  after 
drinking  together  some  hours,  they 
set  out  to  return  home,  Downing 
leading  his  colt  as  in  the  morning. 
Their  way  led  through  a  gate  open- 
ing from  the  turnpike  road,  and 
thence  by  a  narrow  track  through 
a  wood.  On  arriving  at  the  gate. 
Downing  discovered  that  he  had  for- 
gotten his  gun  barrel ;  and  a  man 
who  accompanied  them  to  open  the 
gate  went  back  for  it,  returning  in 
about  three  minutes.  In  the  mean- 
time Whitehouse  had  gone  on  in 
advance ;  and  the  prisoner,  having 
received  his  gun  barrel,  followed  in 
the  same  direction.  Shortly  after- 
wards Whitehouse  was  found  lying 
on  the  ground  in  the  wood,  at  a  part 
where  the  track  widened,  about  600 
yards  from  the  gate,  with  his  hat 
off,  and  insensible  from  several 
wounds  in  the  head,  one  of  which  had 
fractured  his  skull.  While  the  per- 
son by  whom  he  was  discovered  went 
for  assistance,  the  deceased  had  been 
turned  over  and  robbed  of  his  watch 
and  money.  About  the  same  time 
Downing  was  seen  in  advance  of  the 
spot  where  the  deceased  lay,  pro- 
ceeding homeward  and  leading  his 
colt ;  and  a  few  minutes  afterwards 
two  men  were  seen  following  in  the 


Wills.     Circumstantial    Evidence. 

same  direction.  Suspicion  attached 
to  Downing,  partly  from  his  interest 
in  the  estate  enjoyed  by  the  deceased, 
and  he  was  put  upon  his  trial  for  this 
supposed  murder ;  but  it  was  clear 
that  he  had  no  motive  on  that  ac- 
count to  kill  the  deceased,  as  the 
estate  was  not  to  come  to  him  until 
after  failure  of  issue  of  the  deceased's 
wife,  to  whom  he  had  been  married 
several  years,  without  having  had 
children ;  so  that  it  was  his  interest 
that  the  way  should  not  be  opened 
to  a  second  marriage.  That  the 
deceased  had  been  murdered  at  all, 
was  a  highly  improbable  conjecture, 
and  it  was  far  more  probable  that  he 
had  fallen  from  his  horse  and  re- 
ceived a  kick,  especially  as  his  hat 
bore  no  marks  of  injury,  so  that  it 
had  probably  fallen  off  before  the 
infliction  of  the  wounds.  That  the 
deceased,  if  murdered  at  all,  had 
been  murdered  by  the  prisoner  was 
in  the  highest  degree  improbable, 
considering  how  both  his  hands  must 
have  been  employed,  nor  was  there 
any  evidence  that  the  deceased 
had  been  robbed  by  the  prisoner. 
It  thus  appeared,  that  these  accu- 
mulated circumstances,  of  supposed 
inculpatory  presumption,  were  really 
irrelevant  and  unconnected  with  any 
corpus  delicti.  The  prisoner  was 
acquitted  ;  and  it  is  instructive  that 
about  twelve  months  afterwards, 
the  mystery  of  the  robbery,  the  only 
real  circumstance  of  suspicion,  was 
cleared  up.  A  man  was  appre- 
hended upon  offering  the  deceased's 
watch  for  sale,  and  brought  to  trial 
for  the  theft  of  it,  and  acquitted,  the 
judge   thinking  that  he  ought  not 


156 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  60. 


to  be  called  upon,  at  so  distant  a 
period,  to  account  for  the  possession 
of  the  deceased's  property,  which  he 
might  have  purchased,  or  otherwise 
fairly  acquired,  without  being  able  to 
prove  it  by  evidence.  The  accused, 
when  no  longer  in  danger,  acknowl- 


edged that  he  had  robbed  the  de- 
ceased, whom  he  found  lying  drunk 
on  the  road,  as  he  believed  ;  but  that 
he  had  concealed  the  watch,  on  learn- 
ing that  it  was  supposed  that  he  had 
been  nmrdered,  in  order  to  prevent 
suspicion  from  attaching  to  himself. 


60.  LOOKER'S  CASE.  (W. 
Amer.  ed.      1905.      p.  242.) 

A  farmer  was  tried  under  the 
special  commission  for  Wiltshire,  in 
January,  1831,  upon  an  indictment 
which  charged  him  with  having 
feloniously  sent  a  threatening  letter, 
which  was  alleged  to  have  been 
written  by  him.  That  the  letter 
was  in  the  prisoner's  handwriting 
was  positively  sworn  by  witnesses 
who  had  had  ample  means  of  becom- 
ing acquainted  with  it,  while  the 
contrary  was  as  positively  asserted 
on  the  part  of  the  prisoner  by  nu- 
merous witnesses  equally  competent 
to  speak  to  the  fact.  But  the  scale 
appears  to  have  been  turned  by  the 
circumstance  that  the  letter  in 
question,  and  two  others  of  the  same 
kind  sent  to  other  persons,  together 
with  a  scrap  of  paper  found  in  the 
prisoner's  bureau,  had  formed  one 
sheet  of  paper ;  the  ragged  edges 
of  the  different  portions  exactly  fit- 
ting each  other,  and  the  water-mark 
name  of  the  maker,  which  was  di\'ided 
into  three  parts,  being  perfect  when 
the  portions  of  paper  were  united. 
The  jury  found  the  prisoner  guilty, 
and  he  was  sentenced  to  be  trans- 
ported for  life.  The  judge  and  jury 
having  retired  for  a  few  minutes, 
during  their  absence  the  prisoner's 
son,  a  youth  about  eighteen  years 
of  age,  was  brought  to  the  table  by 
the  prisoner's  attorney,  and  con- 
fessed that  he  had  been  the  writer 
of  the  letter  in  question,  and  not  his 
father.  He  then  wrote  on  a  piece 
of  paper  from  memory  a  copy  of  the 


Wills.       Circumstantial     Evidence. 

contents  of  the  anonymous  letter, 
which  on  comparison  left  no  doubt 
of  the  truth  of  his  statement.  The 
writing  was  not  a  verbatim  copy, 
although  it  differed  but  little ;  and 
the  bad  spelling  of  the  original  was 
repeated  in  the  copy.  The  original 
was  then  handed  to  him,  and  on 
being  desired  to  do  so,  he  copied  it, 
and  the  writing  was  exactly  alike. 
Upon  the  return  of  the  learned 
judge  the  circumstances  were  men- 
tioned to  him,  and  he  had  the 
prisoner  tried  upon  a  second  indict- 
ment for  sending  a  similar  letter, 
w  hen  the  son  admitted  in  the  witness 
box  writing  and  sending  all  the  three 
letters  in  question,  and  the  father 
was  at  once  acquitted.  The  son 
was  subsequently  indicted  for  the 
identical  offense  which  had  been 
imputed  to  the  father :  he  pleaded 
guilty,  and  was  sentenced  to  trans- 
portation for  seven  years.  It  ap- 
peared that  he  had  had  access  to  the 
bureau,  which  was  commonly  left 
open.  .  .  .  The  correspondence  of 
the  fragment  of  paper  found  in  the 
prisoner's  bureau  with  the  letter  in 
(piestion,  and  with  the  two  others 
of  the  same  nature  sent  to  other 
persons,  was  simply  a  circumstance 
of  suspicion,  but  foreign,  as  it  turned 
out,  to  the  factum  in  question  ;  and 
considering  that  other  persons  had 
1  access  to  the  bureau,  its  weight  as 
1  a  circumstance  of  suspicion  seems 
'  to  have  been  overrated. 


61.    REGINA  V.  CLEARY.     (Nisi  Prius.     1862.     2  F.  &  F.  850.) 
The   prisoner,   a   soldier,   was   in-  Roupell    and    A.    Smith,    for    the 

dieted     for    the     murder     of     one      prosecution.     Barrow,    for    the    de- 

Houghton,  at  Chichester.  fense. 


No.  CI. 


IV.       PROOF   OF   HUMAN   ACT.      A.    1.    TIME,    PLACE 


157 


The  case  for  the  prosecution  was, 
that  the  prisoner  had  shot  the  de- 
ceased by  mistake  for  one  of  his 
officers.  The  deceased,  a  student 
in  the  college  at  Chichester,  had  been 
shot  in  a  lane  leading  thereto,  and 
also  leading  to  the  barracks,  a  few 
minutes  before  twelve,  on  the  night 
of  the  16th  of  October.  He  uttered 
a  loud  shriek,  which  was  heard  at 
some  distance,  and  he  was  immedi- 
ately after  found  by  a  policeman 
and  another  man,  named  Bedford. 
He  was  shot  just  under  the  breast- 
bone, and  was  writhing  in  pain,  and 
said  to  Bedford  something  which 
showed  he  was  in  dread  of  imminent 
death ;  but  this  the  policeman  did 
not  hear  him  say.  He  said  to  the 
policeman,  "  Remove  me,  or  I  shall 
die  of  cold."  He  then  said  some- 
thing else  as  to  who  shot  him.  He 
was  removed  into  the  college,  where 
the  principal  spoke  to  him,  and  he 
seemed  sensible,  but  did  not  speak. 
He  died  soon  afterwards.  .  .  .  The 
prisoner,  on  the  night  of  the  15th, 
the  day  before  the  murder,  had  been 
told  that  he  was  ordered  for  drill 
next  da\%  and  had  uttered  some 
angry  words,  saying  he  would  not 
go,  and  would  know  who  ordered  it, 
and  would  go  to  the  battalion  order 
room  to  find  out,  and  that  he  would 
"drill  some  one."  That  night,  after 
going  to  bed,  he  left  the  barracks, 
and  there  was  strong  evidence  that  he 
had  taken  a  rifle  and  ammunition 
with  him.  In  about  half  an  hour 
a  shot  was  heard  near  the  college, 
and  some  one,  by  the  light  of  the 
flash,  saw  a  man  dressed  in  what 
seemed  a  soldier's  greatcoat  and 
cap  running  away.  There  was  no 
other  evidence  as  to  who  fired  the 
shot,  but  the  theory  of  the  prosecu- 
tion was,  that  it  was  an  attempt  by 
the  prisoner  to  shoot  one  of  his 
officers.  There  was  no  evidence, 
however,  of  any  of  them  having 
been  walking  near  the  spot  at  the 
time.  He  had  not  returned  to 
barracks,  and  a  man,  described  as 
dressed  like  him,  in  a  soldier's  coat 
and  cap,  with  a  musket,  had  been 


seen  by  more  than  one  witness  next 
night,  near  the  place  where  the  de- 
ceased was  shot,  standing  under 
the  hedge.  And  this  man  was  so 
seen  there  just  before  the  shot  was 
fired.  Not  far  off  from  the  spot  the 
prisoner's  rifle  was  found,  loaded, 
laid  down  half  covered  up  under  a 
hedge.  The  prisoner  was  seen  next 
day,  the  17th,  three  or  four  miles  off, 
without  his  rifle.  And  when  ar- 
rested on  that  day  he  was  at  some 
distance  from  Chichester,  going  to- 
wards Petworth.  He  ran  away  when 
he  saw  the  officer,  and  said  he 
was  a  deserter,  and  had  left  Chi- 
chester two  days  ago.  When  told 
of  the  murder,  he  said,  "  I  had 
nothing  to  do  it  with."  When  told 
that  there  had  been  a  rifle  found,  he 
said,  "How  do  they  know  it  was 
taken  out  of  the  barracks  ?  Have 
they  found  one?"  When  told  that 
it  had  been  found,  he  said,  "  It  is 
not  mine."  After  his  arrest,  he  said 
he  had  applied  in  August  to  Major 
Bush,  the  commanding  officer  of  his 
company,  for  a  "pass"  to  see  his 
brother,  and  had  been  refused  ;  and 
on  another  occasion  said  he  doubted 
not  the  major  would  hang  him  if  he 
could,  and  that  he  hoped  the  major 
would  have  him  drummed  out.  He 
also  said  that  the  major  had  been 
shot  at  twice  before  in  China,  and 
that  he  knew  who  did  it.  It  came 
out  that  several  soldiers  were  out 
of  barracks  the  night  before  the 
murder,  but  on  the  night  of  the 
murder  it  did  not  appear  that  any 
other  soldier  than  the  prisoner  was 
out,  or  that  more  than  one  rifle  was 
missing.  There  was,  however,  no 
evidence  that  the  major  or  any  other 
officer  would  be  likely  to  be  in  the 
lane  about  the  time  of  the  shot, 
or  that  any  of  them  had  been 
there. 

At  the  close  of  the  case,  Erle, 
C.  J.  (to  the  jury). — There  are  two 
questions  for  you :  First,  was  the 
deceased  murdered  ?  Secondly,  was 
he  murdered  by  the  prisoner  ? 

On  the  first  question  there  can 
be  little  doubt,  for  if  the  shot  was 


158 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  61. 


fired  by  accident,  and  with  no  in- 
tent to  kill  any  one,  the  person  who 
fired  it,  and  who  must  have  heard  the 
shriek  uttered  by  the  deceased, 
would  have  gone  to  his  assistance. 
It  is  plain  that  whoever  fired  the 
shot  meant  to  kill  some  one,  and  to 
leave  his  victim  to  die. 

Then  the  second  question  arises, 
was  the  prisoner  the  person  who 
fired  the  shot?  Now  there  is  no 
express  evidence  that  he  was,  and  it 
is  only  to  be  inferred  from  circum- 
stances, —  partly  from  the  evidence 
of  identity ;  partly  from  the  sug- 
gested motive  or  intent  of  the 
prisoner  to  kill  some  other  person. 
As  to  the  evidence  of  identity,  it  is 
doubtful  and  slight,  and  no  one 
speaks  clearly  to  having  seen  the 
prisoner  near  the  spot  at  the  time, 
but  only  to  a  person  dressed  like 
him,  i.e.  in  the  common  dress  of  a 
soldier.  It  is  true  that  one  or  two 
speak  to  having  seen  a  man  dressed 
like  a  soldier,  and  with  a  gun.  And 
if  you  are  satisfied  that  the  prisoner 
took  a  gun  with  him,  then  that  would 
bear  strongly  against  him,  not  only 
as  to  the  identity,  but  as  to  the 
falsity  of  the  statement  he  made 
that  he  had  not  a  gun  with  him,  and 
also  as  to  the  finding  of  a  gun  near 
the  spot  in  the  way  he  took.  But 
even  assuming  that  he  had  a  gun, 
that  would  not  be  conclusive  that 
he  was  the  man  who  fired  the  fatal 
shot.  It  is  suggested  that  it  is  to 
be  inferred  that  he  was  so  from  the 
fact  that  he  had  uttered  angry  words 
or  threats  against  any  one  who  had 
to  do  with  his  being  ordered  to  drill 
next  day.  But  there  is  no  evidence 
that  he  had  found  out  who  had  had 
to  do  with  it,  or  that  he  had  con- 
ceived enmity  against  any  particular 
person,  or  that  any  person  against 
whom  he  might  be  supjjosed  to  have 
an  enmity  was  or  would  be  likely 
to  be  at  the  spot  at  or  about  the 
time  of  the  fatal  shot.  .  .  .  The 
question  comes  to  this  :  on  the  whole 
of  the  evidence,  are  you  satisfied 
that  he  fired  that  shot  ?  That  is, 
fired  it    intentionally,    for    the    the- 


ory of  accidental  firing  seems  (for 
the  reason  I  have  given)  unten- 
able. 

Verdict,  not  guilty. 

[Reporter's  Note.]  A  verdict 
which  met  the  approval  of  all 
lawyers,  although  great  doubt  and 
dissatisfaction  was  expressed  among 
laymen.  It  was  said  that  there 
was  no  moral  doubt  of  the  man's 
guilt.  Nor  was  there,  if  all  the 
facts  were  taken  as  clearly  proved 
on  which  the  theory  of  the  prosecu- 
tion was  based.  But  then  the  great 
fact  it  required,  that  the  prisoner 
had  fired  the  shot,  was  not  clearly 
proved ;  even  assuming  that  it 
was  proved  that  he  took  a  gun  with 
him.  For  whether  that  was  the 
gun  fired,  and  he  was  the  man  who 
fired  (which  no  doubt  may  be  taken 
as  facts  in  substance  the  same), 
must  depend,  as  the  Lord  Chief 
Justice  pointed  out,  partly  on  evi- 
dence of  identity,  which  was  doubt- 
ful, and  partly  on  the  assumed  or 
suggested  theory  of  motive  and  in- 
tent, as  to  which,  not  only  was  there 
doubt,  but  there  was  an  utter  blank 
and  defect  in  the  evidence ;  for  it 
was  not  proved  that  any  officer  who 
had  had  to  do  with  the  order  to 
drill,  or  who  might  be  supposed  to 
have  had  to  do  with  it  (Major  Bush, 
for  instance),  was  or  would  be  likely 
to  be  on  the  spot  at  the  time  the 
shot  was  fired.  The  case  for  the 
prosecution  went  upon  the  theory 
that  one  man  had  been  shot  by  mis- 
take for  another,  and  the  evidence 
of  identity  was  so  doubtful,  that 
though,  if  it  had  been  clearly  proved 
that  the  prisoner  had  fired  the  shot 
willfully  at  any  one,  it  would  not 
have  mattered  whether  he  fired  at 
the  deceased  ;  yet,  as  the  evidence  of 
identity  was  so  doubtful,  and  it  was 
sought  to  eke  it  out  by  a  presump- 
tion that  the  prisoner  was  the  man 
who  fired  the  shot,  because  he  had  a 
design  to  shoot  some  one,  it  was 
essential  to  prove  that  the  man 
whom  he  meant  to  shoot  was  or 
might  be  supposed  to  have  been  on 
the   spot,    otherwise,    it    is    obvious 


Xo.  62.  IV.       PROOF   OF   HUMAN   ACT.       A.    1.    TIME,    PL.\CE  159 

there  could  be  no  greater  reason  to  have  been  supposed  to  be.     This  was 

presume  that  the  prisoner  had  fired  not  only  not  proved,  but  there  was 

this  shot  than  any  other  shot,  or  that  no  evidence  of  it,  so  that  the  case 

the  prisoner  had  fired  it  rather  than  broke  down  on  what  turned  out  to 

any  other  person.  be    its    vital    point.     For,    striking 

The    verdict    was    supposed     to  that  out,  the  case  for  the  prosecu- 

have  gone  on  the  notion,  that  if  one  tion,    even   assuming   an   intent   to 

man  is  shot  by  mistake  for  another,  kill  an  officer,  and   even   assuming 

it  is  not  murder  !     A  notion  quite  an  attempt  to  do  so,  on  the  part  of 

contrary  to  the  clear  meaning  of  the  the   prisoner,   was   quite   consistent 

charge,  and  probably  to  the  common  with  the  theory  that  he  had  aban- 

knowledge    of    all    men.      But    the  doned  the  attempt,   laid  aside  the 

verdict    went    upon    this,    that     if  gun,  and  gone  away,  and  that  some 

the  main  proof  or  main  part  of  the  other    person    had    fired    the    shot, 

proof,   that    the  prisoner  fired    the  either  against  the  deceased  or  some 
shot,    is,    that    he    meant    to    kill   .  one    else.     The    only    person    who 

some  one  else  (which,  per  se,  rather  spoke  to  the  personal  identity  of  the 

negatives  the  idea  that  he  did  so)  prisoner,  as  distinguished  from  the 

it  must  at  least  be  clearly  proved,  mere  common  likeness  of  a  soldier's 

that  the  person  whom  he  meant  to  dress,  saw  him  three  or  four  miles 

shoot  was   on   the    spot,   or    might  oflf  and  without  a  gun. 

62.  Alexander M.BuRRiLL,  A  TreatiseonCircumstantial Evidence.  (1868. 
p.  511.)  If  the  accused  can  make  it  appear,  that,  at  the  very  time  when 
the  crime  charged  is  alleged  to  have  been  committed  (it  being  of  a  nature 
to  require  his  personal  presence)  he  was  in  another  place,  a  result  of  the  same 
kind  will  be  established ;  founded  on  the  obvious  impossibility  that  the 
same  person  could  have  been  in  two  different  places  at  the  same  time.  This 
species  of  defense  is  familiarly  known  as  an  alibi.    .   .    , 

A  leading  rule  in  the  application  of  this  description  of  evidence  is,  that 
the  time  relied  on,  and  in  which  the  value  of  the  evidence  essentially  consists, 
must  correspond  closely  with  the  time  at  or  during  which  the  oft'ense  is  proved 
to  have  been  committed. 

Sometimes,  all  that  can  be  proved  is  that  the  crime  was  committed,  or 
must  have  been  committed,  during  a  space  of  time  embracing  several  hours  : 
as,  during  a  night  or  part  of  a  night,  or  during  a  forenoon.  In  such  cases, 
the  alibi  evidence  relied  on,  in  order  to  be  eft'ectual,  must  be  applied  to  and 
cover  the  ichole  of  such  period.  A  good  illustration  of  this  position  is  pre- 
sented in  Richardson's  case.  It  was  satisfactorily  proved,  in  that  case,  that 
the  crime  had  been  committed  during  the  forenoon  of  the  day  specified. 
To  meet  this,  the  prisoner  adduced  evidence  to  show  that,  during  that  same 
forenoon,  he  was  engaged  at  work,  with  his  fellow  servants,  at  some  distance 
from  the  cottage  which  was  the  scene  of  the  crime.  Here  was  a  seemingly 
entire  correspondence  between  the  two  facts,  in  the  important  particular 
of  time  ;  ^  bringing  the  facts  themselves  in  direct  opposition  to  each  other.  But, 
on  a  closer  scrutiny  of  all  the  circvmistances,  it  was  found  that  the  accused 
had  not  been  in  company  with  his  fellow  workmen,  during  the  whole  of  the 
forenoon  in  question ;  but  that  there  was  an  interval  of  about  half  an  hour, 
during  which  he  had  absented  himself  from  them.  This  apparentl}^  short 
interval  served  to  destroy  the  effect  of  the  whole  evidence.  For  it  was 
satisfactorily  shown  that  it  was  long  enough  to  have  admitted  of  his  going 
to  the  cottage,  committing  the  crime  and  returning  to  his   companions ; 


160 


PART   I.      CIRCUMSTANTIAL   EVIDENCE 


No.  63. 


and  this  was  subsequently  proved  to  have  been  the  actual  fact,  by  the  pris- 
oner's own  confession.    .   .   . 

^Yhe^e  the  time  proved  as  that  of  the  commission  of  the  crime,  and  that 
shown  by  the  alibi  evidence,  are  not  identical,  but  only  proximate  to  each 
other,  the  inference  deducible  from  a  view  of  both  periods  in  connection,  is 
not  always  one  of  necessity  and  certainty,  rendering  the  fact  of  the  party's 
presence  at  the  scene  of  crime  incredible  under  any  circumstances,  or  in- 
credible in  toto;  but  often  one  of  improbability,  more  or  less  strong,  render- 
ing the  fact  of  presence  incredible  in  degree  only,  and  according  to  circum- 
stances.  .   .   . 

The  two  circumstances,  the  aid  of  which  is  indispensable  in  determining 
this  question,  —  whether  it  were  actually  and  physically  impossible,  and 
therefore  at  once  incredible,  that  the  party  was,  or  could  have  been,  at  both 
places,  consecutively, — are,  the  distance  between  the  two  places,  and  the 
rapidity  with  which  the  party  could  have  moved  from  one  to  the  other. 


\i 


63.    ABRAHAM  THORNTON'S 

of  Celebrated  Trials.      1873.      Vol.  I, 

[The  general  features  of  this  case 
are  stated  in  No.  162,  post.  The  ac- 
cused's whereabouts  at  the  precise 
hour  of  4.30  a.m.  on  the  night  of 
the  death  were  evidenced  by  his 
own  testimony  to  the  committing 
magistrate  and  by  other  witnesses. 
A  diagram  to  illustrate  this  testi- 
mony is  given  facing  page  160.] 

Abraham  Thornton.  —  "  Saith  that 
he  is  a  bricklayer ;  that  he  came 
to  the  'Three  Tuns'  at  Tyburn 
about  six  o'clock  last  night,  where 
there  was  a  dance.  .  .  .  Exami- 
nant  stayed  until  about  twelve 
o'clock.  He  then  went  with  Mary 
Ashford.  .  .  .  They  then  turned 
to  the  right  and  went  along  a  lane 
until  they  came  to  a  gate  and  stile 
on  the  right-hand  side  of  the  road  ; 
they  went  over  the  stile  and  into 
the  next  piece,  along  the  fore  drove ; 
they  continued  along  the  foot  road 
four  or  five  fields,  but  cannot  tell 
exactly  how  many.  Examinant  and 
Mary  Ashford  then  returned  the 
same  road  .  .  .  and  whilst  they 
stood  there  a  man  came  by.  .  .  . 
That  examinant  and  Mary  Ashford 
stayed  at  the  stile  a  (juarter  of  an 
hour  afterwards;  ihey  then  went 
straight  up  to  Mr.  Freeman's  again, 
cro.ssed  the  road  and  went  on  to- 
waifls  Erdington  till  he  came  to  a 


CASE.     (\Y.  O.  WooDALL.    Reports 
p.  23.) 

grass  field  on  the  right-hand  side 
of  the  road,  within  about  100  yards 
of  Mr.  Greensall's,  in  Erdington. 
Mary  Ashford  walked  on,  and  ex- 
aminant never  saw  her  after  she 
was  nearly  opposite  Mr.  Green - 
sail's.  ...  It  was  then  four 
o'clock,  or  ten  minutes  past  four 
o'clock.  Examinant  went  by  Shil- 
ley's  in  his  road  home,  and  after- 
wards by  John  Holden's  where  he 
saw  a  man  and  woman  with  some 
milk  cans,  and  a  young  man  driving 
some  cows  out  of  a  field  who  he 
thought  to  be  Holden's  son.  He 
then  went  towards  Mr.  Twamley's 
mill  where  he  saw  Mr.  Rotton's 
keeper  taking  the  rul)bish  out  of 
the  nets  at  the  floodgates.  He 
asked  the  man  what  o'clock  it  was ; 
he  answered  near  five  o'clock  or 
five.  He  knew  the  keeper.  Twam- 
ley's mill  is  about  a  mile  and  a 
quarter  from  his  father's  house 
with  whom  he  lives.  The  first 
person  he  saw  was  Edwarrl  Teck,  a 
servant  of  his  father,  and  a'boy." 

W.  Jennings.  —  "I  am  a  milk- 
man and  live  at  Hinningham.  I  buy 
milk  of  Mr.  Holden,  of  Erdington ; 
myself  and  wife  were  at  his  house 
on  the  morning  of  the  27th  of  May. 
1  remember  seeing  the  prisoner 
coming  down  the  lane  which  leads 


AKKFootsteps  of Mar}'^  Ashfbrd  &  Thornton/ 
BBB  ThvnUon:s  footsteps j supposed  to  ie  returrunff 
C  21aryA,shforris  footsteps  alorw 
D  T/wmtonS  footsteps  aZorve/ 


^J.Hold&Os 


No.  63.    Thornton's  case 


No.  63. 


IV.       PROOF   OF   HUMAN   ACT.      A.    1.    TIME,    PLACE 


161 


from  Erdington  to  Mr.  Holden's. 
He  was  going  towards  the  house. 
It  was  as  near  as  I  can  judge,  then 
about  half  past  four.  I  had  no 
watch  with  me.  We  milked  a  cow 
a  piece  in  the  yard  after  we  saw 
him,  which  might  occupy  us  ten 
minutes.  My  wife  then  asked  Jane 
Heaton  what  o'clock  it  was.  The 
prisoner  was  walking  very  leisurely. 
My  wife  saw  him  as  well  as  I." 
Cross  examined  by  Mr.  Clarke. 
"  I  was  standing  in  the  lane  within 
about  thirty  yards  of  Mr.  Holden's 
house  on  the  great  road  when  I 
first  saw  Thornton.  I  had  been 
standing  there  about  ten  minutes. 
When  I  first  saw  the  prisoner,  he 
was  within  twenty  yards  of  us,  com- 
ing down  the  lane  between  Mr. 
Holden's  house  and  the  canal 
lane.   .   .   ." 

Martha  Jennings.  —  "I  saw 
the  prisoner  on  the  27th  of  May 
walking  gently  along  the  lane  leading 
to  Mr.  Holden's  house.  I  then 
went  to  milk  the  cows,  and  incjuired 
of  Jane  Heaton  the  time  of  day  a 
little  while  afterwards.  Between 
the  time  of  milking  the  cows  and 
seeing  the  prisoner  might  be  a 
quarter  of  an  hour.  I  was  standing 
near  Holden's  house  when  he  passed 
me.  .  .  .  The  prisoner  was  walking 
leisurely,  and  did  not  seem  in  a 
hurry,  or  the  least  confused." 

Jane  Heaton.  —  "I  live  servant 
with  Mr.  Holden.  I  was  getting 
up  at  half  past  four  on  the  morning 
of  the  27th  of  May.  My  bedroom 
window  looks  into  the  lane  which 
leads  from  Erdington  to  Castle 
Bromwich.  I  saw  a  man,  whom  I 
supposed  to  be  the  prisoner,  walking 
towards  Castle  Bromwich.  He  was 
walkin ;;  quite  slow.  About  a  c^uar- 
ter  of  an  hour  after,  Jenning's  wife 
came  and  asked  me  what  time  of 
the  day  it  was.  I  looked  at  the 
clock,  and  observed  that  it  wanted 
seventeen  minutes  of  five.  The 
clock  was  not  altered  for  several 
days    after    that." 

John  Holden.  —  "I  was  at 
home    on    the   28th    of    May   last, 


when  Mr.  Twamley  came  to  ex- 
amine my  clock.  I  believe  it  to  be 
a  very  good  one.  .  .  ." 

Mr.  William  Twamley.  —  "I 
live  at  Newhall  Mills,  near  Sutton 
Coldfield,  and  within  three  miles  of 
Castel  Bromwich.  I  caused  the 
prisoner  to  be  apprehended.  I  com- 
pared my  watch  and  Holden's 
clock  on  the  28th  of  May ;  they 
were  exactly  alike  as  to  time. 
From  Mr.  Holden's  I  immediately 
went  to  Birmingham,  and  my  watch 
agreed  exactly  with  St.  Martin's 
Church  clock  there." 

John  Haydon.  —  "I  am  game- 
keeper to  Mr.  Rotton,  of  Castle 
Bromwich.  I  left  my  own  house 
about  ten  minutes  before  five  of 
the  morning  of  the  27th  of  May. 
As  I  passed  by  Mr.  Z.  Twamley's, 
I  heard  Mr.  Rotton's  stable  clock 
strike  five.  About  five  minutes 
after  I  saw  the  prisoner.  He  was 
then  coming  towards  Mr.  Twam- 
ley's mill,  as  if  from  Erdington  to 
Castle  Bromwich.  I  knew  him 
very  well.  I  asked  him  where  he 
had  been.  He  said,  'To  take  a 
wench  home.  .  .   .'  " 

W.  Crompton.  —  "I  saw  Mr. 
Webster  on  the  morning  of  the  27th 
of  May  in  the  field  in  which  were 
the  footsteps.  We  rode  to  Castle 
Bromwich  together.  Mr.  Webster 
compared  his  watch  with  mine ;  we 
perfectly  agreed.  Our  watches  were 
according  to  Birmingham  time. 
We  found  our  watches  were  fifteen 
minutes  slower  than  Mr.  Rotton's 
stable  clock.  The  Birmingham 
clocks  and  those  at  Castle  Brom- 
wich differed  fifteen  minutes.  .  .  ." 

[On  a  later  argument  of  law,  in- 
volving the  proof  of  alibi]  ]\Ir. 
Tindal  contended  that  even  admit- 
ting all  the  defective  part  of  the 
allegations  in  the  counterplea  to 
be  struck  out,  still  there  did  remain 
sufficient  prima  facie  evidence 
against  the  defendant.  .  .  .  There 
was  abundance  of  other  proof  to 
show  the  impossibility  of  the  defen- 
dant's having  committed  the  crime 
charged  against  him.     It  appeared 


162 


PART   I.       CIRCUMSTANTIAL    EVIDENCE 


No.  64. 


from  the  replication  that  about 
quarter  past  four  Mary  Ashford  left 
the  house  of  ^Slary  Butler.  She 
had  then  a  mile  and  a  half  to  jjo  to 
the  pit ;  and  he  thouj^ht  he  should 
not  be  allowing  too  much  time  for  a 
woman  to  go  such  a  distance  in 
saying  twenty  minutes.  Then  she 
reached  the  pit  at  twenty-five 
minutes  before  five.  He  would 
now  ask  according  to  the  replication, 
where  was  Thornton  at  that  time  ? 
The  answer  would  be,  taking  the 
latest  moment,  that  at  twenty-five 
minutes  before  five  he  came  up 
with  another  person  a  mile  and  a 
half  from  the  pit.  When  Mary 
Ashford  arrived  at  the  pit,  the  cir- 
cumstances   of    rape    and    murder, 


according  to  the  counterplea,  were 
yet  to  happen ;  events  which,  ac- 
cording to  the  experience  of  courts 
of  justice,  must  have  occupied  at 
the  smallest  computation  a  quarter 
of  an  hour.  This  brought  them  to 
ten  minutes  before  five,  at  which 
precise  moment  they  had  Thornton 
meeting  another  person,  namely, 
John  Haydon,  a  mile  further  from 
Holden's  farm,  and  two  miles  and  a 
half  from  the  pit.  From  thence 
he  was  traced  still  departing  from 
the  pit  until  he  reached  Castle 
Bromwich ;  so  that  in  point  of  fact, 
it  was  utterly  mpossible  for  Thorn- 
ton to  ha\e  committed  the  acts 
imputed   to  him.  .  .  . 


FRANK  ROBINSON'S  CASE.      (T.   Dunphy  and  T.  J.  Cum- 

Rcmarkahlc  Trials  of  all  Countries.      1873.) 


64. 

MINS. 

[On  Saturday  night,  April  9,  1836, 
Helen  Jewett,  an  inmate  of  a  house 
of  ill  fame,  was  murdered  in  her 
room  ;  the  body  w^as  disco\ered 
about  4  A.M. ;  a  man  who  had  been 
with  her  that  night  had  disappeared  ; 
the  accused  was  said  to  be  the 
man]. 

Rosina  Townsend,  after  being 
sworn,  deposed  as  follows :  "  I 
was  acciuainted  with  Helen  Jewett. 
The  last  time  that  I  .saw  Helen 
Jewett  alive  was  on  Saturday  night, 
the  9th  of  April  last  [in  my  house]. 
The  prisoner  at  the  liar  was 
known  to  me  by  the  name  of 
'Frank  Rivers'  and  by  no  other 
name.  ...  I  saw  the  prisoner  at 
the  bar  on  the  night  that  Helen 
Jewett  was  murdered.  A  person 
knocked  at  my  hall  door;  I  went 
to  the  door  and  asked  who  was 
there  ?  This  was  about  nine  o'clock, 
or  it  might  have  been  as  late  as 
half  past  nine.  When  I  asked  who 
was  there  —  the  door  was  still  locked 
—  I  asked  a  second  time  the  same 
question.  .  .  .  The  reason  that  I 
wished  to  ascertain  this  was  that 
Miss  Jewett  had  requestefl  me  in 
the  course  of  the  evening  not  to 
admit  a  certain  young  man  by  the 


name  of  Bill  Easy  to  see  her  if  he 
should  happen  to  come  there.  .  .  . 
The  reason  that  Helen  Jewett 
assigned  to  me  for  not  wishing  to 
see  Bill  Easy  on  that  night  was  that 
she  then  expected  Frank  Rixers  to 
visit  her.  ...  I  mean  by  Frank 
Rivers  Mr.  Robinson  —  the  prisoner 
at  the  bar.  When  I  opened  the 
door,  I  discovered  that  it  was 
Frank  Rivers  (or  Mr.  Robinson) 
who  was  there.  .  .  .  When  I  called 
Helen  I  told  her  that  Frank  had 
come.  When  I  told  her  this  he  had 
turned  the  entry  to  go  upstairs.  .  .  . 
Immediately  on  Frank's  going  up- 
stairs, Helen  Jewett  came  out  of  the 
parlor  and  followed  him  up.  When 
she  came  out  of  the  parlor  she  took 
hold  of  Robinson's  cloak,  and  said  : 
'My  dear  Frank,  I  am  glad  you 
have  come.  .  .  .'  That  was  the 
last  that  I  saw  of  the  prisoner  at 
the  l>ar  on  that  night.  .  .  ."  Cross- 
examined     by     ]SIr.     Ma.rwcU.     "  I 

am  39  years  of  age There 

were  two  Aisitors  at  my  house  who 
called  themselves  Frank  Rivers,  the 
prisoner  at  the  bar  being  one  of 
them.  .  .  .  Shortly  after  I  ad- 
mitted Mr.  Rivers  (Robinson)  and 
he  had  gone  upstairs,  I  retired    to 


No.  69. 


IV.       PROOF   OF   HUMAN   ACT.      A.    1.       TIME,    PLu\CE 


163 


my  sleeping  room.  That  was  about 
nine  or  half  past  nine  o'clock.  .  .  ." 

The  defense  was  opened  by  Mr. 
Ogdcn    Hoffman    in    one    of    those 

brilliant ^effusions,    which    in    the 

course  of  TiTs'^  long  and  extensive 
practice  justly  acquired  for  him 
an  .inrperishable  celebrity.  ...  In 
conclusion  the  learned  gentleman 
stated,  that  he  and  his  associate 
counsel  should  rely  greatly  for 
the  complete  exculpation  of  their 
client  by  proving  by  the  testimony 
of  a  highly  respectable  tradesman 
a  positive  alibi,  showing  that  the 
prisoner  up  to  past  ten  o'clock,  on 
the  night  of  the  9th  of  April  last 
(the  night  of  the  murder),  was 
smoking  cigars  in  a  grocery  store  in 
this  city  situated  full  a  mile  and  a 
half  from  the  house  of  Rosina  Town- 
send,  in  Thomas  Street.  .  .  . 

Robert  Furlong,  on  being 
sworn,  was  examined  by  Mr.  Hoff- 
man, and  deposed  as  follows : 
"  Keep  a  grocery  store  at  the  corner 
of  Nassau  and  Liberty  streets.  .  .  . 
Know  the  prisoner  at  the  bar  by 
sight.  He  has  often  been  in  my 
store  to  buy  cigars.  .  .  .  The  pris- 
oner was  in  my  store  the  Saturday 
night  previous  to  the  murder.  He 
came  there,  as  near  as  I  can  re- 
member, about  half  past  nine  o'clock. 
He  bought  at  the  store  a  bundle 
of  cigars,  containing  twenty-five. 
After  he  bought  the  cigars,  he  lighted 
one,  and  took  a  seat  on  the  barrel 
and  smoked  there  until  ten  o'clock. 
When  the  clock  struck  ten,  that 
gentleman  (the  prisoner)  took  out 
his  watch  and  looked  at  it.  He 
said  that  his  watch,  which  was  a 
small  silver  lepine,  was  one  minute 
past  ten  oVlockl      I  also  took    out 


my  watch,  which  I  had  regulated 
on  that  day  by  Mr.  Harold  of 
Nassau  Street,  and  compared  my 
watch  with  his.  When  the  clock 
struck,  my  partner  said,  '  There's 
ten  o'clock,  and  it  is  time  to  shut 
up.'  That  was  our  usual  time  and 
the  porter  went  out  to  put  up  the 
shutters.  .  .  .  When  we  got  com- 
pletely shut  up,  Mr.  Robinson  re- 
marked to  me  that  he  was  encroach- 
ing on  my  time.  I  replied,  'Oh, 
no,  not  at  all ;  I  shall  remain  at 
the  store  until  the  boy  returns.'  .  .  . 
Before  he  went  away,  he  stood  a. 
short  time  on  the  stoop,  and  after- 
wards said,  'I  believe  I'll  go  home; 
I'm  tired,'  and  then  bade  me  good- 
night. It  must  have  been  full  ten 
or  fifteen  minutes  after  ten  when  he 
left  my  store.  ...  I  am  now  posi- 
tive that  the  prisoner  here  is  the 
person  who  w^as  in  my  store  on  the 
ninth  of  April.  I  cannot  be  mis- 
taken in  this.  Am  not  related  to 
the  prisoner,  nor  to  any  of  his 
connections,  in  any  way,  even  in 
the   most   distant   manner.   .   .   ." 

Henry  Burnham,  examined  by 
Mr.  Phenix  for  the  prosecution. — 
"  I  am  deputy  keeper  for  Bellevue. 
I  know  Mr.  Furlong.  ..."  By  a. 
Juror.  —  "I  have  the  utmost  con- 
fidence in  Mr.  Furlong's  integrity 
and  oath.  I  have  known  him  for 
eight  years,  and  I  never  knew  any- 
thing of  him  but  good."  At  the 
close  of  this  witness's  examination, 
the  juror  who  proposed  the  last 
material  question  stated  that  the 
object  of  his  asking  it  was  merely 
to  satisfy  some  of  the  jurors  who 
did  not  know  Mr.  Furlong  as. 
well  as  some  of  the  others.  .  .  . 

[The  accused  was  acquitted.] 


65.  THE  POPISH  PLOT.      [Printed  post,  as  No.  349.] 

66.  KARL  FRANZ'   CASE.      [Printed  post,  as  No.  388.] 

67.  JOHN  HAWKINS'   CASE.      [Printed  post,  as  No.  342.] 

68.  ROBERT  HAWKINS'   CASE.      [Printed  post,  as  No.  335.] 

69.  DURRANT'S   CASE.      [Printed  post,  as  No.  386.] 


164 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  70. 


70.  HILLMON  v.  INSURANCE  CO.     [Printed  post,  as  No.  389.] 

71.  TOURTELOTTE  v.  BROWN.     [Printed  i)ost,  as  No.  384.] 


72.    ANON.      (C.  AiNSwoRTH  M 
1911.     p.  199.)  .  .  . 

A  striking  example  of  the  way  in 
which  the  scientific  evidence  may 
succeed  in  establishing  the  innocence 
of  a  person  accused  of  murder  is 
seen  in  the  following  case,  which 
was  tried  in  1835 :  A  woman, 
who  had  a  violent  disposition  and 
was  subject  to  attacks  of  hysteria, 
accused  her  husband  of  having  at- 
tempted to  poison  her,  and  in  proof 
of  her  charge  produced  a  white 
powder,  which,  as  she  alleged,  he 
had  put  into  her  food.  The  powder 
was  found  to  be  white  arsenic,  and 
the  food  on  examination  was  found 
to  contain  a  fatal  cjuantity  of  that 
poison.  The  husband  was  therefore 
immediately  arrested  and  kept  in 
prison  pending  the  investigation. 
The  woman  was  perfectly  well  for 
eight  days,  but  on  the  ninth  day 
became  very  violent,  and  did  many 
eccentric   things,   and   on   the   next 


iTCHELL.      Science  and  the  Crimirial. 

day  she  died.  Examination  of  the 
body  showed  that  arsenic  had  been 
the  cause  of  death.  Her  husband 
denied  that  he  had  ever  put  any 
arsenic  into  her  food.  But  had  it 
not  been  for  the  scientific  e\idence 
he  would  probably  lia\'e  been  unable 
to  prove  that  he  was  innocent.  Un- 
doubtedly he  owed  his  escape  to  his 
having  been  in  prison  for  the  eight 
days  between  the  accusation  brought 
by  his  wife  and  her  death,  for  the 
medical  witnesses  proved  that  it 
was  not  possible  for  him  to  have 
given  the  dose  of  arsenic  which 
caused  the  death  of  the  woman,  since 
the  effects  of  arsenic  could  not  have 
remained  latent  in  the  system  for 
that  length  of  time.  Circumstances, 
therefore,  indicated  that  the  woman 
had  committed  suicide,  and  on  the 
strength  of  this  evidence  the  prisoner 
was  immediately  set  at  liberty. 


Topic  2.     Physical  and  Mental  Capacity,  Tools,  Clothing,  etc. 

73.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(.\mer.  ed.,  1868.  p.  263.)  The  participation  of  the  accused  in  the  crime 
proved  to  have  been  committed  is  shown  by  those  physical  facts  or  appear- 
ances which  connect  him  with  it ;  affording  so  many  natural  coincidences, 
harmonizing  with  the  supposition  of  his  guilt.  They  are,  in  other  words, 
the  traces,  marks,  or  indications,  more  or  less  distinct  and  impressive,  of 
the  presence  of  a  particular  criminal  agent ;  .  .  .  and  may  be  enumerated  in 
the  following  order. 

1.  Impressions  direct! i/  from  the  person;  such  as  prints  in  earth  or  snow 
of  the  feet  or  shoes,  and  impressions  of  other  parts  of  the  l)ody.  Of  these 
(especially  in  cases  of  crime  committed  in  rural  districts)  footprints  are  the 
most  common.  They  may  be  considered  as  of  two  kinds :  ordinary  foot- 
prints, exhibiting  no  peculiar  characteristics ;  and  impressions  of  a  peculiar 
character.  The  former  are  important,  first  as  showing  the  general  fact  that 
one  or  more  persons  have  been  present ;  secondly,  as  indicating  the  direction 
from  which  they  approached,  or  in  which  they  left  the  scene  of  crime,  and 
their  movements  al)out  it ;  and,  thirdly,  as  more  immediately  indicating 
the  particular  perpetrator  by  inferences  which  they  tend  to  establish.     Im- 


-No.  73.  IV.       PROOF    OF    HUMAN    ACT.       A.    2.    TOOLS,  ETC.  165 

pressions  from  other  jxiris  of  the  body  than  the  feet  sometimes  answer  a 
similarly  useful  purpose,  in  detecting  and  identifying  an  offender.  In  the 
case  of  Rex  v.  Brindley,  impressions  were  found  in  the  soil,  near  the  scene  of 
crime,  which  was  stiff  and  retentive,  of  the  knee  of  a  man  who  had  worn 
breeches  made  of  stripped  corduroy,  and  patched  with  the  same  material, 
but  the  patch  was  not  set  on  straight ;  the  ribs  of  the  patch  meeting  the 
hollows  of  the  garment  into  which  it  had  been  inserted  ;  which  circumstances 
exactly  corresponded  with  the  dress  of  the  prisoner.  Impressions  made 
even  by  the  teeth  have  sometimes  furnished  important  criminative  evidence. 
Mascardus  has  related  an  instance,  where  an  enclosed  ground,  set  with 
fruits,  was  broken  into  by  night,  and  several  of  them  eaten  ;  the  rinds  and 
fragments  of  some  of  which  were  found  lying  about.  On  examining  these, 
it  appeared  that  the  person  who  ate  them  had  lost  two  front  teeth,  which 
caused  suspicion  to  fall  on  a  man  in  the  neighborhood,  who  had  lost  a  corre- 
sponding number ;  and  he,  on  being  taxed  with  the  theft,  confessed  his  guilt. 

2.  Impressions  made  by  instruvients  used  by  the  person  come  next  to  be 
considered.  These  operate,  in  the  detection  of  the  criminal,  in  two  ways, 
as  just  observed  respecting  footprints,  that  is  to  say :  first,  generally, 
as  indicating  the  quarter  from  which  the  offender  came  ;  and  they  may  have 
this  effect,  though  the  instruments  themselves  are  not  found  ;  secondly, 
specially,  as  identifying  the  guilty  person ;  and  this  is  effected,  where  the 
instruments  themselves  are  found,  by  comparing  them  with  the  impressions. 
As  an  instance  of  the  former,  marks  of  violence,  such  as  impressions  of  a 
chisel,  on  the  outside  of  the  doors  or  windows  of  a  building,  indicate  the 
general  fact  that  the  robber  or  murderer  came  from  without.  ...  As  instances 
of  impressions  of  instruments  specially  indicating  the  offender  may  be  men- 
tioned marks  of  an  iron  instrument  upon  the  windows  of  a  house,  corre- 
sponding with  a  chisel  found  in  the  prisoner's  possession,  or  proved  to  have 
been  used  by  him. 

3.  Marks  made  by  instruments  held  or  used  by  the  offender  in  a  peculiar 
manner.  These  often  contriljute  material  aid  in  fixing  the  charge  of  guilt 
on  a  particular  individual.  Thus,  where,  on  examination  of  the  body  of  a 
murdered  person,  the  fatal  wound  appears  to  have  been  inflicted  by  one  who 
held  the  instrument  in  his  left  hand. 

4.  Objects  left  at  the  scene  of  crime,  by  the  supposed  offender,  being  iden- 
tified as  belonging  to  him  or  previously  seen  in  his  possession.  Of  this 
description  of  traces  of  the  person  are  the  instruments  of  crime  themselves ; 
such  as  the  pistol,  razor,  knife,  or  hatchet  used  in  committing  a  murder ; 
articles  of  dress ;  such  as  a  hat,  a  glove,  a  neckcloth,  a  cloak,  and  the  like. 
These  furnish  obvious  means  of  identifying  the  criminal. 

5.  Objects  left  at  the  scene  of  crime,  corresponding  with  other  objects  in 
the  possession  of  the  supposed  offender.  Such  as  a  bullet,  extracted  from 
the  body  of  the  deceased,  accurately  fitting  the  barrel  of  a  pistol,  or  a  bullet 
mold,  found  on  the  accused ;  shot  taken  from  the  wound,  and  ascertained 
to  be  of  the  same  quality  with  other  shot  found  in  his  possession ;  patches 
and  tow  wadding,  found  near  the  body  of  the  deceased,  corresponding  with 
similar  patches  found  in  the  prisoner's  rifle  box ;  and  the  like. 

6.  Fragments  or  portions  of  objects  found  at  the  scene  of  the  crime, 
corresponding  with  other  portions  of  objects,  found  on  the  accused,  or  known 
to  have  been  in  his  possession.     Of  this  description  are  :    a  piece  of  the 


166 


PART   I.      CIRCUMSTANTIAL   EVIDENCE 


Xo.  74. 


blade  of  a  knife,  found  sticking  in  the  window  frame  of  a  house  which  had 
been  broken  into,  corresponding  with  a  broken-bhided  knife  found  in  the 
prisoner's  pocket ;  .  .  .  a  fragment  of  a  printed  paper,  or  of  a  letter,  used  as 
wadding  for  the  charge  of  the  firearm  with  which  the  crime  was  committed, 
corresponding  with  another  piece  found  on  the  prisoner's  person  or  premises  ; 
a  portion  of  a  sheet  of  paper  on  which  a  letter  has  been  written,  correspond- 
ing with  another  portion  found  in  the  prisoner's  desk ;  and  the  like. 


74.  THE  SHEFFIELD  CASE. 
19  — ,  p.  294.) 

One  of  the  most  remarkable  in- 
stances of  how  evidence,  circum- 
stantial evidence,  can  miscarry,  so 
to  speak,  and  point  in  a  direction 
diametrically  opposed  to  the  truth, 
was  that  in  connection  with  the 
Sheffield  industrial  riots.  During 
this  period  of  strife  a  good  deal  of 
violence  was  used  towards  the 
"blacklegs,"  which  included  the 
throwing  of  explosive  bombs.  On  a 
certain  night  a  bomb  was  thrown 
into  the  house  of  a  man  who  was 
regarded  by  the  strikers  as  an 
"undesirable,"  which  resulted  in 
the  man's  death.  At  the  moment 
of  the  explosion  a  woman  in  a 
neighboring  house  happened  to  look 
out  of  her  window,  when  she  saw  a 
man  running  hastily  from  the  scene 
of  the  outrage.  She  was  able  to 
get  a  good  view  of  his  face,  and  also 
saw  the  sleeve  of  his  coat  catch  on 
a  protruding  hook  outside  a  butch- 
er's shop.  Tearing  himself  free 
from  this,  he  disappeared.  But  with 
the  assistance  of  this  woman  the 
police  were  able  to  arrest  the  man. 


(H.  L.  Adam.      The  Story  of  Crime. 

who  was  immediately  identified  by 
the  witness.  On  the  meat  hook 
outside  the  butcher's  shop  the  police 
found  a  piece  of  cloth  which  had 
been  torn  from  the  fleeing  man's 
coat ;  the  coat  sleeve  of  the  man 
arrested  was  torn  and  a  piece  of 
cloth  missing,  which  was  found  to 
be  that  on  the  hook  outside  the 
butcher's  shop.  There  could  be 
no  doubt  about  it,  the  cloth  was 
precisely  the  same  and  the  piece 
fitted  exactly.  This  seemed  con- 
clusive evidence,  in  all  conscience. 
Yet  it  was  entirely  misleading 
as  subsequent  events  proved.  It 
was  quite  true  that  the  man  in 
question  was  running  from  the 
scene  of  the  outrage  as  the  woman 
declared,  it  was  also  perfectly  correct 
that  his  coat  caught  on  the  hook 
outside  the  butcher's  shop,  that  he 
tore  it  away  and  disappeared.  But 
he  did  not  throw  the  bomb ;  he, 
however,  saw  the  man  who  did,  and 
he  was  simply  running  away  for 
his  own  protection! 


75.    THE    OBSTINATE  JURYMAN'S  CASE.     (S. 

Famous  Cases  of  Circumstantial  Kridence.      Xo.  XXI.) 


M.  Phillipps. 


Two  men  were  seen  fighting  to- 
gether in  a  field.  One  of  them  was 
found,  soon  after,  lying  dead  in  that 
field.  N^ear  him  lay  a  pitchfork 
which  had  apparently  been  the  in- 
strument of  his  death.  This  pitch- 
fork was  known  to  have  belonged 
to  the  person  who  had  been  seen 
fighting  with  the  deceased ;  and 
he  was  known  to  have  taken  it 
out  with  him  that  morning.     Being 


apprehended  and  brought  to  trial, 
and  these  circumstances  appearing 
in  evidence,  and  also  that  there  had 
been,  for  some  time,  an  enmity 
between  the  parties,  there  was  little 
doubt  of  the  prisoner's  being  con- 
victed, although  he  strongly  per- 
sisted in  his  innocence.  But,  to 
the  great  surprise  of  the  court,  the 
jury,  instead  of  bringing  in  an  im- 
mediate verdict  of  guilty,  withdrew 


No.  76. 


IV.       PROOF    OF   HUMAN    ACT.       A.    2.    TOOLS,    ETC. 


167 


and,  after  staying  out  a  considerable 
time,  returned  and  informed  the 
court,  that  eleven,  out  of  the  twelve, 
had  been,,  from  the  first,  for  finding 
the  prisoner  guilty ;  but  that  one 
man  would  not  concur  in  the  verdict. 
Upon   thia<   the  judge  observed   to 

V  the  dissentient  person,  the  great 
strength  of  the  circumstances,  and 
asked  him  how  it  was  possible,  all 
circumstances  considered,  for  him 
to  have  any  doubts  of  the  guilt  of 
the  accused  ?  But  no  arguments 
that  could  be  urged,  either  by  the 
court  or  the  rest  of  the  jury,  could 
persuade  him  to  find  the  prisoner 
guilty ;    so  that  the  rest  of  the  jury 

^'  I  /  were  at  last  obliged  to  agree  to  the 
verdict  of  acquittal. 

This  affair  remained,  for  some 
time,  mysterious ;  but  it  at  length 
came  out,  either  by  the  private 
acknowledgement  of  the  obstinate 
juryman  to  the  judge  who  tried  the  j 
cause  (who  is  said  to  have  had  the  '^ 
curiosity  to  inquire  into  the  motives 


of  his  extraordinary  pertinacity), 
or  by  his  confession  at  the  point  of 
death  (for  the  case  is  related  both 
ways),  that  he  himself  had  been  the 
murderer !  The  accused  had,  in- 
deed, had  a  scuffle  with  the  deceased, 
as  sworn  on  the  trial,  in  which  he 
had  dropped  his  pitchfork,  which 
had  been,  soon  after,  found  by  the 
juryman,  between  whom  and  the 
deceased  an  accidental  quarrel  had 
arisen  in  the  same  field ;  the  de- 
ceased having  continued  there  at 
work  after  the  departure  of  the 
person  with  whom  he  had  been  seen 
to  have  the  affray ;  in  the  heat  of 
which  quarrel,  the  juiyman  had  un- 
fortunately stabbed  him  with  that 
very  pitchfork,  and  had  then  got 
away  totally  unsuspected ;  but 
finding,  soon  after,  that  the  other 
person  had  been  apprehended,  he  had 
contrived  to  get  upon  the  jury,  as 
the  only  way  of  saving  the  innocent 
without  endangering  himself. 


76.    THE    YARMOUTH    MURDER.      (C.   Ains worth  Mitchell. 


Science  and  the  Criminal.  1911. 
No  more  extraordinary  instance 
of  a  single  circumstance  leading  to 
the  detection  of  a  criminal  can  be 
offered  than  in  what  was  known  as 
the   "Yarmouth  Murder." 

On  September  23,  1900,  a  woman 
^  was  found  lying  dead  upon  the 
'  beach  at  Yarrhouth,  and  from  the 
'  appearance  of  the  body  she  had 
evidently  been  strangled.  On  her 
fingers  were  some  rings,  but  with 
the  exception  of  the  laundry  mark 
upon  her  clothes,  there  was  no  clew 
by  which  she  could  possibly  be 
identified.  She  had  been  staying 
for  some  days  in  lodgings  in  the 
town,  and  was  known  to  her  land- 
lady as  Mrs.  Hood.  While  she  was 
there  letters  bearing  a  Woolwich 
postmark  had  come  addressed  to 
her  by  that  name.  Only  a  day  or 
two  before  her  death  she  had  had 
her  photograph  taken  upon  the 
beach.  All  investigation  to  dis- 
cover  who   the   woman   really   was 


p.  34.) 
or  to  trace  her  murderer  proved 
unavailing,  and  at  the  coroner's 
inquest  a  verdict  was  brought  in  of 
willful  murder  against  some  person 
unknown.  Subsequently  it  was  dis- 
covered that  the  laundry  mark 
upon  the  dead  woman's  clothes, 
599,  was  that  put  by  a  laundry 
upon  the  clothes  sent  to  them  from 
a  particular  house  in  Bexley  Heath. 
Further  inquiry  showed  that  a 
woman  named  Bennett  had  formerly 
lived  there,  and  she  was  identified 
as  the  original  of  the  photograph 
that  had  been  taken  at  Yarmouth. 
This  led,  early  in  November,  to 
the  arrest  of  the  dead  woman's 
husband,  Bennett,  who  was  a  work- 
man in  Woolwich  Arsenal,  and  he 
was  committed  for  trial  on  the 
charge  of  murder.  He  denied  all 
knowledge  of  the  crime,  and  asserted 
that  he  had  never  been  to  Yarmouth. 
This  was  disproved,  however,  by 
collateral  evidence,  and  many  facts 


168 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  77. 


were  broujiht  forward  connecting; 
the  prisoner  with  the  murder.  The 
motive  alleged  for  the  crime  wa.s 
that  Bennett  might  be  free  to 
marry  another  woman.  The  date 
of  the  wedding  had  been  fixed,  and 
it    was    shown    that    his    behavior 


after  the  night  of  the  murder  pointed 
to  his  ha\ing  a  knowledge  of  his 
wife's  death.  So  convincing  was 
the  whole  of  the  circumstantial 
evidence,  that  after  a  short  delibera- 
tion the  jury  brought  in  a  verdict  of 
"  Guilty,"  and  Bennett  was  executed. 


77.  THE  CASE  OF  THE  PAIR  OF  GLOVES.  (Charles 
Dickens.  Three  Detective  Anecdotes.  Works,  Nelson  ed.,  1901.  Vol. 
XVII,  p.   546.) 


It's  a  singular  story,  sir  (said 
Inspector  Wield,  of  the  Detective 
Police,  who,  in  company  with  Ser- 
geants Dornton  and  Mith,  paid  us 
another  twilight  visit,  one  July 
evening) ;  and  I've  been  thinking 
you  might  like  to  know  it.  It's 
concerning  the  murder  of  the  young 
woman,  Eliza  Grimwood,  some  years 
ago,  over  in  the  Waterloo  Road. 
She  was  commonly  called  The 
Countess,  because  of  her  handsome 
appearance  and  her  proud  way  of 
carrying  herself;  and  when  I  saw 
the  poor  Countess  (I  had  known 
her  well  to  speak  to),  lying  dead, 
with  her  throat  cut,  on  the  floor  of 
her  bedroom,  you'll  believe  me 
that  a  variety  of  reflections  cal- 
culated to  make  a  man  rather  low 
in  his  spirits,  came  into  my  head. 
That's  neither  here  nor  there.  I 
went  to  the  house  the  morning  after 
the  murder,  and  examined  the  body, 
and  made  a  general  observation  of 
the  bedroom  where  it  was.  Turn- 
ing down  the  pillow  of  the  bed  with 
my  hand,  I  found,  underneath  it,  a 
pair  of  gloves.  A  pair  of  gentle- 
man's dress  gloves,  very  dirty  ;  and 
inside  of  the  lining,  the  letters  Tr, 
and  a  cross.  Well,  sir,  I  took  them 
gloves  away,  and  I  showed  'em  to 
the  magistrate,  over  at  Union  Hall, 
before  whom  the  case  was.  He 
says,  "Wield,"  he  says,  "there's 
no  doubt  this  is  a  discovery  that 
may  lead  to  something  very  im- 
portant ;  and  what  you  have  got 
to  do,  Wield,  is,  to  find  out  the 
owner  of  these  gloves."  I  was  of 
the  same  opinion,  of  course,  and  I 
w^nt  at  it  immediately. 


I  looked  at  the  gloves  pretty 
narrowly,  and  it  was  mj^  opinion 
that  they  had  been  cleaned.  There 
was  a  smell  of  sulphur  and  rosin 
about  'em,  you  know,  which  cleaned 
gloves  usually  have,  more  or  less. 
I  took  'em  over  to  a  friend  of  mine 
at  Kennington,  who  was  in  that 
line,  and  I  put  it  to  him.  "  What 
do  you  say  now  ?  Have  these 
gloves  been  cleaned?"  "These 
gloves  have  been  cleaned,"  sa^'s  he. 
"Have  you  any  idea  who  cleaned 
them  ?"  says  I.  "Not  at  all,"  says 
he;  "I've  a  very  distinct  idea  who 
didn't  clean  'em,  and  that's  myself. 
But  I'll  tell  you  what.  Wield,  there 
ain't  above  eight  or  nine  regular 
glove  cleaners  in  London,"  —  there 
were  not  at  that  time,  it  seems  — 
"  and  I  think  I  can  give  you  their 
addresses,  and  you  may  find  out, 
by  that  means,  who  did  clean  'em." 
Accordingly,  he  gave  me  the  direc- 
tions, and  I  went  here,  and  I  went 
there,  and  I  looked  up  this  man,  and 
I  looked  up  that  man  ;  but,  though 
they  all  agreed  that  the  gloves  had 
been  cleaned,  I  couldn't  find  the  man, 
woman,  or  child  that  had  cleaned 
that  aforesaid  pair  of  gloves.  .  .  , 

One  evening,  I  thought  I'd  have 
a  shilling's  worth  of  entertainment 
at  the  Lyceum  Theatre  to  freshen 
myself  up.  So  I  went  into  the  pit, 
at  half  price,  and  I  .sat  myself 
down  next  to  a  very  quiet,  modest 
sort  of  young  man.  Seeing  I  was 
a  stranger  (which  I  thought  it  just 
as  well  to  appear  to  be)  he  told  me 
the  names  of  the  actors  on  the  stage, 
and  we  got  into  conversation. 
When  the  play  was  over,  we  came 


No.  77. 


IV.       PROOF    OF   HUMAN   ACT.      A.    2.    TOOLS,    ETC. 


169 


out  together,  and  I  said,  "We've 
been  very  companionable  and  agree- 
able, and  perhaps  you  wouldn't 
object  to  a  dram  ?  "  "  Well,  you're 
very  good,"  says  he ;  "  I  shouldn't 
object  to  a  dram."  Accordingly, 
we  went  to  a  public  house,  near  the 
theater,  sat  ourselves  down  in  a 
quiet  room  upstairs  on  the  first 
floor,  and  called  for  a  pint  of 
half-and-half  apiece,  and  a  pipe. 
Well,  sir,  we  put  our  pipes  aboard, 
and  we  drank  our  half-and-half, 
and  sat  a-talking,  very  sociably, 
when  the  young  man  says,  "You 
must  excuse  me  stopping  very 
long,"  he  says,  "because  I'm  forced 
to  go  home  in  good  time.  I  must 
be  at  work  all  night."  "At  work 
all  night  ? "  says  I.  "  You  ain't  a 
baker?"  "No,"  says  he,  laughing, 
"  I  ain't  a  baker."  "  I  thought 
not,"  says  I,  "you  haven't  the  looks 
of  a  baker."  "No,"  says  he,  "I'm 
a  glove  cleaner."  I  never  was  more 
astonished  in  my  life,  than  when  I 
heard  them  words  come  out  of  his 
lips.  "You're  a  glove  cleaner,  are 
you?"  says  I.  "Yes,"  he  says, 
"I  am."  "Then,  perhaps,"  says  I, 
taking  the  gloves  out  of  my  pocket, 
■"you  can  tell  me  wdio  cleaned  this 
pair  of  gloves  ?  It's  a  rum  story," 
I  says.  "I  was  dining  over  at 
Lambeth,  the  other  day,  at  a  free- 
and-easy  —  quite  promiscuous  — 
with  a  public  company  —  when 
some  gentleman,  he  left  these  gloves 
behind  him.  Another  gentleman 
and  me,  you  see,  we  laid  a  wager  of  a 
sovereign,  that  I  wouldn't  find  out 
who  they  belonged  to.  I've  spent 
as  much  as  seven  shillings  already, 
in  trying  to  discover ;  but,  if  you 
could  help  me,  I'd  stand  another 
seven  and  welcome.  You  see  there's 
Tr  and  a  cross,  inside."  "I  see," 
he  says.  "Bless  you,  I  know  these 
gloves  very  well !  I've  seen  dozens 
of  pairs  belonging  to  the  same 
party."  "No?"  says  I.  "Yes," 
says  he.  "Then  you  know  who 
cleaned  'em?"  says  I.  "Rather 
so,"  says  he.  "My  father  cleaned 
'em."     "W^here    does    your    father 


live?"  says  I.  "Just  round  the 
corner,"  says  the  young  man,  "near 
Exeter  Street,  here.  He'll  tell  you 
who  they  belong  to,  directly." 
"Would  you  come  round  with  me 
now?"  says  I.  "Certainly,"  says 
he.  .  .  .  "Good  evening,  sir," 
says  I  to  the  old  gentleman. 
"Here's  the  gloves  your  son  speaks 
of.  Letters  Tr,  you  see,  and  a 
cross."  "Oh,  yes,"  he  says,  "I 
know  these  gloves  very  well ;  I've 
cleaned  dozens  of  pairs  of  'em. 
They  belong  to  Mr.  Trinkle,  the 
great  upholsterer  in  Cheapside." 
"  Did  you  get  'em  from  Mr.  Trinkle, 
direct,"  says  I,  "if  you'll  excuse  my 
asking  the  question?"  "No,"  says 
he ;  "  Mr.  Trinkle  always  sends'  em 
to  Mr.  Phibbs,  the  haberdasher's, 
opposite  his  shop,  and  the  haber- 
dasher sends  'em  to  me."  "Per- 
haps you  wouldn't  object  to  a 
dram?"  says  I.  "Not  in  the 
least ! "  says  he.  So  I  took  the  old 
gentleman  out,  and  had  a  little 
more  talk  with  him  and  his  son, 
over  a  glass,  and  we  parted  excellent 
friends. 

This  was  late  on  a  Saturday 
night.  First  thing  on  the  Monday 
morning,  I  went  to  the  haberdasher's 
shop,  opposite  Mr.  Trinkle's,  the 
great  upholsterer's  in  Cheapside. 
*Mr.  Phibbs  in  the  way?"  "My 
name  is  Phibbs."  "Oh!  I  believe 
you  sent  this  pair  of  gloves  to  be 
cleaned?"  "Yes,  I  did,  for  young 
Mr.  Trinkle  over  the  way.  There 
he  is  in  the  shop  ! "  "  Oh  !  that's 
him  in  the  shop,  is  it  ?  Him  in  the 
green  coat?"  "The  same  individ- 
ual." "Well,  Mr.  Phibbs,  this 
is  an  unpleasant  affair ;  but  the 
fact  is,  I  am  Inspector  Wield  of  the 
Detective  Police,  and  I  found  these 
gloves  under  the  pillow  of  the  young 
woman  that  was  murdered  the  other 
day,  over  in  the  W'aterloo  Road." 
"Good  Heaven!"  says  he.  "He's 
a  most  respectable  young  man,  and 
if  his  father  was  to  hear  of  it,  it 
would  be  the  ruin  of  him  !"  "I'm 
very  sorry  for  it,"  says  I,  "  but  I 
must     take     him     into     custodv." 


-Q 


PART    I.       CIRCUMSTANTIAL   EVIDEXCE 


No.  73. 


"Good  Heaven!"  says  ]Mr.  Phibbs, 
again;  "can  nothing  be  done!" 
"Nothing,"  says  I.  "Will  you 
allow  me  to  call  him  over  here," 
says  he,  "that  his  father  may  not 
see  it  done?"  .  .  .  Mr.  Phibbs 
went  to  the  door  and  beckoned,  and 
the  young  fellow  came  across  the 
street  directly;  a  smart,  brisk 
young  fellow.  "Good  morning, 
sir,"  says  I.  "Good  morning,  sir," 
says  he.  "Would  you  allow  me  to 
inquire,  sir,"  says  I,  "if  you  ever 
had  any  acquaintance  with  a  party 
of  the  name  of  Grimwood?" 
"Grimw^oodl  Grimwood!"  says  he. 
"No!"  "You  know  the  Waterloo 
Road?"  "Oh!  of  course  I  know 
the  Waterloo  Road  ! "  "  Happen 
to  hear  of  a  young  woman  being 
murdered  there  ? "  "  Yes,  I  read 
it  in  the  paper,  and  ^•ery  sorry  I 
was  to  read  it."  "Here's  a  pair  of 
gloves  belonging  to  you,  that  I 
found  under  her  pillow  the  morning 
afterwards  !"  He  was  in  a  dreadful 
state,  sir ;  a  dreadful  state  !  "  Mr. 
Wield,"  he  says,  "upon  my  solemn 
oath  I  never  was  there.  I  never  so 
much  as  saw  her,  to  my  knowledge, 
in  my  life!"  "I  am  very  sorry," 
says  I.     "To  tell  you  the  truth,  I 


don't  think  you  ore  the  murderer, 
but  I  must  take  you  to  I'nion  Hall 
in  a  cab.  However,  I  think  it's  a 
case  of  that  sort,  that,  at  present 
at  all  events,  the  magistrate  will 
hear  in  private." 

A  prixate  examination  took  place, 
and  then  it  came  out  that  this  young 
man  was  acquainted  with  a  cousin 
of  the  unfortunate  Eliza  Grimwood, 
and  that,  calling  to  see  this  cousin  a 
day  or  two  before  the  murder,  he 
left  these  gloves  upon  the  table. 
Who  should  come  in,  shortly  after- 
wards, but  Eliza  Grimwood  ! 
"  Whose  gloves  are  these  ? "  she 
says,  taking  'em  up.  "Those  are 
Mr.  Trinkle's  gloves,"  says  her 
cousin.  "Oh  !"  says  she,  "they  are 
very  dirty,  and  of  no  use  to  him,  I 
am  sure.  I  shall  take  'em  away 
for  my  girl  to  clean  the  stoves  with." 
And  she  put  'em  in  her  pocket. 
The  girl  had  used  'em  to  clean  the 
stoves,  and,  I  have  no  doubt,  had 
left  'em  lying  on  the  bedroom 
mantelpiece,  or  on  the  drawers,  or 
somewhere  ;  and  her  mistress,  look- 
ing round  to  see  that  the  room  was 
tidy,  had  caught  'em  up  and  put  'em 
under  the  pillow  where  I  found  'em. 

That's  the  story,  sir. 


78.    WILLIAM  JONES'  CASE.     (Camden  Pelham.     The  Chronicles 
of  Crime,     ed.  1891.      Vol.  II,  p.  139.) 


A  murder,  equal  in  atrocity,  and 
somewhat  similar  in  its  circum- 
stances to  those  of  Mr.  Bird  and 
his  housekeeper  git  Greenwich,  was 
committed  on  the  night  of  Monday, 
1st  January,  1828,  upon  the  body 
of  a  w'oman  seventy-five  years  old, 
named  Elizabeth  Jette,  who  had  the 
care  of  an  unoccupied  house  belong- 
ing to  a  respectable  gentleman 
named  Lett,  and  situated  at  No.  11, 
Montague-place,  Russell-square. 

It  appears  that  Mr.  Lett  resided 
at  Dulwich,  and  the  house  in  Mon- 
tague-place, which  he  had  formerly 
occupied,  being  to  let,  he  had  placed 
the  unfortunate  Mrs.  Jefl'e  in  it  to 
take  care  of  it,  and  to  exhibit  its 
rooms  to  any  person  who  might  be 


desirous  of  renting  it.  On  the  even- 
ing of  Monday,  the  1st  January, 
she  was  last  seen  alive  by  Gardner, 
the  potboy  of  the  Gower  Arms  public 
house,  Gower-street,  who  delivered 
a  pint  of  beer  to  her,  and  then  she 
was  in  conversation  at  the  door 
with  a  young  man,  dressed  in  a 
blue  coat,  and  wearing  a  white 
apron.  On  the  following  day  the 
house  remained  closed  contrary  to 
custom,  and  some  suspicion  being 
entertained  that  something  serious 
had  occurred  to  cause  this  imusual 
circumstance,  information  was  cf)n- 
veyed  to  Mr.  Justice  Holroyd, 
who  resifled  in  the  same  street, 
whose  l)utler,  with  the  porter  of 
Mr.  Robinson,  an  upholsterer,  pro- 


No.  78. 


IV.      PROOF   OF   HUMAN   ACT.      A.    2.    TOOLS,    ETC. 


171 


ceeded  to  the  house.  Some  diffi- 
culty was  at  first  experienced  in 
obtaining  admittance  ;  but  the  back 
area  door  having  been  forced,  the 
unfortunate  woman  was  found  lying 
in  a  front  room  on  the  basement 
story,  with  her  throat  dreadfully 
cut  and  quite  dead.  Mr.  Plum,  a 
surgeon  of  Great  Russell-street, 
was  immediately  sent  for,  and  on  his 
arrival,  he  proceeded  to  an  examina- 
tion of  the  person  of  the  deceased. 
He  found  that  she  had  been  dead 
during  several  hours,  and  that  her 
death  had  obviously  been  caused 
by  the  loss  of  blood  occasioned  by 
the  wound  in  her  throat,  which 
extended  through  the  windpipe  and 
gullet,  and  the  large  vessels  on  the 
right  side  of  the  neck.  The  hand- 
kerchief of  the  deceased  had  been 
thrust  into  the  wound,  but  from  the 
appearances  which  presented  them- 
selves, it  became  obvious  that 
the  foot  and  not  the  hand  had  been 
employed  to  place  it  in  the  position 
in  which  it  was  found.  On  the  left 
collar  bone  there  were  some  bruises, 
as  if  produced  by  some  person's 
knuckles,  and  upon  the  thighs  there 
were  similar  marks,  as  well  as  some 
drops  of  blood,  but  no  wound  was 
discovered  besides  that  in  the  throat, 
to  which  death  could  be  attributable. 
Upon  a  further  inspection  of  the 
deceased's  clothes,  it  was  discovered 
that  her  pockets  had  been  rifled ; 
but  although  the  kitchen  drawers 
were  open,  and  bore  the  bloody  im- 
press of  fingers,  and  a  workbasket 
was  similarly  stained,  there  was 
nothing  further  to  show  that  the 
object  of  the  murderer,  which  was 
evidently  plunder,  had  been  at- 
tained. The  neck  handkerchief 
and  cap  ribbon  of  the  wretched 
woman  were  cut  through,  apparently 
in  the  effort  to  inflict  the  wound,  and 
independently  of  the  opinion  of  Mr. 
Plum,  that  the  deceased  could  not 
have  cut  herself  to  such  an  extent, 
the  fact  of  her  death  being  caused 
by  the  hand  of  another  was  clearly 
shown,  by  the  absence  of  any  instru- 
ment with  which  the  wound  could 


have  been  inflicted,  although  part 
of  a  razor  case  was  found  lying  on 
the  floor.  Upon  an  examination 
of  the  house  being  made,  it  was 
found  that  the  hall  door  was  merely 
on  the  latch,  and  the  furniture  in 
the  parlor  presented  an  appearance 
which  showed  that  the  murderer 
had  gone  into  that  apartment  after 
the  death  of  his  victim.  A  publica- 
tion headed  "The  State  of  the 
Nation"  was  found  there  smeared 
with  blood,  and  a  doeskin  glove 
for  the  right  hand,  on  which  marks 
of  blood  were  also  visible,  was  dis- 
covered lying  on  the  floor. 

From  circumstances  which  came 
to  light,  the  officers  who  were  em- 
ployed to  endeavor  to  trace  out 
the  perpetrators  of  this  atrocious 
murder,  were  induced  to  suspect 
that  Charles  Knight,  the  son  of 
the  deceased,  was  in  some  measure 
implicated  in  its  commission.  By 
direction  of  Mr.  Halls,  the  magis- 
trate of  Bow-street,  who  throughout 
the  whole  case  exhibited  the  most 
unremitting  desire  to  secure  the 
ends  of  justice,  therefore,  he  was 
apprehended  at  his  lodgings  in 
Cursitor-street ;  but  upon  his  being 
questioned,  he  gave  a  clear  and  un- 
embarrassed statement  of  the  man- 
ner in  which  he  had  been  engaged 
during  the  night  of  the  murder ;  an 
inquiry  having  proved  this  to  be  true, 
he  was  ordered  to  be  discharged. 

The  police  were  now  completely 
at  a  loss  to  fix  upon  any  person  as 
being  open  to  suspicion.  The  man 
who  had  been  seen  in  conversation 
with  the  deceased  at  the  door  of 
her  house,  however,  appeared  to 
be  pointed  at  by  common  consent, 
and  an  accident  soon  pointed  out  a 
person  named  William  Jones  as 
the  individual  suspected.  It  was 
learned  that  he  had  been  in  the 
habit  of  calling  upon  the  deceased 
at  her  master's  residence,  and  that 
he  was  a  seafaring  man ;  but  be- 
yond these  circumstances,  and  that 
he  had  been  living  in  Mitre-street, 
Lambeth,  nothing  could  be  learned 
of  him  or  his  pursuits.     On  inquiry 


172 


PART   I.       CIRCUMSTANTIAL    EVIDENCE 


No.  78 


beinp;  made  at  his  locl<;jin<js,  it  was 
discovered  that  he  had  absconded, 
and  the  suspicion  of  his  guilt,  which 
was  ah-eady  entertained,  was  greatly 
strengthened  by  this  circumstance. 
A  reward  of  10/.  was  offered  for  his 
apprehension,  and  by  a  remarkable 
accident  on  ]\Ionday  the  13th 
January-,  he  was  taken  into  custody 
by  a  city  officer,  on  a  charge  of 
stealing  a  coat.  He  was  then  taken 
to  Guild-hall  office,  but  Salmon,  the 
Bow-street  officer,  having  claimed 
him  on  this  charge,  he  was  delivered 
over  to  his  custody,  and  by  him  con- 
veyed to  Bow-street.  He  there 
most  strenuously  denied  that  he 
was  at  all  implicated  in  the  murder, 
although  he  admitted  that  "  he  had 
done  other  things,"  but  he  was  re- 
manded for  the  production  of  further 
evidence.  From  subsequent  in- 
quiries, it  was  learned  that  he  was 
the  son  of  Mr.  Stephen  Jones,  a 
gentleman  well  known  in  the  liter- 
ary world  as  the  author  of  a  diction- 
ary called  "Jones'  Sheridan  Im- 
proved," and  as  the  editor  of  a 
journal  published  in  London.  This 
gentleman,  who  died  only  a  short 
time  before  the  Chi'istmas  preced- 
ing the  murder,  left  two  sons,  who 
possessed  considerable  talents,  but 
who  were  too  much  inclined  to 
habits  of  dissipation.  William 
Jones  had  gone  to  sea,  but  latterly, 
on  his  return,  being  so  much  strait- 
ened in  his  circumstances  as  to  be 
sometimes  in  actual  want,  he  had 
occasionally  visited  Mrs.  JefFe,  who 
was  a  kind-hearted  woman,  and 
who,  from  the  respect  which  she 
bore  his  family,  had  often  relieved 
his  necessities.  At  the  time  of  his 
apprehension  he  was  twenty-five 
years  of  age,  and  was  dressed  in  a 
blue  coat,  as  described  by  Gardner, 
the  potboy,  by  whom  he  was  seen 
talking  to  the  deceased.  Upon 
his  subsequent  examinations,  the 
material  facts  which  were  proved 
against  him  were,  that  he  had  been 
living  with  a  young  woman,  named 
Mary  Parker,  who  generally  went 
by  the  name  of  Edwards,  in  Woot- 


ton-street,  Lambeth ;  but  that  on 
the  27th  of  December,  he  suddenly 
removed  with  her  to  Mitre-street. 
During  the  latter  part  of  his  resi- 
dence in  Wootton-street,  he  was  in 
extremely  bad  circumstances,  and 
on  the  31st  of  December,  he  and  his 
paramour  were  entirely  without 
food  or  money.  On  that  night  he 
cjuitted  Parker  in  Fleet-street,  and 
appointed  to  meet  her  at  the  same 
place  at  half  past  twelve  o'clock, 
and  at  that  hour  he  came  to  her,  as 
she  Avas  standing  near  Serjeants' 
Inn,  in  a  direction  from  Shoe-lane. 
He  then  had  money  and  treated 
her  to  something  to  drink ;  and  on 
the  following  morning  he  went  out 
for  an  hour,  but  returned,  and  now 
produced  a  considerable  quantity  of 
silver  money,  with  which  they  were 
enabled  to  redeem  some  clothes, 
which  had  been  pawned,  and  after- 
wards to  go  to  the  Olympic  Theatre. 
In  the  course  of  the  ensuing  week, 
the  prisoner  was  observed  to  be 
anxiously  endeavoring  to  prevent 
the  discovery  of  his  new  residence, 
by  going  home  by  circuitous  routes, 
and  other  means,  and  was  heard  to 
declare  his  apprehension  that  some 
officers  were  in  search  of  him.  But 
the  most  important  circumstances 
proved  were,  first,  that  of  the  pris- 
oner having  a  severe  cut  on  his 
left  thumb,  when  he  was  taken  into 
custody,  which  appeared  to  have  been 
recently  inflicted ;  and  secondly, 
that  the  razor  case,  which  was  found 
lying  near  the  body  of  the  deceased 
woman,  had  been  lent  to  the  prisoner, 
on  the  Sunday  before  the  nnu'der, 
with  a  razor,  by  Mrs.  Williams, 
with  whom  he  had  formerly  lodged. 
Upon  proof  of  these  facts,  the 
prisoner  was  fully  committed  for 
trial ;  but  strong  as  the  suspicion 
was  against  him,  it  proved  to  be 
insufficient  in  the  minds  of  the  jury, 
l)efore  whom  the  case  was  tried,  to 
warrant  them  in  returning  a  verdict 
of  guilty. 

The  case  came  on  at  the  Old 
Bailey  sessions,  on  Friday  the 
22(1  of  February,  when  considerable 


IV.       PROOF   OF   HUMAN    ACT.      A.    2.    TOOLS,    ETC 


173 


curiosity  was  exhibited  by  the 
public.  The  court  was  crowded 
to  excess  at  an  early  hour,  and  its 
avenues  were  thronged  until  the 
conclusion  of  the  proceedings.  The 
prisoner  was  put  to  the  bar  at  ten 
o'clock,  and  pleaded  Not  guilty, 
to  the  two  indictments  preferred 
against  him ;  the  first  for  the  mur- 
der, and  the  second  for  stealing  a 
coat,  the  property  of  George  Hold- 
ing.    Ha\ing  been  given  in  charge 


to  the  jury  in  the  first  case,  .  .  . 
the  trial  terminated  at  twelve  o'clock 
at  night,  when  the  jury  returned  a 
verdict  of  Not  guilty. 

The  prisoner  was  arraigned  on  the 
next  day  upon  the  second  indict- 
ment, when  he  withdrew  the  plea 
which  he  had  put  on  the  record,  and 
confessed  himself  guilty.  At  the 
following  sessions,  held  in  the  month 
of  April,  he  was  sentenced  to  be 
transported  for  seven  years. 


79.    KARL  FRANZ'S  CASE.      [Printed  post,  as  No.  388.] 


SO.    CHICAGO  &  ALTON  R.  CO.  v.  CROWDER.    (1892.    Appel- 
late Court  of  Illinois.     49  111.  App.  156.) 


Opinion  of  the  Court,  Boggs,  J. 
James  Crowder,  husband  of  the 
appellee,  administratrix,  lost  his 
life  on  the  19th  day  of  December, 
1891.  At  the  time,  he  was  engaged 
in  the  service  of  the  appellant  com- 
pany as  rear  brakeman  on  a  freight 
train,  bound  south  on  its  road. 
The  hindmost  car  of  the  train  was 
a  caboose,  having  on  its  top,  near 
its  north,  or  rear  end,  as  the  train 
was  moving,  a  cupola.  Within  the 
caboose  a  ladder  extended  from  the 
floor  to  the  cupola.  Sliding  win- 
dows on  each  side  of  the  cupola 
were  so  arranged  that  persons  within 
could  pass  through  them,  out  upon 
the  roof  of  the  car.  When,  on  the 
day  named,  the  train  was  approach- 
ing, and  within  something  less  than 
a  mile  of  Petersburg,  the  conductor, 
Mr.  Drake,  and  Crowder,  the  de- 
ceased, were  in  this  cupola.  The 
conductor  informed  the  deceased 
that  four  cars  were  to  be  set  out  of 
the  train  at  Petersburg,  and  directed 
him  to  attend  to  the  rear  end  of 
the  train,  while  he  (the  conductor) 
went  forward  and  got  out  the  cars. 
The  conductor  then  opened  one  of 
the  windows  of  the  cupola,  stepped 
out  upon  the  top  of  the  caboose, 
and  turning  about,  told  the  deceased 
to  go  down  into  the  caboose  and 
fasten  the  latch  upon  the  inside  of 
the  door.  Crowder  immediately 
descended,  and  from  the  floor  of  the 


caboose,  looked  up  at  the  conduc- 
tor, and  said  "all  right."  He  was 
not  heard  to  speak  again,  nor  seen 
alive  afterward. 

The  conductor  went  forward  over 
the  top  of  the  cars  to  the  front,  or 
head  end  of  the  train,  and  remained 
there  until  the  station  of  Petersburg 
was  reached.  When  the  work  of 
setting  out  the  cars  began,  he  no- 
ticed that  Crowder  was  not  at  his 
post,  and  soon  after  discovered  that 
he  was  not  upon  the  train.  He 
walked  rapidly  back  in  search  of  him, 
and  came  upon  his  lifeless  body  lying 
upon  the  ground  upon  the  east  side, 
and  within  five  or  six  feet  of  the 
railroad  track.  The  feet  of  the 
dead  man  extended  nearly  to  the 
track,  his  body  at  right  angles  with 
it.  His  head  lay  partly  against  the 
stump  of  an  old  piling,  which 
projected  ten  or  twelve  inches  above 
the  surface  of  the  ground.  The 
skull  was  crushed,  the  stump  of  the 
old  piling  besmeared  with  blood, 
and  brains  and  blood  were  spattered 
here  and  there  upon  the  ground 
about  the  body,  and  upon  the  ballast 
of  the  railroad  track.  It  was  evi- 
dent that  the  deceased  had  fallen 
or  been  thrown  from  the  train ; 
his  head  crushed  and  body  mangled 
by  striking  the  stump  of  the  piling. 
It  is  estimated  to  be  six  hundred  and 
twenty  feet  from  the  point  where  the 
caboose   was,    when   the   conductor 


174 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  80. 


parted  with  the  deceased,  to  the 
place  where  the  body  lay.  One 
hundred  and  twenty-one  feet  north 
of  the  body,  at  the  side  of  the  rail- 
road track,  stood  a  water  tank. 
Attached  to  this  tank  by  a  hinge, 
by  the  use  of  which  it  might  be 
raised  or  lowered,  was  a  hollow  tube, 
or  spout,  made  of  heavy  sheet  iron, 
used  to  conduct  water  from  the 
tank  to  the  tenders  of  engines  on 
the  road.  The  appellee  in  an  action 
on  the  case  recovered  in  the  Circuit 
Court  a  judgment  against  the  appel- 
lant company  for  causing  the  death 
of  Crowder,  upon  the  theory  that 
this  spout  had  been  negligently 
allowed  to  hang  or  swing  so  low  upon 
its  hinge  that  it  would  reach  and 
strike  a  Vjrakeman  if  he,  when  pass- 
ing the  tank,  should  be  upon  the 
top  of  a  freight'  car  near  the  edge  of 
the  roof  and  that  the  deceased  came 
out  of  the  cupola  window  upon  the 
edge  of  the  roof  of  the  caboose,  to 
discharge  his  duties  as  rear  brake- 
man,  and  was  struck  by  the  spout, 
rendered  unconscious,  and  caused 
to  fall  to  the  ground  and  be  killed. 
This  is  an  appeal  from  the  judgment 
so  rendered. 

The  duty  of  the  deceased  as  rear 
brakeman  required  him  to  be  upon 
the  top  of  the  car  before  the  train 
reached  the  whistling  post  for  the 
station  at  Petersburg.  The  infor- 
mation and  directions  given  him  by 
the  conductor  amounted  to  an  order 
to  discharge  his  duty.  Hence,  it 
may  be  conceded  that  the  jury  were 
warranted  in  believing  he  made  his 
way  from  the  floor  of  the  caboose, 
where  he  was  when  last  seen, 
through  a  window  of  the  cupola 
to  the  roof,  of  the  car,  and  that 
he  fell  or  was  thrown  from  the  train 
to  the  ground.  It  is  further  to  be 
conceded  that  it  sufficiently  appears 
from  the  evidence,  that  the  spout 
might  have  reached  and  struck  a 
man  of  his  height,  had  he  l)een 
standing  l)y  the  side  of  the  cupola 
on  the  roof  at  the  moment  the  car 
was  passing  the  tank.  Nothing  was 
found  upon    the  roof  of   the  car  or 


upon  the  cupola  indicating  that 
he  had  been  injured  there,  or  even 
that  he  had  been  there.  Nor  was 
there  mark  of  blood,  indentation, 
or  other  indication  upon  or  about 
the  spout  from  which  it  could  be 
supposed  that  it  had  come  in  con- 
tact with  his  person.  A  close-fit- 
ting, knit  woolen  cap,  worn  by  the 
deceased,  was  found  upon  the  ground 
about  halfway  between  the  tank 
and  the  body,  and  on  the  opposite 
side  of  the  track.  It  had  neither 
rim  nor  visor,  fitted  the  head  closely, 
and  was  a  kind  much  worn  by 
brakemen,  because  it  could  not  be 
blown  off  by  the  wind  easily,  if  at 
all.  The  cap  was  without  mark, 
abrasion,  or  stain  of  blood,  or  any- 
thing to  induce  the  belief  that  it 
had  lieen  removed  from  the  head  of 
the  deceased  by  a  blow  or  stroke 
of  the  spout.  On  the  side  of  the 
caboose  below  and  perhaps  extend- 
ing back  a  little  beyond  the  cupola, 
several  spots,  supposed  to  be  blood, 
were  found  on  the  morning  following 
the  unfortunate  occurrence.  These 
spots  were  dry  and  so  near  the  color 
of  the  painted  side  of  the  car  that 
it  was  difficult  for  the  witnesses  to 
determine  whether  they  were  spots 
of  blood  or  not.  One  of  the  spots 
was  described  as  being  "greasy," 
and  some  of  the  witnesses  thought 
it  was  composed  of  brains  or  flesh 
and  blood.  Spots  or  stains  of  blood 
were  found  upon  the  rear  lower  steps 
of  the  caboose.  Aside  from  the 
circumstances  recited  and  the  deduc- 
tions logically  arising  therefrom, 
nothing  is  known  of  the  manner  or 
the  cause  of  the  death  of  Crowder. 
Perhaps  the  deductions  of  counsel 
for  appellee,  from  these  facts  and 
circumstances,  may  best  be  made 
known  by  a  quotation  from  their 
brief,  viz.  :  "  Crowder  was  then  on 
the  floor  of  the  caboose  and,  looking 
at  Drake,  answered  'all  right.' 
That  was  the  last  .seen  of  him  alive, 
and  those  were  the  last  words  he 
was  heard  to  utter.  He  followed 
Drake  out  of  the  window  to  be  on 
top    when    the  whistle   board    was 


So.  80. 


IV.       PROOF   OF   HUMAN   ACT.      A.    2.    TOOLS,    ETC. 


175 


reached,  as  is  required  by  the  rules 
of  the  company.  Crowder  was 
just  in  the  act  of  getting  out  of  the 
window  of  the  cupola  or  had  just 
got  out,  and  was  straightening  up, 
when  the  cupola  came  even  with  the 
tank.  The  window  is  small,  about 
twelve  by  twenty  inches,  or  fourteen 
by  twenty  at  most.  He  was  a  large 
man,  weighing  ISO  pounds,  and 
standing  five  feet  nine  inches  high. 
His  body  necessarily  extended  con- 
siderably over  the  edge  of  the  car. 
The  spout  struck  him  violently  upon 
the  head  and  knocked  off  his  cap, 
which  jostled  to  the  other  side  of  the 
caf  and  fell  about  halfway  between 
the  tank  and  the  place  where 
Crowder's  body  was  found.  Crow- 
der evidently  had  hold  of  the  hand- 
rail on  top  of  the  cupola,  as  this 
was  necessary  to  enable  him  to 
get  out  and  raise  himself  up  on  the 
narrow  margin  of  the  roof  at  the  side 
of  the  cupola.  When  the  spout  hit 
him  he  clutched  for  an  instant  to  the 
rail  until  he  lost  consciousness,  or 
was  knocked  over  on  the  edge  of  the 
roof,  and  his  body  resting  there  an 
instant  rolled  off  and  struck  the 
stump  of  an  old  piling,  121  feet  from 
the  tank,  being  about  the  reason- 
able and  natural  distance  at  which 
you  woidd  expect  to  find  the  body, 
taking  into  consideration  the  momen- 
tum of  the  body  when  it  left  the 
car.  As  he  fell,  or  while  hanging 
to  the  car,  the  blood  which  flowed 
in  consequence  of  the  injury  from 
the  spout,  dropped  down  and  was 
drawn  in  by  the  action  of  air  to 
the  side  of  the  car." 

Such  may  have  been  the  manner 
of  his  death,  but  there  is  force  in  the 
argument  of  opposing  counsel  that 
many  of  the  conclusions  arrived  at 
by  counsel  for  appellee  rest  upon 
conjecture  and  speculation  as  to 
mere  possibilities  and  probabilities. 
The  spout  may  have  come  in  con- 
tact with  the  head  of  the  deceased 
and  have  removed  his  cap  and  in- 
flicted a  wound  from  which  his 
blood  flowed  and  dropped  upon  the 
side   of   the   car.     But,    as   counsel 


for  the  appellant  say,  doubts  of  this 
nevertheless  arise  when  it  is  re- 
membered that  no  mark  or  stain 
of  blood  was  upon  the  roof  of  the 
car,  the  cupola,  the  cap,  or  the  spout 
of  the  tank ;  and  impartial  minds 
might  accept  and  adopt  as  equally 
probable,  the  suggestion  that  the 
blood  (if  it  was  blood)  upon  the  side 
and  steps  of  the  caboose,  was  thrown 
there  from  the  body  when  it  was 
dashed  against  the  piling.  That  one 
of  these  spots  was  composed  of  his 
flesh  or  brains  is  as  well  shown  as 
that  any  were  of  his  blood.  Is  it 
not  as  reasonable  to  believe  that  this 
came  from  the  body  after  it  struck 
the  piling  where  the  flesh  was  man- 
gled, the  skull  crushed,  and  the 
blood  and  brains  of  the  unfortunate 
man  scattered  upon  the  stump,  the 
ground  and  the  ballast  of  the  track, 
as  to  suppose  that  it  came  from  a 
wound  by  a  blow  of  the  spout  which 
crushed  the  skull  so  that  the  brain 
exuded  and  the  blood  flowed,  and 
yet  left  no  mark  or  stain  upon  the 
spout,  the  cap,  the  roof  of  the  car, 
or  cupola  ? 

The  theory  ad\anced  by  counsel 
of  the  appellee  as  to  the  manner  of 
the  displacement  of  the  cap  and  the 
injury  to  and  fall  of  the  deceased 
in  the  view  of  counsel  for  the  appel- 
lant, is  a  plausible  suggestion  that 
his  death  might  have  been  so  caused, 
and  yet  it  has  no  established  fact 
in  its  support  to  inspire  belief  of  its 
truth  or  give  it  weight  above  the 
other  suggestions  advanced  by  them, 
that  the  cap  might  have  been  dis- 
placed as  the  deceased  drew  his 
head  out  of  the  small  window  of  the 
cupola,  and  in  endeavoring  to  catch 
and  retain  it,  he  lost  his  balance  and 
hold  upon  the  handrail,  the  cap 
escaped  and  was  carried  by  the  wind 
across  the  top  of  the  car  to  the  oppo- 
site side  of  the  track  and  to  the  place 
where  it  was  found,  and  the  unfortu- 
nate man,  though  struggling  to  keep 
his  place  upon  the  roof  of  the  car, 
was  unable  to  do  so,  and  was  finally 
thrown  therefrom  to  the  ground  and 
killed.     Or   he    might,    though   not 


176 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  81. 


wounded  or  in  any  way  injured,  have 
lost  his  balance  while  out  upon  the 
roof  of  the  car,  and,  in  an  ineffectual 
struggle  to  recover  it  and  avert  a 
fall,  displaced  the  cap  from  his  head. 
The  argument  of  counsel  for  the 
appellee,  that  it  is  entirely  unreason- 
able to  say  that  Crowder,  an  ex- 
perienced brakeman,  in  the  habit 
of  running  on  the  tops  of  cars  day 
after  day,  should,  in  broad  daylight, 
when  the  train  was  running  at  a 
steady  gait,  on  a  level  track,  with  no 
snow  or  ice  on  the  cars,  lose  his 
footing  or  stumble  and  fall  from  a 
car,  seems  to  be  answered  by  the 
argument  that  such  an  explanation 
of  his  death  is  the  very  first  to  arise 
in  an  impartial  mind.  Either  one 
of  various  suppositions  not  incon- 
sistent with  the  facts  known  would 


account  for  his  death,  but  it  seems 
difficult  to  say  that  any  one  of  them, 
more  than  another,  finds  lodgment 
in  the  mind  as  a  belief  created  by 
the  process  of  ascertaining  un- 
known facts  from  the  existence  of 
facts  that  are  known. 

However  this  may  be,  the  evi- 
dence is  in  another  respect  so  clearly 
insufficient  that  we  are  impelled 
to  award  a  reversal  of  the  judgment. 
There  is  no  proof  as  to  the  exercise 
of  due  care  upon  the  part  of  the  de- 
ceased. .  .  .  There  being  no  proof 
as  to  his  acts  and  conduct  at  the 
time  of  the  accident,  that  he  was 
acting  with  due  care  cannot  be  re- 
garded as  proven.  For  this  reason 
a  new  trial  should  have  l)een  granted. 
The  judgment  must  be,  and  is,  re- 
versed, and  the  cause  remanded. 


SI.    TOLEDO,  ST.  LOUIS  &  KANSAS  CITY  R.  CO.  v.  CLARK. 

(1892.     Appellate  Court  of  Illinois.     49  111.  App.  17.) 


Opinion  of  the  Court,  Pleasants, 
P.  J.  Appellee  recovererl  judgment 
below  on  a  verdict  for  SI 000  dam- 
ages for  the  loss  of  his  right  foot, 
charged  to  have  been  caused  by  the 
negligence  of  appellee.  He  was  a 
single  man,  thirty-one  years  of  age, 
residing  six  miles  west  of  the  city 
of  Charleston.  He  went  to  the 
city  on  the  morning  of  December  10, 
1890,  and  spent  the  day  there. 
About  nine  o'clock  in  the  evening, 
on  his  way  to  take  the  train  for  home, 
while  passing  over  the  track  of 
appellant  on  the  sidewalk  of  Rail- 
road street,  an  engine,  coming  from 
the  shops,  in  charge  of  an  assistant 
hostler  as  engineer  and  a  man  who 
worked  about  the  shops  as  fireman, 
ran  upon  him  and  crushed  his  foot, 
which  had  to  be  amputated.  He 
was  going  by  the  usual  route  from 
the  public  square  to  the  depot. 
The  street  runs  east  and  west, 
parallel  with  the  track  of  the  I.  & 
St  L.  Ry.  and  nearly  parallel  with 
that  of  appellant,  which  runs  north- 
east and  southwest,  crossing  the 
former  at  a  point  east  of  the  place 
of  the  accident,  variou.sly  stated  by 


the  witness  at  eighty  to  a  hundred 
and  thirty  feet,  and  the  south 
sidewalk,  diagonally,  at  a  small 
angle.  Appellee  was  walking  west, 
carrying  two  bundles.  His  state- 
ment is,  that  when  a  few  steps  from 
the  crossing,  he  looked  north  and 
saw  the  engine,  then  about  at  the 
cro-sing  of  the  I.  &  St.  L.  track,  and 
supposing  it  was  moving  on  that 
track,  did  not  look  to  see  it  again 
until,  walking  on,  his  foot  was  caught 
and  held,  beyond  his  power  to  ex- 
tricate it,  in  a  hole  between  appel- 
lant's south  rail  and  the  planking  on 
its  north  side.  The  engine  was 
moving  without  any  headlight,  at 
a  rate  of  four  to  five  miles  an  hour. 
Appellee  says  he  heard  no  bell,  or 
other  warning  of  it.  He  thinks  his 
foot  went  into  the  hole  six  inches. 
He  stated  that  he  had  i)assed  over 
that  crossing  a  hundred  times,  prob- 
ably, l)ut  never  noticed  it  particu- 
larly, or  that  there  was  anything 
wrong  about  it ;  that  if  he  ha<l  seen 
the  hole,  he  could  easily  have  stepped 
over  it,  and  that  if  he  had  not 
stepped  into  it,  he  would  have  passed 
the  crossing  in  ample  time  to  avoid 


No.  81. 


IV.       PROOF   OF   HUMAN   ACT.      A.    2.    TOOLS,    ETC. 


177 


the  collision.  On  behalf  of  the 
defense  it  was  claimed  and  evi- 
dence offered  tending  to  prove  that 
the  bell  was  ringing ;  that  the  engine 
was  moving,  for  some  distance 
before  it  reached  the  sidewalk,  so 
nearly  alongside  of  him  that  if  he 
had  turned  his  eyes  north,  he  must 
have  seen  the  situation ;  that  he 
was  intoxicated  at  the  time,  and 
stupidly  stepped  on  the  crossing 
immediately  before  the  collision ; 
that  the  flangeway,  into  which  he 
said  he  put  his  foot,  was  only  three 
inches  or  less  in  width ;  that  his 
shoe,  on  the  trial,  measured  four ; 
and  that  when  the  accident  oc- 
curred he  was  wearing  overshoes. 

As  to  each  of  these  claims,  except 
the  last  two  —  the  measurement  of 
his  shoe,  and  the  fact  that  he  also 
wore  overshoes  —  there  was  evi- 
dence to  the  contrary.  Elijah 
Sewell,  a  resident  of  Charleston, 
familiar  with  the  crossing,  and  in  the 
employ  of  the  company  as  brakeman 
and  switchman,  speaking  of  the 
space  between  the  rail  and  the  plank, 
says  :  "  The  plank  lays  kind  o'  wedge 
fashioned  with  the  rail,  which  made 
it  five  or  six  inches  at  the  south  end 
and  about  three  at  the  north  ;"  and 
that  he  made  the  experiment  and 
found  that  his  foot  would  slip  in 
there.  Madigan,  the  roadmaster, 
says  the  rail  on  the  south  side  was 
two  and  a  half  or  three  inches  from 
the  plank,  but  varied  a  little  where 
the  plank  was  worn  from  the  flange 
of  the  wheel.  It  appears,  also,  that 
there  was  a  switch  stand  a  few  feet 
from  the  south  end,  and  movable  rails 
laid  in  the  walk.  Madigan  says : 
"The  two  rails,  I  think,  extend  into 
the  walk,  probably  a  foot  or  so  from 
the  north  side,  and  the  movable  rail 
from  the  south  comes  across  the  walk 


to  meet  that.  The  switch  stand  is  at 
the  south  side  of  the  walk.  These 
rails  are  moved  by  the  switch  stand, 
back  and  forth  across  'the  sidewalk, 
and  when  the  rails  are  moved  to  the 
south,  so  as  to  connect  with  the  Y, 
it  would  leave  a  space  on  the  north 
side  of  the  south  rail  of  six  or  seven 
inches." 

Two  undisputed  facts,  which  may 
have  turned  the  scale  in  the  mind 
of  the  jury,  were  that  the  plaintiff 
was  on  the  track  and  only  his  foot 
was  injured.  The  wheel  that 
crushed  it  was  running  on  the  south 
rail  —  the  one  he  would  have  passed 
first  —  and  it  is  not  easy  to  account 
for  his  injury,  except  upon  his  own 
statement,  that  finding  his  foot  fast, 
he  threw  his  body  backward  and 
outward  from  the  track.  A  man 
stupefied  by  liquor  to  the  extent  it  is 
claimed  he  was,  usually  leans  and 
lunges  forward;  and  had  he  got 
so  far  as  the  south  rail  when  the 
engine  struck  him,  it  seems  most 
probable  that  his  body  would  have 
fallen  between  the  rails,  and,  if  his 
foot  had  not,  in  fact,  been  fast,  that 
the  falling  of  his  body  outward, 
before  the  collision,  would  have 
cleared  it  also.  A  further  and  fair 
inference  would  be  that  his  injury 
was  caused  by  the  catching  of  his 
foot,  and  not  by  his  attempt  to  cross 
the  track,  which  would  have  been 
accomplished  in  a  moment.  The 
jury  might  well  consider  this  frog- 
like arrangement  of  a  movable  rail, 
on  a  city  sidewalk,  faulty  construc- 
tion, and  the  leaving  a  space  between 
the  fixed  rail  and  the  planking, 
sufficient  to  catch  and  hold  a  foot, 
culpable  negligence.  .  .  .  We  see 
no  material  error  in  any  ruling  of  the 
court.  The  judgment  must  there- 
fore be  affirmed. 


TITLE  IT  {continued):   EVinEXCE  TO  rUOVE  THE 
DOIXG  OF    I  HUM  Ay  ACT 

SUBTITLE  B:     PROSPECTANT  CIRCUMSTANCES  TO  PROVE  THE 
DOING  OF  A  HUMAN  ACT 

83.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)  It  is 
convenient  (as  pointed  out  ante,  No.  53)  to  arrange  the  order  of  evidentiary 
facts,  when  offered  to  prove  the  Doing  of  a  Human  Act,  according  as  the 
indication  of  the  evidence  is  Prospectant,  Concomitant,  or  Retrospectant. 

Evidentiary  facts  having  Prospectant  indications  are  of  several  sorts ; 
the  principal  ones  may  be  roughly  grouped  as  follows  :  Moral  Character  or 
Disposition  ;  Emotion  or  Motive  ;  Design  or  Plan  ;  Habit  or  Custom.  The 
nature  of  the  argument  or  inference  in  each  instance  is  this  :  Because  A  had 
a  Disposition,  Habit,  Emotion,  Design,  or  Capacity  to  do  (or  not  to  do),  an 
act  .T,  therefore  he  probably  did  (or  did  not  do)  the  act  x  alleged.  Observe 
that  the  party  alleging  the  act  argues  that  the  disposition  indicates  a  doing 
of  the  act,  while  the  party  denying  the  act  argues  that  the  (opposite)  dis- 
position indicates  a  not  doing  ;  the  nature  of  the  argument  or  inference  being 
precisely  the  same  in  both  cases,  the  difference  being  in  the  proposition  to  be 
proved. 

Topic  1.     Moral  Character  ^ 

84.  James  Sully.  The  Human  Mind.  (1892.  Chap.  XVHI,  sec.  22, 
p.  281.)  Moral  Habitudes.  The  principle  of  habit  produces  other  effects  in 
this  region  of  conduct.  The  final  decision  after  deliberation,  if  a  rational  and 
good  one,  does  not  need  to  be  arrived  at  again  and  again  in  all  similar  cases. 
A  particular  exercise  of  self-control,  say  the  quelling  of  a  feeling  of  annoy- 
ance, or  the  determining  to  do  some  unpleasant  duty,  which,  in  the  first 
instance,  was  the  outcome  of  a  process  of  reflection,  will,  in  succeeding  cases, 
be  shortened  or  compressed  into  control  without  such  preliminary  reflection. 

Here  we  may  see  that  the  process  of  self-control  is  becoming  habitual  in  a 
new  sense.  Certain  motives  are  acquiring  a  fixed  place  in  the  mind  as  ruling 
forces,  organically  connected  with  appropriate  actions,  while  other  and  lower 
forces  are  losing  ground.  Every  repetition  of  the  situation  calling  out  this 
particular  variety  of  action  (that  is,  of  action  having  this  particular  motive 
or  reason)  tends  to  fix  conduct  in  this  direction,  that  is,  to  establish  a  habit 
of  doing.  The  prevailing  motive,  for  example,  consideration  for  others, 
now  passes  into  the  form  of  a  fixed  inclination  or  active  disposition.  Or, 
to  express  the  result  another  way,  we  may  say  that  conduct  is  brought  more 
fully  under  the  sway  of  a  general  rule  or  maxim,  so  as  to  be  immediately 
determined  by  the  recognition  of  this.   .   .   . 

'  [Compare  the  analysis  of  Character  and  Conduct  in  No.  28,  ante.  —  Ed.] 

178 


No.  84.  IV.       PROOF   OF   HUMAN   ACT.       B.    1.    CHARACTER  179 

It  is  obvious  from  this  brief  account  of  moral  habitudes  that  they  illus- 
trate the  psychophysical  process  which  underlies  all  habit.  Thus  veracity, 
with  its  confirmed  disposition  to  speak  the  truth,  implies  that  this  particular 
motive  or  tendency  is  instantly  called  up  by  the  appropriate  circumstances, 
viz.  the  situation  of  being  called  on  to  state  something  to  another.  That 
is  to  say,  there  is  an  organized  connection  between  a  group  of  presentation 
complexes  and  an  impulse  to  follow  out  a  particular  line  of  action.  The 
perfection  of  the  moral  habitude  depends  on  this  instant  excitation  of  the 
higher  motive  before  the  lower  impulse,  which  would  impede  its  realization, 
has  time  to  assert.   ... 

Volition  and  Character.  The  word  "character"  (from  the  Greek,  "mark" 
or  "  stamp  ")  is  used  in  everyday  language  to  mark  off  any  sort  of  differ- 
ence in  mental  or  moral  qualities.  Thus  we  are  wont  to  speak  of  a 
person's  intellectual  peculiarities,  special  tastes,  and  so  forth,  as  con- 
stituents of  his  character.  In  a  narrower  and  stricter  sense  the  term 
involves  a  special  reference  to  qualities  belonging  to  the  active  side  of 
the  mind.  Volition,  in  its  rationalized  form,  conduct,  being  the  final 
and  most  important  outcome  of  mind  as  a  whole,  the  word  character 
has  naturally  come  to  connote  in  a  peculiar  manner  those  qualities,  as 
active  energy  and  deliberation,  which  go  to  constitute  the  higher  type 
of  will. 

According  to  the  more  popular  use  of  the  term,  every  individual  has  his 
own  stamp  of  character.  This  individual  character  is  fixed  partly  by  the 
peculiarities  of  the  person's  psychophysical  "  nature,"  or  what  we  call 
temperament  and  idiosyncrasy.  Thus  the  contrast  of  the  volatile  and  fickle, 
and  the  pertinacious  and  obstinate  temper  of  mind,  is,  as  we  may  see  from 
its  early  manifestation,  a  congenital  difference  based  on  certain  organic 
peculiarities.  At  the  same  time  it  is  evident  that  even  individual  character 
is  a  growth  and  as  such  illustrates  the  interaction  of  organism  and  environ- 
ment. Each  man's  character  may  thus  be  said  to  be  a  product  of  particular 
environmental  influences  acting  upon  a  particular  set  of  congenital  properties 
or  tendencies.  Such  action,  it  is  to  be  noted,  while  presupposing  the  exis- 
tence of  particular  congenital  tendencies,  in  its  turn  serves  to  select  from 
among  a  whole  group  of  such  tendencies  particular  constituents  for  special 
developmental  expansion  or  realization. 

In  addition  to  this  everyday  meaning,  the  word  character  has  acquired  an 
ethical  significance.  As  employed  in  the  science  of  ethics,  it  refers  not  to 
variable  individual  peculiarities,  but  to  certain  moral  qualities  which  it  is 
supposed  to  be  the  special  business  of  social  discipline  and  education  to  cul- 
tivate in  all  alike.  In  this  ethical  sense  "  character  "  has  come  to  stand  for 
"  good  character."  This  may  be  defined  as  a  morally  disciplined  will,  in- 
cluding a  virtuous  condition  of  the  whole  mind,  that  is,  the  disposition  to 
think  and  feel  (as  well  as  to  act)  in  ways  conducive  to  the  ends  of  morality. 

We  thus  see  that  every  good  or  moral  man  possesses  a  character  in  a 
double  sense.  In  the  first  place,  he  has  a  particular  group  of  intellectual, 
affective,  and  conative  peculiarities  which  constitute  his  individual  character. 
In  the  second  place,  he  possesses  certain  virtuous  principles  and  dispositions 
which  make  up  the  typical  moral  character  and  which  assimilate  h  m  to 
other  moral  men.  This  moral  character,  though  it  presupposes  the  connate 
organic  base  of  normal  human  development,  may  be  spoken  of  as  an  ac- 


180  PART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  S4. 

quired  product,  the  result  of  the  action  of  that  set  of  external  influences 
which  constitutes  the  educative  action  of  a  civilized  and  moral  community 
upon  a  normal  human  mind. 

(o)  Character  «,v  Orcjanizcd  Habit.  Confining  ourselves  now  to  moral 
character,  we  see  at  once  that  this  consists  in  the  possession  of  certain  ac- 
quired tendencies  or  habitudes  which  we  call  virtues,  —  both  what  moralists 
distinguish  as  private  ones,  for  example,  temperance  and  prudence,  and  as 
public  ones,  such  as  veracity,  justice,  and  benevolence.  The  excellence 
of  the  character  can  be  estimated  l)y  the  fixity  and  the  preponderance  of 
these  virtuous  dispositions.  As  we  have  seen,  in  all  comparatively  simple 
and  recurring  situations  where  a  lower  impulse  is  opposed  to  a  higher  motive, 
the  degree  of  perfection  of  the  moral  habitude  is  indicated  in  the  complete- 
ness of  the  control  and  the  promptness  of  the  right  or  good  action.  The  less 
the  disturbing  force  of  the  instinctive  factor  (passion,  appetite),  the  more 
highly  developed  the  character.  .  .  .  (h)  Character  as  Conscious  Reflexion. 
While,  however,  moral  character  is  thus  woven  out  of  fixed  habitual  disposi- 
tions (Aristotle's  "egeis"),  it  would  be  an  error  to  conceive  of  it  as  merely 
a  cluster  or  group  of  such  habitudes.  According  to  the  biological  view  of 
mind,  the  habitual,  that  is,  the  relatively  unconscious,  organic  process 
comes  in  only  so  far  as  environmental  features  and  situations  recur  in  like 
form,  and  so  require  similar  modes  of  reaction.  Now  while  it  is  true  that 
the  external  conditions  of  human  life,  physical  and  social,  are  so  far  recurrent 
that  our  actions  may  be  organized  into  a  certain  number  of  persistent  norms 
or  types  of  conduct,  as  thrift,  temperance,  fulfillment  of  promise,  and  the 
like,  they  are  not  so  uniform  in  their  actual,  concrete  combinations  as  to 
allow  of  our  particular  actions  becoming  in  the  complete  sense  habitual.  .  .  . 
To  act  honestly  only  tends  to  become  automatic  in  familiar,  oft-recurring 
situations,  as  in  exchanging  coin  for  commodities  over  the  counter  of  a  shop  : 
it  may  grow  into  a  problem  for  the  most  patient  reflexion  as  soon  as  the 
situation  becomes  exceptional,  as  when  we  discover  a  coin  in  some  public 
place.   ,   .   . 

Causes  of  Individual  Variation.  If  mental  development  in  its  common 
typical  form  is  a  product  of  two  factors,  congenital  power,  and  exercise  of 
function  or  what  we  commonly  call  experience,  we  may  infer  that  all  varia- 
tions depend  on  differences  in  these  two  factors.  That  is  to  say,  every  degree 
of  general  superiority  or  inferiority  of  mind,  and  every  special  modification 
of  mental  configuration,  arise  from  certain  differences  in  the  original  psycho- 
physical constitution  or  in  the  life  experience  of  the  individual.  .  .  .  What- 
ever the  nature  and  the  extent  of  these  congenital  organic  foundations  of 
individuality,  they  have  to  be  supplemented  by  our  second  factor,  viz. 
functional  exercise.  The  biologist's  conception  of  development  is  that  of  a 
process  of  interaction  between  organism  and  environment.  In  order  to  the 
formation  of  any  organic  product,  there  must  be  first  the  requisite  germ 
of  organ,  and  also  the  appropriate  stimulus  to  excite  this  to  its  proper  func- 
tional activity.  In  like  manner,  as  we  have  seen,  mental  growth  is  deter- 
mined by  environmental  agencies,  by  the  presence  of  certain  stimuli  or  ex- 
citants, fitted  to  call  forth  the  several  psychical  reactions.  These  external 
conditions  vary  considerably  from  individual  to  individual.  In  addition 
to  the  common  physical  environment,  as  determined  by  such  circumstances 
as  climate,  locality,  and  so  forth,  there  is  the  individual  environment  con- 


No.  85.  IV.       PROOF   OF   HUMAN   ACT.       B.    1.    CHARACTER  181 

stituted  by  the  peculiar  group  of  forces  acting  on  his  organism.  Thus,  no 
two  children,  not  even  members  of  the  same  family,  come  under  precisely 
similar  conditions  of  temperature,  nutrition,  excitation  of  movements,  etc. 
The  succession  of  sense  stimuli,  with  their  correspondent  motor  reactions, 
making  up  the  external  life  experience  of  an  infant,  is  a  different  one  in  every 
case.  Still  more  evidently  is  the  human  environment  a  variable  one. 
Even  twin  members  of  a  family  have  an  unlike  social  milieu  in  so  far  as  the 
parents  and  others  feel  and  behave  differently  towards  them. 

We  may  say,  then,  that  individual  development  is  the  selective  action  of 
what  Mr.  Galton  has  happily  called  "nurture"  upon  "nature." 

So.  Hans  Gross.  Criminal  PsycJioIogy.  (1911.  transl.  Kallen.  §  13, 
p.  61  ;  §  84,  p.  384.)  Particular  Character-Signs.  It  is  a  mistake  to  suppose 
that  it  is  enough  in  most  cases  to  study  that  side  of  a  man  which  is  at 
the  moment  important  —  his  dishonesty  only,  his  laziness,  etc.  That  will 
naturally  lead  to  merely  one-sided  judgment  and  anyway  be  much  harder 
than  keeping  the  whole  man  in  eye  and  studying  him  as  an  entirety. 
Every  individual  quality  is  merely  a  symptom  of  a  whole  nature,  can  be  ex- 
plained only  by  the  whole  complex,  and  the  good  properties  depend  as  much 
on  the  bad  ones  as  the  bad  on  the  good  ones.  At  the  very  least  the  quality 
and  quantity  of  a  good  or  bad  characteristic  shows  the  influence  of  all  the 
other  good  and  bad  characteristics.  Kindliness  is  influenced  and  partly 
created  through  weakness,  indetermination,  too  great  susceptibility,  a  mini- 
mum acuteness,  false  constructiveness,  untrained  capacity  for  inference ;  in 
the  same  w'ay,  again,  the  most  cruel  hardness  depends  on  properties  which, 
taken  in  themselves,  are  good  :  determination,  energy,  purposeful  action, 
clear  conception  of  one's  fellows,  healthy  egotism,  etc.  Every  man  is  the 
result  of  his  nature  and  nurture,  i.e.  of  countless  individual  conditions,  and 
every  one  of  his  expressions,  again,  is  the  result  of  all  of  these  conditions. 
If,  therefore,  he  is  to  be  judged,  he  must  be  judged  in  the  light  of  them  all. 

For  this  reason,  all  those  indications  that  show  us  the  man  as  a  whole 
are  for  us  the  most  important,  but  also  those  others  are  valuable  which  show 
him  up  on  one  side  only.    .   .   . 

Nature  and  Nurture.  Schopenhauer  was  the  first  to  classify  people 
according  to  nature  and  nurture.  Just  where  he  first  used  the  categories 
I  do  not  know,  but  I  know  that  he  is  responsible  for  them.  "Nature"  is 
phj'sical  and  mental  character  and  disp)osition,  taken  most  broadly ;  "  nur- 
ture" is  bringing  up,  environment,  studies,  scholarship,  and  experience,  also 
in  the  broadest  sense  of  those  words.  Both  together  present  what  a  man  is, 
what  he  is  able  to  do,  what  he  wants  to  do.   .   .   . 

Criminologically  the  influence  of  nurture  on  mankind  is  important 
if  it  can  explain  the  development  of  morality,  honorableness,  and  love  of 
truth.  The  criminalist  has  to  study  relations,  actions,  and  assertions,  to 
value  and  to  compare  them  when  they  are  differentiable  only  in  terms  of  the 
nurture  of  those  who  are  responsible  for  them.  .  .  .  We  who  have  had, 
during  the  growth  of  popular  education,  the  opportunity  to  make  observa- 
tions from  the  criminalistic  standpoint,  know  nothing  favorable  to  its  in- 
fluence. If  the  general  assertion  is  true  that  increased  national  education 
has  reduced  brawling,  damages  to  property,  etc.,  and  has  increased  swindling, 
misappropriations,  etc.,  we  have  made  a  great  mistake.     For  the  psychologi- 


182  PART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  S6. 

cal  estimation  of  a  criminal,  the  crime  itself  is  not  definitive  ;  there  is  always 
the  question  as  to  the  damage  this  indivitlual  has  done  his  own  nature  with 
his  deed.  If,  then,  a  peasant  lad  hits  his  neighbor  with  the  leg  of  a  chair  or 
destroys  fences,  or  perhaps  a  whole  village,  he  may  still  be  the  most  honor- 
able of  youths,  and  later  grow  up  into  a  uni\ersally  respected  man.  Many 
of  the  best  and  most  useful  village  mayors  have  been  guilty  in  their  youth 
of  brawls,  damages  to  property,  resistance  to  authority,  and  similar  things. 
But  if  a  man  has  once  swindled  or  killed  anybody,  he  has  lost  his  honor, 
and,  as  a  rule,  remains  a  scoundrel  for  the  rest  of  his  life.  If  for  criminals 
of  the  first  kind  we  substitute  the  latter  type,  we  get  a  very  bad  out- 
look. 

In  many  countries  the  law  of  such  cases  considers  extenuating  circum- 
stances and  defective  bringing  up,  but  it  has  never  yet  occurred  to  a  single 
criminalist  that  people  might  be  likely  to  commit  crime  because  they  could 
not  read  or  write.  Nevertheless,  we  are  frequently  in  touch  with  an  old 
peasant  as  witness  who  gives  the  impression  of  absolute  integrity,  reliability, 
and  wisdom,  so  much  so  that  it  is  gain  for  anybody  to  talk  to  him.  But 
though  the  black  art  of  reading  and  writing  has  been  foreign  to  him  through 
the  whole  of  his  life,  nobody  will  have  any  accusation  to  make  against  him 
about  defective  bringing  up.  .  .  .  We  must,  of  course,  assume  that  de- 
ficiency in  education  is  not  in  itself  a  reason  for  doubting  the  witness,  or  for 
holding  an  individual  inclined  to  crime.  The  mistakes  in  bringing  up  like 
spoiling,  rigor,  neglect,  and  their  consequences,  laziness,  deceit,  and  larceny, 
have  a  sufficiently  evil  outcome.  And  how  far  these  are  at  fault,  and  how 
far  the  nature  of  the  individual  himself,  can  be  determined  only  in  each  con- 
crete case  by  itself. 

Religion.  The  sole  training  on  which  the  criminalist  may  rely  is  that  of  real 
religion.  A  really  religious  person  is  a  reliable  witness,  and  when  he  is  be- 
hind the  bar  he  permits  at  least  the  assumption  that  he  is  innocent.  Of 
course  it  is  difficult  to  determine  whether  he  is  genuinely  religious  or  not, 
but  if  genuine  religion  can  be  established  we  have  a  safe  starting  point.  .  .  . 
The  religious  statistics  are  altogether  worthless.  .  .  .  One  part  is  worthless 
because  it  deals  only  with  the  criminality  of  l^aptized  Protestants  or  Catholics, 
and  the  final  section,  which  might  be  of  great  interest,  i.e.  the  criminality 
of  believers  and  unbelievers,  is  indeterminable.  Statistics  say  that  in  the 
country^  in  the  year  n  there  were  punished  x  per  cent  Protestants,  y  per  cent 
Catholics,  etc.  Of  what  use  is  the  statement  ?  Both  among  the  x  and  the 
y  percentages  there  were  many  absolute  unl)elievers,  and  it  is  indifferent 
whether  they  were  Protestant  or  Catholic  unbelievers.  It  would  be  inter- 
esting to  know  what  percentage  of  the  Catholics  and  of  the  Protestants  are 
really  faithful,  for  if  we  rightly  assume  that  a  true  believer  rarely  commits 
a  crime,  we  should  be  al)le  to  say  which  religion  from  the  viewpoint  of  the 
criminalist  should  be  encoiu'aged.  The  one  which  counts  the  greater  per- 
centage of  believers,  of  course,  but  we  shall  never  know  which  one  that  is. 

86.  G.  F.  Arnold.  Psychology  applied  to  Legal  Evidence.  (1900.  p. 
277.)  .  .  .  [Certain  legal]  authors  say:  "The  character  and  habit  of  a 
person  is  presumed  to  continue  as  proved  to  be  at  a  time  past.  So,  in  an 
American  case  (Sleeper  v.  Van  Middlesworth,  4  Denio  481)  it  was  attempted 
to  impeach  the  character  of  P,  a  witness.     A  and  B  who  knew  P  four  years 


No.  86.  IV.       PROOF    OF   HUMAN    ACT.       B.    1.    CHARACTER  183 

before  when  he  resided  at  another  place  testify  that  his  character  was  then 
bad.  It  was  held  that  the  presumption  was  that  P's  character  remained  the 
same."  What  we  desire  to  point  out  is  that  the  mental  law  is  one  of  change 
and  not  of  continuance  and  that  it  is  a  mistake  therefore  to  attempt  to  apply 
such  a  presumption  here.  We  are  compelled  to  attribute  continuity,  to  a 
certain  limited  extent,  to  the  phj'sical  sequences  of  nature,  because  they  have 
no  purpose  in  view  that  we  can  understand,  and  in  order  to  render  our  world 
intelligible  to  us,  but  not  because  there  is  anything  in  their  existence  per  se 
that  warrants  the  presumption.  In  the  sphere  of  men's  opinions  and  charac- 
ter there  is  no  such  necessity,  for  they  are  equally  intelligible  on  the  assump- 
tion that  they  change  from  time  to  time ;  indeed,  there  is  nothing  that  a  man 
changes  more  easily  than  his  opinions.  If  there  is  any  validity  in  the  pre- 
sumption that,  because  a  man  held  certain  opinions  or  was  of  a  certain  char- 
acter four  years  ago,  he  does  so  now  or  is  now  of  the  same  character,  it  is 
due  not  to  continuance,  but  to  repetition,  that  is,  habit.  It  is  because  the 
opinions  have  been  reenforced  by  frequently  thinking  in  the  same  way  and 
a  mental  disposition  has  thus  been  formed  that  we  find  them  now,  not  of 
the  same,  but  of  the  same  kind  only  stronger  and  more  fixed,  for  that  is  the 
legitimate  conclusion.  When,  however,  a -man's  habitual  disposition  is 
spoken  of,  it  must,  as  Mr.  Bradley  says,  be  taken  to  include  his  environment 
as  well  as  his  internal  feelings,  etc. ;  you  cannot  separate  him  from  his  sur- 
roundings and  assume  they  have  no  influence  on  him,  nor  can  }'ou  truly 
say  that  if  the  surroundings  change,  the  individual  will  remain  the  same. 
But  how  rarely  is  it  that  the  environment  does  not  alter  ?  Again,  a  man  is 
influenced  consciously  or  unconsciously  by  his  past,  which  is  not  a  constant 
quantity,  but  ever  changes. 

It  is  perhaps  truer  of  morality  than  of  intellectual  opinions  that  persons 
remain  the  same,  for  we  know  cases  of  men  who,  owing  to  their  morality, 
by  force  of  their  habitual  conduct  act  against  what  are  their  real  opinions. 
But  here,  also,  as  in  the  sphere  of  opinion,  so  much  depends  on  age,  surround- 
ing circumstances,  change  of  circumstances,  antl  the  like,  that  the  value  of 
the  presumption  appears  to  be  so  slight  as  hardly  to  be  worth  the  quoting. 
That  character  remains  the  same  would  seem  to  be  truer  of  some  races  than 
others  :  among  the  Burmans  it  is  notorious  that  a  man  may  be  good  one  year 
and  bad  the  next  to  an  extent  which  one  hardly  experiences  in  European 
countries.  This  is  doubtless  only  one  of  the  results  of  different  education 
and  surroundings  and  serves  to  show  how  little  they  can  be  neglected  in  es- 
timation of  character  and  its  changes.  For  the  character  depends  on  the 
habituated  self  and  the  conditions  we  meet  with,  and  as  neither  does  this 
self  cover  our  whole  nature  nor  can  we  exhaust  all  the  conditions  with  which 
we  may  meet,  there  is  always  the  possibility  of  a  change  in  character  and 
some  fresh  act.  It  is  only  part  of  the  facts  which  is  covered  by  "  same 
character  and  stimulus,  same  act."  The  self  no  doubt,  especially  as  we  grow 
older,  becomes  more  and  more  determined  and  so  tends  to  exclude  more  possi- 
bilities, and  external  conditions  may  become  more  or  less  permanent :  but 
this  is  not  enough.  This  fixedness  is  only  relative,  because  we  cannot  ex- 
haust all  possible  external  conditions  and  we  can  never  systematize  the  whole 
self. 


184  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  87. 

87.  Alexander  ]M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(1868.  pp.  323,  529.)  Moral  character,  mental  endowmctits,  and  social  j)osi- 
tion. 

By  moral  character  is  here  meant  the  possession,  habitual  practice,  and 
outward  exhibition  of  those  principles  and  that  disposition  which,  united, 
serve  most  eftectually  to  guard  the  mind  from  crime.  Thus,  on  a  charge 
of  theft,  a  known  character  of  unimpeached  honesty ;  on  a  charge  of  riotous 
assaidt,  a  known  disposition  of  uniform  gentleness,  severally  serve  to  raise 
the  suppositions  of  improbability  most  appropriate  to  the  defense  in  each 
case.    .   .   . 

Mental  endowments  and  attainments  constitute  another  source  of  those 
peculiar  motives  which  are  claimed  to  exercise  over  the  subject  of  them,  an 
influence  more  than  ordinarily  adequate  to  restrain  from  the  commission 
of  crime.  Of  these  it  may  be  said,  that,  apart  from  all  reference  to  moral 
qualities,  they  would  hardly  serve  to  guard  the  mind,  on  all  occasions,  from 
evil  seductions  and  impulses,  especially  as  they  have  been,  not  infrequently, 
found  to  exist  in  combination  with  utter  destitution  of  moral  principle. 
But,  with  this  qualification,  .  .  .  the  outward  associations  to  which  mental 
culture  naturally  leads,  —  the  society  of  the  wise,  the  good  and  the  learned, 
into  which  it  always  procures  admission  for  its  possessor,  and  the  varied 
connections  growing  out  of  it  on  every  side,  —  serve  to  give  double  force  to 
the  restraining  influences  which  have  been  enumerated. 

Lastly,  station  or  position  in  society  presents  another  and  very  obvious 
source  of  restraining  motives,  growing  out  of  peculiar  circumstances.  .  .  . 
Evidence  of  station  has  been  considered  by  Mr.  Bentham  to  be  pecul- 
iarly adapted  to  render  improbable  charges  of  petty  theft.  "  In  any  of 
the  civilized  nations  of  Europe,"  he  asks,  "  what  evidence  would  be 
sufficient  to  convict  a  prince  of  the  blood,  or  a  minister  of  state,  of  hav- 
ing picked  a  man's  pocket  of  a  dirty  handkerchief,  in  a  street,  or  in 
going  into  a  play-house  ?  "  3  Jud.  Evid.  210. 

But  however  strong  the  argument  in  this  form  may,  in  the  abstract,  be, 
it  is  always  subject  to  the  same  practical  consideration  which  has  been  ap- 
plied to  the  other  forms,  already  noticed  ;  namely,  that  restraining  motives 
of  the  class  in  question,  and  of  almost  the  highest  supposable  degree  of  power, 
have,  in  point  of  fact,  proved  whollj^  inadequate  to  resist  the  allurements  of 
unlawful  desire,  or  the  cogency  of  malignant  passion.  The  records  of  the  crimi- 
nal courts  of  all  nations  present  melancholy  examples,  of  how  high  social  and 
professional  position,  great  mental  attainments,  and  even  apparently  pure 
moral  character,  have  utterly  failed  as  safeguards  against  the  most  revolting 
crimes.  How  frequently  persons  of  station  have  abandoned  themselves 
to  murderous  impulses,  is  shown  by  such  cases  as  those  of  the  poisoners 
of  Sir  Thomas  Overbiuy,  Earl  Ferrers,  Major  Strangwayes,  Captain  Goodere, 
and  others,  in  England  ;  and  by  some  appalling  examples  of  recent  date,  in 
the  United  States.  That  the  same  circumstance  has  not  availed  to  deter 
from  the  commission  of  gainful  crimes  of  a  high  grade,  is  proved  by  such  cases 
as  that  of  Dr.  Dodd,  an  English  clergyman  of  high  standing,  who  was  con- 
victed of  forgery  in  1777,  and  underwent  the  extreme  penalty  of  the  law. 
The  failure  of  mental  attainments  to  hold  successfully  in  check  the  murder- 
ous propensity,  is  signally  instanced  in  the  celebrated  case  of  Eugene  Aram. 
But  the  worst  is  yet  to  be  stated  :  the  insufficiency,  namely,  of  even  seem- 


I 


No.  88.  IV.       PROOF   OF   HUMAN   ACT.       B.    1.    CHARACTER  185 

ingly  high  moral  and  rcligioiis  character,  to  subdue  unlawful  inclination,  in 
some  of  its  most  odious  forms.  .  .  .  The  assassination  of  Miss  Reay  by  the 
Rev.  Mr.  Hackman,  in  1779,  and  the  shocking  career  of  the  German  priest 
Riembauer,  occur  as  prominent  examples  among  others.  Like  the  conclusions 
arrived  at  by  courses  of  presumptive  reasoning  in  general,  the  inferences 
deducible  from  evidence  of  character  are  by  no  means  infallible,  but,  on 
the  contrary,  liable  to  more  or  less  of  error. 

The  great  practical  difficulty,  subject  to  be  encountered  in  the  application 
of  this  species  of  evidence,  consists  in  the  fundamental  fact  that  the  reputa- 
tion for  the  possession  of  the  particular  quality  in  question,  is  necessarily 
drawn  from  the  exterior  conduct  alone.  And  it  is  by  no  means  uniformly 
true  that  this  exterior  is  the  product  and  result  of  the  internal  causes  as- 
signed, upon  the  existence  of  which  its  value  obviously  entirely  depends. 
It  is  not  less  true  of  psychological  than  of  physical  facts,  that  appearances  are 
often  fallacious.  Cases  have  occurred  and  continue  to  occur  in  this  country 
as  well  as  abroad,  in  wdiich  crimes  of  the  highest  grade  have,  beyond  the 
possibility  of  doubt,  been  proved  against  individuals,  who,  down  to  the  very 
moment  of  their  discovery,  have  borne,  even  among  those  best  acquainted 
with  them,  not  only  good,  but  irreproachable  characters.  Men,  whose  repu- 
tation for  uprightness  in  dealing  has  been  almost  proverbial,  have  suddenly 
appeared  as  forgers  on  the  most  extensive  scale.  Men,  with  characters 
for  mildness  and  gentleness,  and  even  the  habitual  observance  of  religious 
duties,  have  appeared  as  the  perpetrators  of  atrocious  murders.  These 
instances  of  the  apparently  sudden  ruin  of  the  whole  moral  character,  which 
have  sometimes  astounded  entire  communities,  and  are  otherwise  so  inex- 
plicable, become  easy  of  explanation  on  the  assumption  that  what  appeared 
to  be  the  character,  and  was  so  "reputed,"  was  in  fact  a  mere  exterior, 
without  any  real  internal  foundation.  The  ruin  has  not  been  sudden,  but 
the  reverse.  The  real  character,  where  it  has  ever  been  good,  has,  for  some 
time,  been  secretly  corrupted,  and  would  have  discovered  itself  sooner,  had 
the  proper  occasion  sooner  occurred.  .  .  . 

Hence  the  rule,  as  practically  laid  down  by  the  courts,  that  character 
evidence  is  of  no  force  or  value  except  in  doubtful  cases. 

88.  UNITED  STATES  v.  ROUDENBUSH.  (1832.  Federal 
Circuit  Court.  Baldw.  524,  Fed.  Cas.  No.  16198.)  .  .  .  Baldwin,  J. — 
The  accused  is  allowed  to  give  evidence  of  his  general  good  character,  and  to 
avail  himself  of  it  to  rebut  the  presumption  of  a  corrupt  and  criminal  inten- 
tion in  passing  the  [counterfeit]  paper.  It  is  one  of  the  great  safeguards  of 
innocence,  and  never  fails  to  have  a  powerful  influence  with  the  jury ;  where 
there  is  any  doubt,  good  character  wi-U  outweigh  ordinary  presumptions  and 
circumstances  merely  suspicious.  But  if  the  evidence  is  clear  and  convinc- 
ing that  the  note  was  passed  knowing  it  to  be  counterfeit,  then,  however  bright 
his  character  may  have  been  previous  to  the  offense,  a  jury  must  look  only  to 
the  facts  and  law  of  the  case.  On  the  same  principle,  evidence  is  permitted 
to  be  given  of  the  character  of  his  relatives  and  connections  in  society,  and 
of  the  situation  of  his  family ;  but  these  are  circumstances  which  can  avail 
him  in  a  less  degree  only  in  cases  of  doubt ;  if  the  positive  or  circumstan- 
tial evidence  of  guilt  leaves  no  doubt  on  their  minds,  a  jury  could  not  suffer 
such  considerations  to  operate  without  violating  a  duty  which  should  be 


186  PART   I.       CIRCUMSTAXTIAL   EVIDENCE  No.  89. 

ever  held  sacred  in  courts  of  justice,  to  judge  alike,  and  by  the  same  rules, 
the  high  and  low,  the  rich  and  poor.  A  defendant's  standing  in  society 
gives  him  a  right  to  demand  from  you  the  most  favorable  construction  of  the 
acts  proved  upon  him,  which  the  law  permits  to  be  drawn ;  but  every 
dictate  of  public  justice,  the  peace,  interest,  and  safety  of  the  community, 
forbid  him  to  expect,  or  the  jury  to  grant  him  a  dispensation,  if  his  case 
comes  within  the  law.  ... 

The  rule  of  law  is  in  a  few  words  this :  Never  convict  rich  or  poor,  high 
or  low,  the  good  or  the  bad,  without  such  proof  of  guilt  as  satisfies  your 
minds  beyond  all  reasonable  doubt.  If  the  character  of  the  accused  is 
bad,  and  his  habits  vicious,  if  the  moral  principle  is  impaired  or  extinct, 
and  the  evidence  leaves  you  in  doubt  as  to  the  motive  with  which  the  act 
is  done,  you  may,  and  in  most  instances  will,  presume,  that  the  intention 
with  which  the  particular  act  is  done,  is  in  accordance  with  the  general 
tenor  of  his  character  and  conduct.  So  if  the  character  is  good,  you  will 
apply  the  rule  in  his  favor ;  but  when  the  evidence  is  clear,  either  way, 
character  is  out  of  the  question ;  you  cannot  convict  without,  or  acquit 
in  face  of,  the  evidence. 

89.  A.  C.  Plowden.  Grain,  or  Chaff;  The  Auiohiographi/  of  a  Police 
Magistrate.  (1903.  pp.  224,  228.)  If  I  have  carried  the  reader  at  all  with 
me  in  the  desultory  criticisms  I  have  made  on  a  Magistrate's  duties,  per- 
haps he  will  bear  with  me  a  little  longer  if  I  touch  on  certain  principles 
which  for  my  own  guidance  I  have  endeavored  to  follow  on  the  Bench. 
One  of  these  is  to  cultivate  humility ;  by  which  I  mean  no  more  than  to 
keep  constantly  ip  mind  the  fact  that  it  is  nothing  but  accident  which  dis- 
tinguishes me  from  the  man  I  have  to  judge,  and  which  determines  our 
relative  positions.  .  .  .  Where  is  the  man  in  the  whole  world,  saint  or 
sinner,  who  woidd  not  steal  a  loaf  of  bread  if  he  were  starving  and  if  he 
thought  he  could  steal  it  without  detection?  —  Opportunity  would  make 
him  a  thief.  ... 

There  is  another  principle  which  I  am  in  constant  dread  of  forgetting, 
viz.  never  to  allow  yourself  to  be  prejudiced  against  a  prisoner  by  reason 
of  his  personal  appearance  being,  in  your  ^•iew,  unprepossessing.  I  am 
convinced  there  is  nothing  more  dangerous.  It  is  difficult  to  see  a  face 
for  the  first  time  without  rapidly  drawing  from  it  some  inference,  favorable 
or  unfavorable;  but  I  am  sure  in  a  court  of  law  any  such  instinct  should 
be  jealously  watched.  Nothing  can  mislead  like  the  human  countenance. 
Behind  the  features  of  a  saint  may  lurk  the  hypocrisy  of  a  scoundrel,  and  a 
face  which  you  feel  sure  must  be  that  of  a  confirmed  criminal  may  really 
be  the  index  of  a  most  innocent  mind.  .  .  . 

Another  consideration  is,  that  however  often  a  prisoner  may  have  been 
convicted,  he  may  never  have  done  anything  very  heinous.  It  is  a  curi- 
ous feature  of  some  criminal  minds  that  their  imagination  never  travels 
beyond  the  temptation,  whatever  it  may  be,  that  first  assailed  them  and 
proved  too  much  for  their  virtue.  A  man  who  has  been  convicted  of  steal- 
ing an  umlirella  or  a  watch  will  go  on  stealing  uml)rellas  or  watches  with- 
out anything  else  tempting  him  in  the  least.  It  seems  rather  terrible  to 
think  that  a  man  who  has  stolen  a  dozen  difi'erent  umbrellas  on  a  dozen 
different  occasions  —  the  whole  value  being  perhaps  £5  —  must  undergo 


No.  90.  IV.       PROOF    OF   HUMAN    ACT.       B.    1.    CHARACTER  187 

years  of  penal  servitude  merely  because  every  previous  conviction  has  to 
count.  Quite  recently  I  have  had  such  a  man  before  me.  His  mania  — 
for  that  seems  the  right  word  for  it  —  was  to  steal  something,  however 
worthless,  from  a  public  house.  A  stray  article  in  the  bar  of  a  public 
house  had  for  him  a  greater  temptation  than  the  contents  of  a  jeweler's 
shop.  At  all  events  that  was  his  record.  Take  the  article,  whatever  it 
might  be,  to  the  window  of  the  "public"  and  drop  it  in  the  street  and  the 
temptation  would  end.  Lock  in  it  any  room  of  the  house,  and  the  prisoner 
would  break  the  door  to  get  at  it.  This  is,  in  fact,  what  he  had  done,  for 
he  was  charged  with  burglary  as  well  as  larceny. 

90.  A.  G.  W.  Carter.  The  Old  Court  House  [at  Cincinnati].  (1880. 
p.  257.) 

A  prosecuting  attorney  necessarily  has  a  great  deal  of  various,  curious, 
and  absolutely  funny  experience,  and  sometimes  it  partakes  a  little,  if  not 
quite,  of  the  romantic.  This  romantic-serious  incident  occurred  with 
me :  A  man  was  indicted  by  the  grand  jury  for  murder,  and  I  duly  pre- 
pared the  indictment,  and  it  was  reported  and  delivered  to  the  court. 
The  prisoner  was  brought  over  from  the  jail,  and  stood  up  for  arraignment, 
and  while  I  was  reading  the  indictment  to  him  I  recognized  him,  to  my 
great  surprise  and  astonishment,  as  once  in  bygone  times  a  boy  on  account 
of  whose  bold  badness  and  depravity,  I,  myself,  as  a  boy  had  predicted  and 
prophesied  of  him,  to  one  of  my  young  companions,  that  he  would  one 
day  come  to  the  gallows.  He  was  not  found  guilty  of  murder  in  the  first 
degree,  however,  but  he  was  found  guilty  of  the  crime  of  manslaughter, 
and  sent  to  the  penitentiary  for  a  long  term  of  years.  When  I  recognized 
him  in  my  arraignment  of  him,  I  was  at  once  impressed  with  the  prediction 
I  had  made  of  him  a  score  of  years  before,  and  it  was  with  some  difficulty 
that  I  proceeded  in  reading  the  indictment. 

On  another  occasion  I  was  engaged  in  reading  the  indictment  for  coun- 
terfeiting to  a  good-looking  prisoner,  on  his  being  arraigned  in  court,  when 
I  recognized  him  as  a  former  schoolmate  of  mine,  and  the  son  of  one  of  the 
old  citizens  of  this  city,  who  in  former  days  was  very  much  respected,  and 
so  departed  this  life.  The  prisoner  also  recognized  me,  and  it  was  with 
extreme  difficulty  that  he  could  keep  his  erect  position  in  the  prisoner's 
dock,  while  I  was  arraigning  him.  The  tears  came  to  his  eyes,  and  the  tears 
came  to  my  eyes ;  but  official  duty  must  be  attended  to,  and  it  prevailed 
over  feeling,  and  the  indictment  was  finished  and  the  prisoner  pleaded 
"  not  guilty,"  and  it  was  so  recorded.  But  this  was  not  all  —  my  feelings 
were  necessarily  further  tried.  I  had  to  do  my  duty  for  the  State  in  the 
long  and  tedious  trial  of  my  former  schoolmate  without  betraying  my  feel- 
ings, and  this  I  did,  and  the  prisoner  was  necessarily  found  guilty,  for  the 
evidence  was  plain  and  conclusive,  and  he  was  sentenced  for  a  term  of 
years  to  the  penitentiary  before  my  eyes,  and  sent  to  the  penitentiary. 
This  man  when  a  boy  was  so  good,  and  so  good  looking,  and  so  amiable  aad 
effeminate,  that  he  endeared  himself  to  all  his  school  companions,  both 
boys  and  girls,  indeed,  he  was  loved  and  treated  tenderly  by  the  boys 
almost  as  a  girl,  and  he  was  the  last  boy  in  the  world  that  any  one  would 
ever  have  dreamed  of  being  one  day  a  criminal,  or  a  convict  in  the  peniten- 
tiary.    But  so  it  was.     I  of  course  inquired  particularly  into  his  history 


ISS  PART   I.       CIRCUMSTANTIAL    EVIDENCE  No.  91. 

as  a  man  —  havin<]j  known  him  so  well  as  a  youth  —  and  found  out  the 
reason  of  his  downward  course.  In  his  young  manhood  he  had  become  an 
excellent  engraver,  and  was  doing  well  in  his  art  and  trade.  He  married. 
His  wife  proved  to  be  the  sister  of  a  notorious  counterfeiter,  and  had  helped 
her  brother  in  his  career  of  crime ;  but  tliis  was  not  known  for  a  long  time 
afterward  by  the  victim  of  their  wiles  and  coaxings.  Loving  his  wife,  and 
becoming  a  pot  companion  of  her  brother,  he  was  persuaded  to  embark  in 
the  business  of  counterfeiting  bank  notes  —  and  became  the  steady  en- 
graver of  a  band  of  counterfeiters  extending  from  Maine  to  Louisiana. 
He  was  at  last  found  out  with  the  unfortunate  results  above  detailed. 
Whatever  became  of  him  I  know  not. 

9L  H.  L.  Adam.  The  Story  of  Crime.  (19  — .  p.  222.)  .  .  .  The  bur- 
glar is  a  very  difficult  criminal  to  deal  with,  and  supplies  more  to  the  ranks 
of  the  "  habituals  "  than  any  other  class  of  criminal.  He  rarely  abandons  his 
nefarious  form  of  living,  it  seems  to  grow  upon  him,  and  immediately  he 
is  released  from  prison  he  sets  to  work  to  arrange  another  "burst"  (bur- 
glary). There  is  a  kind  of  brotherhood  among  "cracksmen,"  a  sort  of  bur- 
gling fraternity,  a  free-masonry  of  mutual  support,  which  is  difficult  to  tackle 
and  destroy.  They  seem  to  have  banded  themselves  into  a  community 
which  is  pledged  to  prey  upon  society.  ... 

Once  a  coiner  always  a  coiner.  That  may  be  taken  as  an  invariable 
rule.  Coining  seems  to  exercise  a  peculiar  fascination  over  the  "smasher," 
as  he  is  technically  termed.  A  very  consideral)le  portion  of  his  life  is  spent 
in  prison,  and  when  he  is  not  there  he  is  busy  making  counterfeit  coin, 
living  on  his  own  currency.  .  .  .  Let  us  take  a  more  general  view  of  these 
"mint  prosecutions,"  as  they  are  technically  termed.  We  will  take  the 
year  1898  as  an  example.  Of  the  116  prosecutions  71  were  metropolitan 
and  45  country.  There  were  14  acquittals  and  102  convictions,  3  of  the 
former  and  42  of  the  latter  being  country.  The  convictions  were  divided 
into  felonies  (38)  and  misdemeanors  (64),  being  the  distinction  between  the 
two  offenses  of  actual  coining  and  the  mere  uttering  or  passing.  Nearly 
all  the  felony  prisoners  had  previous  convictions  against  them,  many  of 
them  being  old  offenders  with  bad  records  —  living  confirmations  of  the 
proverb,  "once  a  coiner  always  a  coiner."  .  .  . 

It  sometimes  happens  that  the  police  are  convinced  in  their  own  minds 
that  a  certain  individual  is  guilty  of  a  certain  crime,  yet  in  the  absence  of 
direct  evidence  they  are  unable  to  arrest  him.  Habitual  criminals  get  to 
know  in  time  of  these  difficulties  in  the  way  of  the  prosecution,  and  en- 
deavor to  turn  it  to  good  account.  I  remember  a  man  being  charged  with 
suspicious  loitering  and  with  having  burgling  implements  in  his  possession. 
As  each  witness  for  the  prosecution  gave  his  evidence  the  prisoner  took 
him  in  hand  and  administered  a  severe  cross-examination.  His  knowledge 
of  legal  procedure  was  suspicious,  and  pointed  to  the  fact  that  he  must 
have  made  a  good  many  appearances  in  criminal  courts  to  have  acquired 
it.  The  judge,  of  course,  had  the  man's  past  record  before  him,  and  he 
looked  at  the  jury  with  a  peculiar  twinkle  in  his  eye,  as  much  as  to  say, 
"Just  wait  a  minute,  gentlemen,  and  you  will  find  he  will  say  just  a  little 
too  much."  Which,  verily,  he  did,  for  he  blurted  out  the  fact  that  because 
he  was  an  ex-convict  it  did  not  necessarily  follow  that  he  was  guilty  of  this 


No.  92. 


IV.       PROOF   OF   HUMAN   ACT.      B.    1.    CHARACTER 


189 


particular  crime.  Then  the  judge's  smile  broadened.  In  the  end  the  man 
was  convicted,  and  turned  out  to  be  an  old  jail  bird  with  a  very  imposing 
array  of  previous  convictions  behind  him. 


92.    WALTER  SHERIDAN'S  CASE.      (Arthur  Griffiths.      Mys- 


teries of  Police  and  Crime.  1898. 
That  we  are  potential  criminals  is 
proved  by  the  natural  proclivities 
of  the  young.  Criminal  instincts, 
more  or  less  strongly  developed,  are 
to  be  seen  in  all  children.  Anger, 
resentment,  mendacity,  destructive- 
ness,  acciuisitiveness,  are  evil  traits 
exhibited  by  most  of  them,  although 
in  many  happily  eradicated  by  care- 
^  ful  education.  "  It  is  the  mother's 
/Hpart,"  says  Dr.  Nicholson,  one  of 
1 1  our  best  writers  on  criminal  psy- 
I  chology,  "to  encourage  the  gradual 
growth  of  inhibitory  processes,  such 
as  prudence,  reflection,  and  a  sense 
of  moral  duty.  ...  In  proportion 
as  this  development  is  prevented 
or  stifled,  either  owing  to  original 
brain  defect  or  l)y  lack  of  proper 
education  and  training,  so  there  is 
the  risk  of  the  individual  lapsing 
into  criminal-mindedness  or  into 
actual  crime."  Criminals  are  manu- 
factured no  less  by  social  cross  pur- 
poses than  by  the  domestic  neglect 
which  fosters  the  first  fatal  predis- 
position. "  Assuredly  external  fac- 
tors and  circumstances  count  for 
much  in  the  causation  of  crime," 
tVsays  Maudsley.  The  preventive 
agencies  are  all  the  more  necessary 
where  heredity  emphasizes  the  uni- 
versal natural  tendency.  The  taint 
of  crime  is  all  the  more  potent  in 
those  whose  parentage  is  evil.  The 
germ  is  far  more  likely  to  flourish 
into  baleful  vitality  if  planted  by 
congenital  degeneracy.  This  is 
constantly  seen  with  the  offspring 
of  criminals.  But  it  is  equally 
certain  that  the  poison  may  be 
eradicated,  the  evil  stamped  out,  if 
better  influences  supervene  betimes. 
Even  the  most  ardent  supporters 
of  the  theory  of  the  "  born  criminal " 
admit  that  this,  as  some  think, 
apocryphal  monster,  although  pos- 
sessing all  the  fatal  characteristics. 


Vol.  I,  p.  2. 
need  not  necessarily  commit  crime. 
The  bias  may  be  checked.  It  may 
lie  latent  through  life,  unless  called 
into  activity  by  certain  unexpected 
conditions  of  time  and  chance.  An 
ingenious  refinement  of  the  old 
adage,  "Opportunity  makes  the 
thief,"  has  been  invented  by  an 
Italian  scientist,  Baron  Garofalo', 
who  has  written  that  "Opportunity 
only  reveals  ^le  thief";  it  does  not 
create  the  predisposition,  the  latent 
thievish  spirit.  .  .  . 

The  outside  public  maj^  think  that 
the  identity  of  that  later  miscreant, 
"Jack  the  Ripper,"  was  never  re- 
vealed. So  far  as  actual  knowledge 
goes,  this  is  undoubtedly  true.  But 
the  police,  after  the  last  murder,  had 
brought  their  investigations  to  the 
point  of  strongly  suspecting  several 
persons,  all  of  them  known  to  be 
homicidal  lunatics,  and  against  three 
of  these  they  held  very  plausible  and 
reasonable  grounds  of  suspicion. 
Concerning  two  of  them  the  case 
was  weak,  although  it  was  based  on 
certain  colorable  facts.  One  was  a 
Polish  Jew,  a  known  lunatic,  who 
was  at  large  in  the  district  of  \yhite- 
chapel  at  the  time  of  the  murder, 
and  who,  having  afterwards  devel- 
oped homicidal  tendencies,  was 
confined  in  an  asylum.  This  man 
was  said  to  resemble  the  murderer 
by  the  one  person  who  got  a  glimpse 
of  him  —  the  police  constable  in 
Mitre  Court.  The  second  possible 
criminal  was  a  Russian  doctor,  also 
insane,  who  had  been  a  convict 
both  in  England  and  Siberia.  This 
man  was  in  the  habit  of  carrying 
about  surgical  knives  and  instru- 
ments in  his  pockets  ;  his  antecedents 
wei'c  of  the  very  worst,  and  at  the 
time  of  the  Whitechapel  murders 
he  was  in  hiding,  or,  at  least,  his 
whereabouts    were    never    exactly 


190 


PART   I.       CIRCUMSTANTIAL    EVIDENCE 


No.  92. 


known.  The  third  person  was  of  the 
same  type,  but  the  suspicion  in  his 
case  was  stronger,  and  there  was 
ever}^  reason  to  beheve  that  his  own 
friends  entertained  grave  doubts 
about  him.  He  also  was  a'  doctor 
in  the  prime  of  Hfe ;  was  believed 
to  be  insane  or  on  the  borderland  of 
insanity,  and  he  disappeared  im- 
mediately after  the  last  murder, 
that  in  Miller's  Court,  on  the  9th 
of  November,  1888.  On  the  last 
day  of  that  year,  seven  weeks  later, 
his  body  was  found  floating  in  the 
Thames,  and  was  said  to  have  been 
in  the  water  a  month.  The  theory 
in  this  case  was  that  after  his  last 
exploit,  which  was  the^iiost  fiendish 
of  all,  his  brain  entirely  gave  way, 
and  he  became  furiously  insane  and 
committed  suicide.  It  is  at  least  a 
strong  presumption  that  "Jack  the 
Ripper"  died  or  was  put  under 
restraint  after  the  Miller's  Court 
affair,  which  ended  this  series  of 
crimes.  .  .  . 

The  regular  recurrence  of  certain 
crimes  and  the  reappearance  of  par- 
ticular types  or  criminals  has  been 
often  remarked  upon  by  those  who 
deal  with  judicial  records  ;  the  fact 
is  established  by  general  experience 
and  is  capable  of  abundant  proof. 
It  is  to  be  explained  in  part  by  hered- 
ity. The  child  follows  the  father, 
and  on  a  stronger  influence  than 
that  of  mere  imitativeness ;  and 
these  transmitted  tendencies  to 
crime  can  be  illustrated  by  many 
well-authenticated  cases,  where 
whole  families  have  been  criminals 
generation  after  generation.  There 
is  the  famous,  or  infamous,  family 
of  the  Jukes,  a  prolific  race  of  crimi- 
nals, starting  from  a  vagabond 
father  and  five  of  his  disreputable 
daughters.  The  Jukes'  descendants 
in  less  than  a  hundred  years  num- 
bered twelve  hundred  individuals, 
all  of  them  more  or  less  evincing 
the  criminal  taint.  These  facts 
have  been  brought  out  by  the 
patient  investigation  of  Mr.  Dugdale, 
an  American  scientist.  An  old  case 
is  recorded  of  a   Yorkshire  family. 


the  Dunhills,  the  head  of  which 
spread  terror  through  the  East 
Riding  as  the  chief  of  a  band  of 
burglars.  This  Snowdon  Dunhill, 
by  name,  was  convicted  in  1813  for 
robbing  a  granary,  and  sentenced 
to  seven  years'  transportation.  He 
returned  from  the  Antipodes  to  earn 
a  second  sentence  of  exile,  and  his 
son  was  at  the  same  time  sentenced 
to  transportation.  One  of  his  sisters. 
Rose  Dunhill,  was  twice  imprisoned 
for  larceny ;  another,  Sarah,  had 
been  repeatedly  convicted  for  pick- 
ing pockets,  and  was  finally  sent 
across  the  water  for  seven  .years. 
It  may  be  incidentally  stated  as 
showing  the  contamination  of  evil 
that  nearly  all  who  came  into  as- 
sociation with  the  Dunhills  felt  the 
baneful  influence  of  the  familj'. 
Dunhill 's  wife  was  transported ;  so 
were  Rose  Dunhill's  two  husbands 
and  Sarah's  three.  .  .  .  There  is  a 
village  in  the  south  of  Italy  which 
has  been  a  nest  and  focus  of  crimi- 
nals for  centuries.  The  natives  are 
mostly  related  to  each  other  by  in- 
termarriage, and  all  seem  bound  by 
tradition  to  prey  upon  their  fellows. 
Again,  in  the  Madras  Presidency,  at 
Trichinopoly,  a  whole  caste  of 
thieves  existed,  one  and  all  vowed  to 
various  kinds  of  crime,  and  the  prac- 
tice of  crime  by  certain  Indian  tribes 
generation  after  generation  is  well 
known  to  Indian  police  officers.  .  .  . 

I  propose  to  show  now  from  a 
numl)erof  selected  cases  how  thieves, 
swindlers,  depredators,  murderers, 
and  all  kinds  and  classes  of  criminals 
who  make  mankind  their  prey,  have 
l)een  reproduced  again  and  again.  .  .  . 
The  sharper  follows  out  his  long 
career  of  successful  fraud  and  impos- 
ture century  after  century.  Such 
men  as  Hatfield,  Collet,  Coster, 
Sheriflan,  Benson,  Shinburn,  All- 
meyer,  are  the  seemingly  inevitable 
recurrence  of  one  and  the  same 
type.  ... 

Walfcr  Sheridan.  —  One  of  the 
most  successful  of  modern  criminal 
adventurers  has  been  the  American, 
Walter  Sheridan,  who  was  said  to  be 


No.  92. 


IV.       PROOF   OF   HUMAN    ACT.       B.    1.    CHARACTER 


191 


the  originator  of  the  Great  Bank  of 
England  forgeries  for  which  the 
Biclwells  were  afterwards  punished. 
.  .  .  Sheridan  is  a  typical  modern  i 
criminal,  having  great  natural  gifts, 
unerring  instincts  in  divining  profit- 
able operations,  uncommon  quick- 
ness and  astuteness  in  planning 
details  and  executing  them.  No  one 
has  better  utilized  to  his  own  ad- 
vantage the  numberless  chances 
offered  by  the  intricate  machinery  of 
modern  trade  and  finance.  He  be- 
gan in  the  lower  lines  of  fraud. 
Full  of  an  evil,  adventurous  spirit, 
he  ran  away  from  his  home,  a  small 
farm  in  Ohio,  when  only  a  boy, 
resolved  to  seek  fortune  by  any 
means  in  the  busy  centers  of  life. 
St.  Louis  was  his  first  point ;  here 
he  at  once  fell  into  bad  company, 
and  became  associated  with  des- 
peradoes, especially  those  engaged 
in  the  confidence  trick.  But  in 
1S5S,  when  just  twenty,  he  was 
caught  and  tried  for  horse  stealing, 
and  just  before  sentence  escaped  to 
Chicago,  where  he  became  the  pupil 
of  a  certain  Joe  Moran,  a  noted 
hotel  thief,  with  whom  he  worked 
the  hotels  around  very  profitably 
for  two  or  three  years,  but  was  at 
last  arrested  and  "did  time."  On 
his  release,  Moran  being  dead, 
Sheridan  took  up  a  higher  line  of 
business  and  became  a  "  bank 
sneak,"  the  clever  thief  who  robs 
banks  by  bounce  or  stratagem, 
being  greatly  aided  in  the  business 
by  a  fine  presence  and  insinuating 
address.  He  was  the  life  and  soul 
of  the  gang  he  joined,  the  brains 
and  leader  of  his  associates,  and  his 
successes  were  many  in  this  direct- 
tion.  With  two  confederates  he 
robbed  the  First  National  Bank,  of 
Springfield,  Illinois,  obtaining  some 
$35,000  from  the  vaults.  Next  he  H 
secured  $50,000  from  a  fire  insur-  ' 
ance  company.  Again  $37,000  from 
the  Mechanics'  Bank  of  Scranton. 
A  very  few  years  of  this  made  him  a 
rich  man,  and  he  was  supposed  to  be 
worth  some  £15,000  to  £20,000  by 
1867.     He   had    gone    latterly   into 


partnership  with  the  notorious 
George  Williams,  commonly  called 
"English  George,"  a  well-known 
depredator  and  bank  thief.  About 
this  time  he  participated  in  the 
plunder  of  the  Maryland  Fire  In- 
surance Company  of  Baltimore,  and 
fingered  a  large  part  of  the  $75,000 
taken,  in  money  and  negotiable 
bonds,  not  one  cent  of  which  was 
ever  recovered.  One  of  his  neatest 
thefts  was  the  relieving  of  Judge 
Blatchford,  of  New  York,  of  a 
wallet  containing  $75,000  worth  of 
bonds.  Misfortune  overtook  him 
at  last,  and  he  failed  in  his  attempt 
to  rob  the  First  National  Bank  of 
Cleveland,  Ohio,  in  1870.  One  of 
his  confederates  had  laid  hands  on 
$32,000,  but  was  caught  in  the  act 
of  carrying  off  the  packages  of  notes, 
and  Sheridan  was  arrested  as  an 
accomplice.  He  was  very  virtu- 
ously indignant  at  this  shameful  im- 
putation, and  his  bail  was  accord- 
ingly accepted  for  $7000,  which  he 
at  once  sacrificed  and  fled.  But 
now  the  famous  Pinker  ton  de- 
tectives were  put  upon  his  track. 
Allan  Pinkerton,  who  was  assisted 
by  his  son  William,  soon  ascertained 
that  Sherdian  owned  a  prosperous 
hotel  at  Hudson,  Michigan.  .  .  . 
Sheridan  al)out  this  time  came  in 
person  to  his  hotel  to  visit  his  rela- 
tives. The  Pinkertons  did  not  lay 
hands  on  him  here  among  his  friends, 
but  they  shadowed  him  closely  when 
he  moved  on,  and  by  and  by  cap- 
tured him  at  Sandusky,  Ohio.  He 
was  taken  to  Chicago,  but  made  a 
desperate  attempt  to  escape,  which 
was  foiled,  and  he  was  eventually 
put  upon  his  trial.  He  retained  the 
very  best  legal  advice,  paid  large 
sums  —  no  less  than  £4000  —  in 
fees,  and  was  eventually  acquitted 
through  the  clever  use  of  technicali- 
ties in  the  law.  Sheridan,  after  this 
narrow  escape  from  well-merited 
retribution,  went  "East,"  and  orga- 
nized fresh  depredations  in  new 
localities.  They  were  often  on  the 
most  gigantic  scale,  thanks  to  his 
wonderful  genius  for  evil.     The  rob- 


192 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  93. 


bery  of  the  Falls  City  Tobacco  Bank 
realized  plunder  to  the  value  of 
£60,000  to  his  gang,  and  Sheridan, 
now  at  the  very  pinnacle  of  his  crimi- 
nal career,  must  have  himself  been 
worth  (juite  £")0,000. 

In  these  days  he  made  a  great 
external  show  of  respectability,  and 
cultivated  good  business  and  social 
relations.  They  aided  him  in  the 
still  larger  schemes  of  forgery  on 
which  he  now  entered,  the  largest 
ever  known  in  the  United  States, 
and  which  comprised  the  most  gigan- 
tic creation  of  false  securities  and 
bonds.  It  w^as  an  extraordinary 
undertaking,  slowly  and  elaborately 
prepared.  ...  It  is  generally  be- 
lieved that  the  total  losses  incurred 
by  the  companies  and  institutions 
on  whom  Sheridan  forged  amounted 
to  nearly  a  million  of  money.  Many 
Wall  Street  brokers  and  a  number  of 
private  investors  were  ruined  utterly 
by  these  wholesale  frauds.  A  little 
before  the  discovery  Sheridan  quietly 
gathered  all  his  assets  together, 
divided  the  spoil,  and  crossed  to 
Europe,  carrying  with  him  £40,000 
worth  of  the  forged  bonds,  some  of 
which  he  put  upon  the  European 
markets.  .  .  .  But  he  could  not 
keep    away  from    America,  and  he 


presently  went  back  to  his  fate, 
which  w'as  the  entire  loss  of  his 
ill-gotten  gains.  Under  the  name 
of  Walter  A.  Stewart,  he  turned  up 
at  Denver  as  a  florist  and  market 
gardener  doing  a  large  business.  He 
presently  established  a  bank  of  his 
own  and  was  caught  by  the  specula- 
tive mania ;  he  took  to  the  wildest 
gambling  in  mining  stock,  and  by 
degrees  lost  every  penny  he  possessed. 
After  this  it  was  believed  that  he 
w^ould  organize  a  fresh  series  of 
forgeries,  and  he  was  closely  watched 
by  the  Pinkertons.  They  arrested 
him  as  he  landed  from  the  Penn- 
syhania  ferryboat.  He  was  brought 
to  trial  on  no  less  than  eighty-two 
indictments,  including  the  New 
York  forgeries,  and  was  sentenced 
to  five  years'  imprisonment  in 
Sing  Sing.  After  that  he  was  again 
arrested  for  stealing  a  box  of  dia- 
monds, and  yet  again,  as  John 
Holcom,  for  being  in  possession  of 
counterfeit  United  States  bills.  He 
received  two  fresh  sentences,  follow- 
ing one  close  on  the  other,  and,  as 
his  health  was  already  failing  when 
last  apprehended,  it  is  probable  that 
he  did  not  long  survive.  Now,  at 
an}^  rate,  the  curtain  has  fallen  upon 
him  and  his  criminal  career. 


93.    THE  POSTMAN'S  CASE. 

cacy.  Amer.  ed.  1892.  p.  204.) 
A  postman  was  indicted  for  steal- 
ing a  shilling.  A  second  indictment 
charged  him  with  obtaining  it  by 
false  pretenses,  with  intent  to  de- 
fraud. This  w-as  the  charge  upon 
which  he  was  tried. 

Evidence  :  He  received  as  a  letter 
carrier  on  the  10th  of  April  from 
the  post  office,  a  letter  to  deliver  on 
his  ordinary  round.  It  was  directed 
"  Miss  Brown,  No.  50  Graham 
street."  The  letter  was  a  soldier's 
letter  from  Zululand,  and  was  en- 
titled to  come  post  free.  The  pris- 
oner inquired  of  a  Mrs.  Smith 
where  Miss  Brown  li\ed,  as  she  had 
removed  from  No.  oO.  Mrs.  Smith 
would     show    him.      The    prisoner 


(Richard  Harris.     Hints  on  Advo- 

said,  "There  is  a  shilling  to  pay." 
Some  one,  but  not  the  post-office 
authorities,  had  marked  the  letter 
one  shilling  in  pencil ;  evidence 
tended  to  prove  prisoner  had  marked 
it  himself. 

Mrs.  Smith  took  the  prisoner  to  a 
i\Irs.  Jones  and  said  that  was  where 
Miss  Brown  had  removed  to.  On 
arriving,  Mrs.  Smith  said  to  Mrs. 
Jones,  "  Here  is  a  letter  for  Miss 
Brown  and  there  is  a  shilling  to  pay," 
whereupon  the  prisoner  handed  in 
tile  letter  and  received  the  shilHng ; 
Mrs.  Jones  remarking  that  Miss 
Brown  would  be  only  too  glad  to  pay 
the  shilling,  for  "  the  letter  was  one 
she  was  expecting  from  her  brother 


No.  93. 


IV.      PROOF    OF   HUMAN   ACT.       B.    1.    CHARACTER 


193 


from  the  wars."  Mrs.  Smith  said 
jocularly,  "  Let  us  spend  the  shill- 
ing." "No,"  answered  the  con- 
scientious postman,  "it  does  not 
belong  to  me,  I  have  got  to  pay  it  in." 

Both  these  witnesses  knew  the 
prisoner ;  and  the  would-be  spend- 
thrift, Smith,  knew  him  well,  as 
would  seem  from  her  familiarity. 
A  day  or  two  after,  the  prisoner  was 
on  his  round  and  again  saw  the  wit- 
nesses, whom  one  might  not  irrever- 
ently call  the  "  merry  wives,"  and 
Miss  Brown.  Mrs.  Smith  said, 
"This  is  the  postman  who  brought 
that  letter  from  Zululand."  "  Yes," 
answered  the  prisoner,  "and  if  it 
hadn't  been  for  me  she  would  never 
have  had  it  at  all,  for  it  had  been 
kicking  about  for  several  days." 

The  prisoner  was  identified  by 
several  witnesses,  by  a  whole  popu- 
lation one  might  say.  It  was  a 
Government  Prosecution. 

Two  months  after,  in  consequence 
of  Miss  Brown  reporting  to  the  post- 
office  authorities  the  circumstances 
above  stated,  a  letter  was  addressed 
by  them  to  the  prisoner  calling  his 
attention  to  the  facts  and  asking  for 
an  explanation. 

The  prisoner  replied  (and  his 
letter  was  in  evidence),  that,  un- 
doubtedly, he  must  have  been  on 
that  district  at  the  time  and  on  the 
particular  delivery  when  the  letter 
was  given  out,  but  he  had  no  recol- 
lection of  it  at  all,  and  certainly 
never  received  the  shilling.  This  abso- 
lute denial  of  receiving  the  money 
was  the  awkward  point  in  the  case. 
The  post-office  sheets  were  produced 
to  prove  the  non-payment  over  by 
the  prisoner. 

This  was  the  case  for  the  prose- 
cution, except  the  witnesses  to 
identify ;  and  certainly,  on  paper,  it 
looks  a  somewhat  hopeless  one  to 
defend. 

The  counsel  for  the  defense  com- 
menced cross-examining  as  to  iden- 
tity ;  the  prosecution  having  taken 
trouble  to  call  so  many  witnesses 
to  this  point,  it  was  worth  disputing, 
as  you  will  see.     It  was  made  the 


chief  point  on  behalf  of  the  Crown. 
If  they  established  that,  all  other 
defenses  seemed  hopeless  —  so  they 
established  it.  .  .  .  It  was  cross- 
examined  to  so  far  as  two  or  three 
witnesses  were  concerned  and  then 
dropped. 

The  points  elicited  in  cross-exami- 
nation were  these : 

1.  The  letter  had  been  given  out 
by  the  post-office  authorities  on  the 
morning  in  question  without  being 
stamped  —  an  oversight  on  their 
part. 

2.  There  was  another  oversight 
on  the  part  of  the  authorities  at 
another  post  office  with  regard  to  the 
same  letter. 

3.  There  was  nothing  to  show  it 
was  a  soldier's  letter  and  entitled  to 
come  free. 

4.  The  prisoner  might  under  the 
circumstances  have  thought  a  shil- 
ling was  due  upon  it,  which  would  be 
the  postage  from  Zululand. 

5.  If  he  had  charged  a  shilling  and 
then  paid  it  over,  it  would,  although 
irregular,  have  been  the  right  and 
proper  thing  to  do. 

6.  The  sheet  for  the  11th  of 
April  was  not  produced,  and  al- 
though the  shilling  did  not  appear 
in  the  pay  sheet  of  the  10th,  the 
witness  would  not  absolutely  swear 
it  was  never  paid  in.  (Probabilities, 
however,  strong  the  other  way,  inas- 
much as  prisoner  said  //(•  had  never 
had  it.) 

7.  The  post  office  was  sometimes 
guilty  of  oversights,  and  the  failure 
to  enter  the  shilling  might  have  been 
one. 

8.  The  prisoner  might  by  an 
oversight  have  omitted  to  pay  it  over. 

9.  His  attention  was  not  called 
to  the  circumstances  till  two  months 
after. 

10.  Multitudes  of  letters,  some 
requiring  payment,  others  not,  had 
passed  through  his  hands  since  that 
time. 

11.  His  frank  avowal  that  he 
must  have  received  the  letter  but 
did  not  remember  the  circum- 
stances. .  .  . 


194 


PART   I.       CIRCUMSTANTIAL    EVIDEXCE 


No.  04. 


The  real  question  was,  whether 
the  accused,  who  bore  a  most  ex- 
cellent character,  and  had  been  in 
the  service  of  the  post  office  for  ten 
years,  had  received  the  .shilling  ^cHh 
inicnt  to  defraud,  or  whether  he  had 
received  it  and  forgotten  to  pay  it 
over,  or  whether  indeed  he  may  not 
even  have  paid  it  over  and  its  entry 
be  on  some  other  sheet.  It  was  not 
probable  that  a  young  man  with  so 
valuable  a  character  would  sell  it 
for  a  shilling. 

Witnesses  to  the  young  man's 
goodness  were  called,  and  the 
jury  without  hesitation  acquitted. 
Those  minor  incidents  and  trifling 
theories,  which  looked  so  insignificant 
Mdiile  the}^  were  being  blown  about 
by  a  breezy  cross-examination,  took 
root  at  last,  nevertheless,  and  grew 
to  be  such  great  probabilities,  under 
the  ripening  influence  of  a  warm  and 
genial  speech.  And  then  character 
lit  them  all  up  with  such  pleasant 
sunshine  that  the  jury  could  never 
look  on  the  dungeon  shadows  again 
—  and  so  acquitted. 

This  was  at  first  a  dreadfully  woe- 
begone case  to  look  at ;  but  where 
character  is  to  be  had,  bad  cases  in 
appearance  are  scarcely  ever  alto- 
gether hopeless.      And  it  might  be 


here  remarked  that  in  calling  wit- 
nesses to  character,  it  is  better,  in 
my  opinion,  to  call  many  than  few. 
One  snowflake  may  not  be  whiter 
than  another,  but  an  accunudation 
of  flakes  gives  weight  and  consist- 
ency, and  sometimes  irresistibility. 
It  is  often  said  by  the  judge,  "  You 
cannot  carry  character  any  higher, 
Mr.  Jones,  can  you,  if  you  call 
twenty  ?  "  No,  my  lord,  not  so  far  as 
your  logical  mind  is  concerned  ;  and 
to  your  lordship  the  forty-seventh 
proposition  might  be  abundantly 
clear  by  the  ordinary  process  of  dem- 
onstration ;  but  the  jury  might 
like  to  see  the  two  squares  measured 
and  cut  up,  and  placed  on  the  big 
one.  How,  then,  my  lord  ?  In  that 
case  I  would  say,  call  your  witnesses ; 
two  or  three  of  them  may  not  huve 
made  much  impression,  but  here 
comes  one  between  whom  and  some 
of  the  jury  there  may  l)e  a  l)ond  of 
sympathy  or  good-fellowship,  or  of 
some  other  equally  excellent  ma- 
terial ;  and  they  may  attach  very 
great  weight  to  his  opinion,  and  very 
little  to  the  opinion  of  some  of  the 
.others.  I  would  therefore  say,  call 
'iall  your  witucssrs  fo  character,  —  es- 
/'pecially  if  you  have  got  nothing  else 
to  rely  upon. 


94.    THE     SELF-SACRIFICING     BROTHER'S    CASE.     (Anon. 


Green  Bag.  1891.  Vol.  Ill,  p.  8.) 
Years  ago  (said  one  of  the  well- 
known  members  of  the  Louisville 
Bar),  I  was  called  on  to  defend  a 
man  of  nearly  middle  age,  who  was 
accused  of  having  stabbed  a  man 
in  a  quarrel  on  the  street.  Imagine 
my  astonishment  when  at  the  first 
consultation  he  told  me  these  facts  : 
"Yesterday  afternoon,"  said  he, 
"about  dusk,  my  brother,  who 
resembles  me  somewhat,  was  crossing 
the  street,  when  he  met  a  stranger 
coming  the  other  way.  The  crossing 
was  muddy,  the  stranger  jostled  him, 
and  a  quarrel  ensued  that  developed 
into  a  fight,  in  which  my  brother, 
who  had  his  pen-knife  in  his  hand, 
stabbed  his  opponent  several  times, 


and  then  ran  away  as  a  police- 
man and  several  citizens  came  up. 
After  we  were  all  in  bed  last  night, 
the  officers  came  to  the  house  after 
the  assailant ;  and  much  to  my  sur- 
prise, the  warrant  was  made  out 
against  me.  My  brother  is  a  man 
of  dissipated  habits,  who  has  several 
times  been  in  trouble ;  and  if  this 
case  is  pressed  against  him  I  am 
afraid  he  will  be  sent  to  the  peni- 
tentiary. On  the  other  hand,  I 
am  a  law-abiding  citizen,  and  can 
prove  an  excellent  character.  Now, 
what  I  propose  to  do  is  to  stand 
trial  on  this  charge,  plead  not  guilty, 
prove  an  alibi,  — as  I  can,  —  prove 
my  character,  and  take  the  conse- 


No.  95. 


IV.       PROOF    OF   HUMAN   ACT.       B.    1.    CHARACTER 


195 


quences.  If  I  am  convicted,  I 
may  get  off  with  a  fine,  and  I  am 
willing  to  pay  that  to  keep  my 
brother  out  of  prison."  I  tried  to 
persuade  my  client  out  of  such  a 
romantic  proceeding;  but  he  was 
determined,  and  in  order  to  do  him 
justice  in  the  defense,  I  obtained 
the  assistance  of  another  lawyer, 
who  did  not  know  the  facts,  and 
would  act  in  the  defense  as  if  our 
client  were  guilty.  Well,  the  case 
came  up.  My  client  was  identified 
by  the  man  who  had  been  stabbed 
and  by  the  policeman  and  other 
disinterested  parties  who  had  wit- 
nessed the  fight  in  the  semidarkness 
and  were  sure  of  their  man,  as  they 
thought.  My  client  swore  that  he 
did  not  commit  the  assault,  but  that 
he  was  at  home  at  the  time  when  it 
occurred ;  and  his  family  swore  to 
that  fact.  Then  several  leading  mem- 


bers of  the  church  testified  as  to  his 
good  character.  But  the  jury  found 
him  guilty  and  fined  him  fifty  dollars. 
He  paid  it  without  a  murmur,  and 
the  record  of  his  conviction  stands  in 
the  orders  of  the  court.  All  through 
the  trial  my  client's  guilty  brother 
sat  by  his  side  in  the  court  and  heard 
the  testimony  without  flinching. 
I  asked  him  what  he  would  have 
done  if  his  self-sacrificing  brother 
had  been  sentenced  to  the  peni- 
tentiary. "I  intended  in  that 
event,"  said  he,  "to  get  up  in  court 
and  acknowledge  my  own  guilt." 

The  other  lawyer  was  thunder- 
struck after  the  trial,  when  I  told 
him  the  facts.  He  refused  to  believe 
it,  and  said  the  evidence  was 
sufficient  to  convict  any  man  who 
lived.  Only  the  proof  of  good 
character  saved  the  accused  from  a 
severe  sentence  to  the  state  prison. 


95.    EUGENE  ARAM'S  CASE. 

of  Crime,      ed.  1891.      Vol.  I,  p.  168 

This  is  perhaps  the  most  remark- 
able trial  in  our  whole  Calendar. 
The  offender  was  a  man  of  extraor- 
dinary endowments  and  of  high 
education,  and  therefore  little  to 
be  suspected  of  committing  so  foul 
a  crime  as  that  proved  against  him. 
Much  has  been  written  upon  the 
subject  of  this  murder,  and  attempts 
have  been  made,  even  of  late  years, 
to  show  the  innocence  of  Aram. 
The  contents  of  the  publications 
upon  the  subject  would  be  sufficient 
of  themselves  to  fill  our  volumes.  .  .  . 
The  peculiarities  of  the  case  are 
twofold ;  first,  the  great  talents  of 
the  offender,  and,  secondly,  the 
extraordinary  discovery  of  the  per- 
petration of  the  murder,  and  of  the 
evidence  which  led  to  the  conviction 
of  the  murderer.  .  .  .  That  a  man 
possessing  powers  of  intellect  so 
great  should  have  been  guilty  of 
such  a  crime  as  that  which  he  com- 
mitted, seems  most  extraordinary.  [ 
Eugene  Aram  was  born  at  the  i 
village  of  Netherdale,  in  Ycwkshire, 
in  the  year  1704,  of  an  ancient  and 


(Camden  Pelham.     The  Chronicles  - 

highly  respectable  family ;  but  al- 
though it  is  shown  by  the  chronicles 
that  one  of  his  ancestors  served  the 
office  of  high  sheriff  in  the  reign  of 
Edward  the  Third,  it  appears  that 
at  the  time  of  the  birth  of  Eugene, 
the  vicissitudes  of  fortune  had  so  far 
reduced  its  rank,  that  his  father 
was  compelled  to  support  himself 
and  his  children  by  working  as  a 
gardener  in  the  house  of  Sir  Edward 
Blackett.  .  .  .  Eugene  was  emplo^^ed 
as  an  attendant  upon  that  gentle- 
man, and  he  early  displayed  a  taste 
for  literature,  which  was  fostered 
and  supported  by  his  indulgent 
master.  His  disposition  was  soli- 
tary, and  every  leisure  hour  which 
presented  itself  to  him  was  devoted 
to  retirement  and  study ;  and  in  the 
employment  which  good  fortune 
had  bestowed  upon  him,  ample 
opportunities  were  afforded  him  of 
following  the  bent  of  his  inclinations. 
He  applied  himself  chiefly  to  mathe- 
matics, and  at  the  age  of  sixteen  he 
had  acquired  a  considerable  pro- 
ficiency in  them.   .  .  .       The  politer 


190 


PART    1.       CIRCUMSTAXTIAL   EVIDENCE 


No.  05. 


subjects  of  poetry,  history,  and  antiq- 
uities next  engaged  his  attention. 
E\ery  day  serveil  to  increase  the 
store  of  kno\vk''dge  wliich  he  pos- 
sessed, and  his  fame  as  a  scholar 
having  now  extended  to  his  native 
place,  he  was  invited  to  take  charge 
of  a  scliool  tliere.  The  means  of 
stutiy  and  of  profit  appeared  to  him 
to  be  thus  united,  and  he  immediately 
a  -cepted  the  oiler  which  was  made; 
anil  after  a  short  time  he  married  a 
young  woman  of  the  village,  to 
whom  he  appeared  tenderly  attached. 
To  this  marriage,  however,  which 
proved  unhappy,  he  attributed  all 
his  subsequent  misfortunes ;  but 
whether  with  truth  or  not,  the 
course  of  the  narrative  does  not 
distinctly  disclose.  His  deficiency 
in  the  learned  languages  now  struck 
him,  and  he  immediately  set  about 
conquering  the  difHculties  which 
presented  themselves  in  this  new 
field  of  research  ;  and  so  rapid  was 
his  progress,  that  ere  a  year  had 
passed,  he  was  able  to  read  with  ease 
the  less  flifficult  of  the  Latin  andGreek 
historians  and  poets.  In  the  year 
\7'M  an  opportunity  was  afforded  him 
of  ad<linga  knowledge  of  the  Hebrew 
language  to  his  list  of  ac(|uirements  ; 
for  in  that  year  Mr.  William  Norton, 
of  Knaresborough,  a  gentleman 
of  great  talents,  who  had  conceived 
a  strong  attachment  towards  him, 
invited  him  to  his  hou.se,  and 
alVorded  him  the  means  necessary 
for  pursuing  its  study.  He  con- 
tinuerl  in  his  situation  in  Yorkshire 
until  the  year  174.1,  when  he  again 
visite«l  lyondon,  and  accepted  an 
engagement  in  the  school  of  the 
Rev.  Mr.  Plainblanc,  in  Piccadilly, 
as  usher  in  Latin  and  writing;  and, 
with  this  gentleman's  assistance,  he 
actpiired  the  knowledgeof  the  French 
language.  H«'  was  afterwards  em- 
ployed as  an  usher  an<l  tutor  in 
several  different  parts  of  England  ; 
in  the  course  of  which,  through  his 
own  exerti«»ns,  he  became  accpiainted 
with  heraldry  and  botany;  and  so 
great  was  his  perseverance,  that  he 
al.so  learned  the  Chaldaic  and  .\rabic 


languages.  His  next  step  w-as  to 
investigate  the  Celtic  in  all  its 
dialects;  and,  having  begun  to 
form  collections,  and  make  compari- 
sons between  the  Celtic,  the  English, 
the  Latin,  the  Greek,  and  the  He- 
brew, and  found  a  great  affinity 
between  them,  he  resolved  to  pro- 
ceed through  all  those  languages, 
and  to  form  a  comparative  lexicon. 
Daniel  Clarke  was  a  shoemaker, 
living  at  Knaresborough ;  and  it 
appears  that  this  unfortunate  man, 
having  lately  married  a  woman  of  a 
good  family,  industriously  circu- 
lated a  report  that  his  wife  was 
entitled  to  a  considerable  fortune, 
which  he  should  soon  receive.  Aram 
and  Houseman,  in  consequence, 
conceiving  hopes  of  procuring  some 
advantage  from  this  circumstance, 
persuaded  Clarke  to  make  an  osten- 
tatious show  of  his  own  riches,  in 
order  to  induce  his  wife's  relations 
to  give  him  that  fortune  of  which  he 
had  boasted.  It  is  not  impossible 
that  in  giving  their  subsequent 
victim  this  advice,  they  may  at  the 
time  have  acted  from  a  spirit  of 
friendship.  .  .  .  Clarke,  it  seems,  was 
easily  induced  to  comply  with  a  hint 
so  agreeal)le  to  his  own  desires ; 
and  he  borrowed,  and  bought  on 
credit,  a  large  quantity  of  silver 
plate,  with  jewels,  watches,  rings, 
etc.  He  told  the  persons  of  whom 
he  purchased,  that  a  merchant  in 
London  had  sent  him  an  order  to 
buy  such  plate  for  exportation  ;  and 
no  doubt  was  entertained  of  his 
credit  till  his  sudden  disappearance 
in  February,  1745,  when  it  was 
imagined  that  he  had  gone  abroad, 
or  at  least  to  London,  to  dispose  of 
his  ill-acquired  property.  What- 
ever doubt  may  exist  as  to  the 
original  intention  of  the  parties, 
their  object  at  this  time  is  per- 
fectly clear,  and  there  can  be  no 
hesitation  in  supposing  that  Aram 
and  Houseman  had  at  this  time 
determined  to  nmrder  their  dupe,  in 
order  to  share  the  booty.  On  the 
night  of  the  8th  February,  1745, 
they    persuaded    Clarke   to   take   a 


Xo.  9.5. 


IV.      PROOF   OF   HUMAN    ACT.      B.    1.    CHARACTER 


197 


walk  with  them,  in  order  to  consult 
upon  the  proper  method  to  dispose 
of  the  effects ;  and,  engaged  in  the 
discussion  of  this  subject,  they 
turned  into  a  field,  at  a  small  dis- 
tance from  the  town,  well  known  by 
the  name  of  St.  Robert's  Cave.  On 
their  arrival  there,  Aram  and  Clarke 
went  over  a  hedge  towards  the  cave  ; 
and  when  they  had  got  within  six 
or  seven  yards  of  it,  Houseman 
(by  the  light  of  the  moon)  saw 
Aram  strike  Clarke  several  times, 
and  at  length  beheld  him  fall,  but 
never  saw  him  afterwards. 

These  were  the  facts  immedi- 
ately connected  with  the  murder, 
which  were  proved  at  the  tiial  by 
Houseman,  who  was  admitted 
King's  evidence ;  and,  whatever 
were  the  subsequent  proceedings  of 
the  parties  in  respect  of  the  body, 
they  must  remain  a  mystery.  The 
murderers,  going  home,  shared 
Clarke's  ill-gotten  treasure,  the 
half  of  which  Houseman  concealed 
in  his  garden  for  a  twelvemonth, 
and  then  took  it  to  Scotland,  where 
he  sold  it.  In  the  meantime  Aram 
carried  his  share  to  London,  where 
he  sold  it  to  a  Jew,  and  then  re- 
turned to  his  engagement  with  Mr. 
Plainblanc,  in  Piccadilly.  Fourteen 
years  afterwards  elapsed,  and  no 
tidings  being  received  of  Aram,  it 
was  concluded  that  he  was  dead ; 
and  these  fourteen  years  had  also 
elapsed  without  any  clew  being 
obtained  to  unravel  the  mystery  of 
the  sudden  disappearance  of  Clarke. 

The  time  at  length  came,  however, 
at  which  all  the  doubts  which  existed 
upon  both  subjects  were  to  be 
solved.  In  the  year  1758,  a  laborer 
named  Jones  was  employed  to  dig 
for  stone  in  St.  Robert's  Cave, 
in  order  to  supply  a  limekiln  at  a 
place  called  Thistle  Hill,  near 
Knaresborough ;  and  having  dug 
about  two  feet  deep,  he  found  the 
bones  of  a  human  body,  still  knit 
together  by  the  ligaments  of  the 
joints.  It  had  evidently  been  buried 
double ;  and  there  were  indications 
about  it  which  could  not  but  lead 


to  the  supposition  that  some  unfair 
means  had  been  resorted  to  in  order 
to  deprive  the  living  being  of  life. 
The  incident  afforded  good  grounds 
for  general  curiosity  being  raised,  and 
general  inquiry  taking  place ;  and 
hints  were  soon  thrown  out  that  it 
might  be  the  body  of  Clarke,  whose 
unexpected  disappearance  was  still 
fresh  in  the  memory  of  many,  and 
whose  continued  absence  had  been 
the  subject  of  so  much  surprise. 
Suggestions  of  his  murder  which 
had  been  thrown  out  by  Aram's  wife 
were  called  to  mind,  and  a  coroner's 
inquest  being  held,  she  was  sum- 
moned. By  this  time  a  general 
impression  prevailed  that  the  re- 
mains found  were  those  of  Clarke, 
and  the  testimony  of  Mrs.  Aram 
greatly  confirmed  the  idea  which  had 
gone  abroad.  She  deposed  that 
she  believed  that  Clarke  had  been 
murdered  by  Houseman  and  her 
husband,  and  that  they  had  ac- 
quired considerable  booty  for  the 
crime ;  but  she  was  unable  to  give 
any  account  of  her  husband,  or  to 
state  whether  he  still  was  in  existence 
or  not.  Inquiries  being  made,  how- 
ever, Houseman  was  soon  found ; 
and  on  his  being  brought  forward 
to  be  examined,  he  exhibited  the 
utmost  confusion.  The  coroner  de- 
sired that  he  would  take  up  one  of 
the  bones,  probably  with  a  view  of 
seeing  what  eft'ect  such  a  proceeding 
would  produce ;  and  upon  his  doing 
so,  he  showed  still  further  terror, 
and  exclaimed,  "This  is  no  more 
Daniel  Clarke's  bone  than  it  is 
mine  !"  The  suspicions  which  were 
already  entertained  of  his  guilt  were, 
in  a  great  measure,  confirmed  by 
this  observation  ;  and  it  was  gener- 
ally believed  that  he  knew  the 
precise  spot  where  the  real  remains 
of  the  murdered  man  were  de- 
posited, even  if  he  had  not  been  a 
party  to  their  interment.  He  was 
therefore  strictly  qustioned ;  and 
after  many  attempts  at  evasion, 
he  said  that  Clarke  was  murdered 
by  Eugene  Aram,  and  that  his  body 
was   buried  in   St.   Robert's   Cave, 


198 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  95. 


but  that  the  heatl  hiy  further  to  the 
riglit  in  the  turn  near  the  entrance 
of  the  cavern  than  the  spot  where 
the  skeleton  produced  was  found. 
Search  was  immediately  made,  and 
a  skeleton  was  found  in  a  situation 
corresponding  exactly  with  that 
which  had  been  pointed  out.  In 
consequence  of  this  confession  an 
inquiry  was  immediately  set  on 
foot  for  Aram,  and  after  a  consider- 
able time  he  was  discovered,  occupy- 
ing the  situation  of  usher  in  a  school 
at  Lynn  in  Norfolk. 

He  was  immediately  apprehended 
and  conveyed  in  custody  to  York 
Castle ;  and  on  the  13th  of  August, 
1759,  he  was  brought  to  trial  at  the 
assizes  before  Mr.  Justice  Noel.   .   .   . 

Aram's  defense  was  both  in- 
genious and  able,  and  would  not 
have  disgraced  any  of  the  best 
lawyers  of  the  day.  It  is  a  curious 
and  interesting  address,  and  we 
subjoin  it  as  affording  the  best 
criterion  of  the  talents  of  the  prisoner 
which  can  well  be  adduced.  He 
thus  addressed  the  court : 

"My  lord,  —  I  know  not  whether 
ii  is  of  right  or  through  some  indul- 
gence of  your  lordship  that  I  am 
allowed  the  liberty  at  this  bar,  and 
at  this  time,  to  attempt  a  defense, 
incapable  and  uninstructed  as  I 
am  to  speak ;  since,  while  I  see  so 
many  eyes  upon  me,  so  numerous 
anfl  awful  a  concourse  fixed  with 
attention  and  filled  with  I  know 
not  what  expectancy,  I  labor  not 
with  guilt,  my  lord,  but  with  per- 
plexity;  for  having  never  seen  a 
court  but  this,  being  wholly  un- 
acquainted with  hnv,  the  customs 
of  the  bar,  anfl  all  judiciary  pro- 
ceedings, I  fear  I  shall  be  so  little 
capable  of  speaking  with  propriety 
in  this  place,  that  it  exceeds  my 
hope  if  I  shall  be  al)Ie  to  speak  at  all. 

"I     have    heard,     my     lord,     the 
indictment  read,  wherein  I  find  my- 
self charged  with  the  highest  crime, 
with  an  enormity   I  am  altogether 


incapable  of ;  a  fact,  to  the  com- 
mission of  which  there  goes  far  more 
insensibility  of  heart,  more  profli- 
gacy of  morals,  than  ever  fell  to 
my  lot ;  and  nothing  possibly  could 
have  admitted  a  presumption  of 
this  nature  but  a  depravity  noi 
inferior  to  that  imputed  to  me. 
However,  as  I  stand  indicted  at 
your  lordship's  bar,  and  have  heard 
what  is  called  evidence  adduced  in 
support  of  such  a  charge,  I  very 
hvnnbly  solicit  your  lordship's  pa- 
tience, and  beg  the  hearing  of  this 
respectable  audience. 

"My  lord,  the  whole  tenor  of  my 
conduct  in  life  contradicts  every 
particular  of  the  indictment :  yet 
had  I  never  said  this,  did  not  my 
present  circumstances  extort  it  from 
me,  and  seem  to  make  it  necessary. 
Permit  me  here,  my  lord,  to  call 
upon  malignity  itself,  so  long  and 
cruelly  busied  in  this  prosecution, 
to  charge  upon  me  any  immorality 
of  which  prejudice  was  not  the 
author.  No,  my  lord,  I  concerted 
no  schemes  of  fraud,  projected  no 
violence,  injured  no  man's  person 
or  property.  My  days  were  honestly 
laborious,  my  nights  intensely  studi- 
ous ;  and  I  humbly  conceive  my 
notice  of  this,  especially  at  this 
time,  will  not  be  thought  imper- 
tinent or  unseasonble,  but,  at 
least,  deserving  some  attention  ;  be- 
cause, my  lord,  that  any  person, 
after  a  temperate  use  of  life,  a 
series  of  thinking  and  acting  regu- 
larly, and  without  one  single  devia- 
tion from  sobriety,  should  plunge 
into  the  very  depth  of  profligacy 
precipitately  and  at  once,  is  alto- 
gether improbable  and  unprece- 
dented, and  absolutely  inconsistent 
with  the  course  of  things.  Man- 
kind is  never  corrupted  at  once. 
\'illainy  is  always  progressive,  and 
declines  from  right,  step  by  step, 
till  every  regard  of  probity  is  lost, 
and  every  sense  of  all  moral  obliga- 
tion totally  perishes." 


IV.       PROOF   OF   HUMAN   ACT.      B.    1.    CHARACTER 


199 


I 


96.    LEOPOLD  REDPATH'S 

Failures,   and  Frauds.      1859.      p. 

One  of  the  most  extraordinary 
instances  of  successful  swindling, 
combined  with  a  high  moral  reputa- 
tion and  a  truly  benevolent  career, 
is  that  of  Leopold  Redpath.  Ne\er 
was  money  obtained  with  more 
wicked  subtlety ;  never  was  it 
spent  more  charitably.  The  thief 
and  desperate  criminal  were  so 
intertwined  with  the  philanthropist, 
that  his  character  presents  an  ad- 
mirable study  for  the  metaphysician. 
A  greater  rogue,  so  far  as  robbery 
is  concerned,  it  were  difficult  to  find  ; 
nor  a  more  amiable  and  polished 
benefactor  to  the  poor  and  the 
friendless.  .  .  . 

The  earlier  antecedents  of  Red- 
path's  career  present  no  features  of 
unusual  interest.  .  .  .  He  received 
a  fair  education,  and  evinced  good 
taste  in  artistic  matters,  the  latter 
subsequently  displayed  with  reckless 
extravagance.  He  possessed  also 
sound  information  on  ordinary  top- 
ics, and  a  good  capacity  for  business. 
Having  no  friends  to  push  him 
onward  in  life,  he  had  to  struggle 
successively  with  difficulties  which 
fall  to  the  common  lot.  .  .  .  On 
the  starting  of  the  Peninsular  and 
Oriental  Steam  Navigation  Com- 
pany, Redpath  secured  the  position 
of  clerk  in  the  establishment.  His 
salary  was  a  fair  one,  but  not 
adequate  to  Redpath's  now  growing 
ambition.  .  .  .  Leaving  the  Penin- 
sular and  Oriental  Company,  Red- 
path  struck  out  into  a  new  field 
on  his  own  account  and  set  up 
business  as  an  insurance  broker 
in  Lime  Street,  City.  And  now 
began  that  career  of  spurious  philan- 
thropy and  affected  piety  which  Ls 
so  remarkable  a  feature  in  his 
character.  His  house  at  Blackheath 
soon  became  known  as  the  residence 
of  a  gentleman  whose  name  might 
be  reckoned  on  for  addition  to  any 
charitable  subscription  list.  Highly 
moral  in  his  external  character, 
affecting   a  veneration   for   religion 


CASE.      (D.  MoRiER  Evans.     Facts, 

432.) 

which  he  never  felt,  he  was  regarded 
as  a  model  man.  An  ardent  ad- 
vocate of  every  benevolent  scheme 
which  was  set  on  foot,  he  became 
also  a  willing  supporter  of  it.  .  .  . 
He  was  ambitious  to  be  talked  of  as 
a  kind-hearted,  bene\olent,  chari- 
table gentleman,  whose  hand,  heart, 
and  purse  were  ever  open.  And  all 
this  time  he  was  trading  in  philan- 
thropy with  the  capital  of  others. 
With  an  affable  blandness  of  de- 
meanor he  gave  away  the  property 
of  his  creditors,  for  his  career  as  an 
insurance  broker  was  a  short  one. 
Being  more  generous  than  just,  in 
less  than  three  months  he  became  a 
bankrupt,  with  liabilities  to  the 
extent  of  £5000,  and  assets  a  mere 
nothing.  .  .  .  The  auctioneer's  in- 
evitable hammer  cruelly  struck  down 
his  suburban  establishment,  and 
swept  away  the  luxuries  and  re- 
finements of  his  home.  But  Red- 
path  was  not  the  man  to  be  crushed 
by  an  auctioneer's  hammer.  At 
the  age  of  about  thirty-five  he  ob- 
tained the  appointment  of  clerk  in 
the  service  of  the  Great  Northern 
Railway  Company.  His  first  situa- 
tion here  was  quite  a  subordinate 
one  ...  as  assistant  to  the  regis- 
trar, Mr.  Clarke. 

How  soon  after  his  appointment 
Redpath  entered  on  that  reckless  path 
of  crime  which  led  him  to  ignominy 
and  isolation  from  his  fellow  men, 
is  not  accurately  known ;  but  it  is 
certain  that  he  speedily  resumed 
that  luxurious  style  of  living  which 
was  the  acme  of  his  ambition.  .  .  . 
IMeanwhile,  his  principal,  Mr.  Clarke, 
had  retired  from  his  position  as 
registrar,  and  Redpath  reigned  in 
his  stead.  The  directors  did  not 
place  him  there  without  reason. 
He  had  already  proved  himself 
adequate  to  the  situation,  and  had 
devoted  himself  to  the  duties  of 
the  department  with  assiduity.  The 
moment  he  had  secured  the  control 
of   the  department,  he  rushed   for- 


203 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  96. 


ward  desperately  in  his  career  of 
crime.  His  previous  frauds  —  sup- 
posing that  he  had  committed 
any  —  were  ver\-  tri\ial  to  those  he 
now  practiced.  Looking  back  upon 
the  trickery  of  this  consummate 
rogue,  it  seems  scarcely  credible 
that  his  crimes  should  have  been 
.so  easily  perpetrated,  and  should 
have  remained  so  long  undiscovered. 
Hut  Redpath  was  a  clever  swindler, 
and  the  directors  were  unsuspecting. 
His  facilities  for  the  commission 
of  robbery  were  great,  and  he  used 
them  with  diabolical  skill.  .  .  .  The 
mode  in  which  the  extensive  for- 
geries were  committed  was  this.  It 
was  sub.sequently  shown,  for  in- 
stance, that  a  deed,  Xo.  3023,  was 
forged,  the  amount  represented 
being  £312  lO.v.  This  deed  would 
have  entitled  a  Mr.  John  Morris,  of 
Manningtree,  to  transfer  his  interest 
in  that  stock,  had  he  gone  with  it  to 
a  stockbroker.  The  person  pur- 
porting to  attest  was  a  gentleman 
named  Shaw,  represented  by  the 
deetj  to  belong  to  the  same  neighbor- 
hof)d.  The  transfer  was  made  by 
Redpath  to  his  own  name,  and  sold 
through  his  own  stockbroker,  the 
forger  receiving  the  amount  rep- 
resented. On  the  trial,  Mr.  Henry 
-Vtterbury,  a  clerk  in  the  Great 
Northern  Railway  Company,  thus 
testified  to  the  system  of  fraud 
referred  to :  "  I  produce  a  transfer, 
dated  May  7,  1S.")2,  the  number  of 
which  is  3()23,  and  it  purports  to  be 
a  transfer  from  John  Morris  to 
William  Henry  Hammond,  of  £312 
lO.y.  of  the  B  stock  of  t'le  company. 
In  this  entry,  the  names  of  Morris, 
the  transferer,  and  that  of  Timothy 
Shaw,  the  attesting  witness,  are,  I 
believe,  in  the  handwriting  of  the 
pri.soner  Redj)atli.  .  .  ."  The  wit- 
ness then  detailed  (»thcr  -entries  in 
which  the  name  of  Morris  and  of  the 
subscribing  witness  were  in  the 
prisoner's  handwriting;  the  result 
of  his  e\idence  being  to  show  tliat 
the  total  amount  of  the  fraudulent 
entries  upon  both  sitles  of  Morris's 
account    alone,    was    £17,(»()().      Hut 


Redpath  was  quite  a  connoisseur  in 
the  art  of  forgery,  and  had  more 
methods  than  one.  Another  mode 
of  robbery  was  elicited  in  evidence 
on  the  trial.  Redpath  purchased 
in  April,  1853,  two  separate  amounts 
of  stock  of  £500  and  £250  respec- 
tively. The  sellers  duly  transferred 
them  to  him,  and  they  w'ere  entered 
to  his  credit  in  the  register.  It 
should  be  observed,  that  w^hen  a 
transfer  is  made  and  registered,  the 
buyer  receives  a  certificate,  termed 
a  coupon,  for  the  amount  of  stock 
transferred.  This  coupon  is  signed 
by  the  transfer  clerk;  it  is  then 
supposed  to  be  compared  with  the 
original  transfer,  and  with  the 
entry  in  the  registry,  by  the  secre- 
tary, who  countersigns  it ;  and  it  is 
then  deli^■ered  to  the  purchaser  of 
the  stock,  as  his  evidence  of  title. 
In  Redpath's  case  it  was  found 
that  he  Had  placed  a  figure  of  1 
before  each  of  the  above-named 
amounts,  converting  them  into 
£1500  and  £1250,  respectively,  thus 
creating  £2000  of  A  stock  in  his 
own    favor.  Fifty-two    transfers 

were  thus  made  into  his  own  name, 
and  ten  out  of  it.  Now  although  he 
had  falsified  the  register,  the  coupon 
w^ould  not  tally  with  it,  and  as  the 
coupon  must  accompany  the  trans- 
fer in  selling  the  stock,  that  had 
also  to  be  altered.  .  .  .  Redpath 
now  saw  a  perfect  Golconda  before 
him,  that  required  very  little  labor; 
and,  in  some  respects,  very  little 
skill  to  work.   .   .   . 

HoW'  the  thousands  thus  easily 
acquired  were  disbursed,  is  a  very 
interesting  study.  It  w-as  not 
squandered  in  gidd}^  dissipation. 
Redpath  kept  no  mistress;  he 
was  never  known  to  gamble;  the 
gentry  of  the  turf  found  no  easy 
prey  in  him.  No,  he  w-as  a  re- 
spectable man  —  a  highly  respect- 
able man.  .  .  .  Nor  was  this  charac- 
ter apparently  undeserved.  It  must 
be  confessetl,  that  to  his  other 
qualifications  Redpath  added  the  tact 
of  the  consummate  actor.  He  thor- 
oughly  deceived    the    world ;     nay, 


No.  96. 


IV.       PROOF    OF   HUMAN   ACT.       B.    1.    CHARACTER 


201 


his  life  was  so  far  an  acted  lie, 
that  it  may  well  be  believed  that 
he  even  deceived  himself.  .  .  .  His 
house  in  Chester  Terrace  was  mag- 
nificently furnished  with  everything 
that  a  luxurious  ambition  in  middle 
life  could  desire,  and  with  all  that  a 
refined  taste  could  suggest.  Here  he 
set  up  his  carriage,  keeping  a  groom 
as  well  as  a  coachman.  The  arrange- 
ments of  his  household  were  on  a 
liberal  scale  —  the  liberality  that 
disburses  other  people's  money.  A 
butler  superintended  his  cellar  of 
choice  wines  ;  a  footman  awaited  his 
lightest  wants  ;  and  five  or  six  female 
domestics  shared  in  the  splendor  of 
his  residence.  .  .  .  But  the  pleas- 
ures of  the  table  and  of  refined 
company  were  not  the  only  delights 
in  which  Redpath  indulged.  With 
him  charity  was  an  amusement,  a 
passion,  and  a  source  of  patronage 
which  brought  him  flattery  and 
fair  friends.  Persevering  secreta- 
ries found  in  him  a  pliant  gentleman, 
who  was  ever  ready  to  place  his 
name  upon  the  subscription  list 
for  a  new  church,  a  fancy  bazaar  for 
a  school,  or  a  fund  for  an  orphan  or 
widow.  He  was,  amongst  other 
positions,  a  governor  and  one  of 
the  managing  committee  or  almoners 
of  Christ's  Hospital,  and  a  governor 
of  the  St.  Ann's  Society,  an  admi- 
rable institution  for  the  children  of 
those  once  in  prosperity.  .  .  .  There 
was,  doubtless,  much  ostentation 
in  all  this  ;  for  to  believe  that  a  man 
who  was  daily  engaged  in  craftily 
forging  transfer  deeds  for  the  sake 
of  wealth,  could  be  constantly 
actuated  by  the  generous  feeling  of 
true  charity,  is  to  believe  a  sham. 
Redpath's  was  a  spurious  charity,  a 
hollow  mockery  of  benevolence. 
And  yet  it  is  hard  to  suspect  that 
the  genuine  warmth  of  true  benev- 
olence did  not  sometimes  actuate 
his  movements.  He  has  been  known 
to  seek  out  some  poor  widow  who 
was  trying  to  get  her  boy  into  a 
school,  sympathize  with  her 
struggles,  and  generously  relieve  her 
necessities  in  so  kind   a  way  as   to 


make  the  mother's  heart  to  leap 
for  joy.  .  .  .  Thus  was  this  anoma- 
lous double  life  pursued,  forgery 
and  fraud  keeping  pace  with  luxury 
and  benevolence.  The  directors  of 
the  Great  Northern  Railway  Com- 
pany were  unsuspicious  of  the  real 
sources  of  his  wealth.  Their  clerk 
had  the  reputation  of  a  successful 
speculator,  and  the  salary  which  he 
received  was  supposed  to  be  regarded 
by  them  as  merely  another  string 
to  his  bow.  .  .  . 

An  incident  occurred,  however, 
which  suddenly'  startled  them  into 
a  knowledge  of  the  reckless  extrav- 
agance of  Redpath's  life.  Mr. 
Denison,  the  chairman  of  the  line, 
was  standing  on  a  station  platform, 

conversing  with  Lord  D ,  when 

Redpath  happened  to  come  up,  and 
lifted  his  hat  to  Mr.  Denison.  The 
nobleman,  however,  was  on  easier 
terms.  Taking  Redpath  cordially 
by  the  hand,  "  Ah,  my  dear  fellow," 
said  he,  "how  are  you?"  Having 
parted,    the    chairman    turned    to 

Lord    D ,   and   asketl   what    he 

knew  of  their  clerk.  "Oh,"  said 
he,  "  he  is  the  jolliest  fellow  in  life ; 
he  gives  the  most  sumptuous  dinners 
and  capital  balls  that  I  know  of." 
This  was  an  omindfts  rencontre  for 
Redpath ;  and,  coupled  with  the 
then  agitated  state  of  the  share- 
holding community,  it  was  deter- 
mined to  scrupulously  examine  the 
books  of  the  company.  This  course 
once  decided,  it  was  deemed  ad- 
visable to  begin  the  investigation' 
from  an  early  date,  and  a  distinct 
department  was  created  for  the 
purpose.  The  officials  instructed 
to  carry  out  this  process  first  met 
on  November  15,  1856.  A  day  or 
two  after,  when  the  actual  inquiry 
was  being  commenced,  Redpath 
came  into  the  room,  and  asked 
what  they  were  going  to  do.  "To 
go  through  all  the  accounts,"  said 
the  head  of  the  department,  "from 
the  commencement  of  the  com- 
pany." "That  is  perfectly  useless," 
said  the  thunderstricken  Redpath, 
smothering     his     emotion ;       "  you 


202 


PART   I.       CIRCUMSTANTIAL    EVIDENCE 


No.  97. 


will  finti  all  tiie  accounts  right  in 
the  gross,  and  it  is  of  no  use  entering 
into  special  details."  Finding  this 
feeble  remonstrance  unavailing,  and 
not  daring,  of  course,  to  lu-ge  the 
matter,  Redpath  carelessly  took  up 
a  hook  and  threw  it  down  again, 
remarking,  "Well,  if  that  is  your 
intention,  I  will  have  nothing  to  do 
with  it ;  anil  if  this  course  is  per- 
severed in,  I  shall  resign."  He 
then  made  some  excuse  to  leave  for 
a  few  minutes.  He  went,  but 
never  returned.  .  .  . 

They  found  the  accomplished 
forger,  sitting  at  breakfast,  between 
ten  and  eleven,  and  he  was  im- 
mediately given  into  custody.  .  .  . 
On  the  morning  of  Thursday,  Janu- 
ary 15,  1S57,  the  Central  Criminal 
Court  was  densely  crow-ded.  .  .  . 
Mr.  Serjeant  Parry,  for  Redpath, 
endeavored  to  show  that  he  had 
merely  followed  out  a  system  which, 
the  learned  Serjeant  alleged,  was 
pursued  by  railway  directors  gener- 


ally —  that  of  dealing  in  the  com- 
pany's stock  in  other  parties '  names. 
It  was  contended,  in  fact,  that  the 
transfers  were  dealings  in  genuine 
stock,  and  that  Redpath  was  sought 
to  be  made  a  scapegoat  for  the 
whole  of  the  higher  officials ;  but  of 
course,  any  such  assumption  w^as 
fabulous.  Mr.  Justice  Willes,  in 
summing  up,  clearl}'  analyzed  the 
circumstances,  and  stated  that  the 
question  for  the  jury  was,  whether 
the  instrument  before  them  was  a 
real  or  a  fictitious  transfer,  and 
whether  it  had  been  executed  by 
tlie  prisoner  for  the  purpose  of 
fraud.  The  jury  saw  this,  and  after 
a  few  minutes'  deliberation,  without 
leaving  the  box,  returned,  what 
was  naturally  expected,  a  verdict 
of  guilty.  .  .  .  His  lordship  then 
passed  upon  the  wretched  criminal 
what  many  persons  consider  the 
heaviest  sentence  which  can  be  pro- 
nounced —  transportation  beyond 
the  seas  for  the  term  of  natural  life. 


07.    CASE    OF    B.    (Arthur 
Man.      HK);i.      p.  510.      U.  S.  Sen. 

Received  July  25,  1887 ;    offense, 

';  age,  1 1 ;  eyes,  brown  ;  clothing, 

fair ;  resides  wilih  parents ;  never  in 
the  almshouse ;    at  police  court  of 

on  complaint  of ;   weight, 

34  kilos ;  height,  1371  mm. ;  hair, 
brown;  education,  second  reader; 
previous  arrests,  two  or  three  for 
stealing  and  staying  out ;  never  in 
orphan  asylum,  but  in  reform 
school ;  three  months  ago  was  in 
Catholic  protectory  and  assigned  to 
knitting  department,  first  clivision. 
Parents  :  Father,  intemperate,  dock 
laborer;  he  does  not  know  whether 
any  of  them  were  arrested ;  no 
stepfather  or  stepmother;  father, 
Irish  Catholic;  family  consisting  of 
two  boys  and  two  girls. 

June*    20,     1SS9 :     Height,     1428 
mm. ;    in  chest,  723  mm.     April  2, 

'  [This  and  tho  lu-xt  case  are  intendcfl  as  exprcisr-s  in  speculating  from  the  person's 
rharacttT-n-cord  what  tho  offensy  would  probably  be  for  whifh  he  is  now  imprisoned.  The 
ca«i-8  should  first  be  studied  with  that  question  in  mind.  Then  in  a  footnote  at  the  end 
of  No.  9«  will  be  found  tiie  answers  to  Nos.  97  and  98.  —  En.] 


MacDonald.     Man    and    Abnormal 
Doc.  187,  58th  Cong.  3d  Sess.) 
1890,  he  was  intrusted  to  the  care 
of  his  mother. 

June  21,  1890,  when  recommitted 

by  police  court  for .     Weight, 

41  kilos  ;  height,  1485  mm. ;  clothes, 
good. 

Record  of  Complaints  against  him 
while  in  Reformatory.  —  1888,  May 
14 :  Leaving  the  line  while  re- 
turning from  chapel  last  Sunday 
morning;  not  going  on  the  yard. 
(Pleads  guilty,  case  held  open.) 

May  21  :  Running  around  the 
yard  with  two  others,  shouting  and 
making  all  the  noise  they  could ; 
woulfl  not  come  when  called  ;  refused 
to  go  on  parade  ;  kept  running  luitil 
I  caught  and  locked  them  up. 
(Sunday,  pleads  guilty.) 

May  22,  by  watchman :  Dis- 
orderly in  the  yard,  kicking  stones 


Xo.  97. 


IV.       PROOF    OF   HUMAN    ACT.       B.    1.    CHARACTER 


203 


up  against  the  shop  windows  while 
on  parade.  (Punished  with  a  strap, 
.")  blows,  1  week,  pleads  guilty.) 

May  23  :  In  company  with  other 
boys  entered  knitting  shop ;  ma- 
chines tampered  with ;  a  few  articles 
were  missing.  (Five  to  ten  strokes 
with  a  strap,  8  weeks.) 

May  31 :  Throwing  his  window 
frame  out  of  the  door ;  spoken  to 
many  times  about  being  disorderl}^ 
(Five  blows  with  a  strap,  1  week, 
pleads  guilty.) 

July  15 :  Loud  and  disorderly 
after  whistle  was  blown  for  parade ; 
crowding  where  there  was  no  room 
for  him,  and  when  asked  to  go  to 
another  place  did  not  do  it  until  I 
insisted  on  it,  then  he  was  ver}' 
insolent ;  also  fought  with  another 
boy.     (Pleads  guilty.) 

July  16  :  Disorderly  in  wash  room 
and  training  room  almost  every 
day.     (Five  blows  with  strap.) 

July  21 :  Leaving  dormitory  and 
going  to  others ;  also  generally 
disorderly ;  impossible  to  keep  him 
in    his  dormitory.     (Pleads  guilty.) 

August  28  :  Taking  the  plate  of 
hash,  and  refusing  the  rest  of  the 
boys  to  have  any ;  would  not  stand 
up.     (One  week.) 

September  6 :  Disorderly  on 
parade ;  scuffling  on  the  bench  in 
the  yard. 

September  17:  Burglarizing  with 
another  boy  while  on  parade. 

September  18 :  Kicking  another 
boy.     (Excused,  with  reprimand.) 

September  19 :  Throwing  a  hat 
about  the  sleeping  hall,  and  lying 
about  it.  (Reprimanded.)  Other 
complaints  on  September  21,  Octo- 
ber 4,  October  10,  October  15, 
October  31,  November  13,  Novem- 
ber 22. 

November  25  :  Rank  impudence 
and  insubordination ;  demanded  a 
ticket  to  hospital  in  impudent 
manner;  he  was  told  to  wait  and 
see  ISIr.  K. ;  was  very  impudent. 
(Punished  with  strap,  1  week.) 
Other  complaints  December  15, 
December  18,  December  20. 

December  29  :   Going  to  bed  with 


his  clothes  and  stockings  on,  which 
I  had  forbidden.  (Admits  it,  1  week.) 
(In  an  interview  he  said  he  was  cold 
and  so  kept  dressed.) 

1889,  January  9:  Talking  on 
parade  in  lavatory.  (Admits  it,  2 
weeks.) 

January  15 :  Stealing  a  pair  of 
second  badge  pants  from  boy  "S." 
Other  complaints  January  16,  Janu- 
ary 22,  January  29,  February  1, 
February  11,  Februarv  16,  March 
30,  April  12,  April  16,  April  22. 

April  28-29 :  Having  four  keys 
in  his  pocket  and  tobacco ;  one 
key  fitting  drawer  in  an  officer's 
room,  which  has  been  opened  several 
times  and  articles  taken  out.  (Pun- 
ished with  strap.)  Other  complaints 
May  2,  IVIay  22. 

May  31 :  Disorderly  in  ranks 
when  boys  were  marching  to  dormi- 
tory, getting  out  of  his  place,  and 
insolent  when  spoken  to  about  it. 
(Held  open.)  Other  complaints 
June  17,  June  25,  June  26. 

June  27  :  Going  into  boys'  dormi- 
tory for  plunder ;  got  under  the 
bed ;  I  told  him  to  come  out  and  he 
would  not  do  so.  (Admits,  except 
plunder,  3  weeks.)  Other  com- 
plaints October  5,  October  22, 
October  24. 

1890,  January  23 :  Going  into 
"B's"  dormitory.  (Admits,  held 
open.) 

January  30 :  Going  to  bed  with 
his  trousers  on ;  I  put  him  on  the 
floor  and  he  was  very  impudent  and 
abusive  and  positively  refused  to 
do  what  I  told  him.  (Admits  it, 
imder  lock  and  key  for  one  week.) 
Other  complaints  February  28,  Au- 
gust 29,  September  2. 

September  26 :  Refused  to  go  to 
the  stiperintendent  when  requested  ; 
throwing  a  chair  at  the  officer  and 
calling  him  a  G d liar. 

September  27  :  Detected  in  taking 
putty  ofl^  of  some  freshly  glazed 
windows. 

1891,  January  12:  Impudent  to 
an  officer,  telling  him  to  shut  up 
and  get  out. 

He  escaped  by  scaling   the  wall 


204 


PART   I.       CIKCLMSTAXTIAL    EVIDENCE 


No.  97. 


and  was  recaptured.  He  gave  his 
guard  the  shp  at  the  depot,  but  was 
captured  again.  He  was  phiced  in 
confinement,  but  succeeded  in  getting 
out ;  search  high  antl  hnv  was  made 
for  him  until  he  was  found  by  one 
of  tlie  other  inmates  in  the  top  of 
a  tree  hite  in  the  evening.  After 
attempting  to  escape  (hiy  after  day, 
he  was  finally  transferred  to  the 
penitentiary. 

Tc.sflnioin/  of  Officers  as  to  his 
Conduct.  —  Yardman:  "'B'  is  a 
good  boy ;  gets  along  with  me  very 
well.  I  let  him  wear  a  tie  of  mine 
one  .Sunday  for  being  a  good  boy. 
I  have  to  trust  the  boys  a  great  deal ; 
'  B'  has  not  stolen  but  a  few  things ; 
he  docs  not  feel  like  taking  from  me." 

Hallman  :  "He  gets  into  a  room 
and  steals  without  any  one  seeing 
him ;  I  seldom  see  him  steal.  He 
is  a  good  boy  to  work;  when  bad 
he  wants  to  go  here  and  there; 
he  won't  stay  at  his  work,  roves 
around  ;  he  has  been  under  me  six 
or  eight  months ;  he  disobeyed  at 
first,  but  afterwards  with  a  little 
pressure  he  would  mind  better ; 
he  likes  to  fight ;  I  never  saw  him 
cry  ;  he  learns  quickly  ;  I  saw  liim 
stealing  beans  and  caught  him." 

A  teacher :  "  I  had  him  one  or 
two  weeks.  He  was  very  lazy ; 
tried  to  get  out  of  his  work  the  best 
he  could  ;  talked  to  the  boys  in  school 
a  great  deal ;  difl  not  talk  back 
very  nuich  ;  he  got  into  my  desk 
and  took  some  lead  pencils." 

.\nother  teacher  :  "  He  is  a  little 
villain  ;  does  not  bother  me  much 
more  than  the  other  l)oys  at  table ; 
a  vicious  kind  of  a  boy ;  he  turned 
upon  me  one  time ;  he  would  not 
stop  his  talking;  he  kept  mutter- 
in'g;  I  took  him  by  the  collar,  and 
he  kicked  me  when  I  took  him  out ; 
I  had  hold  of  him  with  one  hanfl." 

.Vriothcr  oliiccr  :  "He.  was  imder 
me,  but  nexcr  gaxc  me  any  troul)le ; 
never  stole  anything  from  me." 

A  teacher  :  "  He  wrote  to  another 
i)oy  about  his  teacher,  and  signed 
a  boy's  name  whom  the  teacher  liked 
very  nuich.     He  tries  to  steal  .some- 


thing almost  evt^ry  day ;  I  always 
find  something  in  his  pockets  that  he 
has  stolen." 

A  teacher :  "  He  has  tried  my 
patience  very  much;  he  is  bright 
and  peculiar,  very  stubborn  and 
.self-willed,  and  inclined  to  take 
anything  in  his  reach;  he  never 
broke  into  my  desk ;  he  would  take 
things  from  the  boys  and  lie  about 
it ;  he  is  disagreeable ;  he  lies,  is 
sulky,  no  matter  how  you  treat 
him;  he  is  a  fighter;  he  is  per- 
fectly lawless,  one  of  the  worst  boys 
I  had ;  he  never  struck  any  boy ; 
he  is  quiet  at  times ;  never  saw  him 
cry ;  I  have  seen  him  very  angry ; 
his  face  becomes  red ;  he  is  a  good 
scholar.  Since  his  return  his  con- 
duct is  better  the  three  days  he  has 
been  under  me ;  he  has  been  absent 
three  or  four  weeks;  he  won't  talk 
much ;  he  is  a  bright  appearing 
boy,  but  he  is  stubborn  and  is  a 
daring    fellow."  .  .  . 

Teacher  in  painting  and  graining  : 
"  I  never  saw  him  take  anything.  He 
has  admitted  everything  I  accused 
him  of.  At  first  he  would  say  noth- 
ing ;  afterwards  he  would  admit  it. 
His  actions  were  off-handed.  He  did 
not  want  to  say  anything  then. 
Everything  that  had  been  taken 
was  attributed  to  him.  He  hates 
to  have  any  one  question  him.  When 
I  talked  to  him  he  cried,  probably 
because  he  did  not  want  to  leave 
the  shop.  He  has  been  under  me 
about  eight  months.  He  will  make 
a  good  workman.  Is  very  accurate 
in  mixing  colors ;  has  good  taste. 
Decided  in  his  answers  after  he 
knows  a  thing.  He  doesn't  talk 
much.  He  thinks  he  knows  all 
al)out  badness  and  malignity.  He 
has  improved  in  his  work.  If  he 
is  going  to  deny  a  thing,  he  would  do 
it  at  once.  He  never  stole  a  thing 
from  me,  although  it  was  easy  for 
him.     He  never  tried  to  escape." 

Military  instructor:  "'B'  is  a 
good  soldier  by  nature,  and  a  bad 
soldier,  because  indifferent.  He  has 
no  enthusiasm  for  anything.  I 
have    punished    him    two    or    three 


No.  98. 


IV.       PROOF    OF   HUMAN   ACT.      B.    1.    CHARACTER 


205 


times.  He  has  more  nerve  and 
pluck  than  any  other  boy  I  ever 
saw.  Thought  of  punishment  has 
no  effect  ■  on  him ;  he  takes  it  in- 
differently ;  but  the  last  time  I 
gave  him  seven  blows,  and  he  said, 

'  Oh,    Mr. ,    let   me   go,    and   I 

won't  do  it  again.'  He  denied  it 
up  and  down  the  first  and  second 
stroke ;  the  fifth  or  sixth  time  he 
admitted  his  guilt.  After  this  I 
made  him  promise  me  not  to  steal 
for  a  straight  month,  and  he  accom- 
plished  it,    and   was   taken   out   of 


the  scrubbing  gang.  He  has  an 
indomitable  will  and  enthusiasm  if 
you  can  get  at  him  in  the  right  way. 
I  have  never  had  an^-  other  particu- 
lar trouble  with  him.  He  has  not 
been  impudent  to  me.  I  have 
known  him  to  take  a  whipping  in 
order  to  shield  another  boy.  He 
never  tells  on  other  boys.  He  is  a 
boy  who  would  sacrifice  to  do  you 
a  favor." 

[Query :  Of  what  offense  was  he 
guilty  when  sentenced  to  the  Re- 
formatory ?] 


98.    CASE    OF    H.      (Arthur 
Man.      1903.      p.  537.) 

As  a  study  in  education  and  crim- 
inology the  following  case  of  H 
is  of  interest,  for  he  is  an  educated 
man,  as  the  world  goes,  a  doctor  of 
medicine,  graduate  of  a  university, 
and  a  man  abo\'e  the  average  crim- 
inal in  culture,  appearance,  and 
general  intellectuality.  The  impor- 
tance of  studying  such  a  man  is  to 
note  the  gradual  steps  that  led  him 
to  his  fate.^  .  .  . 

Antecedents  and  Childhood.  —  One 
who  knew  his  family  well  says  in  a 
letter:  "I  was  born  in  P,  N.  H.,  in 
an  adjoining  town  to  the  birthplace 
of  H,  which  was  G,  N.  H,  and  in- 
asmuch as  H  and  his  parents  were 
frequently  attendants  upon  my 
father's  preaching,  and  as  he  at- 
tended the  district  school  taught 
by  my  wife's  sister,  and  as  his  wife, 
and  part  of  the  time  himself,  were 
in  the  employ  of  an  uncle  of  mine,  I 
have  a  definite  knowledge  of  his 
youth.  His  people  Avere  very  up- 
right, God-fearing  citizens,  living 
in  a  quiet,  secluded  section  of  the 
country.  There  is  no  trace  or 
taint  of  open  immorality  or  vice  in 
the  family  history  for  at  least  three 
generations  of  which  I  have  any 
knowledge.  I  am  intimately  ac- 
quainted with  several  of  his  cousins, 
and  they  are  all  upright  men.  As  a 
boy,  H  was  a  quiet,  studious,  faith- 
ful lad,  with  refined  tastes,  not  car- 
'  [See  the  footnote 


MacDonald.      Man    and    Abnormal 

ing  to  join  to  any  extent  in  the  rude 
and  rough  games  of  his  companions 
at  school,  and  easily  standing  as  the 
first  scholar  in  his  class.  He  was  a 
general  favorite  with  the  mothers 
in  that  community,  because  he  was 
such  a  well-behaved  lad.  In  his 
youth  he  was  predisposed  to  a  re- 
ligious life  ;  he  was  a  faithful,  pains- 
taking student  of  the  Scriptures, 
and  rather  excelled  in  his  Sunday 
school  class,  and  later  in  his  Bible 
class,  and  my  recollection  is  that 
he  took  an  active  part  in  the  weekly 
prayer  meetings,  and  was  known  as 
a  religious  youth." 

Letter  from  his  First  JVife.  —  "In 
regard  to  his  childhood  days  I  can- 
not say  much,  as  I  did  not  know 
much  of  him  until  he  was  17  years 
old.  I  always  felt  that  he  was 
pleasant  in  disposition,  tender- 
hearted, much  more  so  than  people 
in  general.  He  was  of  a  very  deter- 
mined mind,  at  the  same  time  quite 
considerate  of  others'  comfort  and 
welfare.  In  1881  he  was  at  B,  Vt., 
for  the  year,  and  in  the  spring  of 
1882  he  started  for  the  University, 
and  as  far  as  I  knew,  was  doing 
very  well.  I  returned  to  N.  H.  the 
spring  before  he  was  to  graduate, 
and  have  known  very  little  of  him 
since,  but  he  has  always  been  called 
very  smart,  well  educated,  and  a 
man  of  refined  ways.  Before  at- 
to  No.  97  — Ed.] 


20G 


I'AHT    I.       nut  I MSTAXTIAL    EVIDEN'CE 


No.  98. 


tendinfr  the  medical  .school  he  taught 
school  several  terms  ami  was  \ery 
successful  —  as  much  so  as  teachers 
in  general  —  and  when  the  story 
came  out  people  who  had  always 
known  him  saiil :  '  We  cannot  be- 
lieve this.  H  would  not  have  the 
heart  or  courage  to  do  anything  so 
terrible.'  But  of  course  he  has 
worked  himself  up  to  it  little  hy 
little,  and  I  think,  ha\ing  done  some 
little  wrong,  he  had  been  driven 
to  a  greater  one  for  a  cover,  and 
each  one  growing  worse,  of  course 
it  is  easy  or  more  easy  to  go  in  the 
wrong  after  the   first  few  steps." 

University  Life. — Letters  of  in- 
quiry were  sent  to  his  teachers  and 
classmates,  many  of  whom  are  now 
prominent  physicians. 

One  of  the  professors  in  the  uni- 
versity says:  "It  is  true  that  while 
a  student  here  he  was  for  a  year  or 
two  under  my  roof,  but  not  in  any 
such  intimate  relations  with  me  as 
to  justify  him  as  looking  upon  me 
as  his  best  friend  ;  if  so,  his  friends 
must  be  few.  However,  I  am  very 
sorry  for  him,  even  although  he 
himself  may  be  the  direct  cause  of 
his  present  miseries  and  threatening 
punishments.  He  tolfl  me  a  few 
months  ago,  when  I  visited  him  in 
prison,  that  he  and  another  class- 
mate had  worked  up  a  scheme  to 
defraud  an  insurance  company  a 
few  months  after  they  graduated  in 
1SS4  from  the  medical  dej)artmcnt 
here,  l)ut  that  the  scheme  fell 
through  because  of  his  friend's 
death,  which  occurred  within  a  year 
after  he  graduated.  I  do  not  know 
whether  he  grafluated  in  pharmacy 
or  not.  He  certainly  did  not  take 
that  course  here,  as  I  find  he  was 
never  entered  as  a  pharmacy  stu- 
dent. He  may  have  taken  the  degree 
elsewhere,  but  if  he  did,  it  was  after 
he  graduated  in  medicine,  as  lie 
made  no  claim  to  having  had  a 
pharmacy  course  when  he  was  here. 
There  were  several  things  that  oc- 
curred while  he  was  here  as  a  student 
that  in  the  light  of  subsecpient 
events  show  him  to  have  been  even 


at  that  time  well  practiced  in  crim- 
inal habits.  Although  he  was  mar- 
ried anil  had  his  wife  here  for  a  time 
doing  work  as  a  dressmaker  and 
assisting  in  supporting  himself  and 
her,  yet  he  got  into  trouble  by  show- 
ing some  attention  to  a  grass  widow, 
who  was  engaged  in  the  l)usiness  of 
hairdressing.  This  woman  made 
some  complaints  to  the  faculty 
during  the  latter  part  of  his  senior 
year,  and  the  stories  that  she  told, 
had  they  been  confirmed,  would 
ha\e  pre\ented  him  from  graduat- 
ing. But  1  had  no  reason  to  doubt 
his  word  at  that  time,  and  his 
friends  lied  for  him  so  vigorously 
that  I  was  wholly  deceived  and  de- 
fended him  before  the  faculty,  and 
he  was  permitted  to  graduate.  On 
the  afternoon  of  commencement 
day  he  came  to  me  of  his  own  accord, 
with  his  diploma  in  his  hand,  and 
said :  '  Doctor,  those  things  are 
true  that  that  woman  said  about 
me.'  This  was  the  first  positive 
evidence  that  I  had  received  up 
until  that  time  that  the  fellow  was 
a  scoundrel,  and  I  took  occasion  to 
tell  him  so  at  that  time. .  I  subse- 
(juently  learned,  however,  that  he 
had  made  two  attempts  to  enter 
my  house  in  the  character  of  a 
burglar,  and  also  that  he  had,  while 
occupying  a  room  in  a  portion  of 
my  house,  attempted  to  force  a 
drawer  in  my  li!)rary  in  which  1  had 
been  in  the  habit  of  keeping  some 
vahud)les.  Three  months  after  he 
had  graduated  in  medicine,  and 
knowing  full  well  what  opinion  I  en- 
tertained of  him,  he  wrote  me  asking 
for  a  recommendation  to  assist  him 
in  getting  an  appointment  as  a 
missionary  to  Africa.  This,  I  am 
satisfied,  he  did  simply  from  the 
spirit  of  devilishness,  and  not  that 
he  had  any  serious  intention  of 
carrying  out  such  a  purpose.  These, 
and  many  little  incidents  that  I 
imght  relate  to  you,  some  of  them 
personal  experiences  of  my  own  with 
him,  and  others  that  have  been 
told  me  by  members  of  my  family, 
ser\e     to     further     illustrate     these 


No.  9S. 


IV.       PROOF    OF   HUMAN    ACT.       B.    1.    CHARACTER 


207 


traits  in  his  character,  but  they  are 
all  of  the  same  nature  as  those  that 
I  have  mentioned."  .  .  . 

Testimony  of  his  Classmates.  —  (1) 
"Myself  and  family  lived  in  the 
house  with  H  and  his  family  almost 
one  school  year.  His  family  con- 
sisted of  a  wife  and  one  child  (a  boy 
about  4  years  old).  His  wife  was 
a  very  pleasant  woman  and  willing 
to  make  any  sacrifice  that  she 
might  help  him  along  in  his  course. 
She  finally  went  out  to  work  and 
gave  him  her  earnings.  She  was 
subject  to  convulsions  of  some  kind, 
and  while  at  work  he  gave  her  such 
quantities  of  bromide  that  her  face 
broke  out  very  badly.  Every  one 
thought  it  too  bad  for  her.  He 
must  have  been  in  very  straitened 
circumstances,  for  he  managed  dif- 
ferent ways  of  getting  along.  I 
remember  he  built  a  barn  for  a 
widow  woman  who  was  studying 
medicine  in  the  homeopathy  de- 
partment at  that  time.  She  told 
me  how  H  beat  her  on  the  barn. 
He  was  very  dishonest  and  tricky 
any  place  you  found  him.  He 
would  borrow  everything  of  the  stu- 
dents that  he  could  to  sa\e  himself 
buying.  I  have  no  picture  of  H. 
Would  never  have  recognized  him 
by  his  picture  in  the  papers.  At 
that  time  he  had  a  rather  slender 
face,  wore  chin  whiskers,  not  con- 
sidered good  looking ;  but  I  re- 
member he  had  treacherous-looking 
eyes.  Another  piece  of  his  wife's 
economy  was  to  borrow  our  sewing 
machine  and  completely  turn  out  a 
coat  for  him.  He  was  not  a  gradu- 
ate in  pharmacy  to  my  knowledge." 

(2)  "It  happened  that  H  acted 
as  steward  of  a  boarding  house  (only 
table  boarding).  It  was  his  duty 
to  keep  the  places  at  the  table 
filled  with  students  and  collect  the 
money  weekly.  ]\Iy  recollection  of 
him  is  quite  distinct.  None  of  the 
boys  ever  knew  much  of  him  (fur- 
ther than  that  he  admitted  himself 
to  be  married),  or  had  much  to  do 
with  him.  His  associations  with 
his  fellow  students  amounted  to  but 


little,  because  of  his  way  of  living. 
He  had  no  money,  at  least  that  is 
what  he  always  said.  For  his  meals 
he  conducted  the  club,  while  he 
slept  at  Dr.  H's  house.  (Dr.  H 
was  then  demonstrator  of  anatomy 
in  the  university.)  This  brought 
him  to  the  boarding  house  only  at 
mealtime.  The  money  was  col- 
lected by  H  regularly  every  Sat- 
urday evening.  He  was,  as  I 
remember,  always  punctual  in  per- 
forming his  duties,  and  also  regular 
at  his  meals.  Even  now  I  can  see 
him  sitting  at  the  lower,  dark  end 
of  the  long  table,  saying  but  little 
and  laughing  seldom.  He  was  of  a 
remarkably  taciturn  disposition  ap- 
parently very  indifferent  to  his 
surroundings,  coldly  methodical,  un- 
responsive to  humor,  and  very  brief 
in  his  statements.  His  topics  of 
conversation  were  mainly  concern- 
ing Dr.  H's  operations  upon  his 
private  patients.  H,  as  I  have 
said,  slept  at  Dr.  H's  house.  He 
always  accompanied  Dr.  H  upon  his 
night  trips.  We  students,  remark- 
ing the  thing,  always  thought  that 
H's  quietness  was  due  to  his  rest 
being  broken  and  irregular,  having 
always  to  hitch  up  the  horse  for 
the  doctor's  use,  perhaps  accompany 
him,  and  then  stable  the  horse  upon 
the  doctor's  return.  I  remember 
once  of  asking  a  medical  student 
how  H  answered  up  in  his  'quiz.' 
The  answer  I  got  was  that  he  was 
not  very  reliable  or  exact  in  his 
knowledge."   .   .   . 

(3)  A  classmate  who  is  an  alien- 
ist, says :  "  My  recollection  of  him 
is  that  he  was  a  quiet,  unpreten- 
tious individual,  not  a  brilliant 
student  by  any  means,  but  rather 
plodding  and  perhaps  below  medi- 
ocre, but  attentive  to  lectures  and 
operations.  My  connection  with 
this  institution  has  been  continuous 
since  the  day  of  my  graduation, 
and  in  the  light  of  the  experience  I 
have  had  in  seeing  a  large  number 
of  insane  and  defective  people,  I 
cannot  now  recall  anything  about 
H  that  would  warrant  me  in  saying 


20S 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  98. 


that  lie  was  peculiar,  degenerate, 
defective,  or  insane,  or  that  he 
lacked  the  average  mental  or  moral 
qualities." 

(())  "  I  was  quite  well  ac- 
quainted with  him.  He  always 
stated  to  me  that  he  was  born  in 
England.  He  seemed  always  of  a 
sullen  ilisposition,  not  caring  to  talk 
much,  a  fair  student,  although  not 
bright,  and  still  he  might  be  stated 
to  be  of  average  intelligence.  We 
attendeil  many  lectures  together, 
and  occupied  seats  close  to  each 
other.  He  was  not  at  all  popular 
and  seemingly  had  very  few  intimate 
friends,  and  the  talk  was  that  he 
would  not  be  able  to  pass  his  final 
examinations,  as,  if  I  mistake  not, 
he  entered  on  advanced  standing. 
If  I  mistake  not,  he  stated  that  he 
was  a  married  man,  and  complained 
frecjuently  of  lack  of  funds  to  com- 
plete   his    studies."  .   .   . 

(8)  "  I  know  of  nothing  in  his 
character  during  my  acquaintance 
with  liim  which  would  mark  him  as 
exceptional  in  any  way.  I  remem- 
ber he  was  identified  with  the 
Young  Men's  Christian  Association 
of  the  uni\ersity,  and  took  sides 
with  that  society  in  a  dispute  be- 
tween the  society  and  one  of  the 
professors,  and  he  told  me  at  one 
time  that  after  graduation  he  in- 
tended to  go  to  New  Zealand  as  a 
medical  missionary.  On  the  whole, 
his  conduct  was  such  as  to  breed 
sensation  of  dislike  for  him  among 
his  fellows.  He  appeared  to  be  a 
good  deal  of  a  sneak,  and  I  know  as 
a  matter  of  fact  that  he  was  a  liar. 
He  .seemed  to  be  fond  of  the  un- 
canny tilings  of  the  dissecting  room, 
and  told  me  at  the  beginning  of  one 
spring  vacation  that  he  intended  to 
take  lioiiie  the  body  of  an  infant  for 
dissection;  that  Dr.  H  had  given 
him  one  for  that  purpo.se.  He 
seetnerl  to  derive  a  good  deal  of 
pleasure  from  the  fact.  Neverthe- 
less, he  was  not  an  industrious 
worker   in    the  dissecting   room." 

(9)  Classmate,  president  of  a 
State    medical    .society,    says :     "  I 


saw  him  daily.  His  appearance 
was  very  ordinary.  He  was  of  a 
meditative,  unassuming  disposition, 
willing  to  talk  if  approached,  but 
his  manner  was  retiring.  He  was 
apparently  most  inoffensive;  we 
then  thought  him  stupid.  In  his 
(lifHculty  with  the  dressmaker  we, 
boy  like,  believed  poor  H  was  being 
sinned  against,  and  selected  a  law 
student,  now  a  member  of  Congress 
for  Idaho,  to  intercede  for  him,  with 
the  result  that  the  faculty  was 
lenient  and  H  was  'vindicated.' 
His  bearing  so  little  resembled  that 
of  one  who  sought  the  company  of 
women  that  we  regarded  the  inci- 
dent as  a  great  joke.  Even  at  that 
time  he  was  given  to  devising 
schemes  for  money  making;  spec- 
ulating on  projects  that  might  be 
taken  up  after  graduation.  We 
did  not  regard  them  as  of  doubtful 
integrity,  yet  none  of  them  were  in 
line  with  the  profession  he  was  about 
to  be  graduated  into.  We  looked 
upon  them  as  visionary.  He  had 
no  chums  or  associates,  so  far  as  I 
knew ;  always  alone,  of  modest 
demeanor,  and  never  aggressive. 
It  was  a  serious  struggle  with  him 
then  for  bare  existence,  and  we 
pitied  him  without  thought  of  his 
merit,  for  he  was,  as  we  saw  him,  a 
negative    character." 

(10)  "He  w^as  a  fellow  to  slide 
along  without  attracting  any  at- 
tention, and  would  be  soon  for- 
gotten. There  w'as  an  episode  in 
which  he  acquired  some  notoriety, 
and  if  guilty,  showed  much  foresight 
and  caution  on  his  part.  The  facts 
are  as  follows  :  A  young  widow  was 
running  a  boarding  house,  he  being 
one  of  her  boarders.  She  obtained 
a  letter  to  him  from  his  wife ;  she 
brought  her  case  before  the  faculty, 
claiming  that  he  had  promi.sed  to 
marry  her,  and  in  evidence  produced 
some  letters  signed  in  his  name.  He 
denied  the  charge,  and  produced 
specimens  of  his  handwriting,  in- 
cluding notebooks,  etc.,  which  were 
not  in  the  same  hand  as  the  letters 
produced    by    her.     The    evidence 


No.  98. 


IV.       PROOF   OF   HUMAN    ACT.       B.    1.    CHARACTER 


209 


was  not  such  that  the  faculty  could 
convict  on,  so  they  let  him  off.  The 
opinion  among  the  students  was 
that  he  was  the  one  who  wrote  the 
letters."   .   .   . 

(13)  "  He  had  a  noticeable  aver- 
sion to  familiarity.  During  the 
time  spent  with  Dr.  H.  he  took 
active  interest  in  Sunday-school 
work  of  the  Presbyterian  church, 
of  which  Dr.  H  was  a  prominent 
and  active  member.  I  remember 
him  as  an  odd  character  in  the 
class  on  account  of  his  seemingly 
friendless  fate  and  the  manner  in 
which  he  worked  himself  into  the 
good  graces  of  Dr.  H.  About  the 
last  thing  he  told  me  was  he  had 
decided  to  go  as  a  medical  mis- 
sionary to  some  foreign  country 
after  graduating,  and  that  Dr.  H 
had  acted  in  his  behalf  to  secure 
for  him  all  the  necessary  credentials 
for  the  undertaking." 

(14)  "To  me  he  was  especially 
noticeable  for  his  rather  delicate 
and  fair  facial  complexion  and  rather 
blue  and  open  eyes.  He  had  a 
thin  mustache  curled  up  at  the  ends. 
His  habits  were  decidedly  of  a 
secretive  nature,  and  consequently 
he  was  never  much  discussed." 

(15)  "I  was  quite  intimately  ac- 
quainted with  him  and  can  honestly 
say  that  he  was  the  last  man  that 
I  would  suspect  of  doing  the  deeds 
of  which  he  was  convicted." 

(16)  "He  was  sickly  looking  and 
troubled  quite  a  little  with  boils. 
He  was  peculiar  in  that  he  did  not 
seem  to  care  for  any  one  but  himself 
and  paid  but  little  attention  to 
any  one.  I  thought  he  was  rather 
repulsive  in  looks,  but  never  thought 
him   a  criminal."  .  .  . 

(21)  "I  remember  having  heard 
him  referred  to  on  one  or  two  occa- 
sions as  a '  smart  Alec'  ...  As  I  re- 
member, he  was  looked  upon  as  a 
bigot  and  a  fellow  of  so  little  con- 
sequence that  it  was  not  worth  one's 
while  to  pay  any  attention  to  him  so 
long  as   he  kept   to  himself." 

(22)  "  I  considered  him  a  quiet, 
bright,    unsophisticated    sort    of    a 


young  man.  I  saw  nothing  abnor- 
mal or  anything  to  especiaHy  at- 
tract attention.  He  seemed  rather 
gloomy  at  times  and  not  inclined 
to  be  intimate  with  any  one."  .  .  . 

(24)  "  I  boarded  at  the  same 
boarding  house  as  he.  After  a  few 
months  the  landlady  found  that  he 
was  cheating  her  by  various 
methods ;  each  boarder  that  left, 
he  would  report  to  the  landlady 
that  the  boarder  had  not  paid  him 
for  his  board  for  several  weeks,  and 
pocket  that  amount  of  money.  Also 
in  ordering  groceries  he  would  '  beat ' 
the  lady.  The  other  students  there- 
])y  found  out  that  he  was  dishonest. 
He  appeared  to  be  a  sneaking,  quiet, 
unpopular  man,  other  students  not 
associating  with  him  to  any  extent. 
I  never  knew  of  him  drinking.  He 
did  not  seem  to  be  a  '  fast '  boy,  but 
a  mean  fellow.  As  to  his  scholar- 
ship I  remember  only  that  Professor 
V  did  not  pass  him  on  some  branch 
and  H  was  very  spiteful  against 
Professor  V  —  wrote  him  letters 
calling  him  vile  names  and  spoke 
bitterly  against  him." 

(25)  "He  never  entered  into 
sports  of  any  kind,  seldom  laughed, 
sometimes  smiled  in  a  dry,  half- 
hearted way  —  he  seemed  secretive 
and    afraid    of   suspicion." 

(26)  "He  was  looked  upon  as 
one  who  would  attempt  to  attain 
favor  with  the  faculty  by  spying 
among  the  students." 

(27)  "  I  was  well  acquainted  with 
him.  I  have  read  everything  about 
him  since  he  was  arrested,  and  I 
know  he  tells  the  truth  in  some  of 
his  confessions." 

Letter  from  one  who  lived  in  H's 
house  in  Chicago. —  "February  2, 
1889,  I  moved  into  a  room  in  the 
Castle  and  remained  there  till  De- 
cember 3,  1889.  He  was  always 
quick  and  active.  If  you  had  seen 
him  in  the  drug  store  in  Englewood 
you  would  have  thought  him  the 
busiest  man  you  ever  saw.  Was 
considered  the  best  druggist  and 
chemist  that  ever  came  here,  and 
his    store    was    always    filled    with 


210 


PART    I.       CIKCLMSTANTIAL    EVIDENCE 


No.  99. 


customers.  ...  He  was  one  of 
the  biggest  swintllers  they  ever 
knew,  but  when  he  hired  a  man  to 
do  any  work  he  always  paitl  liim 
what  he  asketl  without  a  word,  but 
if  he  made  a  Ijargain  with  any  one 
that  could  afford  to  lose  without 
breaking  him  up  he  would  '  beat '  him 
almost  every  time.  The  iron  col- 
umns in  front  of  his  building  are  an 
example.  He  never  paid  a  cent 
for  them  and  beat  them  in  three 
courts.  His  gas  business  and  using 
the  city  water  for  two  years  and 
making  them  believe  it  was  artesian 
water  were  other  instances.  Bringing 
the  city  gas  through  a  tank  of  water, 
he  put  stuff  in  the  water  to  color 
the  flame  until  the  gas  inspectors 
declared  that  it  was  not  theirs." 
Litter  from   a  prison   chum. —  "It 


is  very  little  information  that  I  can 
give  you  regarding  H.  I  met  him 
for  the  first  time  in  the  jail,  and  was 
only  with  him  for  some  three  or  four 
weeks  while  he  remained  in  jail  in  St. 
Louis.  ...  I  know  notliing  about 
liim,  but  what  he  told  me  of  some  of 
his  former  exploits  before  I  met  him. 
Of  course  you  know  that  he  told  me 
all  about  the  scheme  to  rob  the 
insurance  company,  and  that  it  was 
for  introducing  him  to  a  lawyer 
who  could  be  trusted  to  be  allowed 
to  know  that  the  scheme  to  rob  the 
insurance  company  was  a  fraud, 
etc.,  that  I  was  to  have  $500  to 
enable  me  to  fight  my  case  or  secure 
my  libert}'." 

[Query  : '  Of  what  crime  was  this 
man  found  guilty,  when  his  case 
was  studied  by  Dr.  MacDonald  ?] ' 


Topic  2.     Emotion  (Motive)  - 


101.  .Tames  Silly.  The  Human  Mind.  (1892.  Vol.  II,  p.  19G.)  Desire. 
The  phenomenon  known  as  desire  has,  as  we  have  seen,  its  dim  prototype 
in  instinctive  impulse.  .  .  .  The  Analysis  of  Desire.  (1)  Since  all  definite 
desire  is  of  some  object  or  perceptible  result,  one  obvious  element  in  the 
physical  state  is  an  idea  or  representation.  When  a  child  desires  an  object, 
say  an  orange,  or  a  playmate's  society,  he  is  imagining  this  object  as  actually 
present  or  realized.  In  this  way  all  desire  is  related  to  the  intellectual 
side  of  mind.  Where  there  is  no  knowledge  there  can  be  no  .desire.  .  .  . 
(2)  A  closer  inspection  shows  us  that  all  representations  do  not  excite 
desire.  Many  images,  e.g.  those  of  familiar  objects  in  our  surroundings, 
other  people's  doings,  and  the  like,  may  arise  without  any  appreciable 
accompaniment  of  mental  craving  or  desire.  This  peculiar  psychical  state 
is  only  aroused  by  the  representation  of  objects  so  far  as  they  excite  our 
feeling,  and  more  particularly  are  thought  of  as  fitted  to  benefit  us  or  bring 
us  pleasure.  In  desiring  a  succulent  fruit  a  child  represents  the  delight  of 
eating  it:  in  desiring  a  good  social  position  or  a  high  reputation  a  man 
represents  the  coveted  situation  on  its  pleasurable  side.  ...  (3)  While 
desire  thus  stands  in  relation  to  each  of  the  two  other  phases  of  mind,  it 
is  .sufficiently  marked  oil'  as  an  active  phenomenon.     It  is  in  virtue  of  this 

'  [AnHwcre  to  N'os.  !i7  and  08: 

No.  97.     Petty  hircciiy. 

X(j.  98.  MunliT.  Tliiw  was  Holmes,  orio  of  tho  most  rutliloss  murderers  of  his  genera- 
tion ;  ton  or  nK)r<'  murders  were  traced  tr)  him,  and  his  "Castle"  in  Chicago  was  a  veritable 
charnel-hoiiw.  He  wa.s  eotivieted  and  exeeuted  in  Pennsylvania  ;  see  Official  Report  of 
Commonwealth  v.  .Mudgett,  alia.s  Holmes.  —  Ed.] 

*  [Compare  the  analysis  of  Motive  and  Emotion  in  No.  29,  ante.  —  Ed.] 


No.  101.  IV.      PROOF   OF   HUMAN   ACT.       B.    2.    MOTIVE  211 

characteristic  that  it  constitutes  the  connecting  hnk  between  knowing  and 
Jeehng  on  the  one  side,  and  wilHng  on  the  other.  In  desiring  a  thing,  say 
an  approaching  hohday,  we  are  in  a  state  of  active  tension,  as  if  striving 
to  aid  the  reahzation  of  that  which  is  only  represented  at  the  moment,  and 
recognized  as  such.  This  innermost  core  of  desire  has  been  variously  de- 
scribed as  a  movement  of  the. mind  (e.g.)  by  Aristotle,  and  more  commonly 
as  a  striving  towards  the  fi'uition  or  realization  of  the  object. 

This  element  of  active  prompting  in  desire  appears  under  each  of  the 
two  phases  which,  as  we  have  seen,  are  always  present  in  our  active  states, 
viz.  attention,  and  muscular  consciousness.  .  .  .  We  thus  see  that  there 
is  in  the  very  process  of  mental  concentration,  as  soon  as  this  becomes 
consciously  directed  to  the  representation  of  something  agreeable  and  desir- 
able, the  germ  of  a  purposive  activity,  the  striving  towards  an  end.  .  .  . 

Desire  and  Aversion.  The  great  contrast  in  the  region  of  feeling  between 
pleasure  and  pain  has  its  counterpart  in  the  domain  of  activity.  While 
the  representation  of  what  is  pleasurable  excites  the  positive  form  of  desire, 
that  is,  longing  to  realize,  the  representation  of  what  is  painful  awakens  the 
negative  form  of  aversion,  or  the  longing  to  be  rid  of.  We  strive  towards 
what  gives  us  pleasure,  and  away  from  what  gives  us  pain.  .  .  . 

Desire  and  Motive.  Hitherto  we  have  dealt  with  desire  merely  as  a  state 
of  craving  without  any  reference  to  the  nature  of  the  desire  as  realizable  or 
non-realizable.  It  is  evident  that  we  have  many  desires  which  do  not 
go  beyond  this  stage.  ...  A  desire  when  thus  transformed  into  a  prac- 
tical incentive,  or  excitant  to  action,  is  what  we  call  a  motive. 

A  motive  is  thus  a  desire  viewed  in  its  relation  to  a  particular  represented 
action,  to  the  carrying  out  of  which  it  urges  or  prompts.  ...  As  the 
feelings  grow  in  number  and  the  higher  forms  of  emotion  begin  to  appear, 
the  conative  process  is  prompted  by  a  larger  variety  of  desires.  Thus  the 
child  begins  to  act  for  the  sake  of  earning  praise,  of  giving  pleasure  to 
others,  or  of  doing  what  is  right  for  its  own  sake.  In  this  way  each  new 
advance  in  emotional  development  tends  to  widen  the  range  of  desire  in  a 
corresponding  measure.  .  .  .  There  now  appears  as  a  result  of  this  develop- 
ment of  ideation  and  feeling  a  new  form  of  conative  stimulus,  which  we  can 
describe  as  Motive-Idea.  .  .  .  The  development  of  reflection  and  self- 
consciousness  leads  to  an  organization  or  unification  of  action  into  a  con- 
nected system.  Thus,  ambition  when  fixed  as  a  steady  incentive  means  a 
recurring  motive-idea,  leading  to  a  succession  of  progressive  actions,  the 
whole  constituting  the  pursuit  of  a  permanent  end.  .  .  . 

Nature  of  Permanent  Ends:  Desiring  Means  as  Ends.  The  pursuit  of 
these  permanent  ends  illustrates  in  a  specially  distinct  form  a  common 
tendency  in  all  states  of  desire  to  the  fixing  of  attention  not  so  much  on  the 
end  itself  as  on  the  conditions  of  its  realization.  As  was  pointed  out  above, 
the  desire  for  an  object  begets  a  desire  for  the  action  which  is  seen  to  lead 
on  to  the  realization  of  it.  In  order  to  carry  out  any  line  of  action,  it  seems 
necessary  that  we  should  fix  attention  on  the  immediate  result  of  the  act, 
as  that  which  guides  and  controls  the  process.  Hence  the  tendency  to 
erect  this  proximate  result  into  a  kind  of  secondary  "end"  of  the  action. 
Thus  if  a  person  feels  cold  and  goes  to  shut  the  door,  realization  of  the 
idea  of  the  closed  door  becomes  the  immediate  object  of  his  action.  That 
is  to  say,  for  the  moment  he  loses  sight  of  the  initial  stimulus,  feeling  of 


222  PART   I.       CIRCUMSTANTIAL    EVIDENCE  No.  101. 

coKl  and  the  idea  of  the  desireil  waniitli,  and  is  occupied  in  shutting  the 
iloor.  If  an  obstacle  occurs,  as  when  the  hitch  does  not  answer,  he  becomes 
wholly  al)sorbeil  in  this  secondary  end.  In  the  case  of  pursuing  a  perma- 
nent end,  as  riches,  or  health,  this  preoccupation  of  the  mind  with  the 
means  of  obtaining  our  object  becomes  still  more  marked.   .   .   . 

Complex  Action.  Our  action,  as  we  have  seen,  gains  in  representative- 
ness as  we  take  remote  consequences  into  account.  And  this  increase  of 
representativeness  implies  an  increase  in  the  complexity  of  the  action.  In 
a  special  sense  we  may  call  an  action  complex  when  it  is  not  the  result  of  a 
single  impulse  but  involves  a  plurality  of  impulses,  a  representation  of  a 
number  of  objects  of  desire  or  aversion.  .  .  .  This  expansion  of  the  repre- 
sentative stage  of  action  assumes  one  of  two  contrasting  forms.  In  the 
first  place,  the  desires  or  impulses  simultaneously  called  up  may  be  har- 
monious and  cooperative,  converging  towards  one  and  the  same  action. 
In  the  second  place,  the  desires  may  be  discordant  and  opposed,  or  diverg- 
ing into  different  lines  of  action. 

(«)  Cooperation  of  Impulses.  The  combination  of  two  or  more  elements 
of  desire  or  impulse  in  one  conative  impulse  is  exceedingly  common,  and 
may  be  said,  indeed,  to  be  the  general,  rule.  Many  actions  which  seem  at 
first  sight  to  have  but  one  impelling  motive  will  be  found  on  closer  inspec- 
tion to  have  a  number.  So  simple  an  action  as  going  out  for  a  walk  may 
be  motived  by  a  number  of  concurrent  impulses,  as  desire  for  locomotion, 
fresh  air,  and  a  change  of  scene.  .  .  . 

(h)  Opposition  of  Impulses.  The  second  variety  of  complex  action,  in 
which  two  (or  more)  impulses  come  into  antagonism,  is  of  yet  greater  im- 
portance. .  .  .  Arrest  of  Action :  Inhibition.  This  variety  of  complex 
action  is  characterized  by  the  clearer  emergence  of  an  element  in  the  conative 
process  hitherto  neglected,  viz.  the  arrest  or  inhibition  of  action.  .  .  . 
It  is  when  we  are  simultaneously  prompted  by  a  plurality  of  impulses  lead- 
ing in  distinct  directions,  that  is,  to  different  external  actions,  that  the 
process  of  inhibition  becomes  manifest.  The  opposition  of  motor  forces 
in  this  case  produces  an  arrest  of  action  which  may  be  temporary  only, 
leading  to  a  delay  of  postponement  of  the  action,  or  ma}^  end  in  its  com- 
plete suppression.  .  .  . 

(1)  Action  Arrested  by  Doubt.  The  simplest  case  of  arrested  or  inhibited 
action  is  that  in  which  the  belief  necessary  to  the  carrying  out  of  an  im- 
pulse is  checked.  In  the  early  stages  of  action  we  are  prone  to  be  confi- 
dent ill  our  powers.  We  can  easily  observe  in  children's  first  experiments 
in  movement  that  they  are  carried  out  boldly,  that  is,  with  a  full  assurance 
of  success.  To  these  hopeful  tyros  in  the  domain  of  human  action  failure 
comes  as  a  shock.  The  child  looks  perplexed,  confounded,  when  he  first 
encounters  an  object  too  heavy  to  be  removed.  These  failures  suggest 
uncertainty,  and  this  sense  of  uncertainty  or  doubt  will  serve  to  arrest  or 
temporarily  paralyze  the  child's  action.   .   .   . 

('!)  Jieeoil  of  Dr. si  re:  Deterrents  from  Action.  A  second  and  in  general 
more  effective  form  of  arrest  occurs  when  desire  prompts  to  a  certain  action 
with  which  is  associated  some  painful  accompaniment  or  consequent.  In 
this  ease  the  imi)nlse  to  realize  a  j^leasure  is  opjjosed  by  an  aversion  to  what 
is  disagrccal)Ic.  And  so  far  as  this  shrinking  from  a  painful  experience 
frustrates  the  positive  impulse,  we  are  said  to  be  deterred  from  the  action. 


No.  102.  IV.       PROOF    OF    HUMAN   ACT.       B.    2.    MOTIVE  213 

.  .  .  The  deterring  force  in  this  case  may  reside  either  in  the  representa- 
tion of  the  action  itself  as  disagreeable,  or  in  the  anticipation  of  some  dis- 
agreeable result.  .  .  .  Here,  again,  the  effect  of  the  prevision  of  evil  in 
repressing  impulse  will  vary  according  to  a  number  of  circumstances,  such 
as  the  relative  strength  of  the  attractive  and  deterrent  forces,  and  the 
strength  of  the  general  disposition  towards  activity  at  the  time.  Here, 
too,  we  may  note  marked  differences  of  effect  according  as  the  tempera- 
ment is  wary  or  cautious,  and  highly  susceptible  to  the  deterrent  effects  of 
anticipated  evil ;  or,  on  the  other  hand,  heedless  of  unpleasant  consequences 
and  impatient  of  delay  —  a  contrast  well  illustrated  in  the  case  of  Macbeth 
and  his  wife  when  planning  their  ambitious  crime. 

(3)  Rivalry  of  Impulses.  As  a  third  type  of  arrest,  we  may  take  the 
case  where  there  arises  a  plurality  of  positive  impulses.  When  a  man  is 
at  one  and  the  same  moment  stimulated  to  diiferent  lines  of  action  by  two 
disconnected  desires,  conflict  arises  through  the  prompting  of  incompatible 
impulses.  .  .  .  This  rivalry  of  impulses  or  desires  may  assume  different 
forms.  Thus  two  actual  feelings  may  prompt  in  different  directions,  as 
when,  tired  and  hot  after  a  walk,  we  are  at  once  compelled  to  rest,  and  to 
procure  a  draft  of  water. 

102.  G.  F.  Arnold.  Psychology  applied  to  Legal  Evidence.  (1906. 
pp.  38,  87.)  .  .  .  We  must  next  explain  "Motive"  and  what  it  is  that  de- 
termines conduct.  By  "motive"  is  usually  meant  an  ulterior  end.  But 
what  actually  moves  us  is  a  felt  contradiction,  and  a  thought  or  idea  moves 
us  by  exciting  desire  :  desire  there  is  the  real  stimulus.  It  is  the  feeling  ex- 
cited by  the  idea  of  the  end,  or,  as  Wundt  describes  it,  motives  are  internal 
causes  of  volition,  and  a  motive  is  a  particular  idea  with  an  affective  tone 
attaching  to  it,  and  the  combination  of  idea  and  feeling  in  motives  only 
means  that  an  idea  becomes  a  motive  as  soon  as  it  solicits  the  will,  feeling 
itself  being  simply  a  definite  voluntary  tendency.  It  will  be  well  to  dwell 
for  a  moment  on  the  part  played  by  desire.  "Where,  however,"  says 
Professor  Sully,  "circumstances  allow  of  a  gratification  of  the  desire,  this 
passes  into  a  new  form,  viz.  an  impulse  to  carry  out  a  particular  line  of 
action.  A  desire  when  thus  transformed  into  an  incentive  or  excitant  to 
action  is  what  we  call  a  motive.  A  motive  is  thus  a  desire  viewed  in  its 
relation  to  a  particular  represented  action,  to  the  carrying  out  which  it 
urges  or  prompts." 

Now  desire  does  not  always  follow  knowledge,  but,  on  the  contrary, 
"instances  are  by  no  means  wanting  of  very  imperious  desires  accom- 
plished by  the  clear  knowledge  that  their  gratification  will  be  positively 
distasteful."  .  .  . 

The  writers  are  unanimous  to  the  effect  that  what  determines  conduct, 
voluntary  and  impulsive  alike,  is  not  intellect  or  ideation,  bid  feeling ;  and 
that  although  in  will  there  is  an  ideational  element,  it  is  through  feeling 
that  it  influences  action.  Thus  Ribot  quotes  with  approval  the  saying  of 
Spinoza  that  "appetite  is  the  very  essence  of  man.  .  .  .  Desire  is  appe- 
tite with  consciousness  of  self.  .  .  .  From  this  it  results,  that  the  founda- 
tion of  effort,  volition,  appetite  and  desire,  is  not  the  fact  that  a  person 
adjudged  a  thing  to  be  good ;  but  on  the  contrary,  a  person  deems  a  thing 
good  because  he  tends  towards  it  from  effort,  will,  appetite  and  desire." 


214  PART    I.       CIRCl-MSTAXTIAL    EVIDE.VCE  No.  102. 

Similarly  Professor  Hoffding :  "  Everything  which  is  really  to  have  power 
over  us.'  must  manifest  itself  as  emotion  or  passion.  Mere  'reason'  has 
no  power  in  actual  mental  life ;  there  the  struggle  is  always  between  feel- 
ings. The  frecjuent  talk  of  the  conflict  of  reason  with  the  passions  is  con- 
sequently psycliologically  incorrect.  No  such  conflict  can  take  place 
directl.v.  .\  thought  can  suppress  a  feeling  only  by  exciting  another  feel- 
ing which  is  in  a  position  to  set  aside  the  first."  .  .  .  That  conduct  is 
guided  really  by  emotion  and  not  by  knowledge  or  understanding,  and 
that  intellect  is  not  a  power  but  an  instrument  which  is  mo\ed  and  worked 
bv  forces  behind  it,  viz.  the  passions,  is  insisted  on  by  Herbert  Spencer, 
w*ho  concludes  that  it  is  only  by  awakening  appropriate  emotions  that 
character  can  be  changed.  ... 

Motives,  however,  are  7iot  mere  feelings :  they  are  combinations  of  ideas 
and  feelings.  "Every  motive  may  be  divided  into  an  ideational  and  an 
atfective  component.  The  first  we  may  call  the  moving  reason,  the  second 
the  impelling  feeling  of  action.  .  .  .  The  reason  for  a  criminal  murder 
may  be  theft,  removal  of  an  enemy  or  some  such  idea,  the  impelling  feeling, 
the  feeling  of  want,  hate,  revenge  or  envy.  When  the  emotions  are  of  a 
composite  character,  the  reasons  and  impelling  feelings  are  mi.xed,  often  to 
so  great  an  extent  that  it  would  be  difficult  for  the  author  of  the  act  him- 
self to  decide  which  was  the  leading  motive.  ...  In  the  combinations  of 
'  ideas  and  feelings  which  we  call  motives,  the  final  weight  of  importance 
in  preparing  for  the  act  of  will  belongs  to  the  feelings,  that  is,  to  the  im- 
pelling feelings  rather  than  to  the  ideas.  This  follows  from  the  very  fact 
that  feelings  are  integral  components  of  the  volitional  process  itself,  while 
the  ideas  are  of  influence  only  indirectly,  through  their  connections  with 
the  feelings."  * 

Of  course  if  you  choose  to  confuse  the  various  meanings  of  "cause,"  .  .  . 
"motives"  among  other  things  may  be  termed  causes,  but  no  good  in  our 
opinion  comes  of  confusing  the  Final  with  the  Efficient  Cause.  .  .  .  Motive 
in  the  sense  of  that  which  moves  the  mind  is  the  idea  of  physical  force  con- 
tained in  Efficient  Cause,  but  "inducing"  cause  and  "influencing"  is  the 
idea  of  purpose  contained  in  Final  Cause ;  and  while  it  is  true  that  no  action 
can  l)e  done  without  an  agent  to  produce  it,  it  is  not  equally  true,  if  indeed 
it  is  true  at  all,  that  every  act  must  have  a  purpose,  nor  yet  does  every 
purpose  produce  an  action.  "Between  Cause  and  Motive,"  says  Wundt, 
"  there  is  a  very  great  difference.  A  cause  necessarily  produces  its  effect : 
not  so  a  motive.  A  cause  may,  it  is  true,  be  rendered  ineffective,  or  its 
effect  be  changed  by  the  presence  of  a  second  and  contrary  cause,  but  even 
then  the  result  shows  the  traces  of  it,  and  that  in  measurable  form.  But 
a  motive  may  either  determine  volition  or  may  not  determine  it ;  and  if 
the  latter  is  the  case,  then  exerts  no  demonstrable  effect."^  The  fact  is 
that,  though  motives  are  of  the  natin-e  of  causes,  they  are  a  class  of  causes 
that  will  not  admit  of  the  mathematical  or  mechanical  treatment  which  is 
applicable  to  the  scientific  and  popular  conceptions  of  the  term.  It  is  the 
principle  of  sufficient  reason  rather  than  of  causation  which  explains  the 
relation  between  motive  and  conduct. 

On  the  whole,  we  sho\ild  say  that  the  comparison  of  motives  and  acts 

'  \V.  Wiiiidt.  Outlines  of  Psychology,  2d  cd.,  p.  204. 
'Wundt,  Human  and  Animal  Psyckology,  pp.  432-433. 


No.  103.  IV.       PROOF    OF   HUMAN   ACT.      B.    2.    MOTIVE  215 

with  cause  and  effect  above  quoted  contains  more  falsehood  than  truth. 
It  is  true  that  every  effect  must  have  a  cause,  but  it  is  most  certainly  un- 
true that  overt  act  must  have  a  conscious  motive,  which  is  the  sense  in  which 
"motive"  is  there  used.  Apart  from  the  fact  that  mere  reflex  actions  have 
clearly  no  motives  there  are  many  acts  which  once  had  a  motive  but  have 
now  become  mechanical  in  the  course  of  evolution,  c.cj.  twitching  the  ears, 
etc.  Again,  "in  every  asylum,"  writes  Professor  James,  "we  find  examples 
of  absolutely  unmotived  fear,  anger,  melancholy  or  conceit ;  and  others  of 
an  equally  unmotived  apathy  which  persists  in  spite  of  the  best  of  outward 
reasons  why  it  should  give  way."  ^  Nor  does  it  assist  to  say  that  "  there  must 
exist  a  motive  for  every  voluntary  act,"  for  if  any  real  meaning  is  to  be  given 
to  "  voluntary,"  such  acts  must  be  distinguished  from  impulsive  ones :  as 
Professor  Stout  says,  "  voluntary  action  is  to  be  sharply  distinguished  from 
impulsive  action  and  deliberation  from  conflict  of  impulsive  tendencies," 
and  a  very  large  part  of  our  actions  are  impulsive.  While  if  "voluntary" 
is  understood  to  imply  an  idea  of  the  end  in  which  tlie  self  is  realized,  then 
it  is  little  better  than  tautology  to  say  that  every  voluntary  act  implies  a 
motive,  for  motive  is  simply  such  an  idea  of  an  end  exciting  our  feeling. 
It  is  really  the  thinking  of  the  end  that  makes  it  a  motive,  and,  when  this 
is  realized,  all  analogy  at  all  events  to  Efficient  cause  is  gone,  and  with  it 
the  necessary  connection  between  antecedent  and  consequent  on  which 
the  argument  relies. 

103.  John  H.  Wigmore.  Principles  of  Judicial  Proof.-  (1913.)  It 
has  been  noted  {ante,  No.  29)  that  the  term  "  motive,"  as  commonly  used, 
does  not  serve  to  discriminate  the  two  different  processes  to  which  it  may 
be  applied.  (1)  It  may  be  attempted,  first,  to  infer,  from  the  existence  in 
A  of  a  desire  or  inclination  to  do  act  X,  that  this  desire,  urging  him  on, 
probably  resulted  in  the  doing  of  the  act ;  as  when  it  is  argued  that,  because 
A  desired  and  wished  to  get  rid  of  B,  he  probably  did  do  something  towards 
getting  rid  of  B.  (2)  Secondly,  in  proceeding  in  turn  to  evidence  this  desire 
or  other  emotion,  certain  circumstances  may  be  offered  as  tending  to  show 
its  existence ;  as  when  the  argument  is  to  the  existence  of  this  desire  in  A 
(a)  from  an  injury  which  B  has  done  to  A,  or  (6)  from  A's  outward  conduct 
expressing  such  a  desire,  or  (c)  from  the  prior  or  subsequent  existence  of 
such  a  desire.  The  former  inference  involves  the  evidencing  of  a  Human 
Act.  The  latter  inference  involves  the  evidencing  of  a  Human  Quality  or 
Condition. 

Both  inferences  can  best  be  studied  together;  but  they  are  affected  by 
different  experiences  of  human  nature,  and  by  different  opportunities  for 
erroneous  inference. 

1.  Evidence  to  prove  the  Existence  of  an  Emotion.  The  modes  of  inference 
circumstantially  to  a  human  quality  or  condition,  as  already  pointed  out  (ante, 
No.  3),  may  be  of  three  kinds,  all  of  which  come  into  use  in  the  present  sub- 
ject :  (a)  From  circumstances  tending  to  excite,  stimulate,  or  bring  into 
play  the  emotion  in  question  ;  (b)  From  outward  conduct  expressing  and  re- 
sulting from  the  emotion  in  question  ;   (c)  From  the  prior  or  the  subsequent 

1  W.  James,  Principles  of  Psychology,  Vol.  II,  p.  459. 

-  Adapted  from  the  same  author's  Treatise  on  Evidence  (1905,  Vol.  I,  §§  385-395; 
118). 


210  PART   I.      CIRCUMSTANTIAL  EVIDENCE  No.  103. 

existence  of  the  emotion  in  question,  as  indicating  its  existence  at  the  time 
in  issue.  The  first  of  these  is  a  Prospectant  indication  ;  the  second  is  a  Ret- 
rospectant indication  ;  the  third  is  of  both  sorts.  Each  sort  of  inference 
has  its  own  danj^crs  and  tlifhcultics. 

a.  CircuuLstdiicis  tending  io  ixciic  an  Emotion.  It  must  be  remembered 
that  this  mode  of  argument  is  equally  available  in  civil  as  well  as  in  criminal 
cases.  One  is  perhaps  apt  to  think  of  "motive"  as  a  matter  involved  in 
criminal  cases  only.  But  a  recollection  of  the  process  involved  —  that  of 
inferring  the  existence  of  .some  emotion,  from  which  in  turn  the  doing  of  an 
ac-t  is  to  be  inferred  —  shows  that  this  process  may  be  equally  a  feature  of 
proof  in  civil  cases,  though  not  as  frequently  as  in  criminal  cases. 

The  general  incjuiry  is,  What  circumstances  tend  probably  to  excite  a  given 
emotion  ?  Obviou.sly,  the  whole  range  of  human  affairs  is  here  involved.  It 
wouhl  be  idle  to  attempt  to  catalogue  the  various  facts  of  hvmian  life  with 
reference  to  their  potency  in  exciting  a  given  emotion.  Such  an  attempt 
would  exhibit  two  defetts.  It  would  be  pedantic,  because  it  is  impossible  to 
suppose  that  the  operation  of  human  emotions  can  be  reduced  to  fixed  rules, 
and  that  a  given  fact  can  have  an  unvarying  quantity  of  emotional  potency. 
It  would  be  useless,  because  the  emotional  eftect  of  any  fact  must  depend  so 
often  on  the  surrounding  circumstances  that  no  general  formula  could  pro- 
vide for  the  infinite  combinations  of  circumstances.  Courts  have  therefore 
always  been  a'greed  that  in  general  no  fixcfl  negati\e  rules  can  be  made  ;  that 
no  circumstance  can  be  said  beforehand  to  be  without  the  power  of  exciting 
a  given  emotion  ;  and  that,  in  general,  any  fact  may  be  conceived  as  tending 
with  others  towards  the  emotion  in  question.  A  few  of  the  commoner 
illustrations  may  here  be  noted. 

Motiff.s  for  Murder.  The  circumstances  which  might  excite  a  desire  to 
kill  are  innumeral)le.  Circumstances  involving  the  sexual  passion,  in  one 
aspect  or  another,  and  usually  operating  through  the  emotion  of  jealousy  ; 
the  expediency  of  preventing  the  discovery  of  a  former  crime,  or  of  evading 
an  arrest  or  a  prosecution  for  it ;  the  conduct  of  the  deceased  in  opposing  or 
injuring  or  trying  to  injure  the  defendant ;  the  defendant's  relaticms  with 
a  third  person  having  a  desire  to  kill  the  deceased  may  induce  him  to  co- 
operate, through  the  sympathy  either  of  friendship  or  of  domestic  ties,  or 
l)y  reason  of  pecuniary  hire  or  of  fraternal  pledges ;  finally,  and  a  most 
common  circumstance,  the  deceased's  possession  of  money  or  property 
as  leading  to  the  accused's  desire  to  kill. 

Malice  for  Other  Deeds.  The  circumstances  that  may  serve  as  motives 
for  other  deeds  are  innumerable.  A  few  will  be  noted  which  serve  to  show 
the  various  di.scriminations  that  may  ari.se  in  using  the  pecuniary  circum- 
stances, of  one  or  another  person  or  thing,  as  tending  to  excite  a  motive  in 
some  person.  (1)  («)  The  possession  of  money  by  A  may  tend  to  show  that 
li  desired  to  rob  or  to  kill  him.  {b)  The  lack  of  money  by  A  may  tend  to 
show  that  H  would  be  unwilling  to  trust  his  promises,  and  therefore  proba- 
})ly  did  not  trust  him  ;  in  particular,  that  B  would  be  imwilling  to  lend  A 
money,  or  to  sell  goods  to  .\,  or  to  sell  to  him  as  principal,  or  to  sell  to  him 
al)solutely  or  to  sell  to  him  in  good  faith.  (2)  (a)  The  lack  of  money  by  A 
might  1)1'  relevant  eiuMigh  to  show  the  probability  of  A's  desiring  to  commit 
a  crime  in  order  to  obtain  money.  But  the  practical  result  of  such  a  doc- 
trine woulii    lie  to  i)ut  a  ])oor  pcr.-un  under  so  much  suspicion  and  at  such 


No.  103.  IV.       PROOF   OF   HUMAN   ACT.      B.    2.    MOTIVE  217 

a  relative  disadvantage  that  for  reasons  of  fairness  this  argument  has  seldom 
been  countenanced  as  evidence  of  the  graver  crimes,  particularly  of  violence. 
(b)  On  the  other  hand,  the  fact  that  a  person  was  in  possession  of  money- 
tends  to  negative  a  desire  to  obtain  it  by  crime  or  by  borrowing,  and  is  always 
admissible,  the  foregoing  objection  not  being  here  applicable. 

Two  inferences,  involving  other  principles,  must  be  here  distinguished  : 
(a)  The  inference  that  A  probably  did  not  lend  money  to  B  because  A 
had  no  money  to  lend  ;  this  is  inferring  that  A  did  not  do  an  act  because 
he  had  not  the  Means  or  Capacity  to  do  it  (ante,  No.  73) ;  (b)  the  inference 
that  A  probably  took  money  because  after  the  time  alleged  he  had  large 
sums  while  before  it  he  had  little  or  none ;  this  is  inferring  an  act  from  the 
Traces  of  it  {post,  No.  139).  (3)  The  market  value  of  an  article  bought  may 
be  received  to  show  the  probable  price  agreed  upon  ;  because  the  actual  value 
would  move  the  buyer  to  wish  to  obtain  it  for  not  more  than  that  amount,  and 
hence  a  serious  difference  between  the  actual  value  and  the  price  alleged  by  the 
vendor  would  throw  discredit  on  the  latter's  claim.  In  the  same  way,  where 
the  price  is  not  in  issue,  but  the  specific  article  is,  a  serious  difference  between 
the  value  of  the  article  in  question  and  the  concededly  agreed  price  tends  to 
support  an  allegation  that  the  article  in  question  is  not  the  one  agreed  upon. 

b.  Conduct  E.vhibitiug  cm  Emotion.  Every  one  of  the  human  qualities 
or  conditions  with  which  the  foregoing  passages  have  been  concerned  may 
be  evidenced  by  conduct  exhibiting  it.  The  interpretation  of  that  conduct 
proceeds  always  from  experience  as  to  the  inferences  to  be  drawn  from  par- 
ticular kinds  of  conduct.  But  the  questions  that  arise  in  connection  with 
conduct  involve  usually  the  principles  of  the  ensuing  inference ;  i.e.  prior 
or  subsequent  conduct  is  offered  as  showing  the  emotion  at  that  prior  or 
subsequent  time,  and  the  then  emotion  is  thus  offered  as  showing  emotioa 
at  the  time  in  issue ;  the  doubt  or  objection  being  not  as  to  the  first  of  the 
two  inferences,  but  as  to  the  second. 

c.  Prior  and  Subsequent  Emotion.  Where  an  Emotion  is  offered  as  evi- 
dencing an,  Act  {ante,  No.  101),  it  is  offered  as  existing  at  the  time  of  the 
act ;  but  its  then  existence  may  be  proved  by  its  prior  or  later  exist- 
ence. The  nature  of  the  inference,  it  will  be  seen,  is  distinct  from  those 
of  the  two  preceding  sorts  {i.e.  from  extraneous  circumstances  tending  tOi 
the  excitement  of  the  emotion,  and  from  conduct  exhibiting  the  inward 
inspiration  for  the  conduct).  Here  the  argument  is  from  an  emotional 
condition  once  existing  to  its  subsequent  or  prior  prolongation.  The  pecul- 
iar opportunity  for  error  here  is  that  the  prior  existing  emotion  may  have 
been  brought  to  an  end  before  the  time  in  issue,  and  that  the  subsequent 
existing  emotion  may  have  been  first  produced  since  the  time  in  issue. 
Practically  this  inference  is  of  course  usually  associated  with  two  others 
in  a  way  which  may  obscure  the  real  evidential  question.  For  example,  to 
show  that  A  struck  his  wife,  the  fact  is  offered  that  he  beat  her  five  years 
before  ;  here  three  steps  of  inference  are  involved  :  (1)  the  beating  five  years 
before  evidences  a  then  violent  emotion  towards  her  ;  (2)  the  violent  emotion 
five  years  ago  evidences  a  continuance  of  the  emotion  to  the  time  in  issue ; 
(3)  the  violent  emotion  at  the  time  in  issue  evidences  the  realization  of  the 
emotion  in  the  act  of  striking  as  charged. 

2.  The  Emotion  as  evidence  of  the  Doing  of  an  Act.  Assuming  that  an 
emotion  exists,  the  following  aspects  of  it  are  important. 


218  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  104 

a.  Kind  of  Emotion  as  related  to  the  Act.  The  probative  value  of  the  emo- 
tion depends  much  on  how  closely  that  specific  emotion  is  related  to  the  doing 
of  the  act  in  issue.  This  varies  according  to  general  experience  of  human 
nature  ami  to  the  moral  and  mental  constitution  of  the  individual. 

h.  Kxylanatiun.  On  the  principle  of  Explanation  {ante,  No.  2),  numerous 
hypotheses  may  serve  to  destroy  the  probability  of  the  inference,  even  when 
it  is  certain  that  an  emotion  towards  doing  the  specific  act  did  exist.  E.g. 
outward  events  may  have  physically  prevented  the  action  impelled  by  the 
motive,  or  the  force  of  the  emotion  may  have  been  spent  before  the  time 
of  the  act ;  or  a  counter  emotion  may  have  been  stronger. 

c.  An  emotion  may  impel  against  as  well  as  towards  an  act.  Thus, 
a  defendant's  strong  feelings  of  affection  for  a  deceased  person  would 
work  against  the  doing  of  violence  upon  him,  and  would  thus  be  relevant 
to  show  the  not-doing.  This  is  also  the  significance  of  evidence  that  there 
was  "no  apparent  motive"  for  a  murder ;  for  a  state  of  emotional  indiffer- 
ence —  i.e.  the  absence  of  any  anger,  jealousy,  or  the  like  —  is  almost 
equally  powerful  in  its  operation  against  a  deed  of  violence.  Sometimes, 
of  course,  such  evidence  merely  negatives  an  alleged  murderous  emotion, 
or  negatives  the  tacit  possibility  of  it ;  but  there  is  also  this  affirmative 
aspect  to  the  argument,  namely,  that  emotional  indifference  makes  against 
crimes. 

d.  It  is  sometimes  popularly  supposed  that  in  order  to  establish  a  charge 
of  crime,  the  prosecution  muM  show  a  possible  motive.  But  this  notion  is 
without  foundation.  Assuming  for  purposes  of  argument  that  "every  act 
must  have  a  motive,"  i.e.  an  impelling  emotion  (which  is  not  strictly  correct), 
yet  it  is  always  possible  that  this  necessary  emotion  may  be  undiscoverable, 
and  thus  the  failure  to  discover  it  does  not  signify  its  non-existence.  The 
kinds  of  evidence  to  prove  an  act  vary  in  probative  strength,  and  the  absence 
of  one  kind  may  be  more  significant  than  the  absence  of  another ;  but  the 
mere  absence  of  any  one  kind  cannot  be  fatal.  There  must  have  been  a  plan 
to  do  the  act  (we  may  assume) ;  the  accused  must  have  been  present  (assum- 
ing it  was  done  by  manual  action) ;  but  there  may  be  no  evidence  of  prepara- 
tion ;  or  there  may  be  no  evidence  of  presence  ;  yet  the  remaining  facts  may 
furnish  ample,  proof.  The  failure  to  produce  evidence  of  some  appropriate 
motive  may  be  a  great  weakness  in  the  whole  body  of  proof,  but  it  is  not  a 
fatal  one,  as  a  matter  of  law.  In  other  words,  there  is  no  more  necessity,  in 
the  law  of  evidence,  to  discover  and  estal)lish  the  particular  exciting  emotion, 
or  some  possible  one.  than  to  use  any  other  particular  kind  of  evidential  fact. 

104.  Alexandku  M.   BuRKii.L.      A   Treatise  on  Circumstantinl  Evidener. 

(isas.    p.  :ii4.) 

Emotion  as  Eridairr  of  the  Doing  of  an  Act.  The  defense,  on  behalf  of 
the  accused,  may  be  foimded  on  the  alleged  non-existence  oi  any  motive  to 
the  particular  crime  charged,  or  the  insuficiency  of  the  particular  motive 
a.ssigned,  to  have  led  to  it. 

1.  The  absence  of  all  evidence  of  an  inducing  cause  to  guilt  always  afford- 
ing, in  such  cases,  a  strong  presumption  of  innocence.  But  it  will  avail 
nothing  for  the  defense  that  no  motive  appears  or  has  been  affirmatively 
shown  by  the  evidence  adduced.  Admitting,  as  a  general  truth,  that  every 
act  must  have  its  motive,  it  is  ati  ol>viously  necessary  inference  (independ- 


No.  104.  IV.       PROOF   OF    HUMAN   ACT.       B.    2.    MOTIVE  219 

ently  of  any  conclusions  of  law),  that  the  act  proved  in  the  particular  case 
did  have  its  motive.  It  is  enough,  therefore,  to  assume  that  the  apparent 
act  had  a  corresponding  motive.  To  go  further,  and  single  out  the  particu- 
lar motive  which  was  the  actual  inducing  cause,  as  it  would  be  manifestly 
impracticable,  is  never  necessary. 

2.  Supposing,  in  the  next  place,  that  the  existence  and  possible  influence 
of  a  motive  are  shown,  its  intrinsic  quality  or  impulsive  power  is  next  as- 
sailed, and  the  argument  relied  on  is,  that  the  supposed  or  assigned  motive 
could  not  have  been,  in  point  of  fact,  adequate  to  the  inducement  of  the  par- 
ticular act. 

This  question  of  the  adequacy  or  inadequacy  of  motives  to  the  production 
of  their  assumed  results,  opens  an  extremely  wide  field  of  inquiry. 

(1)  The  first  ground  of  the  argument  against  the  adequacy  of  an  assigned 
viotue  to  have  induced  the  commission  of  a  crime  charged,  is  the  supposed 
disproportion  intrinsically  existing  between  them.  So  aggravated  an  offense, 
it  is  urged,  could  not  have  been  committed  for  so  insignificant  a  gain,  or 
upon  so  trifling  a  provocation.  But  it  has  already  been  shown  that  in  order 
to  estimate  with  any  correctness,  the  inducing  power  of  a  motive  to  crime,  or 
the  want  of  such  power,  the  moral  quality  of  the  mind  to  which  it  is  addressed 
must  always  be  taken  into  view.  Hence  there  can  be  no  one  rule  for  all 
cases,  as  regards  adequacy  of  motive.  It  must  depend  on  the  moral  charac- 
ter of  the  person  accused,  in  each  case.  .  .  .  Turning  from  argument  to 
facts,  the  evidence  recorded  in  numerous  actual  trials  serves  incontestibly 
to  show  by  how  trifling  and  apparently  wholly  inadequate  motives  or  causes, 
men  hare  been  led  to  the  commission  of  the  most  appalling  crimes.  The  mere 
expectation  of  obtaining  a  few  pounds  for  a  dead  hviman  body,  as  an  anatom- 
ical subject,  was  sufficient  to  induce  Burke  and  his  associates  to  murder  no 
less  than  sixteen  persons.  A  few  words  of  reprimand  led  Courvoisier  to 
cut  his  master's  throat,  as  he  lay  asleep  in  his  bed.    .   .   . 

(2)  Another  ground  of  the  argument  against  the  adequacy  of  assigned 
motives,-  in  particular  cases,  consists  in  what  may  be  called  the  antagonism, 
or  conflict  of  motives,  or  the  assumed  existence  of  restraining  motives  operat- 
ing in  an  opposite  direction.  The  principal  sources  of  these  are  three ;  — 
the  penalties  imposed  by  the  law  upon  crime ;  the  force  of  the  natural 
affections ;  and  the  influence  of  the  peculiar  character  and  circumstances 
of  individuals,  (a)  The  penalties  which  the  law,  for  the  protection  of  society, 
imposes  upon  crime  (and  which  have  been  called  by  Mr.  Bentham  its  "  tute- 
lary sanctions")  are  intended,  by  the  loss  and  suffering  which  they  hold  out 
as  its  consequences,  to  deter  men  from  its  commission.  These  penalties 
operate,  in  the  most  accurate  sense,  as  motircs  to  restrain  the  mass  of  man- 
kind, who  are  inaccessible  to  higher  considerations,  from  giving  the  reins 
to  criminal  desire.  Of  this  argument,  no  less  than  of  the  preceding,  it  may 
be  said,  that  it  is  encountered  by  actual  facts ;  wnth  this  difference,  that 
such  facts  are  of  daily  occurrence.  Notwithstanding  the  severity  of  the 
penalties  provided  by  law,  it  is  notorious  that  the  commission  of  crime  con- 
tinues to  go  on.  The  restraint  contemplated  is  not  effectual  to  the  extent 
intended  and  desired.  A  majority,  perhaps,  of  what  may  be  termed  the 
criminally  disposed  portion  of  the  community  are  kept  in  check  by  the  effect 
of  fear,  or  the  natural  desire  of  avoiding  threatened  loss  or  suffering.  If 
these  were  the  only  influences  regarded,  the  preponderance  probably  would 


220  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  105. 

oftenerlie  on  the  side  of  restraint  and  consequent  inaction.  But,  unfortu- 
nately for  society,  this  otherwise  probable  result  is,  in  fact,  constantly 
wiakenetl  and  overthrown  by  the  presentation  of  a  third  class  of  motives,  — 
those,  namely,  which  involve  the  chances  of  encape  or  immuniti/  from  punish- 
ment. The  overwhelming  power  of  the  rcirngcfitl  impulse,  where  it  has 
obtained  full  mastery  of  the  mind,  has  already  been  adverted  to.  In  these 
ca.ses,  the  chances  of  escape  from  threatened  punishment  are  rarely  so  much 
as  transiently  regarded,  much  less,  accurately  weighed.  Even  the  apparent 
certainty  of  encountering  the  full  penalty  which  the  restraining  motive, 
in  itself  considered,  presents,  fails  often  to  affect  the  purpose  which  has  been 
formed,  (h)  Another  class  of  restraining  motives,  for  which  a  controlling 
influence  is  often  claimed  in  behalf  of  parties  accused  of  crime,  and  particu- 
larly of  murder,  consists  of  those  which  arise  from  the  influence  of  the 
uaturdl  affrction.s.  But  it  is  nevertheless  true,  that,  in  particular  cases, 
too  numerous,  unhappily,  for  the  credit  of  humanity,  these  aflections  have 
been  found  to  interpose  no  sort  of  bar  to  the  gratification  of  either  the  gainful 
or  revengeful  impulse  to  murder ;  or,  to  speak  with  more  precision,  that  the 
affections  presumed  from  the  relations  of  the  parties  have  not,  in  fact,  ex- 
istetl.  Cases  of  parricide,  of  fratricide,  of  the  murder  of  children  by  their 
parents,  of  husbands  by  their  wives,  and  of  wives  by  their  husbands,  have 
continually  stained  the  pages  of  criminal  records  down  to  the  present  day. 

lO.'x  H.  L.  Ad.am.  The  Stonj  of  Crime.  (19—  p.  279.)  .  .  .  For  lesser 
crimes  there  may  be  ample  motive,  which  is  invariably  made  manifest  in  the 
task  of  proving  guilt.  There  are  also  crimes  committed  where  the  motive 
seems  singularly  inadequate  in  comparison  with  the  risk  incurred  and  the 
consequences  which  are  inevitable  upon  discovery ;  and  there  are  crimes 
for  which  it  is  well-nigh  impossible  to  discover  any  motive  at  all.  It  is 
mainly  about  the  last-named  class  we  are  now  concerned.  I  have  from  time 
to  time  sat  in  criminal  courts  and  listened  to  cases  which  have  to  me  pre- 
sented insoluble  problems.  I  have  watched  prisoners  who  have  baffled 
my  most  strenuous  efforts  to  fathom  them  —  human  enigmas.  They  seem 
to  glide  into  the  dock  in  a  perfectly  vacant  manner,  sit  with  the  face  of  a 
Sphinx  all  through  the  hearing,  and  then  glide  out  again  to  serve  the  sen- 
tence that  has  been  passed  upon  them.  The  whole  thing  seems  most  pain- 
fully perfunctory.  It  may  be  accepted  as  a  universal  rule  of  reasoning  that 
for  every  average  himian  action,  however  small,  there  is  a  motive  of  some 
kind,  whether  it  be  adequate  or  not.  Even  lunatics  are  said  sometimes  to 
have  method  in  their  madness.  Whenever  a  man  commits  a  crime,  of 
whatever  degree  of  gravity,  for  which  no  motive  whatever  can  be  found, 
it  argues  the  existence  of  some  mysterious  mental  flisorder.  It  is  certainly 
not  the  mental  disorder  which  is  generally  regarded  as  insanity,  for  such 
prisoners  as  1  have  referred  to  above  have  l)een  closely  watched  and  examined 
by  experts,  who  have  failed  to  discover  any  of  the  symptoms  which  indicate 
the  presence  of  ordinary  insanity.  .  .  .  Their  disaffection  is  one  far  sul)- 
tler,  more  sinister,  than  ordinary  insanity.  ...  It  is  a  sudden  calamitous 
visitation,  during  wliicli  the  victim  commits  purposeless  deeds;  it  is  a  wave 
of  all-p()werf\il  eniotinn  which  holds  captive  the  mind  and  impels  the  victim 
to  extravagant,  illogical,  and  baleful  acts.  It  is  intermittent,  transitory, 
and  during  its  prc\alcncc  it  obliterates  all  reasoning  power,  leaving  in  its 


No.  106.  IV.       PROOF   OF   HUMAN   ACT.       B.    2.    MOTIVE  221 

train  an  aftermath  of  bewilderment  and  moral  unconsciousness.  I  have 
seen  prisoners  in  the  dock  bereft  of  all  conception  of  their  position,  and 
when  they  have  been  called  upon  to  explain  or  comment  on  their  delinquency 
they  have  presented  a  front  of  perfect  helplessness,  as  unable  to  account  for 
their  behavior  as  anybody  present  in  court.  .  .  .  This  strange  malady 
affects  both  sexes  at  all  times  of  their  lives,  from  the  period  of  puberty  on- 
ward. It  is  accountable  for  most  if  not  all  of  the  motiveless  crimes  com- 
mitted, and  in  the  case  of  women  it  usually  culminates  in  the  police  court 
and  a  charge  of  "drunk  and  disorderly."  .  .  .  One  of  the  most  peculiar 
prisoners  who  ever  sat  in  the  dock  of  the  Old  Bailey  was  Mrs.  Pearcey,  who, 
it  will  be  remembered,  was  convicted  of  and  executed  for  the  murder  of  a 
woman  named  Hogg.  Here  again  we  have  the  curious  neurotic  creature,  the 
frenzied  and  unreasoning  slaying.  There  was  no  reason  that  she  should  have 
killed  the  woman  with  whose  husband  she  was  intriguing  —  she  could 
have  gained  nothing  by  it.  She  had  free  access  to  the  man,  who  was  a  will- 
ing party  to  the  guilty  connection.  It  was  not  for  plunder,  for  the  poor 
woman  had  nothing  with  which  to  tempt  the  cupidity  of  anybody.  These 
cases  fill  one  with  a  vague  misgiving.  All  through  the  case  this  woman's 
behavior  was  most  mysterious.  While  the  police  officers  were  searching  her 
house,  in  the  kitchen  of  which  was  the  damning  evidence  of  bloodstains, 
she  was  playing  on  the  piano  in  the  front  room.  It  seemed  incredible  that 
that  spare,  fragile-looking  woman  should  have  been  able  unaided  to  have 
dealt  as  she  did  with  one  so  much  bigger  and  heavier  than  herself,  and  then 
afterwards  to  have  wheeled  the  body  in  a  perambulator  for  two  miles  !  Such 
a  proceeding  betrayed  the  presence  of  the  supernatural  strength  which  is 
know^n  to  be  possessed  by  the  insane.  She  was  defended  by  Mr.  Arthur 
Hutton,  and  that  gentleman  assured  me  that  she  was  the  most  mysterious 
prisoner  he  ever  had  to  deal  with,  and  that  he  has  always  entertained  some 
vague  doubt  concerning  her.  He  wanted  to  try  and  get  the  charge  reduced 
to  the  minor  one  of  manslaughter,  to  work  up  a  theory  of  some  altercation 
between  the  two  women  on  the  fatal  night,  —  it  will  be  remembered  that  the 
deceased  woman  had  gone  to  the  house  of  the  prisoner,  at  the  invitation 
of  the  latter,  to  take  tea,  —  that  from  words  they  got  to  blows,  and  so  the 
tragedy  happened  (which,  after  all,  might  very  well  have  been),  but  the 
prisoner  would  not  consent  to  this,  steadfastly  refusing  all  aid  of  this  kind. 
She  was  an  exemplary  prisoner,  going  doggedly  and  resignedly  to  her  doom. 
.  .  .  But  as  usual  in  these  cases  she  was  quite  unable  to  give  any  reason 
for  having  committed  the  deed. 

106.  Arthur  C.  Train.  Why  do  Mn  Killf  (Collier's  Weekly,  Jan.  27, 
1912.)  ^  All  crimes  naturally  tend  to  divide  themselves  into  two  classes  — 
crimes  against  property  and  crimes  against  the  person,  each  class  having  an 
entirely  difterent  assortment  of  reasons  for  their  commission.  There  can 
be  practically  but  one  motive  for  theft,  burglary,  or  robbery.  It  is,  of  course, 
conceivable  that  such  crimes  might  be  perpetrated  for  revenge  —  to  deprive 
the  victim  of  some  highly  prized  possession.  But  in  the  main  there  is  only 
one  object  —  unlawful  gain.  So,  too,  blackmail,  extortion,  and  kidnapping 
are  all  the  products  of  the  desire  for  "easy  money."  But,  unquestionably, 
this  is  the  reason  for  murder  in  comparatively  few  cases. 

1  Later  reprinted  in  hi3  Courts,  Criminals,  and  the  Camorra,  1912. 


222  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  106. 

Mr.  Charles  C.  Nott,  Jr.,  Assistant  District  Attorney  of  New  York, 
has  been  tryinj;  nuirtler  cases  for  nearly  ten  years.  He  has  kept  a  complete 
recoril  of  ail  of  them,  and  this  he  courteously  placed  at  my  disposal.  The 
list  contains  (12  cases,  and  the  defendants  were  of  divers  races.  These 
homicides  included  15  committed  in  cold  blood  (nearly  25  per  cent,  an 
extraordinary  percentage)  from  varying  motives,  as  follows  :  One  defendant 
(white )  murdered  his  colored  mistress  simply  to  get  rid  of  her  ;  another  killed 
out  of  revenge  because  the  deceased  had  "licked"  him  several  times  before ; 
another,  having  quarreled  with  his  friend  over  a  glass  of  soda  water,  later 
on  returned  and  precipitated  a  quarrel  by  striking  him,  in  the  course  of  which 
he  killed  him  ;  another  because  the  deceased  had  induced  his  wife  to  desert 
him  ;  another  lay  in  wait  for  his  victim  and  killed  him  without  the  motive 
ever  being  ascertained  ;  one  man  killed  his  brother  to  get  a  sum  of  money, 
and  another  because  his  brother  would  not  give  him  money ;  another  be- 
cause he  believed  the  deceased  had  betrayed  the  Armenian  cause  to  the 
Turks ;  another  because  he  wished  to  get  the  deceased  out  of  the  way  in 
order  to  marry  his  wife ;  and  another  because  deceased  had  knocked  him 
down  the  day  before.  One  man  had  killed  a  girl  who  had  ridiculed  him  ; 
and  one  a  girl  who  had  refused  to  marry  him  ;  another  had  killed  his  daughter 
because  she  could  no  longer  live  in  the  house  with  him ;  one,  an  informer, 
had  been  the  victim  of  a  Black  Hand  vendetta ;  and  the  last  had  poisoned 
his  wife  for  the  insurance  money  in  order  to  go  off  with  another  woman. 
There  were  two  cases  of  infanticide,  in  one  of  which  a  woman  threw  her  baby 
into  the  lake  in  Central  Park  and  in  the  other  gave  it  poison.  Besides  these 
murders,  five  homicides  had  been  committed  in  the  course  of  perpetrating 
other  crimes,  including  burglary  and  robbery.  Passing  over  three  cases 
of  culpable  negligence  resulting  in  death,  we  come  to  thirty-seven  homicides 
during  quarrels,  some  of  which  might  have  been  technically  classified  as 
murders,  but  which,  being  committed  "  in  the  heat  of  passion,"  in  practically 
every  instance  resulted  in  a  verdict  of  manslaughter.  The  quarrels  often 
arose  over  the  most  trifling  matters.  One  was  a  dispute  over  a  broom, 
another  over  a  horse  blanket,  another  over  food,  another  over  a  25-cent  bet 
in  a  pool  game,  another  over  a  loan  of  50  cents,  another  over  10  cents  in  a 
crap  game,  and  still  another  over  SI. 30  in  a  crap  game.  Five  men  were 
killed  in  drunken  rows  which  had  no  immediate  cause  except  the  desire  to 
"start  something."  One  man  killed  another  because  he  had  not  prevented 
the  theft  of  some  lumber,  one  (a  policeman)  because  the  deceased  would  not 
"  move  on  "  when  ordered,  one  because  a  Inirtender  refused  to  serve  him  with 
any  more  drinks,  and  one  (a  bartender)  because  the  deceased  insisted  that 
he  ahould  serve  more  drinks.  One  man  was  killed  in  a  quarrel  over 
politics,  one  in  a  fuss  over  some  beer,  one  in  a  card  game,  one  trying  to 
rob  a  fruit  stand,  one  in  a  dispute  with  a  ship's  officer,  one  in  a  dance-hall 
row.  One  man  killed  another  whom  he  found  with  his  wife,  and  one 
wife  killed  lu-r  husband  for  a  similar  cause ;  another  wife  killed  her  husband 
simply  because  she  "couhl  not  stand  him,"  and  one  because  he  was  fighting 
with  their  son.  One  man  was  killed  by  another  who  was  trying  to  collect 
from  him  a  d('l)t  of  .S<10().  One  quarrel  resulting  in  homicide  arose  because 
the  defendant  had  pointed  out  deceased  to  the  police,  another  because  the 
participants  got  calling  each  other  names,  and  another  arose  out  of  an  alleged 
seduction.     Three  homicides  grew  out  of  street  rows  originating  in  various 


No.  106.  IV.       PROOF    OF   HUMAN   ACT.       B.    2.    MOTIVE  223 

ways.  One  man  killed  another  who  was  fighting  with  a  friend  of  the  first, 
a  janitor  was  killed  in  a  "continuous  row"  which  had  been  going  on  for  a 
long  time,  and  one  homicide  was  committed  for  "nothing  in  particular." 

This  astonishing  oUa-podrida  of  reasons  for  depriving  men  of  their  lives 
leaves  one  stunned  and  confused.  Is  it  possible  to  deduce  any  order  out 
of  such  homicidal  chaos  ?  Still,  an  attempt  to  classify  such  diverse  causes 
enables  one  to  reach  certain  general  conclusions.  .  .  . 

The  significant  features  of  this  analysis  are  that  about  75  per  cent  of  the 
killings  were  due  to  quarrels  over  small  sums  or  other  matters,  drink  and 
women  ;  over  50  per  cent  to  drink  and  petty  quarrels,  and  about  30  per  cent 
to  quarrels  simply.  The  trifling  character  of  the  causes  of  the  quarrels 
themselves  is  shown  by  the  fact  that  in  three  of  these  particular  cases,  tried 
in  a  single  week,  the  total  amount  involved  in  the  disputes  was  only  85  cents. 
That  is  about  28^  cents  a  life.  Many  a  murder  in  a  barroom  grows  out 
of  an  argument  over  whether  a  glass  of  beer  has,  or  has  not,  been  paid  for, 
or  whose  turn  it  is  to  treat ;  and  more  than  one  man  has  been  killed  in  New 
York  City  because  he  was  too  clumsy  to  avoid  stepping  on  somebody's  feet 
or  bumping  into  another  man  on  the  sidewalk. 

With  a  view  to  ascertaining  conditions  in  general  throughout  the  United 
States,  I  asked  a  clipping  agency  to  send  me  the  first  one  hundred  notices 
of  actual  homicides  which  should  come  under  its  scissors.  This  brought 
in  due  course  107  clippings,  which  yielded  up  the  following  reasons  why 
men  killed  :  There  were  4  suicides,  3  lynchings,  1  infanticide,  3  murders 
while  resisting  arrest,  3  criminals  killed  while  resisting  arrest,  2  men  killed 
in  riots,  8  murders  in  the  course  of  committing  burglaries  and  robberies, 
7  persons  killed  in  vendettas,  3  race  murders,  and  24  killed  in  quarrels  over 
petty  causes  ;  there  were  12  murders  from  jealousy,  followed  in  fqur  in- 
stances by  suicide  on  the  part  of  the  murderer ;  6  killings  justifiable  on  the 
"higher  law"  theory  only,  but  involving  great  provocation,  and  30  deliberate 
slaughters.  .  .  .  The  Reasons  for  these  homicides  were  of  every  sort :  police 
officers  and  citizens  were  shot  and  killed  by  criminals  trying  to  make  "  get-a- 
aways,"  and  by  negroes  and  others  "running  amuck";  despondent  young 
men  shot  their  unresponsive  sweethearts  and  then  either  blew  out  their 
own  brains  or  pretended  to  try  to  do  so ;  two  stablemen  had  a  duel  with 
revolvers,  and  each  killed  the  other ;  several  men  were  shot  for  being  too  at- 
tentive to  young  women  residing  in  the  same  hotels ;  an  Italian,  whose  wife 
had  left  him  and  gone  to  her  mother,  went  to  the  house  and  killed  her,  her 
sister,  her  sister's  husband,  his  mother-in-law,  two  children,  and  finally 
himself;  the  "Gopher  Gang"  started  a  riot  at  a  "benefit"  dance  given  to 
a  widow  and  killed  a  man,  after  which  they  fled  to  the  woods  and  fired  from 
cover  upon  the  police  until  eighteen  were  overpowered  and  arrested  ;  a  young 
girl  and  her  fiance,  sitting  in  the  parlor,  planning  their  honey-moon,  were 
unexpectedly  interrupted  by  a  rejected  suitor  of  the  girl's,  who  shot  and 
killed  both  of  them ;  ...  a  girl  of  eleven  shot  her  girl  friend  of  about  the 
same  age  and  killed  her ;  several  persons  were  found  stabbed  to  death ;  a 
plumber  killed  his  brother  (also  a  plumber)  for  saying  that  he  stole  two 
dollars ;  a  murderer  was  shot  by  a  posse  of  militia  in  a  cornfield ;  a  card 
game  at  Bayonne,  New  Jersey,  resulted  in  a  revolver  fight  on  the  street  in 
which  one  of  the  players  was  killed ;  bank  robbers  killed  a  cashier  at 
twelve  o'clock  noon ;  a  jealous  lover  in  Butte,  Montana,  shot  and  killed 


224  rART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  It-.,. 

his  sweetheart,  her  father,  and  mother ;  a  deputy  sheriff  was  murdered ; 
burglars  killed  several  persons  in  the  course  of  their  business ;  Kokolosski, 
a  Pole,  kicked  his  child  to  death ;  and  a  couple  of  dozen  people  were 
incidentallN-  shot,  stabbed,  or  otherwise  disposed  of  in  the  course  of  quarrels 
over  the  most  trivial  matters.  In  almost  no  case  was  there  what  an  intel- 
ligent, civilized  man  would  regard  as  an  adequate  reoson  for  the  homicide. 
They  killeil  bccaim'  ihci/ftU  like  killing,  and  yielded  to  the  impulse,  whatever 
its  immediate  origin. 

This  conclusion  is  abundantly  supported  by  the  figures  of  the  Chicago 
Tribune  for  the  seven  years  ending  in  1900,  when  carefully  analyzed. 
During  this  period  (32,812  homicides  were  recorded.  Of  these  there  were 
17,120  of  which  the  causes  were  unknown  and  3204  committed  while  making  a 
justifiable  arrest,  in  self-defense,  or  by  the  insane,  so  that  there  were,  in  fact, 
only  42,4SS  felonious  homicides  the  causes  of  which  can  be  definitely  alleged. 
The  ratio  of  the  quarrels  to  this  net  total  is  about  75  per  cent.  There  were, 
in  addition,  2848  homicides  due  to  liquor  —  that  is,  icithout  cause.  Thus  80 
per  cent  of  all  the  murders  and  manslaughters  in  the  United  States  for  a 
period  of  seven  years  were  for  no  reason  at  all  or  from  mere  anger  or  habit 
arising  out  of  causes  often  of  the  most  trifling  character.  .  .  . 

Now  it  would  be  stupid  to  allege  that  the  reason  men  HiHed  was  because 
they  had  been  stepped  on  or  had  been  deprived  of  a  glass  of  beer.  The  cause 
lies  deeper  than  that.  It  rests  in  the  willingness  or  desire  of  the  murderer 
to  kill  at  all.  Among  barbaric  or  savage  peoples  this  is  natural ;  but  among 
civilized  nations  it  is  hardly  to  be  anticipated.  If  the  negro  who  shoots  his 
fellow  becau.se  he  believes  himself  to  have  been  cheated  out  of  ten  cents  were 
really  civilized,  he  would  either  not  have  the  impulse  to  kill  or,  having  the 
impulse  to  kill,  would  have  sufficient  power  of  self-control  to  refrain  from 
doing  so.  This  power  of  self-control  may  be  natural  or  acquired,  and  it 
may  or  may  not  be  possessed  by  the  man  who  feels  a  desire  to  commit  a 
homicide.  The  fact  to  be  observed  —  the  interesting  and,  broadly  speaking, 
the  astonishing  fact  —  is  that  among  a  people  like  ourselves  anybody  should 
have  a  desire  to  kill.  It  is  even  more  astonishing  than  that  the  impulse 
should  be  yielded  to  so  often  if  it  comes. 

This,  then,  is  the  real  reason  why  men  kill  —  because  it  is  inherent  in 
their  state  of  mind,  it  is  part  of  their  mental  and  physical  make-up.  They 
are  ready  to  kill,  they  want  to  kill,  they  are  the  kind  of  men  who  do  kill. 
This  is  the  result  of  their  heredity,  environment,  educational  and  religious 
training,  f)r  the  absence  of  it.  How  many  readers  of  this  paper  have  ever 
experienced  an  actual  desire  to  kill  another  human  being?  Probal'ly  not 
one  hundredth  of  one  per  cent.  They  belong  to  the  class  of  people  who 
either  never  have  such  an  impulse,  or  at  any  rate  have  been  taught  to  1  eep 
such  impulses  mider  control.  Hence  it  is  futile  to  try  to  explain  that  some 
men  kill  for  a  trifling  sum  of  money,  some  because  they  felt  insulted,  others 
because  of  j)olitical  f)r  labor  disputes,  or  because  they  do  not  like  their  food. 
Any  one  of  these  may  be  the  match  that  .sets  off  the  gunpowder,  but  the  real 
cause  of  the  killing  is  the  fact  that  the  gunpowder  is  there,  lying  around  loose, 
anfl  ready  to  be  touched  off".  What  engenders  this  gunpowder  state  of 
mind  would  make  a  valuable  sociological  study. 


No.  107. 


IV.       PROOF    OF   HUMAN   ACT.       B.    2.    MOTIVE 


225 


107.    GEORGE     WACHS'     CASE.      (Anselm    von     Feuerbach. 


Remarkable  German  Criminal  Trials. 

[Near  Vilsbiburg,  in  Bavaria,  on 
Thursday  evening,  April  8,  1819, 
the  family  of  James  Huber,  a  shoe- 
maker, was  found  brutally  killed, 
in  his  little  cottage.  Father,  wife, 
and  two  children,  had  all  been  mur- 
dered with  a  hammer.  Wachs,  who 
had  been  in  the  cottage  that  after- 
noon and  had  afterwards  left,  was 
arrested,  and  confessed.]  George 
Wachs,  born  of  Catholic  parents,  at 
Soiling,  in  the  circuit  of  Moosburg, 
on  the  17th  of  April,  1800,  and, 
accordingly,  only  nineteen  years  of 
age  when  he  committed  this  crime, 
was  the  son  of  a  small  farmer,  who 
also  worked  as  a  day  laborer.  .  .  . 
This  young  man's  immoderate  taste 
for  women  fully  accounts  for  the 
suddenness  of  the  change  in  his 
moral  nature.  Wantonness  made 
him  riotous,  disorderly,  and  lazy ; 
love  of  women  made  him  vain  and 
fond  of  dress,  and  vanity  made  him 
rapacious,  until  he  became  first  a 
thief,  and  then  a  murderer.  .  .  . 
Wachs  left  home  at  eight  o'clock 
in  the  morning  of  Maundy  Thurs- 
day, the  8th  of  April,  with  the  in- 
tention of  making  his  Easter  confes- 
sion at  Vilsbiburg.  On  his  way 
he  met  Matthias  Hingerl,  a  peas- 
ant's son.  .  .  .  Hingerl  showed 
him  his  watch,  which  he  had  fetched 
from  the  watchmaker.  .  .  .  The 
sight  of  this  enviable  possession 
painfully  recalled  to  his  recollection 
that,  although  he  certainly  had  good 
clothes  for  the  next  Easter  Sunday, 
he  was  still  without  a  watch.  At 
about  noon  they  both  went  merrily 
towards  home,  but  stopped  by  the 
way  at  a  village.  .  .  .  Wachs  told 
him  that  he  had  cut  his  foot  with  a 
hatchet,  and  must  have  his  boot 
mended  before  Easter  Sunday. 
With  this  object  only,  so  at  least 
the  accused  declared  on  every  ex- 
amination, he  turned  back  and  went 
to  the  shoemaker's  house.  .  .  . 
After  his  boot  had  been  mended, 
and  he  had  stayed  some  time  with 


1846.  transl.  Gordon,  p.  256.) 
the  shoemaker,  he  wished,  accord- 
ing to  his  own  account  at  least,  to 
go  away  at  about  four  o'clock,  and 
asked  the  shoemaker  whether  his 
clock  was  right  ?  whereupon  the 
latter  told  him  that  it  was  too  slow 
by  a  quarter  of  an  hour,  and  de- 
sired his  wife  to  fetch  him  his  silver 
watch  from  upstairs  that  he  might 
wind  it  up.  After  bringing  the 
watch  to  her  husband,  who  wound  it 
up,  and  hung  it  upon  a  nail  in  the 
wall  beside  him,  she  left  the  house 
and  went  to  Soiling  to  buy  fish  for 
the  next  day.  .  .  . 

"When    the    woman    was    gone" 

—  these  are  the  criminal's  own  words 

—  "we  talked  over  a  variety  of 
indifferent  matters,  and  for  a  long 
time  no  evil  thought  crossed  my 
mind,  although  the  watch  was  hang- 
ing before  my  eyes  the  whole  time. 
All  at  once  it  struck  me  how^  beauti- 
ful the  watch  was.  I  took  it  from 
the  wall,  examined  it  closely,  opened 
it,  and  asked  the  shoemaker  how 
much  it  had  cost.  He  told  me  that 
with  a  silver  chain  and  seal,  the 
watch  had  cost  fourteen  florins,  but 
that  the  chain  was  upstairs  in  the 
cupboard,  as  he  only  wore  it  on 
holidays,  when  I  should  be  able  to 
see  it.  I  remarked  that  I  had  a 
mind  to  buy  them,  if  I  could  ever 
get  together  enough  money,  and  he 
appeared  quite  willing  to  sell  them. 
I  could  not  get  the  watch  out  of  my 
head :  I  walked  up  and  down  the 
room  with  my  eyes  fixed  upon  it, 
and  the  thought  struck  me  that  I 
would  run  off  with  it  as  soon  as 
the  shoemaker  left  the  room.  But 
he  never  stirred  from  his  seat,  and 
continued  hard  at  work  upon  the 
upper  leathers  of  a  pair  of  shoes. 
The  desire  for  the  watch  grew  upon 
me  every  moment,  and  as  I  walked 
up  and  down  the  room,  I  turned 
over  in  my  own  mind  how  I  could 
get  possession  of  it ;  and  as  the  shoe- 
maker still  sat  at  his  work,  it  sud- 
denly came  across  me  —  suppose  I 


22() 


PART    I.       CIRCUMSTAXTIAL    EVIDENCE 


No.  107. 


were  to  kill  him  ?  There  lay  the 
luinuner :  I  took  it  up  l)efore  the 
.shoeinaker'.s  face  and  pretended  to 
play  with  it ;  but  I  diil  not  hit  him 
directly,  becau.se  1  kept  thinking  to 
myself  that  I  ought  not  to  kill  him. 
I  walked  up  and  down  behind  his 
back  for  some  minutes  with  the 
hammer  in  my  hand,  but  still  in 
doubt.  Then  my  longing  after  the 
watch  gained  the  upper  hand,  and 
I  said  to  myself,  'Now  is  the  time, 
otherwise  the  wife  will  be  here  too  1' 
And  just  as  the  shoemaker  was  most 
busily  at  work,  I  rai.sed  the  hammer 
and  struck  him  with  it  as  hard  as 
I  could  on  the  left  temple :  he  fell 
from  his  seat  covered  with  blood, 
and  never  moved  or  uttered  a  sound. 
I  felt  sure  that  I  could  kill  him  with 
one  blow.  I  should  think  that  a 
quarter  of  an  hour  must  have  elapsed 
while  I  went  up  and  down  the  room 
thinking  how  I  could  get  the  watch  : 
at  length  I  struck  the  blow,  and  this 
was  my  last  and  worst  thought. 
It  must  have  been  in  an  unlucky 
hour  that  desire  for  the  w^atch  took 
so  strong  a  hold  of  me.  I  had  never 
thought  about  it  before  ;  nor  should 
I  ha\e  entered  the  shoemaker's 
house,  but  for  my  torn  boot. 

"  As  soon  as  the  shoemaker  was 
flown  I  put  the  watch  into  my  pocket 
and  went  upstairs  to  look  for  the 
chain.  ...  I  turned  everything 
over,  but  did  not  find  the  chain ; 
however  I  did  find  six  florins  in 
half-florin  pieces,  thirty  kreutzers, 
and  a  siher  hat  buckle.  .  .  .  My 
chief  object  still  was  to  find  the 
silver  chain,  and  it  was  only  during 
my  search  for  it  thftt  the  other 
things  fell  in  my  way,  and  that  I 
took  them.  When  I  had  got  all 
these  things,  I  returned  to  the  work- 
shop to  take  a  piece  of  leather,  and 
perceived  that  the  shoemaker  still 
breathed  ;  I  therefore  gave  him  a 
few  more  blows  on  the  temple  with 
the  hammer,  and  then  I  thought  that 
I  had  better  remove  him  into  the 
big  chamber,  so  that  his  wife  might 
not  see  him  immediately  upon  en- 
tering   the    hou.se.       I    accordingly 


dragged  him  out  of  the  shop  into 
the  chamber  near  the  bed."  .  .  . 
George  Wachs  was  on  the  point  of 
lea\ing  the  house  when  the  two 
children  met  him  at  the  door  on  their 
return  from  play.  These  children 
had  seen  him  during  nearly  half  the 
day,  and  knew  him ;  if  they  re- 
mained alive,  he  was  betrayed.  .  .  . 
He  seized  the  little  boy,  and  dashed 
him  upon  the  ground  at  the  foot  of 
the  stairs  with  such  violence,  that 
the  death  rattle  w-as  in  his  throat  in 
a  moment.  He  then  flung  Cath- 
erine with  equal  violence  under  the 
stairs  among  a  mass  of  wood  and 
iron.  ...  At  last  he  thought  he 
might  escape  in  safety,  but  on  put- 
ting his  head  out  at  the  door  to  see 
if  any  one  w^as  near,  he  beheld  the 
shoemaker's  wife  returning  from 
Soiling.  .  .  .  "When  I  saw  the 
woman  coming,  I  said  to  myself, 
'Now  I  cannot  escape;  I  am  lost, 
and  must  kill  her  too.'  ...  I 
stood  behind  her,  nearest  the  door, 
and  before  she  was  aw^are  of  it  I 
struck  her  such  a  heavy  blow  with 
the  hammer  on  the  left  temple,  that 
she  instantly  fell  close  to  the  chest, 
and  only  cried  in  a  low  voice,  Jesus 
IVIaria  !  I  saw  that  she  could  not 
recover,  and  gave  her  several  more 
blows  as  she  lay  on  the  floor,  to  put 
her  out  of  her  misery.  I  then 
dragged  her  on  one  side  towards 
the  inner  room,  so  that  people  should 
not  tread  upon  her  as  they  entered 
the  house.  .  .  .  The  whole  aft'air 
could  not  have  lasted  an  hour.  It 
was  past  five  when  I  struck  the  shoe- 
maker, and  bv  six  the  wife  was 
killed. 

"  If  it  had  not  been  for  the  watch 
chain,  I  should  have  not  got  into 
all  this  trouble,  and  nobody  would 
have  been  killed  but  the  shoemaker. 
I  never  once  thought  of  killing  the 
wife  and  the  children."  .  .  ,  The 
truth  of  this  assertion  that  he  en- 
tered the  shoemaker's  shop  without 
any  criminal  intention,  and  that  it 
was  not  until  the  watch  was  so 
temptingly  exhibited  before  his  eyes 
that  the  idea  of  murder  entered  his 


No.  108. 


IV.       PROOF   OF   HUMAN   ACT.       B.    2.    MOTIVE 


227 


mind,  seems  somewhat  doubtful. 
It  certainly  looks  suspicious  that 
the  same  man  should  have  murdered 
another  for  the  sake  of  his  watch  at 
five  in  the  afternoon,  who  on  the 
morning  of  the  same  day  feasted  his 
eyes  on  a  watch  in  his  comrade's 
possession.  .  .  .  These  conjectures, 
however,  lose  all  their  weight  on 
closer  examination.  From  first  to 
last  the  criminal  never  seems  to  have 
acted  upon  any  predetermined  plan, 
but  merely  to  have  obeyed  the  in- 
spiration of  the  moment,  and  to  have 
yielded  to  the  temptation  of  an 
opportunity  created  by  the  coinci- 
dence of  several  accidental  circum- 
stances. .  .  .  The  events  of  the 
forenoon  had  already  filled  his  im- 
agination with  the  idea  of  a  watch. 
...  In  order  to  make  his  com- 
panion share  his  pleasure,  Hingerl 
took  the  watch  out  of  his  pocket 
and  allowed  him  to  examine  it, 
boasting  of  its  excellence  all  the 
while.  George  Wachs  said  nothing, 
but  it  was  impossible  that  so  vain  a 
young  man  should  not  envy  his 
more  fortunate  companion,  and  long 


for  the  possession  of  a  similar  treas- 
ure. Thus,  without  any  guilty 
thoughts  or  criminal  intentions, 
George  Wachs  was  prepared,  by 
what  he  had  seen,  heard,  and  felt 
that  morning,  for  the  temptation 
which  afterwards  met  him  in  the 
shoemaker's  house.  An  unhappy 
chance  placed  before  the  eyes  of  one 
whose  thoughts  and  wishes  had  on 
that  very  morning  been  directed 
towards  a  watch,  just  such  another, 
and  the  tempter,  opportunity,  stood 
by.  This  second  watch  was  not 
merely  shown  to  him  and  then  re- 
turned to  its  case,  but  was  hung 
against  the  wall,  where  it  continued 
to  excite  his  desires :  he  could  not 
avoid  seeing  it,  and  the  longer  he 
looked,  the  more  inviting  did  it 
appear.  ...  To  be  the  owner  of 
such  a  treasure,  to  appear  before 
the  women  thus  adorned,  to  out- 
shine all  his  companions,  was  in- 
deed a  tempting  vision  for  a  vain 
lad  of  nineteen ;  and  in  this  vision 
he  indulged  until  liking  became 
longing,  and  longing  ungovernable 
passion.  .  .  . 


108.     GEORGE  MANNERS'  CASE.     (S.  M 
Cases  of  Circumstantial  Evidence.      No.  XLVI.) 

A  Miss  Lascelles,  of  Middlesex,  her  brother. 
England,  formed  a  matrimonial  en- 
gagement with  one  George  Manners. 
Her  elder  brother,  Edmund  Las- 
celles, who  acted  towards  her  as  a 
guardian,  their  parents  being  dead, 
strongly  objected  to  the  proposed 
union,  but  was  either  unable  or 
unwilling  to  give  any  satisfactory 
reasons  for  his  objections.  His  con- 
duct towards  his  sister  was  extremely 
violent  and  harsh ;  and  finally,  to 
appease  him,  she  consented  to  post- 
pone for  an  indefinite  period  the 
proposed  marriage.  All  correspond- 
ence between  Mr.  Manners  and  Miss 
Lascelles  was  not,  however,  stopped, 
and  they  only  decided  to  wait  for  a 
more  auspicious  season. 

One  evening,  about  six  o'clock, 
Mr.  Manners  suddenly  appeared  at 
the  residence  of  Miss  Lascelles  and 


Phillipps.     Fai 


Mr.  Lascelles  was 
absent  at  the  time.  Mr.  Manners 
complained  bitterly  that  their  hap- 
piness should  be  sacrificed  to  the 
passionate  freak  of  the  brother, 
and  urged  Miss  Lascelles  to  leave 
the  house,  go  to  the  residence  of  a 
relation,  and  there  be  married. 
The  plan  she  willingly  agreed  to ; 
but  as  a  condition,  made  Mr.  Man- 
ners promise  to  wait  and  make  one 
last  effort  with  her  brother.  Mr. 
Lascelles  returned  about  nine 
o'clock,  and  immediately  assailed 
his  sister  with  insults  and  reproaches. 
At  the  request  of  Mr.  Manners,  she 
left  the  room,  and  the  two  men  had 
a  stormy  interview,  lasting  about 
twenty  minutes.  Then  the  door 
opened,  and  Mr.  Manners  was  heard 
to  say  :  "  Good  night,  Mr.  Lascelles, 
I  trust  our  next  meeting  may  be  a. 


22S 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  108. 


dirtVrent  one":  and  immediately 
afterward,  Mr.  Laseelles  appearing 
to  have  refused  to  shake  hands  on 
parting,  in  a  haU-lauj,diing  way  — 
"Next  time,  Laseelles,  I  shall  not 
ask  for  your  hand  —  I  shall  take  it." 

Al)Out  an  hour  later,  ]\Ir.  La.s- 
eelles  also  went  out,  and  about 
eleven  o'elock  the  house  was  aroused 
hy  two  men  earrying  his  dead  body 
into  the  kitehen,  followed  by  George 
Manners  with  his  hands  and  elothes 
dal)l)leil  with  blood.  Death  ap- 
peared to  ha\'e  been  caused  by  two 
instruments,  a  bludgeon  and  a  knife ; 
and  what  appeared  most  singular, 
the  right  hand,  on  which  was  a  sap- 
jihirc  ring,  was  gone.  As  Mr.  Man- 
ners had  been  heard  to  speak  the 
words,  "he  would  not  ask  Laseelles' 
hand,  but  take  it,"  suspicion  at 
once  pointed  to  him,  and  he  was 
aeconlingly  arrested,  and  committed 
for  examination. 

On  the  inquest,  the  following 
testimony  was  given  by  James 
( Vosby,  a  farm  laborer :  "  I  had 
been  sent  into  the  village  for  some 
medicine  for  a  sick  beast,  and  was 
returning  to  the  farm  by  the  park, 
a  little  before  eleven,  when  near  the 
low  gate  I  saw  a  man  standing  with 
his  l)ack  to  me.  The  moon  was 
shining,  and  I  recognized  him  at 
once  for  Mr.  George  Manners  of 
Heckfield.  When  Mr.  Manners  saw 
me,  he  seemetl  much  excited,  and 
called  out,  'Quick!  help!  Mr. 
Laseelles  has  been  murdered.'  I 
said,  'Good  God  I  who  did  it?' 
He  said,  '  1  don't  know  ;  I  found  him 
in  the  ditch  ;  help  me  to  carry  him 
in.'  Hy  this  time  I  had  come  up 
and  saw  Mr.  Laseelles  on  the 
ground,  lying  on  his  side.  I  said, 
'How  (If)  you  know  he's  dead?' 
\h-  said,  'I  fear  there's  very  little 
hope ;  he  has  bled  .so  profu.sely.  I 
am  covered  with  blood.'  I  was 
examining  the  body,  and  as  I  tin-ned 
it  over  I  found  tliat  the  right  hand 
wjLs  gone.  It  had  been  cut  ofi'  at 
the  wrist.  I  said.  'Look  here! 
Did  you  know  this?'  He  spoke 
very  low,  and  only  .said,  '  How  hor- 


rible !'  I  said,  'Let  us  look  for  the 
hand ;  it  may  be  in  the  ditch.' 
He  said,  '  No,  no  !  we  are  wasting 
time.  Bring  him  in,  and  let  us  send 
for  the  doctor.'  I  ran  to  the  ditch, 
however,  but  could  see  nothing  but 
a  pool  of  blood.  Coming  back,  I 
found  on  the  ground  a  thick  hedge- 
stake  covered  with  blood.  The 
gras:.  by  the  ditch  was  very  much 
stamped  and  trodden.  I  said, 
'There  has  been  a  desperate 
struggle.'  He  said,  'Mr.  Laseelles 
was  a  very  strong  man.'  I  said, 
'  Yes ;  as  strong  as  you,  Mr.  Man- 
ners.' He  said,  'Not  quite;  very 
nearly,  though.'  He  said  nothing 
more  till  we  got  to  the  hall ;  then 
he  said,  'Who  can  break  it  to  his 
sister?'  I  said,  'They  w^ill  have  to 
know.  It's  them  that  killed  him 
has  brought  this  misery  upon  them.' 
The  low  gate  is  a  quarter  of  a  mile, 
or  more,  from  the  hall."  Miss 
Laseelles  was  also  forced  to  testify 
to  the  interview  before  mentioned, 
and  also  to  the  parting  words  be- 
tween the  two  men. 

George  Manners  was  fully  com- 
mitted to  stand  his  trial  at  the  en- 
suing assizes.  Upon  the  trial  the 
same  evidence  was  produced,  and  the 
jury  found  the  accused  guilty. 

A  few  days  before  the  time  set 
for  his  execution  some  circumstances 
directed  the  search  for  the  missing 
hand  —  which  was  still  being  prose- 
cuted by  the  friends  of  Mr.  Manners 
—  to  the  cellar  of  a  barn  belonging 
to  one  Parker,  a  small  farmer  in  the 
neighborhood  ;  and  as  a  reward  of 
their  diligence,  the  missing  hand 
was  there  found,  together  with  a 
rusty  knife.  Parker  w^as  at  once 
arrested,  and  confessed  his  guilt. 
The  wretched  man  said,  that  being 
out  on  the  fatal  night  about  some 
sick  cattle,  he  had  met  Mr.  Las- 
eelles by  the  gate ;  that  Laseelles 
had  begun,  as  usual,  to  taunt  him ; 
that  the  opporttmity  of  revenge  was 
too  strong,  and  he  had  murdered 
him.  His  first  idea  had  been  flight; 
and  being  unable  to  drag  the  ring 
from   the  hand  which   was   swollen, 


Xo.  109. 


IV.      PROOF   OF   HUMAN    ACT.       B.    2.    MOTIVE 


229 


he  had  cut  it  off,  and  thrown  the 
body  into  the  ditch.  On  hearing 
of  the  finding  of  the  body,  and  of 
George  Manners'  position,  he  deter- 


mined to  brave  it  out,  with  what 
ahnost  fatal  success  we  have  seen. 
He  dai*ed  not  sell  the  ring,  and  so 
buried  it  in  his  barn. 


109.    THOMAS    PATTESON'S    CASE.     (Camden    Pelham. 
Chronicles  of  Crime,      ed.  1891.      Vol.  II,  p.  599.) 


The 


The  trial  of  this  person  took  place 
at  Aylesbury,  on  Tuesday,  March 
10th,'lS40,  before  Mr.  Baron  Parke, 
when  the  indictment  charged  that 
the  prisoner  had  been  guilty  of 
the  manslaughter  of  John  Charles, 
on  the  21st  of  October  previous, 
at  Buckland,  in  Buckinghamshire. 
The  case  excited  a  great  deal  of 
interest  in  the  county,  from  the 
condition  in  life  of  the  deceased  and 
the  prisoner,  who  were  both  respect- 
able farmers,  and  from  the  close 
intimacy  which  had  long  existed 
between  them,  as  well  as  from  the 
mysterious  manner  of  the  death  of 
the  former.  Though  the  coroner's 
jury  returned  a  verdict  of  man- 
slaughter only,  the  prosecutors  sent 
up  a  bill  of  indictment  for  murder 
to  the  grand  jury,  which  they  ig- 
nored. 

The  main  circumstances  of  the 
case  were,  that  on  the  20th  of  October, 
1839,  the  deceased  John  Charles 
went,  about  ten  o'clock  in  the  fore- 
noon, to  the  "Boot,"  on  Buckland 
Common,  where  he  had  some  beer ; 
and  while  there,  the  prisoner  came 
in  to  take  lunch,  about  twelve  o'clock. 
They  remained  talking  and  drink- 
ing together  until  about  five  o'clock 
in  the  evening,  when  the  landlord, 
John  Edwards,  came  in,  with  whom 
they  had  some  more  drink.  About 
half  past  ten  o'clock  at  night  they 
rose  to  go  away,  their  road  being 
the  same  to  pretty  near  their  re- 
spective homes.  Before  they  went, 
however,  Charles  said,  "  I  think  I  am 
the  best  man  now,  let  us  walk  the 
chalk  ♦"  meaning  that  he  was  the  less 
intoxicated  of  the  two.  "Walking 
the  chalk"  is,  in  this  part  of  the 
country,  the  test  of  drunkenness,  and 
the  experiment  is  performed  by  the 
attempt   to   walk   straight   upon   a 


chalked  line  drawn  across  the  floor, 
or  by  walking  along  the  straight 
line  between  two  layers  of  bricks 
where  the  floor  is  of  that  material. 
The  experiment  was  tried  in  this 
case,  and  the  result  proved  that 
Charles,  the  deceased,  was  the  less 
affected  by  drink  of  the  two  ;  and  he 
therefore  undertook,  as  is  usual 
between  two  companions  on  such 
occasions,  to  see  the  other  safe  home. 
Neither  of  them  ever  reached  his 
home,  for  the  deceased  perished  on 
the  way,  and  the  prisoner  having 
been  taken  into  custody  the  same 
night,  remained  in  Aylesbury  jail 
up  to  the  day  of  the  trial. 

The  first  person  who  made  known 
the  dreadful  catastrophe  was  the 
prisoner  himself,  who,  about  half- 
past  twelve  o'clock  on  the  same  night, 
in  a  very  wild  and  still  intoxicated 
state,  went  to  Johnson,  the  police- 
man, in  the  town  of  Tring,  about 
two  miles  from  the  place  where  the 
death  took  place,  and  told  him  "he 
had  killed  a  man."  At  first  the 
policeman  did  not  believe  him, 
thinking  it  the  mere  folly  of  drink ; 
but  he  persisted,  and  said  he  would 
take  him  to  the  place  where  the  body 
lay.  The  policeman  then  went  with 
him,  and  in  a  lane  leading  to  the 
homes  of  both  parties,  the  body  of  the 
deceased  was  found  lying  on  its 
back  on  the  grass,  in  a  place  not 
exactly  on  the  road,  but  where  a  gap 
in  the  field,  which  was  the  termina- 
tion of  a  footpath  running  parallel 
with  the  lane  inside  of  the  hedge, 
led  into  the  road.  That  path  was 
one  which  had  been  made  by  people 
going  through  the  adjoining  land 
to  avoid  a  bad  part  of  the  road  ;  and 
having  passed  that  portion  of  the 
road,  they  came  into  the  road  again. 
The  prisoner,  before  the  body  was 


230 


PART   I.      CIRCUMSTANTIAL    EVIDENCE 


No.  109. 


found,  had  told  the  policeman  that 
he  was  sure  the  person  he  had  killed 
was  "Joe  Kibble,  the  sweep  of  Trinj;, 
who  had  been  sent  by  Humphrey 
Bull  to  kill  him."  Humphrey  Hull 
was  the  relie\inj;  oiheer  of  the  union, 
of  which  both  the  prisoner  and  the 
deceaseil  were  guardians,  and  was 
of  diflerent  politics  from  the  prisoner, 
the  latter  being  a  liberal,  and  Bull 
a  conservative ;  but  they  were  on 
good  terms  ;  and  nothing  could  show 
more  strongly  the  strange  state  of 
delusion  which  the  effects  of  intem- 
perate drinking  had  wrought  upon 
the  prisoner's  mind  on  that  fatal 
night,  than  that  he  should  give  as 
a  reason  for  killing  one  of  his  friends, 
that  he  believed  him  to  be  an  assassin 
sent  by  another  friend  for  the  pur- 
pose of  murdering  him  !  On  examin- 
ing the  body  of  the  deceased,  it  was 
founil  to  bear  marks  of  dreadful 
beating  on  the  head  and  face,  which 
had  produced  great  efiusion  of  blood. 
The  bones  of  the  nose  were  com- 
pletely broken,  and  a  surgeon  de- 
posed to  a  concussion  of  the  brain, 
as  one  of  the  effects  of  the  violence 
which  caused  death.  In  the  pockets 
of  the  deceased  were  found  a  ten- 
pound  note,  a  five-pound  note,  and 
some  sovereigns.  On  the  notes 
being  taken  out  of  the  pocket,  the 
prisoner  immediately  exclaimed, 
"These  are  the  two  banknotes  which 
Bull  gave  Joe  Kibljle  to  murder  me  I " 
At  that  time  nobody  present  was 
aware  that  the  body  was  that  of 
farmer  Charles.  So  far  from  that, 
the  policeman  actually  sent  a  per- 
.son  to  the  house  of  Charles,  to  ask 
him  to  come  to  see  the  body.  The 
prisoner  had  previously  told  the 
police  that  he  had  been  going  home 
from  the  Buckland  Inn,  with  his 
friend  Charles,  but  the  latter  parted 
from  him  somewhere  on  the  road, 
he  could  not  tell  where. 

The  probable  solution  of  the 
mystery  is,  that  the  deceased,  who 
was  proved  tf)  be,  when  in  his  cups, 
of  a  jocose  disposition,  and  rather 
addicted  to  tin-  too-oftcn  dangerous 
practice  of  practical  joking,  or  what 


is  vulgarly  called  "larking,"  had, 
in  going  home  that  night,  resolved 
to  frighten  Patteson,  who,  though  a 
man  of  prodigious  bodily  strength, 
was  known  to  be  rather  deficient  in 
courage,  and  had  before  expressed 
fears  of  going  home  by  that  lonely 
road.  With  this  view,  it  is  supposed 
that  Charles,  taking  advantage  of 
the  very  drunken  state  in  which 
Patteson  was,  slipped  away  from 
him  among  some  trees  which  stood 
at  the  entrance  of  the  footpath  which 
we  have  before  described,  and  which 
ran  parallel  with  the  road  along 
which  Patteson  had  to  proceed  to 
his  home.  A  high  bank  and  hedge 
would  screen  any  person  going  along 
this  pathway  from  the  view  of  an- 
other on  the  road.  At  the  place 
where  the  pathway  led  again  into  the 
road,  at  the  gap,  there  was  a  mound 
of  earth  with  an  open  space  between 
that  and  the  hedge,  so  that  a  person 
coming  from  the  gap  might,  by  going 
partly  behind  that  mound,  be  con- 
cealed until  he  came  suddenly  in 
view,  and  this  is  probably  what  the 
deceased  did  in  order  to  frighten  his 
companion ;  and  the  position  of  the 
body  near  the  gap  when  found 
seemed  to  strengthen  that  supposi- 
tion. Whether  the  deceased  laid 
hold  of  the  prisoner  before  the  latter 
saw  him  or  not  must  remain  for- 
ever involved  in  obscurity,  as  the 
panic-terror  into  which  Patteson 
was  suddenly  thrown,  operating 
upon  the  drunkenness,  caused  him 
to  destroy  the  inifortunate  man  im- 
mediately ;  and  it  is  probable  that, 
from  his  strength,  his  first  blow 
knocked  him  senseless.  The  pris- 
oner said,  that,  while  he  w^as  beating 
the  supposed  murderer  on  the 
ground,  he  asked  him  "w^ho  sent  him 
to  kill  him,"  and  that  he  pronounced 
the  name  of  "Bull"  three  times. 
This  of  course  was  the  mere  hallu- 
cination of  the  temporary  •frenzy 
produced  by  drunkenness  and  terror. 
When  the  prisoner  and  deceased  left 
the  inn  together,  the  latter  had  a 
knobbed  walking  stick  in  his  hand, 
the  other  had  none.     The  stick  was 


IV. 


PROOF   OF   HUMAN   ACT.       B.    2.    MOTIVE 


231 


found  under  the  body  of  the  de- 
ceased, but  not  marked  with  blood, 
or  presenting  any  appearance  that 
could  show  that  it  had  been  used 
in  inflicting  the  wounds  by  the 
prisoner.  Those  wounds  the  sur- 
geon was  of  opinion  were  inflicted 
by  the  fist  only.  The  prisoner  was 
in  an  agony  of  grief  as  soon  as  he 
was  made  aware  that  it  was  his 
friend  and  companion  Charles  that 
he  had  so  unwittingly  slain,  and 
continued  in  a  state  of  deep  affliction, 
even  up  to  the  time  of  his  trial. 

On  behalf  of  the  accused,  evidence 
was  adduced  which  showed  that  he 
was  a  most  amiable  and  respectable 
man. 

Mr.  Baron  Parke,  in  summing  up 
the  evidence,  told  the  jury  that  if 
they  were  of  opinion  that  the  delu- 
sion which  operated  on  the  mind  of 
the  prisoner,  and  led  to  the  perpetra- 
tion of  the  fatal  act,  was  caused  by 
such  an  alarm  of  personal  danger  as 
would  not  have  produced  a  similar 
effect  upon  the  reasonable  mind  of 
a  sober  man,   they  must  find  him 


guilty  of  manslaughter,  otherwise 
the  act  would  be  excusable  homi- 
cide. 

The  jury  returned  a  verdict  of 
"Guilty  of  manslaughter,"  accom- 
panied by  a  recommendation  to 
mercy. 

Mr.  Baron  Parke,  in  pronouncing 
judgment,  observed,  that  from  the 
time  he  had  read  the  depositions  he 
believed  the  fatal  act  of  the  prisoner 
to  have  been  the  result  of  a  delusion 
produced  upon  a  mind  which  intoxi- 
cation had  deprived  of  the  control 
of  reason ;  that  the  prisoner  never 
had  the  slightest  intention  of  killing 
his  friend,  with  whom  it  was  proved 
he  never  had  any  quarrel,  was  clear 
beyond  all  doubt.  It  was  not  right 
that  he  should,  however,  go  alto- 
gether unpunished,  but  in  consid- 
eration of  his  having  already  suf- 
fered five  months'  imprisonment,  he 
should  sentence  him  to  be  impris- 
oned for  two  months  only,  hoping 
that  this  case  would  be  a  warning 
to  all  who  heard  it  of  the  danger  of 
indulging  in  intemperate  habits. 


110.  THE  GLOUCESTER  CHILD-MURDER.  (A.  C.  Plowden. 
Grain  or  Chaff:  The  Autobiography  of  a  Police  Magistrate.  1903. 
p.  180.) 


Another  murder  case  comes 
into  my  recollection,  tried  also  at 
Gloucester,  before  Mr.  Justice  Lopes. 
I  was  asked  to  defend,  and  I  had 
the  rare  satisfaction  to  my  own  mind 
of  obtaining  what  is  not  often 
looked  for  in  a  trial  for  murder  — 
a  clear  acquittal.  This  case  pro- 
foundly impressed  me  by  its  un- 
utterable pathos ;  a  distracted  hu- 
man soul,  torn  by  conflicting  emo- 
tions and  struggling  in  vain  with 
destiny  —  the  sort  of  tale  that 
would  have  moved  the  chorus  to 
pity  in  a  Greek  tragedy.  The  ac- 
cused was  a  young  woman  leading 
an  ordinary  everyday  life,  with 
nothing  against  her  but  the  one  fall 
of  her  early  womanhood ;  and  yet 
it  was  the  child  of  this  lawless  ro- 
mance she  was  accused  of  having 
murdered.     By  her  own  confession 


she  had  willfully  taken  its  life  by 
pushing  it  into  a  deep  well  close  to 
the  cottage  w^here  she  lived.  There 
was  no  other  evidence  against  her 
of  any  kind.  Was  it  true  ?  and 
what  made  her  do  it  ?  were  the 
questions  raised  by  the  case. 

Alas!  she  had  herself  explained 
the  motive.  A  lover  had  found 
his  way  to  her  lonely  cottage,  a 
lover  who  was  willing  and  anxious 
to  marry  her  but  for  what  he  con- 
sidered the  incumbrance  of  the 
child.  Hence  the  agony  of  mind 
which  tore  the  poor  woman  in  two. 
Either  the  child  or  the  lover  must 
go,  whatever  the  love  she  might 
feel  for  either.  There  was  no  room 
in  her  little  world  for  the  double 
joys  of  wife  and  mother,  which  come 
to  most  women  almost  as  their  natu- 
ral right  and  provide  their  highest 


232 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  111. 


happiness.  One  ean  imagine  what 
the  struggle  nuist  have  been  to  a 
simple  creature,  humbly  placed, 
without  much  education,  and  with- 
out the  aid  of  those  distractions  in 
life  which  serve  to  tiivcrt  the 
thoughts  and  still  the  uneasy  prick- 
ings of  temptation.  If  in  the  end 
the  forces  against  which  she  liad  to 
contend  proved  too  strong  for  her 
moral  nature,  it  will  be  seen  that  the 
struggle  was  fierce  and  bitter. 

Let  her  speak  for  iierself ,  almost  in 
her  own  words.  The  prisoner  was 
the  first  to  mention  the  calamity  that 
had  l)cfallcn  her  child.  Wringing 
her  hands  and  weejjing  bitterly,  she 
told  a  neighbor,  who  was  attracted 
by  her  sobs,  that  her  poor  child  had 
fallen  into  the  well.  Later  in  the 
day,  when  the  deail  body  had  been 
recovered,  the  wretched  woman, 
after  a  fresh  outburst  of  grief,  con- 
fessed to  her  mother  that  she  her- 
self had  done  it.  and  begged  her 
mother  to  pray  for  her.  She  had 
wanted  the  child  to  fall  in,  and  had 
given  it  ap|)lt's  to  throw  in.  hoping 
in  this  way  it  might  fall  in,  but  to  no 
purpose.  The  next  day,  in  a  calmer 
frame  of  mind,  she  adhered  to  this 
confession  and  told  her  relatives 
"she  knew  she  would  be  hung,  but 
she  could  In-ar  it  no  longer.  She 
had  done  it  because  she  saw  no  other 
way  of  being  hajijiv  with  the  man 
she  loved."  Hy  this  time  the  matter 
had    become    known    to    tlie    j)olicc, 


and  the  prisoner,  becoming  fright- 
ened, made  a  long  explanation, 
which  was  taken  down,  to  the  effect 
that  the  child  had  fallen  by  accident. 
This  statement  she  afterwards  de- 
clared to  be  false,  and  again  she 
repeated  the  story  about  the  apples, 
and  said  she  luul  thrown  the  child 
in.  "Once  before,"  she  added,  "I 
took  the  child  to  throw  him  in.  I 
held  him  over  the  well,  when  my 
dear  boy  looked  up  and  said, '  Don't 
put  me  in  this  dark  hole,  mamma.' 
I  had  not  the  heart  to  do  it,  and  I 
took  him  back."  This  was  the 
whole  story  ;  there  was  no  corrobo- 
ration from  any  (piarter.  Which 
of  the  prisoner's  statements  was  the 
true  one  ?  Was  it  her  confession 
or  its  retraction  ?  I  pressed  on  the 
jury  as  well  as  I  could  the  danger 
of  a  conviction  under  -the  circum- 
stances, and  reminding  them  of  the 
old  adage  that  truth  lies  at  the 
bottom  of  the  well,  asked  if  it  did 
not  apply  with  striking  force  to  the 
case  they  had  to  consider.  They 
took  an  hour  to  consult  together, 
and  returned  into  Court  with  a 
verdict  of  "Not  Guilty."  Nine  of 
the  twehe,  I  afterwards  heanl, 
were  in  fa\or  of  a  conviction.  The 
verdict  was  not  popular.  The  ex- 
cuses which  pressed  themselves  on 
my  mind  were  overlooked  by  an 
angry  crowd,  and  the  prisoner,  as  she 
left  the  Court,  had  to  be  protected 
by  the  police  to  escape  their  violence. 


111.    THE    KENT    CASE.      (J. 
Ccniunj.      IS't'.l.      p.   WW.) 

In  the  little  village  of  Koad,  some 
four  miles  to  the  nortlieast  of  Frome, 
and  on  the  confines  of  Somerset- 
shire and  Wiltshire,  stands  Koad 
Hill  House,  and  tliere  in  June,  1S(1(), 
H'^idrd  Mr.  Sanniel  Sa\ile  Ki-iil. 
deputy  inspector  of  factories.  He 
had  been  twicf  married,  ami  was  the 
fathi-r  of  a  numerous  family  ;  by 
his  first  wife  h«-  had  thn-e  daughters 
and  one  son  living,  and  his  second 
wife  was  the  mother  of  three  chil- 
dn-n    and    was    then    expecting    her 


H.    Ati.ay.      Famous    Trials  of   the 

confinement  at  no  distant  date. 
On  the  night  of  Friday,  the  29th  of 
.lime,  the  household  consisted  of 
just  a  dozen  inmates,  Mr.  and  Mrs. 
Kent,  the  seven  children,  and  three 
female  servants,  nurse,  cook,  and 
liouseuiaid.  Eleven  o'clock  was  the 
usual  hour  for  retiring,  Mr.  Kent  was 
in  the  habit  of  going  over  the  prem- 
ises with  a  lantern  to  ascertain 
that  all  doors  and  windows  were 
safely  fastened,  and  on  this  occasion 
he  went  his  rounds  as  usual. 


No.  111. 


IV.       PROOF    OF    IirM.\X    ACT.       B.    -J.    MOTIVE 


233 


Tlie  house  is  a  substantial  oiu\ 
a  little  retired  from  the  road,  autl 
inclosed  in  its  own  grounds.  On 
enteriuiT  the  front  door  there  is  a 
large  central  hall,  on  the  left  side 
of  which  is  the  library  with  drawing- 
room  behind  it,  and  on  the  right  the 
dining  room,  carried  out  beyond  the 
general  area  of  the  house  with  a  Hat 
ivof,  over  which  nothing  has  been 
built.  At  the  back  of  the  hall  is  the 
front  staircase,  at  the  foot  of  ■which 
a  door  leads  to  the  kitchen  and 
t>tHces.  There  are  two  floors  abo\  e, 
and  on  each  of  them  is  a  landing  on  to 
which  the  bedrooms  open.  On  the 
fii-st  floor  above  the  library  were  the 
bedroom  and  dressing  room  of  Mr. 
and  Mrs.  Kent  ;  there  were  two 
doors  to  the  dressing  room,  one 
leading  into  the  betiroom,  the  other 
on  to  the  landing  close  to  the 
nursery  door:  this  latter,  however, 
was  fasteneil  up  by  a  heaxy  piece 
of  furniture  placed  against  it.  Over 
the  hall  was  the  nursery.  di\"ideii 
into  two  compartments,  in  one  of 
whicJi  slept  the  nurse  and  two  of 
Mrs.  Kent's  children,  Francis  Savile, 
a  boy  of  nearly  four,  and  a  little 
girl  of  about  twelve  months;  its 
single  window  looked  out  upon  the 
lawn,  and  a  door  ga\e  admission  into 
a  smaller  room  beyond,  used  as  a 
dressing  room,  with  a  window  look- 
ing out  over  the  Hat  roof  of  the  din- 
ing room.  Mrs.  Kent's  eldest  child, 
a  girl  of  five,  slept  in  a  cot  in  her 
parents'  room.  The  rest  of  the 
floor  was  taken  up  by  a  spare  bed- 
room and  two  lumber  rooms.  0\"er- 
head.  the  bevlroom  above  Mrs. 
Kent  was  occupietl  by  the  two  eldest 
daughters  of  Mr.  Kent :  in  the  one 
on  the  opposite  side  the  housemaid 
and  the  cix)k  slept  together:  be- 
tween them  and  over  Mr.  Kent's 
dressing  room  was  the  smaller  bed- 
room of  Constance,  his  third 
daughter,  agetl  sixteen.  The  bed- 
room of  her  brother  William,  aged 
fifteen,  and  two  hnnber  rooms,  cxwi- 
pleted  the  floor.  The  nurse,  Eliza- 
beth Gough.  was  a  young  woman  of 
three-and-twentv.     She  bore  an  ex- 


cellent character,  and  had  been  with 
the  Kents  for  about  nine  months. 

This  Friday  had  been  a  hard  day 
for  her :  the  number  of  servants 
kept  was  hardly  adequate  to  the 
establishment,  and  in  addition  to 
her  own  duties  she  had  been  up 
early  to  assist  in  a  house  cleaning. 
She  put  the  children  to  bed  as  usual, 
and  after  family  prayei^s  Mrs.  Kent 
came  into  the  nursery,  as  was  her 
wont,  and  exchanged  a  few  words 
with  the  nurse,  after  which  the  latter, 
who  was  thoroughly  tired  out.  un- 
dressed herself  and  went  to  bed. 
About  five  o'clock  she  woke  up. 
noticed  that  the  clothes  had  fallen 
off  the  body  of  the  baby,  who  slept 
close  to  her  bed ;  and  in  raising 
herself  up  to  readjust  them  she  be- 
came aware  that  Savile's  cot.  which 
stood  on  the  farther  side  of  the  room 
away  from  the  bed  and  opposite  the 
door,  was  empty.  This  diil  not 
seem  to  strike  her  as  anything  re- 
markable. Mrs.  Kent's  room  was 
opposite,  she  was  rather  hdgety 
about  her  children,  the  boy  had  been 
taking  meilicine,  and  his  mother 
might  have  heard  him  cry,  have 
stepped  across  the  passage  and 
carried  him  off;  so.  being  unwilling 
to  disturb  the  household  on  a  false 
alarm,  she  composed  herself  to  sleep 
again,  and  did  not  awake  till  a 
quarter  past  six.  This  was  her 
usual  hour  for  rising,  and  the  young 
woman  got  up.  made  her  toilet,  read 
a  chapter  in  the  Bible,  and  said  her 
prayei-s  with  a  calmness  that  did 
credit  to  her  bringing  up.  and  then 
walked  across  to  Mrs.  Kent's  room 
to  inquire  for  the  little  boy.  She 
knocked  at  the  door  and  got  no 
answer,  went  back,  dressed  the  baby, 
and  again  knocketi  at  her  mistress's 
door.  This  time  there  was  an 
answer,  and  Goiigh  askeii  if  ^Master 
Savile  was  there.  "With  me?  " 
replieil  Mrs.  Kent:  "certainly  not." 
"Well,  ma'am."  said  Gough.  "he 
is  not  in  the  nursery."  This  at 
once  brought  the  mother  from  her 
bedroom.  Gough  ran  upstairs  to 
inquire  of  the  two  elder  Miss  Kents 


234 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  in. 


if  they  had  seen  the  missing  child. 
Their  answer  was  in  tlie  negative, 
and  while  the  nurse  was  talking  to 
them  their  sister  Constance  came 
to  her  door  to  hear  what  was  going 
on.  Meanwhile  the  whole  house- 
hold was  aroused,  and  Sarah  Cox, 
the  housfinaid,  on  entering  the  draw- 
ing-room, which  she  herself  had  fas- 
tened up  ovi-rnight,  found  the  door 
open  —  though  Mr.  Kent  had  locked 
it  —  the  shutters  unclasped,  and  the 
window  a  little  way  up;  no  force 
apparently  had  been  u.setl,  nor  had 
the  window  been  broken,  and  there 
were  no  traces  of  footsteps.  Mr. 
Kent.  howe\er,  was  convinced  that 
the  child  had  been  kidnaped  from 
outside.  No  time  was  to  be  lost, 
his  carriage  was  ordered  round,  and 
he  dro\e  oH'  to  Trowbridge,  where 
was  the  nearest  police  station. 

The  confusion  in  the  house  may 
be  imagined ;  Mrs.  Kent,  over- 
whelmed with  grief,  bitterly  up- 
braided Gough  for  not  alarming  her 
the  moment  she  missed  the  child, 
and  on  the  latter  excusing  herself  by 
saying  she  thought  her  mistress  had 
fetched  him  away,  Mrs.  Kent  burst 
out,  "  How  dare  you  say  so  !  you 
know  I  could  not  carry  him." 
Gough  made  no  reply,  but  after- 
wards, when  doing  her  mistress's 
hair,  said  oracularly,  "Oh  ma'am, 
it's  revenge."  All  this  while  the 
search  was  going  on  out  of  doors 
and  in.  The  news  had  spread,  and 
volunteers  from  the  village  lent 
assistance.  Two  men,  Benger,  a 
>iiiall  farmer,  and  Xutt,  the  village 
cobbler,  made  an  examination  of  the 
grounds.  Thirty  yards  from  the 
house,  on  the  side  farthest  from  the 
drawing-room,  in  a  shrubbery  near 
the  back  premises,  was  a  disused 
closet.  This  they  entered,  Benger 
having  a  "prediction"  that  he 
woulrl  find  something;  a  pool  of 
coiiL'fitled  blood  was  on  the  floor, 
and  ilic  body  of  the  little  boy  was 
discc)'.  (  red  in  the  vault,  wrapped  in 
a  blankt  t,  and  clothed  in  his  night- 
shirt; Ills  head  had  been  nearly 
severed    from    his    bodv    bv    some 


sharp  instrument,  and  there  was  a 
gaping  wound  in  his  chest. 

The  body  was  taken  to  the  house, 
and  the  mournful  news  broken  to 
the  family.  Mr.  Kent  was  still 
away,  but  by  nine  o'clock  he  had 
returned  from  Trowbridge,  and 
learnt  from  the  clergyman,  Mr. 
Peacock,  that  his  son  had  been 
nuirdered.  Almost  immediately  the 
police  appeared  upon  the  scene  in 
charge  of  Superintendent  Foley,  the 
head  of  the  Trowl)ridge  force.  Mr. 
Kent  welcomed  their  arrival,  and 
gave  them  carte  blanche  with  re- 
gard to  the  household  and  premises. 
The  wife  of  one  of  the  police  was 
sent  for  to  examine  the  female  in- 
mates, including  the  young  ladies, 
but  with  no  result.  ...  On  the 
following  Monday  the  inquest  was 
held  before  Mr.  Sylvester,  the  Coro- 
ner, at  the  Red  Lion  Inn  at  Road. 
In  the  short  interval  that  had 
elapsed,  popular  feeling  had  become 
greatly  excited,  and  explain  it  as  we 
may,  there  was  a  strong  impression 
that  the  crime  had  been  committed 
not  only  by  some  one  in  the  house, 
but  by  a  member  of  the  family. 

After  the  body  had  been  viewed, 
the  inquest  was  adjourned  to  the 
Temperance  Hall  as  a  more  con- 
venient place,  and  the  room  was 
crowded  to  its  fullest  capacity.  The 
witnesses  called  were  the  nurse  and 
housemaid,  the  men  who  found  the 
body,  Foley,  and  Mr.  Parsons,  a 
surgeon.  During  the  taking  of  the 
evidence,  which  practically  told 
the  story  given  above,  jury  and 
bj'standers  alike  showed  their  ex- 
citement, and  cries  of  "Hear,  hear," 
were  raised  at  anything  which 
seemed  to  confirm  their  suspicions. 
The  Coroner  was  of  opinion  that 
sufficient  evidence  had  been  taken, 
and  declined  to  examine  Mr.  Kent, 
who  tendered  himself  as  a  witness ; 
but  some  of  the  jury  expressed  a. 
wish  that  the  members  of  the  family 
should  be  examined,  especially  the 
two  children,  Constance  and  \Yilliam. 
The  Coroner  consented,  but  the 
feeling  of  the  crowd  was  so  evidently 


No.  111. 


IV.      PROOF    OF   HUMAN   ACT.      B.    2.    MOTIVE 


235 


hostile  that  he  refused  to  expose 
these  children  to  insult,  and  ad- 
journed with  the  jury  to  Road  Hill 
House.  Constance  and  William 
were  briefly  examined,  but  nothing 
was  elicited  beyond  the  fact  that 
they  had  heard  nothing  on  the  fatal 
night.  The  Coroner  then  charged 
the  jury,  and  said  he  saw  no  reason 
to  attach  suspicion  to  any  one  in  par- 
ticular, and  the  total  absence  of 
motive  rendered  the  sad  affair  al- 
most inexplicable. 

In  accordance  with  this  direction, 
the  jury  returned  a  verdict  of  willful 
murder  against  some  person  or 
persons  unknown.  The  result  was 
received  with  the  greatest  dissatis- 
faction. The  Coroner  was  accused 
of  burking  the  inquiry,  and  his  re- 
fusal to  examine  Mr.  Kent  was 
severely  commented  upon.  The 
magistrates  opened  a  preliminary 
inquiry,  and  Gough,  the  nurse,  was 
taken  into  custody,  but  no  formal 
charge  was  made  against  her,  and 
she  was  speedily  released.  Scot- 
land Yard  now  felt  it  was  time  to 
step  in,  and  on  the  loth  of  July, 
Inspector  Whicher,  of  the  metropoli- 
tan detective  force,  appeared  upon 
the  scene.  .  .  .  This  reenforcement 
was  productive  of  speedy  results ; 
within  five  days  Miss  Constance  Kent 
was  arrested  and  lodged  in  Devizes 
Gaol,  and  on  the  27th  she  was 
brought  before  the  local   bench. 

To  fully  understand  the  signifi- 
cance of  this  arrest  some  detailed 
reference  to  family  history  will  be 
necessary.  A  deep  gloom  had  been 
cast  over  the  early  married  life  of 
Mr.  Kent  by  the  prolonged  illness 
of  his  first  wife.  After  she  had  be- 
come the  mother  of  the  two  elder 
girls  mentioned  above,  and  of  a 
boy  named  Edward,  signs  of  in- 
sanity showed  themselves,  but  she 
was  not  placed  under  any  restraint, 
and  between  the  years  1837  and  1842 
she  gave  birth  to  four  children,  none 
of  whom  survived  for  more  than  a 
few  months.  In  1844  Constance 
was  born,  and  in  1845,  William  ;  but 
from  this  period  her  mania  became 


so  acute  that  she  was  entirely  se- 
cluded, and  the  care  of  the  establish- 
ment devolved  upon  a  Miss  Pratt, 
the  governess  and  companion.  In 
1852  Mrs.  Kent  died,  and  in  the 
following  year  Mr.  Kent  married 
Miss  Pratt.  The  two  eldest  girls 
seem  to  have  got  on  well  enough 
with  their  stepmother,  and  though 
the  eldest  boy,  a  sailor,  is  said  to  have 
shown  some  disrespect  to  the  gov- 
erness promoted  to  fill  his  mother's 
place,  a  reconciliation  had  taken 
place  prior  to  his  death  abroad  in 
1858,  and  his  last  letters  to  his  father 
were  full  of  affection.  With  Con- 
stance it  was  otherwise ;  from  her 
earliest  childhood  she  had  been 
brought  up  by  her  stepmother  in  her 
capacity  of  governess  ;  the  discipline 
of  the  schoolroom  is  not  always 
compatible  with  filial  affection,  es- 
pecially in  the  case  of  a  girl  of  sullen 
and  reserved  disposition  ;  and  in  the 
month  of  June,  1856,  an  extraordi- 
nary adventure  was  planned  and 
carried  out.  One  day  Constance, 
then  only  twelve,  disappeared  with 
her  brother  William,  and  was  not 
heard  of  till  the  next  morning,  when 
news  came  that  the  children,  both 
in  boy's  clothes,  had  arrived  at  the 
Greyhound  Hotel  at  Bath  and  asked 
for  beds.  Their  appearance  ex- 
cited suspicion,  and  they  were 
questioned  by  the  landlady.  Wil- 
liam soon  broke  down  in  tears,  but 
Constance  preserved  her  self-posses- 
sion, and  was  even  insolent  in  man- 
ner and  language.  She  spent  the 
night  at  the  police  station,  main- 
taining the  same  defiant  bearing. 
In  the  morning  they  were  fetched 
home,  but  Constance  could  not  be 
induced  to  express  shame  or  regret. 
It  was  discovered  that  she  had 
secreted  and  mended  some  clothes 
of  her  brother's,  had  cut  off  her  hair 
and  thrown  it  away,  together  with 
her  own  clothes,  in  that  very  closet 
in  the  shrubbery  where  the  murdered 
body  of  little  Savile  was  afterwards 
found.  This  escapade  became  the 
talk  of  the  neighborhood,  and  was, 
no  doubt,  the  foundation  of  the  sus- 


236 


PART    I.       CIRCUMSTAXTIAL   EVIDENCE 


No.  111. 


picions  which  at  once  attached 
themselves  to  these  children,  and 
which  found  vent  in  the  disorderly 
scene  at  the  inquest. 

Since  then,  an  adiHtional  circum- 
stance had  come  to  li<rht.  On  the 
Monday  after  the  murder,  the 
launch'v  woman,  Mrs.  Holly,  went 
as  usual  to  fetch  the  linen  from  Road 
Hill  House,  and  on  bringing  it  home 
compared  it  with  the  list,  and  found 
that  though  a  nightdress  of  Miss 
Constance's  was  entered  there,  no 
such  garment  could  be  fmind  in  the 
basket.  The  next  day  she  came  up 
to  the  hou.se  and  informed  Mrs. 
Kent  of  the  discrepancy.  There 
had  been  previous  disputes  about 
articles  lost  at  the  wash ;  the  Kents 
were  indignant,  for  the  housemaid 
perfectly  remembered  putting  Miss 
Constance's  nightdress  into  the 
basket ;  and  ISIr.  Kent  said  that 
unless  it  was  returned  in  forty-eight 
hours  he  would  take  out  a  search 
warrant.  Whether  this  impressed 
the  local  police  force  does  not  ap- 
pear, .  .  .  but  Whicher's  inquiries 
elicited  the  following  facts.  While 
the  housemaid  was  getting  ready 
the  linen  basket,  but  had  not  quite 
finished  packing  it,  Constance  came 
to  the  door  of  the  lumber  room 
and  asked  her  to  look  in  her  slip 
pocket  and  see  if  she  had  left  her 
purse  there.  Cox  looked  in  the 
basket  unsuccessfully,  and  then 
Constance  asked  her  to  go  down 
and  get  a  glass  of  water ;  she  did  so, 
and  in  about  a  minute  returned  with 
the  water,  which  Constance  drank, 
and  then  left  the  room,  going  up 
the  backstairs  to  her  own  apartment. 
On  the  l()th  Whicher  had  an  inter- 
view with  Constance,  and  pointed 
out  the  linen  list  which  showed  three 
nightdresses  belonging  to  her;  she 
replied  that  she  had  only  two  as  the 
other  was  lost  at  the  wa.sh  the  week 
of  the  murder.  After  a  renewed 
search  no  trace  of  the  missing  gar- 
ment could  be  found,  and  on  the 
2()th  Constance  was  arrested ;  she 
cried  and  said  she  was  not  guilty. 

At  the  consequent  hearing  before 


the  magistrates,  Elizabeth  Gough, 
who  after  her  discharge  from  custody 
had  gone  back  to  the  Kents,  was  the 
first  witness.  She  gave  substan- 
tially the  same  evidence  as  on  the 
pre\ious  occasion.  Then  came  two 
of  Constance's  schoolfellows,  un- 
earthed by  the  vigilance  of  Whicher. 
One  of  them.  Miss  INIoody,  said : 
"Constance  told  me  she  disliked 
her  younger  brothers  and  sisters. 
I  believe  it  was  through  jealousy, 
and  because  the  parents  showed 
great  partiality.  I  have  remon- 
strated with  her  on  what  she  said. 
I  was  walking  with  her  one  day,  and 
said,  'Won't  it  be  nice  to  go  home 
for  the  holidays  so  soon  ? '  She 
replied,  '  It  may  be  to  your  home, 
but  mine's  different.'  She  also 
led  me  to  infer,  though  I  don't 
remember  her  precise  words,  that 
she  did  not  dislike  the  child,  except 
for  the  partiality  shown  by  the  par- 
ents, and  because  the  second  family 
were  much  l)etter  treated  than  the 
first.  I  remember  no  other  con- 
versation about  the  deceased  child ; 
she  has  only  Aery  slightly  referred 
to  him."  These  peevish  outbursts 
were  a  very  fragile  foundation  for  a 
charge  of  murder ;  but  the  other 
schoolgirl,  Miss  Hatherall,  said  even 
less.  She  had  heard  Constance  speak 
of  her  home,  and  say  there  was  a 
partiality  shown  by  the  parents  for 
the  younger  children,  and  that  her 
father  would  compare  the  elder 
son  to  the  younger,  and  say  what 
a  much  finer  boy  the  younger  would 
be.  Constance  had  never  said  any- 
thing particular  to  her  about  the 
deceased. 

Mr.  Parsons,  besides  repeating 
his  testimony  as  to  the  cause  of 
death,  said  that  he  accompanied 
Foley  in  searching  the  house  on 
Saturday,  the  30th  of  June,  and  went 
with  him  into  the  prisoner's  room  ; 
he  examined  the  linen  in  her  chest 
of  drawers,  and  the  nightcap  and 
nightgown  on  the  bed ;  they  were 
all  perfectly  free  from  any  stains  of 
blood ;  the  nightdress  was  very 
clean,  so  much  so  that  he  remarked 


No.   111. 


IV 


PROOF   OF   HUMAN   ACT.       B.    2.    MOTIVE 


237 


upon  it  at  the  time ;  the  starch 
was  not  SO  much  gone  from  the  waist 
bands  and  frills  as  you  would  expect 
if  it  had  been  worn  from  the  Satur- 
day before.  Then  followed  the 
story  of  the  missing  nightdress  as 
we  have  detailed  it ;  but  there  was 
nothing  to  bring  home  the  abstrac- 
tion of  the  garment  to  Constance ; 
no  trace  of  it  had  been  discovered ; 
the  occurrence  was  in  no  way  in- 
consistent with  ordinary  incidents 
of  a  family  wash  with  a  not  too  care- 
ful laundry  woman. 

After  a  brief  appeal  from  Mr.,  now 
Sir  Peter,  Edlin,  who  represented  the 
prisoner,  she  was  discharged,  on  her 
father  entering  into  recognizances  of 
£200  for  her  appearance  if  called 
upon.  The  decision  was  received 
with  applause ;  public  opinion  had 
shifted,  and  suspicion  was  falling 
on  another  quarter.  It  was  said 
on  all  sides  that  the  grounds  of  accu- 
sation were  fri\'olous,  and  the  evi- 
dence childish.  Whicher  was  over- 
whelmed with  abuse  for  officious 
bungling. 

Incredible  as  it  may  appear,  the 
next  victim  sought  out  by  popular 
rumor  was  Mr.  Kent  himself.  .  .  . 
For  some  reason  he  was  unpopu- 
lar in  the  village ;  the  house  had 
a  reputation  for  never  keeping 
servants ;  and  utterly  groundless 
charges  of  profligacy  were  suddenly 
heaped  upon  this  unhappy  man. 
Gradually  a  specific  charge  shaped 
itself ;  there  were  undoubtedly 
grounds  for  suspicion  against  Gough, 
the  nurse ;  the  abduction  of  the 
child  from  her  room,  the  length  of 
time  that  elapsed  before  she  gave 
the  alarm,  and  her  somewhat  lame 
explanations.  .  .  .  Mr.  Slack,  a 
solicitor  from  Bath,  had  taken  up 
the  case  in  place  of  Whicher,  dis- 
missed with  opprobrium.  As  a 
result  of  his  investigations  Gough, 
who  was  now  in  service  near  Isle- 
worth,  was  apprehended  and 
brought  before  the  magistrates  early 
in  October.  .  .  .  Into  the  details  of 
the  inquiry  it  is  not  necessary  to  go. 
Suffice  it  to  say  that  after  a  four  days' 


hearing  Gough  was  liberated,  on 
recognizances  for  her  future  appear- 
ance being  entered  into.  .  .  . 
Nearly  thirty  witnesses  were  ex- 
amined, and  it  is  not  too  much  to 
say  that  not  a  single  new  fact  was 
elicited.  Mr.  Parsons,  h()we\'er, 
now  expressed  himself  as  of  opinion 
that  the  cause  of  death  was  suffo- 
cation, and  that  the  wounds  had 
been  inflicted  subsequently.  .  .  . 
The  prosecuting  counsel  went  out 
of  his  way  to  express  his  conviction 
of  the  innocence  of  Constance  Kent ; 
she  was  called  as  a  witness,  and  testi- 
fied as  to  her  fondness  for  little 
Savile,  and  that  on  the  very  evening 
of  the  murder  they  had  been  romp- 
ing together.  .  .  .  The  mystery 
was  put  aside  as  insoluble,  and  news- 
paper readers  had  plenty  of  other 
matter  to  occupy  their  thoughts. 

Suddenly  the  silence  was  broken 
and  the  mystery  dissipated.  In  the 
last  week  of  April,  1865,  the  London 
press  made  known  to  its  readers  that 
Constance  Kent  had  confessed.  .  .  . 
For  years  nothing  had  been  heard 
of  the  Kent  family ;  they  had  left 
Wiltshire  and  were  residing  some- 
where in  Wales,  but,  since  that 
terrible  summer,  Constance  had 
ceased  to  live  with  them.  She  had 
been  for  some  time  in  a  convent 
abroad,  but  in  1863,  she  came  as  a 
guest  to  St.  Mary's  Home,  Brighton, 
an  Anglican  sisterhood.  ...  lii 
the  course  of  the  Holy  Week,  of 
1865,  she  informed  Miss  Gream 
(the  Lady  Superior),  and  subse- 
quently, Mr.  Wagner  (curate  of  St. 
Paul's  connected  with  the  Home), 
that  it  w^as  her  desire  to  surrender 
herself  to  justice.  .  .  .  On  the 
20th  of  July,  five  years  to  the  day 
since  her  former  arrest,  she  was 
placed  at  the  bar.  .  .  .  On  being 
called  upon  to  plead,  she  said  Guilty 
in  a  low  tone.  .  .  .  Before  her 
disappearance  into  penal  servitude, 
Constance  made  a  full  confession  to 
Dr.  Bucknill,  the  medical  man  who 
was  sent  to  examine  into  her  mental 
condition.  Let  us  read  in  her  own 
words  how  the  crime  was  committed : 


238 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  112 


A  few  days  previous  to  the  murder 
she  got  possession  of  a  razor  from 
her  father's  wardrobe  and  secreted 
it.  On  the  night  itself  she  un- 
dressed and  went  to  bed  ;  she  lay 
awake  until  the  household  were  all 
asleep,  and  soon  after  midnight  she 
left  her  bedroom,  went  downstairs 
and  opened  the  drawing-room  door 
and  winflow  shutters.  She  went  up 
into  the  nursery,  withdrew  the  blan- 
ket from  between  the  sheet  and 
counterpane  and  placed  it  on  one 
side  of  the  cot.  She  then  took  the 
sleeping  child  from  his  bed,  covered 
him  with  the  blanket,  and  carried 
him  downstairs  to  the  drawing-room  ; 
she  was  in  her  nightdress,  and  in 
the  drawing-room  she  put  on  her 
goloshes.  Having  the  child  in  one 
arm,  she  raised  the  drawing-room 
window  with  the  other,  stepped  out, 
went  round  the  front  of  the  house  to 
the  closet,  lighted  a  candle  which 
she  had  secreted  there,  and  while 
the  child,  wrapped  in  the  blanket, 
was  still  sleeping  she  inflicted  the 
wound  on  its  throat.  It  seemed  to 
her  as  if  the  blood  would  never  come, 
and  she  thrust  the  razor  into  the 
left  side.  Then  she  dropped  the 
body,  with  the  blanket  round  it, 
into  the  vault,  went  back  to  her 
bedroom,  examined  her  nightdress 
and  found  only  two  spots  of  blood 
upon  it.     These  she  washed  out  and 


threw  the  water  away ;  she  put  on 
another  of  her  night-dresses,  and 
got  into  bed.  In  the  morning  her 
nightdress  had  become  dry  where 
it  had  been  washed.  She  folded  it 
up  and  put  it  into  the  drawer,  as 
she  thought  the  blood  stains  had  been 
effectually  washed  out,  but  on  hold- 
ing the  dre.ss  up  to  the  light  a  day 
or  two  afterwards  she  found  the 
stains  were  still  visible,  so  she  se- 
creted it,  moving  it  from  place  to 
place,  and  fi\'e  or  six  days  afterwards 
burned  it  in  her  own  bedroom,  and 
put  the  ashes  or  tinder  into  the 
kitchen  grate.  She  had  abstracted 
the  nightdress  put  on  after  the 
murder  from  the  clothes  basket 
when  the  housemaid  went  to  fetch 
a  glass  of  water.  The  stained 
garment  found  in  the  boiler  hole 
had  no  connection  with  the  deed. 
She  replaced  the  razor  on  the  Satur- 
day morning  after  cleaning  it. 

As  regards  the  motive  of  the  crime, 
says  Dr.  Bucknell,  it  seems  that 
though  at  one  time  she  entertained  a 
great  regard  for  her  stepmother,  yet 
if  any  remark  was  at  any  time  made 
which  in  her  opinion  was  disparaging 
to  any  member  of  the  first  family,  she 
treasured  it  up  and  determined  to 
avenge  it.  She  had  no  ill  will  against 
the  little  l)oy  except  as  one  of  the 
children  ;  and  he  failed  utterly  to 
detect  any  trace  of  insanity  in  her. 


112.    STEVENSON    v.    STEWART.     (1849.     Supreme   Court  of 


Pennsylvania.  11  Pa.  307.)  .  . 
This  was  an  action  of  debt  on  a 
single  bill,  brought  by  the  adminis- 
tratrix of  John  A.  Stewart,  to  whom 
or  whose  order  the  bill  was  made 
payable,  against  Stevenson,  the 
maker.  The  bill  was  dated  July 
6,  1844.  The  defendant  pleaded 
"  non  est  factum,"  alleging  that  the 
bill  was  a  forgery.  The  plaintiff 
called  several  witnesses,  who  testi- 
fied that  they  would  take  the  signa- 
ture to  the  bill  to  be  the  handwriting 
of  the  defendant;  and  the  bill  was 
read  in  evidence  to  the  jury.  The 
defendant   then   introduced   several 


witnesses  to  prove  that  he  was  not 
in  the  county  at  the  date  of  the 
single  bill ;  he  proved  and  gave  in 
evidence  several  receipts  and  letters, 
to  which  his  signature  was  attached 
and  undisputed,  for  the  jury  to  com- 
pare with  the  alleged  signature  to 
the  bill ;  and  also  proved,  that  this 
single  bill  was  not  exhibited  by  the 
afiministratrix  to  the  appraisers  of 
the  estate  of  the  deceased ;  and 
rested.  The  plaintiff  then  called 
John  Cook,  and  proposed  to  ask  the 
witness  whether  the  defendant  asked 
the  witness  to  loan  him  money  in  the 


No.  112. 


PROOF   OF    HUMAN    ACT.       B.    2.    MOTIVE 


239 


year  1844,  and  to  follow  this  with 
testimony  that  defendant  wanted  to 
borrow  money  both  before  and  after 
the  date  of  this  single  bill.  The 
counsel  for  defendant  objected  to  the 
evidence  offered.  The  Court  over- 
ruled the  objection,  and  admitted 
the  evidence,  and  sealed  a  bill  for 
defendant.  The  witness  then  went 
on  to  state  that  he  had  loaned  de- 
fendant money  ;  that  he  loaned  him 
S40,  and  took  his  note  when  he  was 
in  Philadelphia,  in  June,  1844.  The 
verdict  was  for  the  plaintiff.  The 
error  assigned  in  this  court  was,  the 
admission  of  the  evidence  of  Cook. 

l]'atson  &■  Maynard,  for  plaintiff 
in  error.  Armstrong,  contra.  The 
opinion  of  this  court  was  delivered 
by 

Bell,  J.  —  It  is,  undoubtedly,  a 
rule  governing  the  production  and 
admission  of  evidence,  that  the 
evidence  offered  must  correspond 
with  the  allegations  and  be  confined 
to  the  point  in  issue.  The  effect  is 
to  exclude  merely  collateral  facts, 
having  no  connection  with  the  sub- 
ject litigated,  and,  therefore,  in- 
capable of  shedding  light  upon  the 
inquiry,  or  affording  ground  for 
reasonable  presumption  or  infer- 
ence. .  .  .  But  it  by  no  means 
follows  that  all  collateral  facts,  pre- 
senting at  first  view  no  direct  con- 
nection with  the  principal  fact,  are  ir- 
relevant, and  therefore  inadmissible. 
On  the  contrary,  great  latitude  is 
allowed  to  the  reception  of  indirect, 
or,  as  it  is  sometimes  called,  circum- 
stantial evidence,  the  aid  of  which  is 
constantly  required,  and,  therefore, 
where  direct  evidence  of  the  fact  is 
wanting,  the  more  the  jury  can  see 
of  the  surrounding  facts  and  cir- 
cumstances, the  more  correct  their 
judgment  is  likely  to  be.  .   .   . 

In  the  case  at  bar,  the  question  is 
of  the  alleged  forgery  of  the  de- 
fendant's signature  to  a  promissory 
note,  averred  to  have  been  given 
for  money  loaned.     Such  investiga- 


tions, founded  in  imputed  fraud,  nat- 
urally take  a  wide  range.  Among 
the  most  common  topics  of  inquiry 
is  the  pecuniary  capacity  of  the  sup- 
posed lender,  and  the  necessitous 
condition  of  the  alleged  borrower. 
And  these  inquiries  are  legitimate. 
It  is  surely  competent  for  the  de- 
fendant to  show  that  the  plaintiff 
was,  at  the  time  of  the  alleged  lend- 
ing, a  poor  man,  and  probably  un- 
able to  loan  the  sum  in  question ; 
or  that  the  defendant  was  himself 
possessed  of  money,  and  therefore 
not  driven  to  the  necessity  of  using 
his  credit.  If  so,  why  should 
not  the  plaintiff  be  at  liberty  to 
prove,  that  about  the  critical  time 
the  defendant  was  seeking  to 
borrow  ?  Standing  unsupported, 
neither  line,  of  evidence  would  be 
sufficient  to  rebut  the  adverse  alle- 
gation. But  yet  all  must  feel,  that,  in 
a  doubtful  case,  the  facts  I  have  sup- 
posed to  be  made  out  by  the  defend- 
ant, would  go  far  to  determine  in  his 
favor.  On  the  other  hand,  where 
the  proofs  were  otherwise  in  equili- 
brio,  the  fact  I  have  thought  the 
plaintiff  might  show,  would,  ques- 
tionless, furnish  an  argument  of 
some  weight  in  his  scale.  Had  the 
defendant's  effort  been  to  borrow 
from  another  the  sum  for  which  the 
note  was  subsecjuently  given,  the 
inference  deducible  from  the  fact 
would,  doubtless,  be  more  stringent 
than  where,  as  here,  the  sum  first 
sought  for  is  much  smaller  than  the 
amount  called  for  by  the  note.  But 
the  convincing  power  of  the  infer- 
ence is  for  the  jury,  when  weighing 
the  value  of  the  fact  proved ;  not 
for  the  judge,  in  determining  the 
bare  question  of  its  relevancy.  It  is 
sufficient  for  the  purposes  of  his 
inquiry,  that  it  has  some  affinity 
with  the  principal  inquiry,  though 
this  may  be  weak  or  remote.  Such 
we  think  was  the  condition  of  the 
evidence  received  here;  wherefore, 
judgment  affirmed. 


240 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  113. 


113.    COMMONWEALTH      v,      JEFFRIES. 
Judicial  Court  of  ^Massachusetts.      7  All.  548. 


(1863.       Supreme 


Indictment  for  obtaining  goods 
by  false  pretenses.  ...  At  the 
trial  in  the  Superior  Court,  before 
Russell,  J.,  George  M.  Barnard 
was  called  as  a  witness,  and  the 
material  portions  of  his  testimony 
were  as  follows :  "  I  knew  and  had 
dealt  larg*Jy  with  the  defendant  as  a 
broker  in  linseed,  and  only  as  a 
broker,  except  in  one  instance  in 
1861.  He  came  to  my  counting 
room  on  the  19th  of  August  last,  and 
asked  whether  I  was  disposed  to  sell 
linseed  ?  I  said  I  would  not  sell  at 
the  price  quoted,  $2.90.  I  said, 
*I  suppose  they  will  give  only 
S2.90  and  I  am  not  willing  to  sell.' 
He  said  he  had  an  order  from  parties 
in  New  York  for  two  thousand  bags 
of  linseed  ;  and  after  some  con\ersa- 
tion  he  said,  '  At  what  price  will 
you  sell  it?'  I  said,  at  $3.00  a 
bushel.  I  think  I  said,  'Can  you 
buy  at  $3.00?'  He  said,  'Yes; 
that  he  could  buy  of  the  Tudor 
Company  and  William  Perkins  at 
that  price.'  I  said,  'I  will  sell  at 
$3.00,  but  I  want  the  money  im- 
mediately.' He  said  vessels  were 
scarce,  and  that  there  might  be 
some  delay  in  getting  vessels  to  haul 
to  East  Boston  and  take  the  seed, 
but  that  he  would  send  to  New 
York  and  get  the  notes  of  the  parties 
discounted,  and  so  get  the  money 
certainly  within  a  week.  He  said 
the  parties  did  not  wish  their  names 
disclosed,  as  they  were  constantly 
using  large  quantities  of  seed,  and 
did  not  wish  to  be  known  in  the 
market  as  buyers.  I  then  made  an 
entry  in  my  memorandum  book,  in 
his  presence,  as  follows,  to  wit : 
M9th  August.  Sold  to  E.  P.  Jef- 
fries &  Co.  2000  bags  linseed  at 
$3.00.  Cash  within  ten  days.  K.  P. 
J.  ^  Secret.'  The  word  secret  refers 
to  the  price.  The  meaning  of  '  E.  P. 
J.  I'  is,  that  he  was  to  have  |  per  cent 
brokerage.  I  do  not  know  that  the 
defendant  saw  this  entry  made.  If 
I    sold    to  a  broker    for    himself,    I 


bags    linseed, 
from    Calcutta 
Barnard.'     'B. 


should  make  the  entry  '$3.00  less  ^ 
per  cent.'  The  buyer  claims  that  if 
we  save  brokerage,  he  is  to  have  the 
^  per  cent  though  not  as  brokerage. 
The  linseed  was  to  be  sound.  That 
is  always  understood,  imless  some- 
thing else  is  expressed.  In  the 
course  of  business,  linseed  is  used 
by  the  crushers  to  extract  the  oil  by 
crushing.  I  knew  all  the  crushers  in 
New  York,  I  think,  and  have  made 
myself  acquainted  with  their  stand- 
ing and  business  credit.  After  mak- 
ing the  entry  in  the  memorandum 
book,  I  gave  him  an  order  on  the 
warehouse  man  as  follows,  to  wit : 
'Boston,  August  19,  1803.  Please 
deliver  to  the  order  of  Messrs.  E. 
P.    Jeffries    &    Co.    two    thousand 

per     ship     Resolute 
(«rH)    George  M. 

H.  R.'  means,  Bar- 
nard &  Hunnewells,  per  Resolute." 
.  .  .  The  government  proved  that 
upon  the  foregoing  order  and  the 
order  hereinafter  referred  to  relating 
to  the  second  purchase,  the  defend- 
ant caused  the  seed  to  be  removed 
from  the  warehouse  and  shipped  to 
New  York,  to  INIessrs.  T.  &  G.  Rowe 
and  to  Messrs.  Campbell  &  Thayer, 
and  introduced  evidence  tending  to 
show  that  he  afterwards  sold  the 
seed  to  them  at  a  less  price  than 
the  same  were  sold  by  Barnard,  on 
the  same  days  on  which  he  bought 
of  Barnard.   .   .   . 

The  District  Attorney  then  offered 
in  evidence  the  defendant's  petition 
in  insolvency,  with  his  schedule  of 
creditors  and  of  assets,  signed  and 
sworn  to  l)y  him  ;  the  petition  on  the 
14th  of  Septeml)er,  and  the  schedule 
on  the  21st  of  September,  1863; 
and  offered  to  prove  that  his  in- 
del)tedness  was  not  materially  differ- 
ent on  the  19th  and  21st  of  August, 
when  the  transactions  with  Barnard 
took  place,  and  that  on  the  19th 
and  21st  of  August,  the  defendant 
was  in  fact  deeply  insolvent.  The 
Judge      admitted      this      evidence. 


No.  113. 


IV.       PROOF   OF   HUMAN   ACT.       B.    2.    MOTIVE 


241 


against  the  defendant's  objection, 
solely  as  tending  to  prove  the  intent 
of  the  defendant  at  the  time  of  mak- 
ing the  representations  alleged.  At 
a  subsequent  stage  of  the  trail,  the 
said  Barnard  explained  that  he  was 
induced  to  part  with  the  thirteen 
hundred  and  seventy  bags  on  the 
expectation  of  receiving  $3.00  per 
bushel  from  the  purchaser  in  New 
York,  founded  upon  the  representa- 
tions of  the  defendant  already  herein 
before  testified  to  by  him.  .  .  . 

The  case  was  submitted  to  the 
jury  under  instructions  to  which  no 
special  exception  was  taken,  and  a 
verdict  was  returned  of  guilty  upon 
the  first  and  second  counts,  and 
not  guilty  on  the  third.  The  de- 
fendant alleged  exceptions,  and 
moved  in  arrest  of  judgment. 

B.  F.  Thomas  &  E.  D.  Sohier,  for 
the  defendant.  .  .  .  The  evidence 
of  the  defendant's  insolvency  was 
incompetent.  ...  It  had  no  tend- 
ency to  show  a  fraudulent  intent 
on  the  part  of  the  defendant.  Yet 
this  is  the  precise  point  in  reference 
to  which  it  was  admitted.  There  is 
no  authority  in  support  of  the  rul- 
ing. Poverty  cannot  be  shown  for 
the  purpose  of  proving  crime.  It 
is  impracticable  to  administer  jus- 
tice on  such  a  principle.  Before  the 
law,  the  rich  and  poor  stand  on  an 
equality.  .  .  . 

Foster,  A.  G.,  for  the  Common- 
wealth. .  .  . 

BiGELOW,  C.  J.  .  .  .  The  indict- 
ment is  for  obtaining  goods  by  false 
pretenses.  At  the  trial  in  the  Su- 
perior Court,  the  evidence  offered 
in  support  of  the  prosecution  tended 
to  show  that  the  defendant,  being 
by  occupation  a  merchandise  broker, 
falsely  pretended  and  represented 
to  the  prosecutors  that  he  was  au- 
thorized as  the  agent  and  broker  of 
certain  persons  in  New  York,  whose 
names  he  did  not  disclose,  to  pur- 
chase a  large  amount  of  linseed  at 
the  price  of  three  dollars  per  bushel ; 
that  the  prosecutors,  believing  these 
pretenses  and  representations  to  be 
true    and    relying   upon   them,   did 


agree  to  sell  to  said  persons  in  New 
York  for  whom  the  defendant  pur- 
ported to  act,  several  thousand  bags 
of  linseed  at  the  price  named  by  the 
defendant ;  and  that  in  pursuance  of 
such  agreement,  they  did  deliver 
the  same  to  the  defendant,  who  by 
means  of  said  false  representations 
and  pretenses  received  and  ob- 
tained said  merchandise  with  intent 
to  cheat  and  defraud  the  prosecutors 
thereof.  .  .  . 

We  next  come  to  the  considera- 
tion of  an  exception  on  which  great 
stress  has  been  laid  by  the  learned 
counsel  for  the  defendant.  It  is 
founded  on  the  admission  of  evi- 
dence to  prove  that  at  the  time  of 
making  the  alleged  false  representa- 
tions the  defendant  was  deeply  in- 
solvent. This  fact  was  offered  in 
proof  by  the  government  as  tending 
to  show  the  fraudulent  intent  of  the 
defendant  in  making  such  false 
statements,  and  was  held  by  the 
court  to  be  competent  for  that  pur- 
pose. It  is  doubtless  true  that  in  a 
large  class  of  cases  the  poverty  or 
pecuniary  embarrassments  of  a 
party  accused  of  crime  cannot  be 
shown  as  substantive  evidence  of  his 
guilt.  The  reason  of  the  exclusion 
of  such  evidence  is,  that  in  those 
cases  there  is  no  certain  or  known 
connection  between  the  facts  offered 
to  be  proved  and  the  conclusion 
which  is  sought  to  be  established 
by  it.  To  render  evidence  of  col- 
lateral facts  competent,  there  must 
be  some  natural,  necessary,  or  logical 
connection  between  them  and  the 
inference  or  result  which  they  are 
designed  to  establish.  It  does  not 
follow  because  a  man  is  destitute 
that  he  will  steal,  or  that  when 
embarrassed  with  debt  and  incapa- 
ble of  meeting  his  engagements  he 
will  commit  forgery.  The  conclu- 
sion in  such  cases  is  too  remote  and 
uncertain  a  deduction  to  be  legiti- 
mately drawn  from  the  premises. 
.  .  .  But  as  a  safe  practical  rule 
it  may  be  laid  down  that  in  no  case 
is  evidence  to  be  excluded  of  any  fact 
or  circumstance  connected  with  the 


242 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  114. 


principal  transaction,  from  which 
an  inference  as  to  the  truth  of  a 
disputed  fact  can  reasonably  be 
made.  This  rule  is  especially  ap- 
plicable when  it  becomes  necessary 
to  show  a  particular  intent  in  a 
party  as  an  essential  ingredient  in 
the  crime  with  which  he  is  charged. 
.  .  .  Limited  strictly  to  this  pur- 
pose, other  criminal  acts  have  a 
direct  relation  to  the  particular  ac- 
cusation unrier  investigation,  and 
tend  to  pro\e  the  substance  of  the 
issue,  because  they  show  the  state 
of  the  mind  of  the  accused  in  com- 
mitting the  act  with  which  he  is 
charged.  .  .  . 

If  these  views  are  correct,  and  we 
cannot  doubt  that  they  are,  there 
is  no  room  for  question  as  to  the  cor- 
rectness of  the  ruling  of  the  court  in 
admitting  evidence  of  the  defend- 
ant's insolvency.  .  .  .  The  inabil- 
ity of  the  person  making  the  false 
pretense  to  pay  for  the  goods  which 
he  has  received  becomes  a  signifi- 
cant circumstance  bearing  on  his 
intent,  and  tends  to  show  that  the 
pretense,  which  otherwise  would  be 
innocent  or  harmless,  was  made  for 
the  purpose  of  accomplishing  a 
fraud.  The  insolvency  of  the  party 
has  a  direct  tendency  to  show  the 
intent  with  which  the  false  pretense 


was  used.  ...  If  at  the  time  of 
the  transaction  he  was  deeply  in- 
solvent, and  was  cognizant  of  his 
condition,  the  necessary  conse- 
quence of  the  act  was  to  deprive  the 
^•endor  of  his  property  without  rec- 
ompense or  the  chance  of  payment, 
and  leads  to  the  just  and  almost  un- 
avoidable inference  that  it  was  done 
with  an  intent  to  defraud.  Evi- 
dence of  the  pecuniary  condition  of 
the  accused  in  such  a  case  is  not 
offered  to  show  that  he  was  under  a 
peculiar  temptation  to  commit  the 
offense,  or  was  more  likely  to  cheat 
and  defraud  because  he  was  in  em- 
barrassed circumstances,  but  for  the 
purpose  of  showing  the  natural  and 
necessary  consecjuence  of  his  act, 
which  the  law  presumes  he  intended. 
The  distinction  between  the  motives 
which  impel  a  man  to  commit  an 
act  and  the  effect  which  he  intends 
his  act  shall  produce  on  a  third 
party  is  clear  and  obvious.  Poverty 
or  pecuniary  embarrassment  may 
be  incompetent  to  prove  the  former, 
but  direct  and  forcible  e\'idence  of 
the  latter.  .  .  .  For  this  reason, 
without  enlarging  further  on  the 
point,  it  seems  to  us  that  the  evi- 
dence objected  to  was  clearly  com- 
petent, and  had  a  direct  tendency  to 
prove  a  material  issue  in  the  case. 


114.    BRADBURY    v.    DWIGHT.        (1841. 
Court  of  Massachusetts.     3  Mete.  31.) 


Supreme     Judicial 


Assumpsit  to  recover  back  money 
alleged  to  have  been  paid  by  the 
plaintiff  to  the  defendant,  upon  a 
consideration  which  had  in  part 
failed.  At  the  trial,  in  the  court  of 
common  pleas,  before  Strong,  J., 
the  plaintiff  introduced  evidence 
tending  to  prove  that  in  December, 
1839,  he  contracted  with  the  de- 
fendant for  .S300  worth  of  wood,  at 
SI. 25  per  cord,  to  be  cut  on  the  de- 
fendant's land,  for  which  the  plain- 
tiff gave  his  promissory  note  to  the 
defendant,  payal)le  in  sixty  days, 
and  paid  the  note  soon  after  it  fell 
due.  The  plaintiff  gave  evidence 
of  a  negotiation  between  him  and  the 


defendant  respecting  the  purchase 
of  the  wood,  and  introduced  a  wit- 
ness, who  testified  that  he  (the  wit- 
ness) called  upon  tiie  defendant,  by 
direction  of  the  plaintiff,  and  gave  to 
the  defendant  the  abo\e-mentioned 
note,  signed  by  the  plaintiff  and 
by  the  witness  and  another  person ; 
that  the  witness  took  from  the  de- 
fendant a  bill  of  sale  of  the  wood, 
and  carried  and  delivered  it  to  the 
plaintiff.  Evidence  being  given  that 
the  bill  of  sale  had  been  lost  since 
the  commencement  of  this  action, 
the  witness  was  permitted  to  testify 
as  to  its  contents ;  and  he  stated 
that  it  purported  to  be  a  bill  of  sale 


No.  114. 


IV.       PROOF    OF   HUMAN    ACT.       B.    2.    MOTIVE 


243 


of  $300  worth  of  wood,  to  be  cut  and 
taken  from  a  certain  lot  belonging  to 
the  defendant,  by  the  1st  of  June, 
1840.  The  defendant  contended, 
and  offered  evidence  tending  to 
show,  that  the  contract  between  him 
and  the  plaintiff  was  for  all  the  wood 
standing  on  the  said  lot,  whether 
more  or  less,  without  any  agreement 
as  to  the  quantity  for  which  the 
sum  of  $300  was  to  be  paid.  The 
plaintiff  gave  evidence,  that  there 
was  not  on  said  lot  wood  enough 
to  amount  to$300,  at  $1.25  per  cord  ; 
and  that  he,  on  the  15th  of  June, 
1840,  demanded  of  the  defendant  a 
return  of  part  of  the  money  he  had 
paid,  or  that  the  defendant  should 
show  him  where  he  could  procure 
more  wood.  In  the  course  of  the 
defense,  the  defendant  offered  evi- 
dence to  prove  that  the  wood,  oft  the 
lot  upon  which  the  plaintiff  cut, 
"was  of  far  greater  value  than  $1.25 
per  cord,  for  the  purpose  of  showing 
the  probability  that  the  contract 
was  such  as  he  alleged  it  to  be,  and 
that  it  was  not  according  to  the 
claim  of  the  plantiff."  This  evi- 
dence was  rejected  by  the  Judge, 
and  the  plaintiff  obtained  a  verdict. 
The  case  was  brought  into  this 
court  on  exceptions  to  the  rejection 
of  this  evidence. 

C.  Allen,  for  the  defendant. 
Merrick,  for  the  plaintiff. 

Putnam,  J. — This  controversy  has 
grown  out  of  a  contract  between  the 
parties  concerning  a  sale  of  wood 
standing  on  the  defendant's  land, 
and  to  be  cut  down  by  the  plaintiff'. 
A  bill  of  sale  was  given  by  the  de- 
fendant to  the  plaintiff,  which  ex- 
pressed the  terms  of  the  agreement. 
But  the  paper  has  been  lost,  and  the 
parties  are  at  issue  on  its  contents ; 
the  plaintiff  insisting  that  it  was  for 
$300  worth  of  wood,  at  $1.25  per 
cord,  and  the  defendant  maintain- 
ing, on  the  contrary,  that  it  was  for 
all  the  wood  on  a  certain  lot,  for 
which  the  plaintiff  was  to  pay,  and 
has  paid,  $300.  It  now  appears 
that  there  was  not  wood  enough  on 
the  lot  to  amount  to  the  sum  of  $300, 


paid  at  the  rate  of  $1.25  per  cord, 
and  that  the  plaintiff  gave  notice  of 
that  fact  to  the  defendant,  fifteen 
days  after  the  expiration  of  the  time 
within  which  the  wood  was  to  be  cut 
and  taken  away,  and  requested  the 
defendant  to  show  to  him  and  per- 
mit him  to  cut  wood  on  another  lot 
sufficient  to  make  up  the  deficit,  or 
to  return  it  in  money.  The  witness, 
who  undertook  to  testify  as  to  the 
contents  of  the  bill  of  sale,  said  that 
it  purported  to  be  a  sale  of  $300 
worth  of  wood,  to  be  taken  from  a 
certain  lot  of  the  defendant  by  the 
1st  of  June  next  after  the  time  of  the 
sale,  which  was  in  December,  1839. 
Now,  if  that  was  the  contract,  it 
would  be  satisfied  by  the  plaintiff's 
taking  all  the  wood  which  was  on  the 
lot,  although  it  might  be  of  less 
value  than  $300.  That  witness  did 
not  state  that  the  wood  was  to  be 
at  a  certain  rate  per  cord.  He 
stated  that  the  plaintiff  paid  $300 
for  the  wood  ;  and  if  the  case  rested 
there,  the  plaintiff  would  have  no 
just  claim  against  the  defendant. 
But  if  the  contract  was  for  $300 
worth  of  wood,  on  a  certain  lot,  at  a 
certain  rate  per  cord,  and  there  was 
a  deficiency,  it  would  be  clear  that 
the  plaintiff,  upon  reasonable  notice 
and  request,  would  be  entitled  to 
recover  the  amount  of  that  defi- 
ciency, as  for  money  paid  upon  a 
consideration  that  had  failed  to  that 
extent.  The  question  at  the  trial 
was.  What  were  the  terms  of  the 
agreement  ? 

The  defendant  offered  to  prove 
that  the  wood,  which  the  plaintiff 
cut  down  in  his  lot,  was  of  far  greater 
value  than  $1.25  per  cord,  as  it 
stood,  for  the  purpose  of  proving  his 
own  statement  of  the  agreement,  and 
disproving  the  claim  of  the  plaintiff. 
But  the  Court  rejected  that  evidence. 
And  the  question  now  is,  whether 
it  should  have  been  admitted.  If 
the  inference  properly  to  be  drawn 
from  the  fact  tended  to  prove  the 
agreement  to  be  such  as  the  defend- 
ant contended  that  it  was,  then  it 
should  have  been  admitted  ;    other- 


244 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  11.5. 


wise,  it  should  have  been  rejected  as 
irrelevant,  and  as  having  a  tendency 
to  mislead.  Now  the  presumption 
which  arises  from  the  uniform  con- 
duct of  men,  under  a  given  state  of 
facts,  enters  essentially  into  almost 
every  cause  which  is  tried.  Very 
few  cases  are  established  by  positive 
proof.  If  the  fact,  alleged  by  one 
party  and  denied  by  the  other,  be 
unusual,  unaccountable,  and  not 
warranted  by  the  circumstances 
whicli  attended  the  transaction,  it 
will  not  be  likely  to  obtain  credit 
with  the  jury.  If  (to  come  home  to 
the  question)  the  wood,  which  was 
standing  on  the  defendant's  lot, 
was  worth  far  more  than  SI. 25  per 
cord  —  and  we  must  now  take  the 
fact  to  be  so  —  is  it  reasonable  to 
suppose  and  presume  that  he  would 
have  sold  it  at  that  reduced  price  ? 
\Ye  cannot  think  that  such  a  pre- 
sumption could  be  raised  from  such 
premises.     Suppose     the     evidence 


would  have  proved  that  the  wood 
was  worth  $2.00  a  cord  :  a  sale  for 
the  price  at  which  the  plaintiff  alleges 
that  it  was  rated  would  be  con- 
trary to  the  uniform  course  and  con- 
duct of  men.  The  rejected  evidence 
would  indeed  only  raise  a  presump- 
tion, which  might  be  rebutted  by 
some  particular  circumstances  that 
might  have  operated  upon  the  de- 
fendant to  sell  for  less  than  theknown 
value.  But  this  woidd  not  aflect 
the  admissibility  of  the  evidence. 
The  fact  should  be  submitted  to  the 
jury,  to  be  properly  weighed  by 
them.  And  if  it  were  established, 
and  not  explained  or  rebutted,  it 
would  certainly  have  a  tendency  to 
disprove  the  allegation  of  the  plain- 
tiff, that  the  contract  was  for  a 
price  per  cord  greatly  less  than  the 
common  value.  The  verdict  is  set 
aside,  and  the  case  remitted  to  the 
Court  of  Common  Pleas  for  a  new 
trial. 


115.    MARCY  V.  BARNES.      (1860 
Massachusetts.      10  Gray  101.) 

Action  of  Contract.  Trial  and 
verdict  for  the  plaintiff  in  this 
court,  before  Hoar,  J.  The  de- 
fendants alleged  exceptions,  the 
substance  of  which  is  stated  in  the 
opinion. 

P.  C.  Bacon,  for  the  defendants. 
C.  Darns,  Jr.,  &  G.  F.  Hoar,  for  the 
plaintiff. 

Merrick,  J.  —  This  is  an  action  to 
recover  the  contents  of  the  prom- 
issory note  declared  on,  purport- 
ing to  be  signed  by  all  the  defendants. 
Zephaniah  Baker  &  Co.  were  de- 
faulted, and  Moses  Barnes  alone 
interposed  any  defense.  In  his  an- 
swer, he  denied  the  genuineness  of 
the  signature  of  his  name  which 
appears  upon  it,  and  alleged  that 
it  had  been  fraudulently  placed 
there.  This  constituted  the  issue 
to  be  determined  ;  and  it  was  con- 
ceded at  the  argument  by  the  coun- 
sel of  both  parties,  that  the  precise 
question  which  arose  and  was  con- 
tested upon  the  trial  was  whether  the 


Supreme  Judicial  Court  of 


name  of  Moses  Barnes  was  affixed 
to  the  note  before  or  after  it  came 
into  the  possession  of  the  plaintiff. 
In  addition  to  other  evidence 
produced  by  the  plaintiff,  Lucian 
Marcy  was  called  as  a  witness  in  his 
behalf,  and  testified  that  he  was 
present  on  a  certain  occasion,  and 
heard  the  plaintiff,  in  reference  to  a 
loan  about  to  be  made  by  him  to  Z. 
Baker  &  Co.,  make  inquiries  of  his 
father  respecting  their  credit ;  that 
his  father  replied  that  he  would  not 
trust  them  a  dollar;  that  he  then 
said  he  was  to  have  the  name  of 
Moses  Barnes ;  and  that  his  father 
said  Moses  Barnes  was  good.  This 
conversation  was  not  in  the  presence 
or  knowleflge  of  either  of  the  de- 
fendants ;  and  the  whole  of  this 
testimony  was  objected  to  by  the 
defendant  Barnes.  But  of  the  ad- 
missibility of  a  part  of  it  we  can  en- 
tertain no  doubt.  It  was  competent 
for  the  plaintiff  to  show  that,  before 
parting  with  his  money,  he  exercised 


No.  122. 


IV.       PROOF    OF   HUMAN   ACT.       B.    3.    PLAN 


245 


the  reasonable  precaution  of  making 
himself  acquainted  with  the  pecun- 
iary responsibility  of  the  parties  to 
whom  it  was  to  be  lent ;  and  proof 
that  he  obtained  information  from  a 
person,  upon  whose  knowledge  and 
judgment  he  believed  he  could  con- 
fidently rely,  that  Baker  &  Co.,  were 
worthless  and  unfit  to  be  trusted, 
but  that  Moses  Barnes  was  a  man 
of  undoubted  credit  and  ability, 
would  have  a  tendency  to  create  a 
high  degree  of  probability  that  the 
loan  would  not  have  been  made 
without  the  security  afforded  by  his 
becoming  a  party  to  the  note,  and 
thus  to  show  that  his  name  must 
have  been  upon  it  when  it  was  taken. 
This  would  be  in  conformity  to  the 


common  experience,  that  men  of 
ordinary  prudence  consult  their  own 
interest  and  use  reasonable  care  in 
securing  and  preserving  their  own 
property,  and  therefore  was  a  cir- 
cumstance which,  though  by  no 
means  conclusive,  yet  had  an  im- 
portant bearing  upon  the  question 
at  issue.  1  Starkie,  Ev.  (1st  Amer. 
ed.)  487.  And  upon  such  a  question 
evidence  of  inquiries  made  by  the 
party  in  interest,  and  of  the  in- 
formation obtained  in  reply,  is  not 
obnoxious  to  the  objection  that  it  is 
mere  hearsay,  but  is  primary  and 
original.  The  whole,  taken  together, 
is  a  fact,  which,  like  any  other 
fact,  may  be  shown  and  established 
by  any  competent  means  of  proof. 


Topic  3.     Plan  (Design,  Intention) 

121.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^ 
The  existence  of  a  design  or  plan  to  do  or  not  to  do  a  given  act  has  pro- 
bative value  to  show  that  the  act  was  in  fact  done  or  not  done.  A  plan  is 
not  always  carried  out,  but  it  is  more  or  less  likely  to  be  carried  out. 

The  probative  value  of  such  a  design  or  plan,  for  the  purpose  of  admissi- 
bility, will  depend  chiefly  on  two  elements,  either  of  which  may  be  very 
weak  in  a  given  instance,  —  the  fixedness  or  absolute  quality  of  the  design, 
i.e.  its  subjection  to  no  contingencies  or  conditions ;  and  the  specific  direc- 
tion of  it  to  the  act  in  question,  i.e.  its  application,  not  merely  to  a  class  of 
acts  indefinitely  foreseen,  but  to  the  exact  deed  in  question. 

The  nature  of  the  inference  by  which  we  reach  a  belief  in  the  existence 
of  the  plan  has  been  already  examined  under  Title  III,  Evidence  of  a  Hu- 
man Quality  or  Condition,  Subtitle  D,  Plan  {ante,  No.  39). 

122.  James  Sully.  The  Human  Mind.  (1892.  Vol.  II,  p.  255.)  .  .  . 
The  process  of  active  deliberation  here  briefly  described  is  a  higher  form  of 
that  work  of  integration  or  unification  in  which,  as  we  saw  above,  the 
whole  development  of  consciousness  consists.  To  reflect  upon  our  com- 
peting impulses  and  aims  is  to  make  them  our  own,  that  is,  to  take  them 
up  as  elements  in  a  new  mode  of  self-consciousness.  .  .  .  Choice  or  Deci- 
sion. Where  the  process  of  deliberation  has  been  carried  out  normally, 
that  is,  in  strict  subordination  to  practical  ends,  it  leads  on  to  what  is  popu- 
larly known  as  an  act  of  choice  or  decision.  Thus,  after  duly  weighing  the 
pleasure  and  the  pain,  the  good  and  the  evil  which  will  result  from  any 
action,  the  one  may  seem  to  preponderate  over  the  other;*  or,  after  com- 
paring two  competing  forms  of  good,  say  society  and  the  furtherance  of 
science,  we  recognize  the  latter  as  the  greater.     In  such  cases  we  are  said 

1  [Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905,  Vol.  I,  §  102.)] 


246  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  122. 

to  consciously  choose  or  decide  upon  the  particular  course  of  action  with 
its  attendant  result.  Here,  it  is  evident,  we  reach  a  higher  degree  of  organi- 
zation of  the  conative  process.  .  .  . 

Resolution:  Firmyicss  of  Will.  One  other  common  accompaniment  of 
this  higher  and  more  reflective  type  of  conation  remains  to  be  touched  on, 
namely,  resolution.  By  this  is  meant  the  formation  of  a  distinct  determi- 
nation to  perform  an  actio*  which  is  seen  to  lead  to  a  desired  end.  It  is 
something  more  than  selectively  deciding  on  an  end  as  good  or  desirable. 
Such  decision,  where  the  actual  circumstances  allow,  may  instantly  pass 
into  action,  as  when,  for  example,  a  gambler  decides  to  stake  a  particular 
sum  and  instantly  places  this  amount.  Here,  it  is  evident,  there  is  no 
time  for  a  resolution,  "I  will  do  this  particular  act,"  to  distinctly  emerge 
in  consciousness.  In  its  completely  developed  form,  resolution,  like  the 
state  of  desire  itself,  has  reference  to  something  not  capable  of  being  realized 
at  the  moment.  Thus  we  resolve  to  pay  a  call  some  hours  hence,  or  to 
meet  some  contingency  as  a  wet  day,  or  another  person's  treatment  of  us, 
in  a  particular  way. 

Resolution  on  its  psychical  side,  is  equivalent  to  a  complete  process  of 
volition.  There  is  not  only  the  presence  and  unopposed  preponderance  of 
a  motive  to  action,  but  a  distinct  representation  of,  and  desire  to  perform, 
an  appropriate  action.  What  differentiates  it  from  a  fully  executed  action 
is  that  owing  to  the  circumstances  of  the  moment  the  motor  idea  does  not 
instantly  issue  in  the  conscious  action.  .  .  .  On  the  physiological  side 
resolution  appears  to  involve  a  partial  excitation  of  the  motor  and  sensory 
centers  engaged  in  carrying  out  the  action,  an  excitation  which  is  temporarily 
inhibited  by  a  reflective  process,  though  steadily  maintained  through  the 
psychophysical  process  of  expectation,  and  ready  to  overflow  into  periph- 
eral discharge  as  soon  as  this  ideational  process  of  expectation  gives 
place  to  the  sensational  process  of  a  perception  of  the  suitable  circumstances. 

From  this  brief  account  of  the  process  of  resolution  we  may  readily  see 
that  it  is  in  a  manner  the  crowning  phase  of  the  conative  process.  Action 
kept,  so  to  say,  in  suspense  prolongs  the  initiative  stage  to  the  utmost. 
Such  prolongation  or  delay  of  execution  allows  of  full  opportunity  for  the 
development  of  the  active  form  of  self-consciousness.  The  state  of  mind 
or  psychosis  indicated  by  the  expression  "I  will"  here  reaches  its  maximum 
distinctness.  Hence  the  tendency  to  look  on  resolution  as  the  most  essen- 
tial factor  in  the  conative  process.  According  to  this  common  view,  we 
only  fully  assert  our  will  when  we  definitely  and  firmly  resolve  to 
do  a  thing.   .  .  . 

It  may  be  added  that  resolution  enters  into  all  action,  so  far  as  this 
becomes  complex,  in  the  sense  of  involving  a  prolonged  activity,  or  a  series 
of  combined  movements.  Thus,  in  carrying  out  a  mechanical  process  as 
carpentering,  in  looking  up  a  friend,  or  in  preparing  for  an  examination,  we 
must,  it  is  plain,  maintain  from  the  outset  a  statfe  of  determination  or  resolu- 
tion with  respect  to  the  latter  stages  of  the  performance.  The  frequency 
of  incompleted  action  illustrates  this  point ;  for  the  abandoning  of  things 
when  only  partly  done  means  that  the  attitude  of  resolution  was  not  strong 
enough  ;  that  is  to  say,  that  the  desire  for  the  end,  the  achieved  result,  and 
the  readiness  to  carry  out  the  required  actions  as  the  proper  moments 
arrive,  were  not  sufficiently  persi-stent.  .  .  .     Since  resolution  implies  the 


No.  123.  IV.       PROOF    OF   HUMAN   ACT.       B.    3.    PLAN  247 

maintenance  of  the  idea  of  an  end,  and  further  of  that  of  an  opportunity 
of  actively  reahzing  this  end,  it  is  Hable  to  fail  through  the  lapse  of  this 
ideational  activity.  Hence  so  many  of  our  resolutions  are  temporary  only 
and  abortive.  Again,  since  resolutions  are  arrived  at  in  the  absence  of  the 
appropriate  circumstances,  they  are,  even  when  strong  and  persistent,  no 
perfect  guarantee  for  actual  performance.  Their  future  efficiency  will 
depend  on  the  adequate  representation  of  all  the  circumstances.  This 
accounts  for  the  ignominious  collapse  of  so  many  brave  resolutions  when 
subjected  to  the  touchstone  of  actuality.  In  all  such  persistent  resolution 
we  have  a  new  display  of  "will  power."  Strength  of  will  is  commonly 
judged  by  steadiness  and  pertinacity  of  resolve.  More  particularly,  it  is 
tested  by  firmness,  that  is,  maintenance  of  the  resolute  attitude  under 
heavy  and  prolonged  discouragements,  as  in  the  now  historical  crossing  of 
the  African  forest  by  Stanley  and  his  party.  .  .  .  Where,  instead  of  de- 
terrent difficulty,  seductive  allurement  of  any  kind  comes  in  to  break  the 
spell  of  a  resolution,  we  have  this  pertinacity  under  the  form  of  what  is 
commonly  known  as  firmness  or  independence  of  will.  Here  the  attrac- 
tions of  other  objects,  the  suggestions  of  friends,  and  so  forth,  present 
themselves  as  competitors  with  the  particular  end  pursued,  as  when  the 
Sirens  seek  to  woo  Ulysses  from  the  arduous  toils  of  the  sea.  .  .  .  Such 
resoluteness  or  firmness  constitutes  a  particular  volitional  cjuality.  .  .  . 
It  is  needless  to  dwell  on  the  moral  importance  of  the  quality.  It  is  only 
as  men  are  known  to  be  resolute  that  they  are  to  be  counted  on. 

123.  RICHARD  GOULD'S  CASE.  (Camden  Pelham.  ChronicUs 
of  Crime,     ed.  1891.      Vol.  II,  p.  557.) 

It  was  upon  the  morning  of  Tues-  It  appears  that  on  ]\Ionday,  the 
day,  the  17th  of  March,  1840,  that  16th  of  March,  he  went  as  usual  to 
the  murder  was  discovered  for  which  Somers  Town  to  collect  the  money 
Gould  was  eventually  indicted.  Mr.  due  to  him  for  the  rent  of  his  houses ; 
John  Templeman,  the  unfortunate  and  having  called  upon  his  tenants, 
victim  of  this  most  dreadful  crime,  he  received  of  them  (3/.,  the  whole  of 
was  about  seventy  years  of  ag;e  at  the  which  was  paid  him  in  silver,  except 
period  of  his  death.  He  resided  in  one  half  sovereign.  Upon  his  re- 
one  of  numerous  small  cottages  turn  home,  he  sent  for  a  Mrs. 
erected  in  an  open  space  called  Thornton,  who  acted  as  his  char- 
Pocock's-fields,  near  Barnsbury  woman,  and  who  lived  in  an  adja- 
Park,  Islington,  principally  occupied  cent  cottage,  to  whom  he  com- 
by  persons  of  the  poorer  grades  of  municated  the  fact  of  the  receipt  of 
life.  He  lived  by  himself,  and  was  the  money ;  and  having  instructed 
possessed  of  a  small  income,  arising  her  to  procure  various  trifling  articles 
from  the  rents  of  one  or  two  houses  of  which  he  stood  in  need,  at  about 
which  belonged  to  him  in  Somers  six  o'clock  he  retired  to  rest.  On 
Town.  The  supposed  miserly  habits  the  following  morning  Mrs.  Thorn- 
of  the  old  man,  and  the  great  desire  ton  sent  her  daughter  to  the  house  of 
which  he  appeared  to  entertain  to  be  the  deceased  with  some  of  the  com- 
considered  rich,  and  which  he  ex-  modities  which  she  had  been  di- 
hibited  by  constantly  boasting  of  rected  to  purchase,  and  she  knocked 
his  property,  were  the  undoubted  at  the  door,  and  called  Mr.  Temple- 
causes  which  led  to  the  dreadful  man  by  name.  No  answer  was  re- 
catastrophe  by.  which  he  was  de-  turned,  and  she  went  back  and  in- 
prived  of  life.  formed  her  mother  of  her  inability  to 


248 


PART   I.      CIRCUMSTANTIAL   EVIDENCE 


No.  123. 


obtain  admittance  to  the  house ; 
and  then  upon  Mrs.  Thornton  pro- 
ceeding to  the  cottage  and  looking 
in  at  the  bedroom  window,  she  was 
horror-stricken  at  finding  the  un- 
fortunate old  man  stretched  upon 
the  floor  brutally  murdered.  For  a 
time  she  was  at  a  loss  to  know  what 
proceedings  to  take  in  reference  to 
this  most  dreadful  transaction  ;  but 
being  aware  that  the  deceased  had  a 
grandson,  a  solicitor,  in  Mortimer- 
street,  Cavendish-square,  she  deter- 
mined to  await  the  arrival  of  her 
son-in-law,  a  Frenchman,  named 
Capriani,  who  was  employed  as  a 
night  watchman  at  Sadler's  ^Yells 
theater,  in  order  that  he  might  take 
the  necessary  steps  in  the  affair.  At 
eleven  o'clock  in  the  day  he  returned 
home ;  and  then  upon  his  being 
made  acquainted  with  what  had 
occurred,  he  at  once  proceeded  to  the 
residence  of  Mr.  Templeman,  Jr., 
to  inform  him  of  the  murder,  omit- 
ting altogether  to  give  any  informa- 
tion to  the  police  of  the  discovery 
which  had  taken  place.  During  the 
absence  of  Capriani,  the  baker  who 
was  in  the  habit  of  delivering  bread 
at  the  cottage  of  the  deceased  ar- 
rived, but  was  met  by  Mrs.  Thorn- 
ton, who  sent  him  away,  saying  he 
would  get  no  answer  there  ;  but  Mr. 
Templeman,  Jr.,  soon  after  making 
his  appearance,  the  police  were  called 
in,  and  informed  of  the  horrid  trans- 
action. 

A  minute  examination  of  the 
house  of  the  deceased  then  took 
place ;  and  from  the  appearances 
which  presented  themselves,  it  be- 
came evident  that  the  murder  had 
been  committed  in  the  most  savage 
manner.  .  .  . 

The  house,  which  consisted  of  two 
rooms  only,  was  in  a  state  of  great 
confusion.  The  drawers  had  been 
forced  open,  and  the  box  in  which  it 
was  known  the  deceased  kept  his 
money  had  been  ransacked  of  its 
contents.  .  .  .  Upon  the  search  be- 
ing continued,  to  ascertain  the  means 
by  which  ingress  had  been  ()l)tained 
to  the  house,  it  was  discovered  that 


the  outer  shutter,  which  was  of 
slight  materials,  having  been  first 
forced  open,  a  pane  of  glass  in  the 
parlor  window  had  been  broken 
through,  and  then  a  hand  might 
have  been  introduced  to  open  the 
door  on  the  inside. 

The  circumstances  which  had 
hitherto  been  disclosed  left  l)Ut  little 
clew  to  the  murderer,  but  some  sus- 
picion being  attached  to  Capriani 
from  the  delay  which  had  taken 
place  in  the  discovery  of  the  murder 
by  him  to  the  police,  he  was  taken 
into  custody.  The  examinations 
which  were  made  by  the  police  in 
the  course  of  the  ensuing  day  or  two, 
however,  satisfactorily  proved  that 
Capriani  was  in  no  wise  implicated 
in  the  horrid  affair,  and  he  was 
discharged ;  but  soon  afterwards 
Gould,  and  a  man  and  his  wife, 
named  John  and  Mary  Ann  Jarvis, 
were  apprehended.  The  evidence 
which  was  discoAcred  in  reference  to 
these  persons  soon  demonstrated  the 
innocence  of  the  man  Jarvis,  and  he 
was  set  at  liberty  ;  and  subsequently, 
although  a  close  intimacy  was  proved 
to  exist  between  Gould  and  Mrs. 
Jarvis,  it  was  found  that  no  such 
proofs  remained  against  the  latter 
as  to  induce  a  probable  belief  of  her 
guilt,  and  she  too  was  discharged 
from  custody. 

Gould,  in  the  meantime,  under- 
went many  examinations  at  Hatton- 
Garden  police  office,  upon  the  charge 
of  being  concerned  in  the  murder, 
the  utmost  interest  and  excitement 
being  occasioned  by  the  mystery 
connected  with  its  committal. 

The  case  came  on  to  be  tried  be- 
fore Mr.  Baron  Alderson,  at  the 
Central  Criminal  Court,  on  Tuesday, 
the  14th  of  April,  ISIr.  Chudwick 
Jones  appearing  as  counsel  for  the 
pro.secution,  and  Mr.  Chambers  con- 
ducting the  defense  of  the  prisoner. 
Witnesses  were  examined  as  to  the 
facts  which  have  been  already  de- 
tailed ;  and  other  persons  were 
produced,  from  whose  testimony 
it  appeared  that  the  prisoner  for 
some  time  before  the  murder  had 


No.  123. 


IV.       PROOF   OF   HUMAN   ACT.       B.    3.    PLAN 


249 


lodged  in  the  house  of  a  Mrs.  Allen, 
who  lived  in  Pocock's-fields,  near 
the  cottage  of  the  deceased.  The 
most  important  facts  proved  against 
him  were,  that  previous  to  the 
murder  he  had  frequently  declared 
to  many  of  his  companions  that  he 
was  greatly  in  want  of  money,  and 
that  he  had  suggested  to  one  of 
them,  a  potboy  at  the  Duchess  of 
Kent  public  house  in  the  Dover-road, 
that  he  knew  an  old  man  who  had 
got  money,  for  that  he  had  seen  him 
flashing  about  a  50/.  note ;  that  he 
knew  where  to  put  his  hand  upon  it 
in  the  drawer  where  it  was  kept, 
and  that  it  was  "just  like  a  gift"  to 
him,  and  that  he  wished  he  could  get 
"a  right  one"  to  assist  him  in  the 
robbery.  Other  witnesses  proved 
that  he  had  expressed  to  them  a 
desire  to  procure  "a  screw"  and  "a 
darkey"  (meaning  a  picklock  key 
and  a  dark  lantern),  to  "serve"  an 
old  gentleman  in  a  lonely  cottage ; 
and  the  concluding  evidence  was 
that  of  Mr.  and  Mrs.  Allen,  his 
landlord  and  landlady,  as  to  his 
conduct  on  the  night  of  the  murder, 
and  of  some  police  officers,  who 
proved  the  discovery  of  some  money 
in  the  rafters  of  the  washhouse  of 
Allen's  cottage,  corresponding  in  its 
denominations  with  the  silver  which 
had  been  paid  to  Mr.  Templeman  by 
his  lodgers  at  Somers  Town. 

Allen's  evidence  was  as  follows ; 
"  I  live  at  Wilson's  Cottage,  Pocock's- 
fields,  Islington.  I  know  the  cot- 
tage in  which  the  deceased  lived.  I 
have  known  the  prisoner  about 
twelve  months  ;  he  has  lodged  at  my 
house  several  times,  and  he  came  to 
lodge  there  seven  nights  before  this 
occurrence  took  place.  I  remember 
the  16th  of  March  ;  and  at  that  time, 
from  circumstances  that  occurred,  I 
am  confident  that  he  had  no  money. 
On  that  day  the  prisoner  went  out 
between  eight  and  nine  o'clock  with- 
out having  any  breakfast.  He  had 
on  a  pair  of  shoes  which  I  sold  him, 
and  they  had  nails  in  them.  The 
prisoner  wore  them  constantly.  He 
returned  home  about  three  o'clock 


in  the  morning,  and  he  immediately 
went  into  his  room.  My  wife  said 
to  him, '  Richard,  is  it  early,  or  late  ? ' 
and  he  replied,  'It  is  early.'  The 
prisoner  got  up  between  eight  and 
nine  o'clock  the  next  morning,  and 
came  into  my  sitting  room,  and 
passed  through  into  the  washhouse, 
which  leads  to  the  privy.  He  stayed 
out  from  five  and  twenty  minutes 
to  half  an  hour  when  he  returned 
into  the  house  and  went  out  at  the 
front  door.  I  did  not  observe  any- 
thing unusual  in  his  appearance. 
The  prisoner  returned  home  about 
seven  o'clock  in  the  evening,  and 
in  the  meantime  I  had  heard  of  the 
murder  of  Mr.  Templeman,  and  I 
told  him  of  it.  The  prisoner  said 
it  was  a  shocking  thing,  and  he  asked 
me  if  I  considered  Mr.  Templeman 
could  have  done  it  himself.  I  said, 
'Richard,  how  can  a  man  bind  his 
own  hands  and  eyes  ? '  The  prisoner 
then  appeared  agitated,  and  said 
his  inside  was  out  of  order,  and  he 
went  into  the  yard,  and  remained 
for  a  few  minutes.  ...  I  asked 
him  where  he  had  been  so  late  on  the 
night  before.  He  said  he  had  beea 
at  the  Rainbow,  and  had  stopped 
there  until  twelve  o'clock  at  night,, 
and  when  he  came  out  he  met  some 
friends,  who  detained  him.  Before 
this  time  I  had  a  piece  of  wood  in 
my  possession,  which  was  about  a 
foot  and  a  half  long.  The  prisoner 
went  to  bed  about  nine  o'clock,  and 
I  bolted  him  in  and  gave  information 
to  the  police.  He  accounted  to  me 
for  the  possession  of  the  money  by 
saying  that  it  had  been  given  to  him 
by  his  relations." 

Mrs.  Allen's  evidence  was  to  the 
same  effect ;  but  she  proved  in  addi- 
tion, that  a  stocking  in  which  the 
money  was  found  concealed  be- 
longed to  the  prisoner. 

Tiie  evidence  otherwise  was  of  a 
very  general  description,  and  al- 
though man}'  expressions  of  a  very 
suspicious  character  were  attributed 
to  the  prisoner  by  the  witnesses,  none 
of  them  amounted  to  an  admission 
by  him  of  his  guilt.     The  jury,  after 


250 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  124. 


having  received  the  customary 
charge  from  the  learned  Judge,  re- 
turned a  verdict  of  acquittal.  .  .  . 

But  on  the  next  day,  he  was  sur- 
prised at  finding  that  he  had  again 
got  into  the  custody  of  the  police,  a 
warrant  having  been  executed  upon 
him,  in  which  he  was  charged  with 
being  a  party  to  the  robbery  which 
had  been  committed  in  the  house  of 
Mr.  Templeman,  on  the  night  of  the 
murder. 

He  was  carried  to  London  loudly 
complaining  of  the  breach  of  good 
faith  on  the  part  of  Sergeant  Otway, 
and  on  being  conveyed  to  Bow-street, 
he  repeatedly  expressed  his  willing- 
ness to  disclose  all  he  knew  upon  his 
being  liberated.  This  condition, 
however,  was  refused  to  be  acceded 
to,  and  in  the  hope  of  obtaining  the 
reward,  on  the  11th  of  May  he  made 
a  statement  [confessing  to  the  mur- 
der]. ... 

He   had   already   been   acquitted 


of  the  murder,  and  it  was  impossible 
that  he  should  be  tried  upon  any 
fresh  indictment  upon  that  charge; 
but  it  still  remained  open  to  the 
friends  of  the  deceased  to  jirefer 
against  him  a  charge  of  burglary, 
sul)jecting  him  to  a  penalty  of  trans- 
portation for  life.  Upon  this  latter 
charge  he  was  indicted  at  the  session 
of  the  Central  Criminal  Court,  on 
the  22d  of  June,  and  the  same  evi- 
dence which  had  been  before  ad- 
duced having  been  again  brought 
forward,  together  with  proof  of 
those  additional  facts  admitted  in 
his  own  confession,  he  was  found 
"Guilty." 

Mr.  Baron  Parke,  in  addressing 
the  prisoner,  declared  that  there 
could  be  no  possible  doubt  that  he 
had  been  guilty  of  the  murder  of  the 
unhappy  deceased,  and  that  he  was 
justly  brought  to  punishment.  He 
sentenced  him  to  be  transported 
for  life. 


124.    JONATHAN  BRADFORD'S  CASE.      [Printed  ante,  as  No.  5: 


125.    THE    GREAT    OYER    OF 

Mitchell.      Scioice  and  the  Crimina 

In  the  series  of  trials  of  the  murder 
of  Sir  Thomas  Overbury,  in  1615, 
in  the  Tower  of  London  (to  which 
reference  has  already  been  made), 
the  prisoners  included  Anne  Turner, 
Richard  \Yeston,  Franklyn,  Sir 
Thomas  Elwes  (the  Lieutenant  of 
the  Tower),  and  the  Countess  of 
Somerset.  It  was  alleged  that  the 
Coimtess  of  Somerset  resented  the 
interference  of  Sir  Thomas  Over- 
bury,  then  a  prisoner  in  the  Tower, 
in  her  matrimonial  schemes,  or  as 
Franklyn  put  it  in  his  evidence : 
The  Countess  had  told  him  that  Sir 
Thomas  Overbury  "would  pry  so 
far  into  their  affairs  that  it  would 
overthrow  them  all."  Richard  Wes- 
ton, who  had  been  an  apothecary's 
man  but  had  afterwards  become 
under  keeper  to  the  Lieutenant  of 
the  Tower,  was  arraigned  on  the 
charge  that  "he  did  ol)tain  at  the 
Tower  of  London  certain  poison  of 


POISONING.      (C 
/.      1911.     p.  176.) 


Ainsworth 


green  and  yellow  color,  called  rosalgar 
(knowing  the  same  to  be  deadly  poi- 
son), and  the  same  did  feloniously  and 
maliciously  mingle  and  compound  in 
a  kind  of  broth  which  he  did  deliver 
to  the  said  Sir  T.  Overbury  with 
intent  to  kill  and  poison."  He  was 
also  accused  of  giving  on  other 
occasions  poisons  called  "  white  ar- 
senic" and  mercury  sublimat^ 
which  he  "put  and  mingled"  in 
tarts  and  jellies.  .  .  .  Anne  Tur- 
ner, who  was  tried  as  one  of  the 
accomplices,  was  the  widow  of  a 
physician,  and  a  friend  of  the 
Countess.  She  pleaded  "Not 
guilty"  to  the  charge. 

The  evidence  as  to  sorcery  used 
by  her  has  already  been  mentioned, 
but  the  chief  witness  against  her 
was  James  Franklyn,  who  made 
the  following  confession  :  "  Mrs. 
Turner  came  to  me  from  the  Countess 
and  wished  me  from  her  to  get  the 


No.  127. 


IV.       PROOF   OF   HUMAN   ACT.       B.    3.    PLAN 


251 


strongest  poison  I  could  for  Sir 
T.  Overbury.  Accordingly  I  bought 
seven,  viz. :  Aqua  fortis,  white 
:  arsenic,  mercury,  powder  of  dia- 
I  monds,  lapis  costitus,  great  spiders, 
1  and  cantharides.  All  these  were 
given  to  Sir  T.  Overbury,  and  the 
Lieutenant  knew  of  these  poisons. 
Sir  T.  Overbury  never  had  salt 
but  there  was  white  arsenic  put 
into  it.  Once  he  desired  pig,  and  / 
Mrs.  Turner  put  into  it  lapis  costi- 
tus. At  another  time  he  had  two 
partridges  sent  him  from  the  Court, 
and  water  and  onions  being  the 
sauce,  Mrs.  Turner  put  in  canthari- 
des instead  of  pepper,  so  that  there 
was  scarce  anything  that  he  did 
eat,  but  there  was  some  poison 
mixed.  For  these  poisons  the  Count- 
ess sent  me  reward.  She  after- 
wards wrote  unto  me  to  buy  her 
more  poisons."  It  is  obvious  from 
this  confession  that  the  poisons 
supplied  had  no  power,  and  it 
would  seem  that  Franklyn  was 
making  income  for  himself  by 
supplying  harmless  preparations  for 
the  poisons  for  which  he  was  being 
paid.  As  far  as  it  is  possible  to 
judge  by  reading  the  evidence, 
there  was  proof  that  attempts  had 
been  made  to  poison  Sir  Thomas 
Overbury,  but  no  proof  that  any 
poison  was  ever  given  to  him.  How- 
ever, the  evidence  appears  to  have 
been  quite  sufficient  to  convict 
the  prisoners.  .  .  . 

After  the  execution  of  Mrs.  Tur- 
ner and  Weston  came  the  trial  of 
Franklyn,  who  confessed  that  poison 
had  not  been  the  cause  of  Overbury's 
death.     Weldon,  who,  in  1755,  pub- 


lished a  history  of  the  Kings  of 
England,  describes  how  Franklyn 
and  Weston  "came  into  Overbury's 
chamber  and  found  him  in  infinite 
torment  with  the  contention  between 
the  state  of  nature  and  working  of 
the  poison,  and  it  had  been  very 
like  that  nature  had  got  the  better 
in  that  contention  .  .  .  but  they, 
fearing  it  might  come  to  light  by 
the  judgment  of  physicians  that 
foul  play  had  been  offered  him,  con- 
sented to  stifle  him  with  bedclothes, 
which  accordingly  was  performed. 
And  so  ended  his  miserable  life, 
with  the  assurance  of  the  con- 
spirators that  he  died  of  poison, 
none  thinking  otherwise  but  these 
two  murtherers."  The  account 
given  by  Weldon  of  the  manner  in 
which  the  Lord  Chief  Justice  re- 
ceived this  confession  is  well  worth 
quoting.  .  .  .  "Then  was  Franklyn 
arraigned,  who  confessed  that  Over- 
bury was  smothered  to  death,  not 
poisoned  to  death,  though  he  had 
poison  given  him.  Here  was  Coke 
glad  to  cast  about  to  bring  both 
ends  together,  Mrs.  Turner  and 
Weston  being  already  hanged  for 
killing  Overbury  by  poison.  But 
he  being  the  very  quintessence  of 
the  law,  presently  informed  the 
jury  that  if  a  man  be  done  to  death 
with  pistol,  poniard,  sword,  halter, 
poison,  etc.,  so  he  be  done  to  death, 
the  indictment  holds  good,  if  but 
indicted  for  one  of  those  ways. 
But  the  good  lawyers  of  those  times 
were  not  of  that  opinion,  but  did  be- 
lieve that  Mrs.  Turner  was  directly 
murthered  by  Lord  Coke's  law,  as 
Overbury  was,  without  any  law." 


126.    REGINA  v.  CLEAR Y.     [Printed  ante,  as  No.  61.] 


127.    WILLIAM     HABRON'S    CASE. 

Appeal  and  Evidence.      1908.      p.  293.) 


(N.  W.  Sibley.     Criminal 


William  Habron,  convicted  at 
Manchester  Autumn  Assize,  in  1876, 
before  Lindley,  J.  (now  Lord  Lind- 
ley),  for  the  murder  of  Police  Con- 
stable Cock.  It  may  be  remem- 
bered  that   the   fact   which   cast   a 


doubt  upon  the  propriety  of  his 
conviction  was  the  confession  of 
Peace,  in  February,  1879,  when 
lying  under  sentence  of  death  for 
the  murder  of  Mr.  Dyson,  at  Ban- 
nercross.     This  led  to  a  free  pardon. 


252 


PART   I.       CIRCUMSTANTIAL    EVIDENCE 


No.  12/ 


and  £1000  compensation  being 
granted  to  Habron.  ...  It  is  com- 
mon ground  that  the  conviction 
of  Habron  took  place  purely  on 
circumstantial  evidence,  and  it  was 
considered,  at  least  at  the  time,  that 
the  case  was  perhaps  the  most  re- 
markable case  on  record  of  circum- 
stantial evidence.  The  facts  as  set 
forth  in  the  Times  in  1879 — it  was 
noc  reported  in  1876 — are  as  follows  : 
There  were  three  brothers,  Frank, 
John,  and  William  Habron,  living 
together  at  Chorlton,  a  village 
three  miles  from  Manchester,  in 
the  employment  of  Mr.  Deakin,  a 
nursery  gardener.  In  July,  1876, 
summonses  were  taken  out  against 
John  and  William  Habron  for  dis- 
orderly conduct  and  drunkenness 
by  Police  Constable  Cock.  After 
the  summonses  were  served  the 
Habrons  were  heard  to  say  that  if 
the  "Bobby"  caused  them  any 
troul)le,  they  would  shoot  him.  At 
the  hearing  of  the  summons,  Police 
Constable  Cock,  immediately  on 
leaving  the  witness  box,  went  to 
Mr.  Bent,  his  superior  officer,  and  a 
superintendent,  and  stated  that 
William  Habron  had  said  to  him, 
"  If  you  get  me  fined,  I  will  shoot  you 
before  the  morning."  This  was  on 
August  1st.  The  case  against  John 
Habron  was  dismissed,  but  William 
Habron  was  fined.  The  policeman 
was  evidently  laboring  under  .some 
apprehensions ;  but  Mr.  Bent, 
knowing  that  coarse  and  vulgar 
threats  were  common  enough  among 
people  of  the  condition  of  life  of 
the  Habrons,  took  no  notice  of 
it  at  the  moment ;  but  towards  the 
evening,  on  reflection,  he  thought 
there  might  l)e  something  in  it, 
and  he  intended  next  day  to  have 
given  orders  for  the  men  on  that 
beat  to  go  in  couples.  Here  a  very 
singular  and  undoubted,  fact  has 
become  known;  Cock  had  to  go 
on  duty  that  night  at  nine  o'clock, 
and,  as  evening  came  on,  he  fell  into 
a  state  of  extraordinary  depression, 
and  told  his  landlady  (he  being  a 
single  man  living  at  lodgings,  having 


joined  the  police  only  a  few  months 
before)  that  he  was  sure  something 
would  happen  to  him  that  night. 
With  a  great  effort  he,  however, 
conquered  his  depression  and  went 
on  his  usual  beat.  He  was  on  duty 
at  Whalley  Range,  a  district  com- 
posed entirely  of  mansions  and 
villa  residences,  and  a  few  minutes 
before  twelve  o'clock  he  and  Beau- 
land,  another  constable,  were  to- 
gether at  West  Point,  near  the 
residence  of  a  gentleman  named 
Gratrix.  There  they  saw  two  men, 
one  of  whom  was  leaning  against  a 
post.  A  third  man  whom  they  did 
not  know,  and  whom  Peace  claims 
to  be,  passed  them.  They  did  not 
know  him.  The  officers  knew  all 
the  three  Habrons,  and  therefore 
this  third  man  could  not  have  been 
one  of  them.  Beauland  looked  at 
this  third  man  as  he  passed  and 
asked  Cock  who  he  was.  Cock 
said  he  did  not  know.  Beauland 
then  said  he  would  follow  him,  and 
he  went  towards  Mr.  Gratrix's 
house,  towards  which  he  had  seen 
the  man  disappear,  and  examined 
the  place,  but  could  see  no  traces 
of  the  man.  He  thought  from  the 
sudden  disappearance  that  it  was 
young  Mr.  Gratrix  coming  home. 
He  turned  back,  and  as  he  was 
turning  he  saw  a  flash  and  heard  a 
report,  and  almost  instantaneously 
it  was  followed  by  another  flash 
and  a  report.  The  officer  described 
them  as  following  each  other  just  as 
quickly  as  one  could  pull  the  trigger 
of  a  revolver.  He  heard  Cock 
scream,  "My  God  !  I  am  shot,"  and 
ran  up  to  him  and  found  him  lying 
on  the  footpath.  He  asked  what 
was  the  matter,  but  Cock  could 
make  no  reply,  as  he  lay  writhing 
on  the  ground. 

Beauland  heard  a  man  exclaim, 
"Here  is  another  policeman!"  and 
then  he  heard  footsteps  running 
away.  He  whistled  for  assistance, 
and  some  carters  and  their  carts 
came  up,  together  with  a  young 
gentleman  named  Simpson,  who 
had    been    talking    with    the    two 


No.  127. 


IV.       PROOF   OF   HUMAN   ACT.       B.    3.    PLAN 


253 


officers  only  a  minute  or  two  before 
and  heard  the  report  of  the  two 
shots.  Cock  expired  an  hour  after- 
wards from  a  wound  in  the  breast, 
ha\ing  been  unable  to  make  any 
statement.  Information  was  at 
once  given  to  Superintendent  Bent, 
whose  house  is  about  a  mile  away 
from  the  scene  of  the  murder. 
Instantly  remembering  what  Cock 
told  him  of  the  threat  to  shoot  him, 
he  took  officers  with  him  and  sur- 
rounded the  cottage  of  the  Habrons, 
which  is  about  a  quarter  of  a  mile 
from  where  Cock  was  shot.  As  the 
officers  approached  the  cottage  a 
light  was  seen  in  one  of  the  windows, 
but  when  they  knocked  at  the  door 
the  light  was  extinguished.  The 
police  broke  into  the  cottage  and 
found  the  three  brothers  in  bed. 
Mr.  Bent  ordered  them  to  get  up 
and  dress,  and  each  to  put  on  the 
clothes  and  boots  he  wore  that 
night.  \Yhen  the  dressing  was  com- 
pleted, without  one  word  having 
been  said  as  to  why  the  arrest  was 
made,  Mr.  Bent  said,  "I  charge 
each  of  you  with  the  murder  of 
Police  Constable  Cock."  Two  of 
the  brothers  made  no  reply,  but 
Frank  Habron  said,  "  I  was  in  bed 
at  the  time."  They  were  taken  to 
Old  Trafford  Police  Station,  and 
IVIr.  Bent  then  took  a  posse  of  con- 
stables and  formed  a  cordon  round 
the  spot  where  the  murder  had  been 
committed.  When  daylight  ap- 
peared it  disclosed  a  number  of 
footmarks  at  the  place,  one  of 
which  was  very  peculiar.  The  boots 
of  the  Habrons  were  sent  for,  and 
it  was  found  beyond  a  shadow  of 
doubt  that  one  of  those  footmarks 
must  have  been  made  by  the  boots 
of  the  prisoner  William  Habron. 
The  bullet  which  had  killed  Cock 
was  found  to  be  an  ordinary  re- 
volver bullet,  and  the  police  at 
once  set  out  on  a  strict  search  for 
firearms,  but  they  were  never  able 
to  find  any.  Some  percussion  caps 
were  found  in  the  pockets  of  one 
of  the  brothers,  but  this  was  ac- 
counted  for   by   Mr.    Deakin,   who 


said  that  he  had  given  the  prisoner 
a  waistcoat  and  they  might  have 
})een  in  it  when  he  had  given  it  to 
him.  It  was  stated  in  the  course 
of  the  investigation,  however,  that 
William  went  to  a  gunsmith's  in 
Oxford  Street  and  inquired  as  to 
the  price  of  revolver  cartridges. 
A  box  was  shown  to  him,  but  he 
hesitated  about  the  price  and  went 
out,  as  he  said,  to  see  a  person  out- 
side, who  was  supposed  to  be  his 
brother,  and  he  did  not  return.  It 
was  found  afterwards  that  three 
bullets  had  been  taken  from  the 
box,  but  here  another  mysterious 
circumstance  arose  —  namely,  that 
those  bullets  did  not  correspond  in 
size  with  the  one  that  killed  the  con- 
stable. On  this  and  other  evidence 
William  and  John,  Frank  having 
been  dismissed  by  the  magistrates, 
were  committed  for  trial  both  before 
the  coroner's  jury  and  the  justices. 

The  trial  came  on  at  Manchester 
Assizes  before  Lindley,  J.,  and  the 
main  defense  set  up  was  that  at 
the  time  the  accused  could  not 
have  been  in  Oxford  Street,  but 
were  really  working  at  Chorlton, 
several  miles  away.  On  cross-ex- 
amination, however,  the  alibi  failed 
utterly  as  regards  the  prisoner 
William  Habron,  and  after  a  long 
trial  he  was  convicted  and  sen- 
tenced to  death.  Much  dissatis- 
faction was  expressed  with  the 
verdict,  and  a  large  number  of 
people  signed  a  petition  for  a  re- 
prieve. .  .  . 

Peace's  confession  [that  he  was 
the  real  murderer]  was  received 
with  considerable  incredulity  in 
February  three  years  afterwards, 
and  it  seems  to  have  been  even 
believed  that  it  was  merely  made 
with  a  view  to  obtain  a  respite 
[from  his  sentence  of  death  for 
another  murder].  The  most  serious 
criticism  of  his  confession  was  un- 
doubtedly the  remarkable  fact  that 
if  he  had  run  away  from  the  scene  of 
the  murder  in  the  direction  he  rep- 
resented in  his  confession,  he  must 
have  run  into  the  arms  of  Beauland, 


254 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  128. 


Cock's  fellow  constable.  The  for- 
mer, however,  stated  he  saw  nobody 
immediately  after  he  heard  the  shots. 
A  pistol  has  recently  been  found, 
thirty-one  years  after  the  crime, 
thrown  into  a  pit  on  the  scene  of 
the  Whalley  Range  murder,  but  in 
a  direction  opposite  to  that  in  which 
Peace  declared  he  fled.  .  .  .  The 
sequence   of   events   after   the   con- 


fession of  Peace  was  that  Mr.  Cross, 
then  Home  Secretary,  stated  in  the 
House  of  Commons  that  he  had  felt 
it  his  duty  to  advise  the  Crown  to 
grant  a  free  pardon  to  William  Ha- 
bron,  and  that  in  this  course  he 
had  entire  concurrence  of  both  the 
learned  judge  who  tried  the  case 
and  also  of  the  law  officers  of  the 
Crown.  .  .  . 


128.    MADELEINE  SMITH'S  CASE. 
Evidence.     Amer.  ed.      1905.     p.  300.)  ' 


(W.  Wills.      Circumstantial 


In  a  case  of  the  deepest  interest, 
in  1857,  before  the  High  Court  of 
Justiciary  at  Edinburgh,  a  question 
whether  or  not  the  prisoner  had 
the  opportunity  of  administering 
arsenic  to  the  deceased  was  the 
turning  point  of  the  case.  The 
prisoner,  a  young  girl  of  nineteen, 
was  tried  upon  an  indictment  charg- 
ing her,  in  accordance  with  the  law 
of  Scotland,  with  the  administration 
to  the  same  person  of  arsenic,  with 
intent  to  murder,  on  two  several 
occasions  in  the  month  of  February, 
and  with  his  murder  by  the  same 
means  on  the  22d  of  March  follow- 
ing. She  had  returned  home  from 
a  boarding  school  in  1853,  and  in  the 
following  year  formed  a  clandestine 
connection  with  a  foreigner  of  in- 
ferior position,  named  L'Angelier, 
whose  addresses  had  been  forbidden 
by  her  parents.  Early  in  1856 
their  intercourse  assumed  an  unlaw- 
ful character,  as  was  shown  by  her 
letters.  In  the  month  of  December 
following,  another  suitor  appeared, 
whose  addresses  w^ere  accepted  by 
her  with  the  consent  of  her  parents, 
and  arrangements  were  made  for 
their  marriage  in  June.  During 
the  earlier  part  of  this  engagement, 
the  prisoner  kept  up  her  interviews 
and  correspondence  with  L'Angelier  ; 
but  the  correspondence  gradually 
became  cooler,  and  she  expressed 
to  him  her  determination  to  break 
off  the  connection,  and  implored 
him  to  return  her  letters ;  but  this 
he  refused  to  do,  and  declared  that 


she  should  marry  no  other  person 
while  he  lived.  After  the  failure 
of  her  efforts  to  obtain  the  return 
of  her  letters,  she  resumed  in  her 
correspondence  her  former  tone  of 
passionate  affection,  assuring  him 
that  she  would  marry  him  and  no 
one  else,  and  denying  that  there 
was  any  truth  in  the  rumors  of  her 
connection  with  another.  She  ap- 
pointed a  meeting  on  the  night  of 
the  19th  of  February,  at  her  father's 
house,  where  she  was  in  the  habit  of 
receiving  his  visits,  after  the  family 
had  retired  to  rest,  telling  him  that 
she  wished  to  have  back  her  "cool 
letters,"  apparently  with  the  inten- 
tion of  inducing  him  to  believe  that 
she  remained  constant  in  her  attach- 
ment to  him.  In  the  middle  of 
the  night  after  that  interview,  at 
which  he  had  taken  coff'ee  prepared 
by  the  prisoner,  L'Angelier  was 
seized  with  alarming  illness,  the 
symptoms  of  which  were  similar 
to  those  of  poisoning  by  arsenic. 
There  was  no  evidence  that  the 
prisoner  possessed  arsenic  at  that 
time,  but  on  the  21st  she  purchased 
a  large  quantity,  professedly  for 
the  purpose  of  poisoning  rats,  an 
excuse  for  which  there  was  no  pre- 
tense. On  the  night  of  the  22d, 
L'Angelier  again  visited  the  prisoner, 
and  about  eleven  o'clock  on  the 
following  day  was  seized  with  the 
same  ahirming  symptoms  as  before  ; 
and  on  this  occa.sion  also  he  had 
taken  cocoa  from  the  hands  of  the 
prisoner.     After  this   attack   L'An- 


'  [For  a  citation  of  the  full  roport  of  this  trial,  see  Appendix.] 


IV.       PROOF   OF   HUMAN    ACT.      B.    3.    PLAN 


255 


gelier  continued  extremely  ill,  and 
was  advised  to  go  from  home  for 
the  reco\ery  of  his  health. 

On  the  6th  of  March  the  prisoner 
a  second  time  bought  arsenic ;  and 
on  the  same  day  she  went  with  her 
family  to  the  Bridge  of  Allan  (where 
she  was  visited  by  her  accepted 
lover),  and  remained  till  the  17th, 
when  they  returned  to  Glasgow. 
On  the  day  before  her  departure 
for  the  Bridge  of  Allan  L'Angelier 
wrote  a  letter  to  her.  To  this  letter, 
the  prisoner  replied  from  the  Bridge 
of  Allan,  that  .  .  .  she  would  answer 
all  his  questions  when  they  met,  and 
informed  him  of  her  expected  return 
to  Glasgow  on  the  17th  of  March. 
L'Angelier,  pursuant  to  medical 
advice,  on  the  10th  of  March  went 
to  Edinburgh,  leaving  directions  for 
the  transmission  of  his  letters,  and 
having  become  much  better,  left 
that  place  on  the  19tli  for  the 
Bridge    of    Allan.  .  .  . 

A  letter  from  the  prisoner  to 
L'Angelier  came  to  his  lodgings 
on  Saturday  the  21st,  from  the  date 
and  contents  of  which  it  appeared 
that  she  had  written  a  letter  ap- 
pointing to  see  him  on  the  19th ; 
he  had  not,  however,  received  it  in 
time  to  enable  him  to  keep  her  ap- 
pointment. In  that  letter  she  urged 
him  to  come  to  see  her,  and  added, 
"I  waited  and  waited  for  you,  but 
you  came  not.  I  shall  wait  again 
to-morrow  night,  same  time  and 
arrangement."  This  letter  was 
immediately  transmitted  to  L'An- 
gelier, and  in  consequence  he  re- 
turned to  his  lodgings  at  Glasgow 
about  eight  o'clock  on  the  evening  of 
Sunday  the  22d,  in  high  spirits 
and  improved  health,  having  trav- 
eled a  considerable  distance  by  rail- 
way, and  walked  fifteen  miles.  He 
left  lijs  lodgings  about  nine  o'clock, 
and  was  seen  going  leisurely  in 
the  direction  of  the  prisoner's  house, 
and  about  twenty  minutes  past 
nine  he  called  at  the  house  of  an 
acquaintance  who  lived  about  four 
or  five  minutes'  walk  from  the  pris- 
oner's residence.     After  leaving  his 


friend's  house,  all  trace  of  him  was 
lost,  until  two  o'clock  in  the  morn- 
ing, when  he  was  found  at  the  door 
of  his  lodgings,  unable  to  open  the 
latch,  doubled  up  and  speechless 
from  pain  and  exhaustion,  and  about 
eleven  o'clock  the  same  morning 
he  died,  from  the  eft'ects  of  arsenic, 
of  which  an  enormous  quantity 
was  found  in  his  body. 

The  prisoner  stated  in  her  declara- 
tion that  she  had  been  in  the  habit 
of  using  arsenic  as  a  cosmetic,  and 
denied  that  she  had  seen  the  de- 
ceased on  that  eventful  night; 
whether  she  had  done  so  or  not  was 
the  all-momentous  question.   .   .   . 

As  to  the  principal  charge  of 
murder,  his  Lordship  said,  "Sup- 
posing you  are  quite  satisfied  that 
the  prisoner's  letter  brought  L'An- 
gelier again  into  Glasgow-,  are  you 
in  a  situation  to  say,  with  satisfac- 
tion to  your  consciences,  as  an  in- 
evitable and  just  result  from  this, 
that  the  prisoner  and  deceased  met 
that  night  ?  —  that  is  the  point  in 
the  case.  It  is  for  you  to  say 
whether  it  has  been  proved  that 
L'Angelier  was  in  the  house  that 
night.  .  .  . 

"  If  you  think  they  met  together 
that  night,  and  he  was  seized  and 
taken  ill,  and  died  of  arsenic,  the 
symptoms  beginning  shortly  after 
the  time  he  left  her,  it  will  be  for 
you  to  say  whether  in  that  case 
there  is  any  doubt  as  to  whose 
hand  administered  the  poison.  .   .  . 

"  And  I  say  there  is  no  doubt  — 
but  it  is  a  matter  for  you  to  consider 
—  that  after  wTiting  this  letter  he 
might  expect  she  would  wait  another 
night,  and  therefore  it  was  very 
natural  that  he  should  go  to  see  her 
that  Sunday  night. 

"  But  this  is  an  inference  only.  .  .  . 
In  drawing  an  inference,  you  must 
always  look  to  the  important  char- 
acter of  the  inference  which  you  are 
asked  to  draw.  If  this  had  been  an 
appointment  about  business,  and 
you  found  that  a  man  came  to 
Glasgow  for  the  purpose  of  seeing 
another  upon  business,  and  that  he 


256 


PART    I.       CIRCUMSTANTIAL    E\^DENCE 


No.   129. 


went  out  for  that  purpose,  having 
no  other  object  in  coming  to  Glas- 
gow, you  would  probably  scout  the 
notion  of  the  person  whom  he  had 
gone  to  meet,  saying,  '  1  never  saw 
or  heard  of  him  that  day  ' ;  but 
here  you  are  asked  to  draw  the  in- 
ference that  they  met  upon  that 
night,  where  the  fact  of  their  meet- 
ing is  the  foundation  of  a  charge  of 
murder.  You  must  feel,  therefore, 
that  the  drawing  of  an  inference  in 
the  ordinary  matters  of  ci\il  busi- 
ness, or  in  the  actual  intercourse 
of  mutual  friends,  is  one  thing,  and 
the  inference  from  the  fact  that  he 
came  to  Glasgow,  that  they  did 
meet,  and  that,  therefore,  the  poison 
was  administered  to  him  by  her 
at  that  time,  is  another,  and  a  most 
enormous  jump  in  the  category  of 
inferences.  Now,  the  question  for 
you  to  put  to  yourselves  is  this  — 
Can  you  now,  with  satisfaction  to 
your  own  minds,  come  to  the  con- 
clusion that  they  did  meet  on  that 
occasion,  the  result  being,  and  the 
object  of  coming  to  that  conclusion 
being,  to  fix  upon  her  the  adminis- 
tration of  the  arsenic  by  which  he 
died  ?  .  .  .  You  maybe  perfectly  satis- 
fied that  L'Angelier  did  not  commit 
suicide ;  and  of  course  it  is  neces- 
sary for  you  to  be  satisfied  of  that 
before  you  could  find  that  anybody 
administered  arsenic  to  him.  Prob- 
ably none  of  you  will  think  for  a 
moment    that    he    went    out    that 


night  and  that,  without  seeing  her, 
and  without  knowing  what  she 
wanted  to  see  him  about,  he  swal- 
lowed about  200  grains  of  arsenic 
in  the  street,  and  that  he  was  carry- 
ing it  about  with  him.  Probably 
you  will  discard  such  an  idea  alto- 
gether, '.  .  .  yet,  on  the  other  hand, 
keep  in  view  that  that  will  not  of 
itself  establish  that  the  prisoner 
administered    the    poison.   .   .   . 

"Therefore  if  you  cannot  say.  We 
find  here  satisfactory  evidence  of 
this  meeting,  and  that  the  poison 
nmst  have  l)een  administered  by  her 
at  a  meeting  —  whatever  may  be 
your  suspicion,  however  heavy  the 
weight  and  load  of  suspicion  is 
against  her,  and  however  you  may 
have  to  struggle  to  get  rid  of  it,  you 
perform  the  best  and  bounden  duty 
as  a  jury  to  separate  suspicion  from 
truth,  and  to  proceed  upon  nothing 
that  you  do  not  find  established  iir 
evidence  against  her." 

The  jury  returned,  in  conformity 
wuth  the  law  of  Scotland,  a  verdict 
of  not  guilty  on  the  first,  and  of  not 
proven  on  the  second  and  third 
charges.  On  the  supposition  that 
the  parties  met  on  the  fatal  evening 
in  question,  there  could  be  but  one 
conclusion  as  to  the  guilt  of  the 
prisoner,  the  hypothesis  of  suicide 
being  considered  by  the  learned 
Judge  as  out  of  the  question,  as  it 
obviously  was. 


129.    O'BANNON  v.  VIGUS.      [Printed  post,  as  No.  383.] 


Topic  4.     Habit  (Usage,  Custom; 


130.  James  Sully.  The  Human  Mltid.  (1892.  Vol.  II,  p.  224.) 
Habit  is  a  product  of  acquisition.  In  this  respect  it  differs  from  instinct,  with 
which  otherwise  it  has  much  in  common.  We  say  we  do  a  thing  from  habit, 
e.g.  nod  back  when  a  person  not  recognized  nods  to  us,  when  as  a  consequence 
of  long  practice  and  frequent  repetition  the  action  has  become  in  a  measure 
organized,  and  thus  shorn  of  some  of  its  original  appanage  of  full  con- 
sciousness or  attention.  The  characteristic  note  of  habit  is  mechanicality. 
In  its  most  forcible  manifestation  habitual  movement  approaches  to  a  sub- 
conscious reflex,  as  in  the  case  just  referred  to.  .  .  .     It  is  thus  evident 


No.  130.  IV.      PROOF    OF   HUMAN   ACT.      B.    4.    HABIT  257 

that  in  habit  we  have  in  a  particular  way  to  do  with  that  lapse  of  the  in- 
tenser  degrees  of  consciousness  which  accompanies  an  approximation  of 
nervous  structures  to  a  state  of  perfect  adjustment  to  the  environment. 
The  oft-repeated  action  becomes  habitual  and  so  automatic  because  the 
nervous  centers  engaged  have  taken  on  special  modifications,  have,  accord- 
ing to  the  customary  physiological  figure,  become  "seamed"  by  special 
lines  of  discharge.  The  perfect  fixation  of  a  habit  appears  to  liberate  the 
highest  cortical  centers  from  all  but  the  slightest  measure  of  cooperation 
in  the  process,  the  greater  part  of  the  central  work  (transmission  of  a  defi- 
nite kind  of  afferent  excitation  into  a  definite  path  of  motor  discharge) 
being  now  carried  out  by  help  of  stably  fixed  arrangements  in  subordinate 
centers.  .  .  .  The  on-coming  of  habit  is  shown  by  two  principal  criteria. 
First  of  all,  repetition  of  movement  tends  to  remove  all  sense  of  effort  and 
to  render  the  movement  easy.  ...  In  the  second  place,  habit  involves 
and  manifests  itself  in  a  consolidation  of  the  processes  of  association  in- 
volved. One  of  the  most  familiar  characteristics  of  habit  is  prompt  suc- 
cession of  a  movement  on  the  recurrence  of  the  idea  of  a  desired  object. 
Here  the  intermediate  idea  of  the  movement  itself  is  repressed  or  skipped.  .  .  . 
A  further  and  more  striking  result  of  this  fixing  of  associative  connection, 
is  the  coordination  of  particular  sense  presentations  with  appropriate 
motor-responses.  This  is  illustrated  in  the  recurring  movements  of  every- 
day life,  as  taking  out  a  latchkey  on  approaching  one's  door.  Where  this 
process  is  complete  there  lapses  not  only  the  initiative  idea  of  the  move- 
ment, but  even  the  idea  of  procurable  object.  Thus  when  a  man  auto- 
matically winds  up  his  watch  on  taking  it  out  of  his  pocket  during  the 
operation  of  dressing  for  dinner,  the  action  seems  to  be  wanting  in  all 
ideational  initiation.  .  .  . 

Habit  and  Chains  of  Movement.  As  we  saw  when  dealing  with  the  process 
of  association,  series  of  movements  tend  by  repetition  to  grow  consolidated, 
so  that  each  step  calls  up  the  succeeding  ones  without  a  distinct  interven- 
tion of  consciousness.  Simple  examples  of  this  are  to  be  found  in  the 
series  of  movements  involved  in  walking,  dressing,  and  undressing,  in  play- 
ing a  piece  of  music  from  memory,  reciting  a  familiar  poem,  and  so  forth. 
Such  chains  of  movement  approximate  in  their  lack  of  clear  consciousness, 
their  mechanical  regularity,  and  promptness  of  succession  to  the  motor 
sequences  in  breathing,  and  other  primarily  automatic  movements.  .  .  . 
What  differentiates  such  habitual  chains  from  primarily  automatic  succes- 
sions is  the  initial  volitional  impulse.  I  must  consciously  and  voluntarily 
start  the  walking,  the  dressing,  and  so  forth.  But  the  start  is  all,  so  far  as 
volition  is  concerned.  The  succession  then  takes  care  of  itself,  and,  what 
is  more,  is  carried  out  better  for  the  non-intervention  of  attention.   .  .  . 

Degrees  of  Habitual  Coordination.  It  follows  from  our  general  definition 
of  the  principle,  that  habit  shows  itself  in  very  unlike  degrees  of  strength. 
The  process  of  organic  attachment  is  more  or  less  complete  in  the  case  of 
different  movements.  We  may  now  glance  at  these  differences  in  the 
strength  of  habit,  and  seek  to  determine  their  conditions.  We  may  esti- 
mate the  prompting  force  of  habit  in  more  ways  than  one.  The  obvious 
index  to  its  influence  is  lapse  of  physical  initiation  as  seen  in  the  swiftness 
of  the  motor  response.  All  the  popular  examples  of  habit,  as  the  story  of 
the  victimized  soldier  who  dropped  his  dinner  at  the  word  "Attention  !'" 


258  PART    I.       CIRCUMSTANTIAL   EVIDENCE  No.  131. 

shouted  by  some  practical  jokers,  illustrate  this  feature.  The  swifter  the 
response  to  a  particular  sense  stimulus,  the  more  of  force  of  habit  is  there 
indicated.  Another  criterion  is  specialty  or  precision  of  response.  .  .  . 
The  soldier's  loss  of  his  dinner  was  due  to  the  unerring  precision  of  the 
habitual  reaction,  the  swift  dropping  of  the  arms  into  the  \-ertical  line  on 
the  recurrence  of  the  customary  signal.  The  stronger  the  habit,  the  more 
definite  or  exact  will  be  the  response.  Another  measure  of  strength  of 
habit  closely  connected  with  the  preceding  is  uniformity,  or  unfailingness  of 
response  whenever  the  proper  stimulus  occurs.  This  criterion,  together 
with  speciality  or  definiteness,  gives  to  habit  its  unvarying  and  monotonous 
character,  its  resemblance  to  the  actions  of  a  machine,  and  to  those  lower 
nervous  reflexes  which  come  nearest  to  mechanical  actions.  Lastly,  the 
strength  of  a  habit  is  directly  measurable  in  terms  of  the  difficulty  of  modify- 
ing it  by  special  volitional  effort.  Half -formed  habits  can  l)e  easily  altered  ; 
wholly  formed,  only  by  dint  of  extraordinary  volitional  effort.  Employing 
such  criteria,  we  can  draw  up  a  scale  of  habitual  movement.  .  .  .  The 
main  conditions  on  which  these  varying  degrees  of  habit  depend  appear 
to  be  the  following:  (1)  The  amount  of  time  and  attention  given  to  the 
particular  movement  or  combination  of  movements  so  as  to  make  it  our 
own.  Since  habit  is  superinduced  on  a  volitional  process,  it  is  evident  that 
the  action  must  first  be  perfectly  acquired  through  a  conscious  process  of 
acquisition.  (2)  The  frequency  with  which  the  particular  stimulus  has 
been  followed  by  the  particular  movement.  This  condition,  repetition,  or 
frequency  of  performance,  is  the  great  determinate  of  strength  of  habit. 
(3)  The  unbroken  uniformity  of  past  responses.  By  this  is  meant  that  a 
particular  stimulus  »S  should  have  always  been  followed  by  a  particular 
motor  reaction  M,  not  sometimes  followed,  at  other  times  not,  or  followed 
by  another  sort  of  movement,  as  M'.  This  condition  evidently  goes  to 
determine  the  degree  of  unfailingness,  as  also  of  specialization  in  the  habit. 
Thus,  children  who  are  sometimes  required  to  do  a  certain  thing  by  their 
parents,  but  now  and  again  allowed  to  intermit  the  action,  never  acquire 
perfect  habits. 

131.  Hans  Gross.  Criminal  Psychology.  (1911.  transl.  Kallen, 
§  28,  'p.  158.)  We  have  j^et  to  ask  whkt  is  meant  by  "  rule  "  and  what  its  rela- 
tion is  to  probability.  Scientifically  "rule"  means  law  subjectively  taken, 
and  is  of  equal  significance  with  the  guiding  line  for  one's  own  conduct,  whence 
it  follows  that  there  are  only  rules  of  art  and  morality,  but  no  rules  of  nature. 
Usage  does  not  imply  this  interpretation.  We  say  that  as  a  rule  it  hails 
only  in  the  daytime ;  by  way  of  exception,  in  the  night  also ;  the  rule  for 
the  appearance  of  whales  indicates  that  they  live  in  the  Arctic  Ocean  ;  a 
general  rule  indicates  that  bodies  that  are  especially  soluble  in  water  should 
dissolve  more  easily  in  warm  than  in  cold  water,  but  salt  dissolves  equally 
well  in  both.  Again  we  say :  As  a  rule  the  murderer  is  an  unpunished 
criminal ;  it  is  a  rule  that  the  brawler  is  no  thief  and  rice  versa;  the  gambler 
is  as  a  rule  a  man  of  parts,  etc.  We  may  say,  therefore,  that  regularity  is 
equivalent  to  customary  recurrence  and  that  whatever  serves  as  rule  may 
be  expected  as  probable.  If,  i.e.  it  be  said,  that  this  or  that  happens  as  a 
rule,  we  may  suppose  that  it  will  repeat  itself  this  time.  It  is  not  per- 
missible to  expect  more.     But  it  frequently  happens  that  we  mistake  rules 


No.  133.  IV.       PROOF    OF   HUMAN   ACT.      B.    4.    HABIT  259 

permitting  exceptions  for  natural  laws  permitting  none.  This  occurs  fre- 
quently when  we  have  lost  ourselves  in  the  regular  occurrences  for  which 
we  are  ourselves  responsible  and  suppose  that  because  things  have  been 
seen  a  dozen  times  they  must  always  appear  in  the  same  way.  It  happens 
especially  often  when  we  have  heard  some  phenomenon  described  in  other 
sciences  as  frequent  and  regular  and  then  consider  it  to  be  a  law  of  nature. 
In  the  latter  case  we  have  probably  not  heard  the  whole  story,  nor  heard 
general  validity  assigned  to  it.  Or,  again,  the  whole  matter  has  long  since 
altered.  .  .  .  This,  therefore,  should  warn  against  too  much  confidence  in 
things  that  are  called  "rules."  False  usage  and  comfortable  dependence 
upon  a  rule  have  very  frequently  led  us  too  far. 

132.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)  ^  Of 
the  probative  value  of  a  person's  habit  oi*  custom,  as  showing  the  doing  on  a 
specific  occasion  of  the  act  which  is  the  subject  of  the  habit  or  custom,  there 
can  be  no  doubt.     Every  day's  experience  and  reasoning  make  it  clear  enough. 

^There  is,  however,  much  room  for  difference  of  opinion  in  concrete  cases, 
owing  chiefly  to  the  indefiniteness  of  the  notion  of  habit  or  custom.  If  we 
conceive  it  as  involving  an  invariable  regularity  of  action,  there  can  be  no 
doubt  that  this  fixed  sequence  of  acts  tends  strongly  to  show  the  occurrence 
of  a  given  instance.  But  in  the  ordinary  affairs  of  life  a  habit  or  custom 
seldom  has  such  an  invariable  regularity.  Hence,  it  is  easy  to  see  why  in  a 
given  instance  something  that  may  be  loosely  called  habit  or  custom  should 
receive  little  weight,  because  it  may  not  in  fact  have  sufficient  regularity  to 
make  it  probable  that  it  would  be  carried  out  in  every  instance  or  in  most 
instances.  Whether  or  not  such  sufficient  regularity  exists  must  depend 
largely  on  the  circumstances  of  each  case. 

In  civil  cases,  a  habit  or  custom  or  usage  is  of  particularly  frequent  use 
evidentially.  Whether  it  involves  the  conduct  of  an  individual  or  of  a 
specific  group  of  persons,  or  of  an  indefinite  and  anonymous  group  of 
persons,  the  principle  is  the  same.  But  the  larger  and  more  indefinite  the 
group,  the  less  likely  is  it  to  discover  such  regularity  as  gives  great  proba- 
tive value  to  the  course  of  conduct.  The  less  the  regularity,  the  greater 
the  number  of  hypotheses  which  (on  the  principle  of  Explanation)  can  be 
availed  of  to  weaken  the  inference. 

in  occasional  aspects,  habit  is  the  real  basis  of  the  inference  when  resort 
is  had  to  general  experience  of  human  nature  without  adducing  express 
proof  of  the  habit,  e.g.  if  a  man  is  seen  going  from  the  train  station  to  his 
office  without  a  hat,  we  infer  that  he  had  possessed  it  when  entering  the 
train,  because  of  the  known  custom  of  persons  in  general  to  wear  a  hat  in 
going  to  work ;  thus,  our  final  inference  that  he  lost  it  on  the  way,  either 
by  theft  in  the  train  or  by  putting  his  head  out  of  the  window,  follows  a 
preliminary  inference  based  on  habit  or  custom. 

133.  TWICHELL'S  CASE.  (Francis.  L.  Wellman.  The  Art  of 
Cross-examination.      1908.      p.  146.) 

A  very  striking  instance  of  the  pecially  in  relation  to  events  hap- 
effect  of  habit  on  the  memory,  es-      pening  in   moments  of  intense  ex- 

1  [Adapted  from  the  same  author's  Treatise  on  Evidence.  (1905.  Vol.  I,  §§  92-99,  in 
part.)] 


200 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  134 


cltement,  was  afforded  by  the  trial 
of  a  man  by  the  name  of  Twichcll, 
'vho  was  justly  convicted  in  Phil- 
i^delphia  some  years  ago,  although 
by  erroneous  testimony.  In  order 
to  obtain  possession  of  some  of  his 
wife's  property  which  she  always 
wore  concealed  in  her  clothing, 
Twichell,  in  great  need  of  funds, 
nuu'dered  his  wife  by  hitting  her 
on  the  head  with  a  slung  shot.  He 
then  took  her  body  to  the  yard  of 
the  house  in  which  they  were  living, 
bent  a  poker,  and  covered  it  with 
his  wife's  blood,  so  that  it  would 
be  accepted  as  the  instrument  that 
inflicted  the  blow,  and  having 
unbolted  the  gate  leading  to  the 
street,  left  it  ajar,  and  went  to  bed. 
In  the  morning,  when  the  servant 
arose,  she  stumbled  over  the  dead 
body  of  her  mistress,  and  in  great 
terror  she  rushed  through  the  gate, 
into  the  street,  and  summoned  the 
police.  The  servant  had  always 
been  /h  the  habit  of  unbolting  this 
gate   the  first   thing  each  morning, 


and  she  swore  on  the  trial  that  she 
had  done  the  same  thing  upon  the 
morning  of  the  murder.  There  was 
no  other  way  the  house  could  have 
been  entered  from  without  excepting 
through  this  gate.  The  servant's 
testimony  was,  therefore,  conclusive 
that  the  nnu'der  had  been  committed 
by  some  one  from  within  the  house, 
and  Twichell  was  the  only  other  per- 
son in  the  house.  After  the  convic- 
tion Twichell  confessed  his  guilt  to 
his  lawyer,  and  explained  to  him  how 
careful  he  had  been  to  pull  back  the 
bolt  and  leave  the  gate  ajar  for  the 
very  purpose  of  diverting  suspicion 
from  himself.  The  servant  in  her 
excitment  had  failed  either  to  notice 
that  the  bolt  was  drawn  or  that  the 
gate  was  open,  and  in  recalling  tne 
circumstance  later  she  had  allowed 
her  usual  daily  experience  a,hd  habit 
of  pulling  back  the  bolt  to  become 
incorporated  into  her  recollection  of 
this  particular  morning.  It  was  this 
piece  of  fallacious  testimony  thai 
really  convicted  the  prisoner. 


134.  HETHERINGTONy.KEMP.  (1815.  NisiPpius.  4Campb.  192.) 


This  was  an  action  on  a  bill  of 
exchange;  and  the  only  question 
was,  whether  the  defendant  had 
received  notice  of  its  dishonor. 
The  plaintiff  proved,  that  on  the 
14th  of  November,  the  day  after  it 
came  due,  he  wrote  a  letter  addressed 
to  the  defendant,  stating  that  it  had 
been  dishonored ;  that  this  letter 
was  put  down  on  a  table,  where, 
according  to  the  usage  of  his  count- 
inghouse,  letters  for  the  post  were 
always  deposited  ;  and  that  a  porter 
carries  them  from  thence  to  the 
post  office.  But  the  porter  was  not 
called,  and  there  was  no  evidence  as 
to  what  had  become  of  the  letter  after 
it  was  put  down  upon  the  table.  A 
notice  to  produce  the  letter  had  been 
served  upon  the  defendant. 

Taddy,  for  the  plaintiff,  contended 
that  this  was  good  prima  facie 
evidence  that  the  letter  had  been 
sent  by  the  post. 


Lord  Ellenborough.  —  You  must 
go  farther.  Some  evidence  must 
be  given  that  the  letter  was  taken 
from  the  table  in  the  countingroom, 
and  put  into  the  post  office.  Had 
you  called  the  porter,  and  he  had 
said  that  although  he  had  no  recol- 
lection of  the  letter  in  ciuestion,  he 
invariably  carried  to  the  post  office 
all  the  letters  found  upon  the  table, 
this  might  have  done ;  but  I  cannot 
hold  this  general  evidence  of  the 
course  of  business  in  the  plaintift''s 
countinghouse  to  l)e  sufficient. 

A  letter  was  tiien  put  in  from  the 
defendant,  in  which  he  acknowledges 
the  receipt  of  a  letter  from  the  plain- 
tiff" of  the  14th  of  Noveml)er,  with- 
out referring  to  its  contents ;  and 
Lord  Ellenborough  said  he  would 
presume  this  was  the  letter  to  in- 
form him  of  the  dishonor  of  the  bill. 

The  plaintiff"  had  a  verdict. 


No.  135. 


IV. 


PROOF    OF   HUMAN   ACT.       B.    4.    HABIT 


261 


135.  AMERICAN  EXPRESS  CO 

Supreme  Court.     37  111.  400.)  .  .  . 

Appeal  from  the  Circuit  Court  of 
McLean  County;  the  Hon.  John 
M.  Scott,  Judge,  presiding. 
David  D.  Haggard  brought  this 
action  on  the  case  in  the  court 
below,  against  the  American  Express 
Company,  to  recover  for  a  package 
of  money  sent  to  the  plaintiff  at 
Bloomington,  Illinois,  by  his  agent, 
from  Clinton,  in  De  Witt  county.  .  . 

The  plaintiff'  having  proved  the 
delivery  of  the  package  to  the  com- 
pany, introduced  W.  Haggard,  who 
testified  as  follows  :  "In  July,  1863, 
I  was  in  the  employment  of  the 
plaintiff,  at  Bloomington,  as  clerk. 
The  package  of  money  spoken  of 
by  the  last  witness  was  never  de- 
livered to  me.  I  went  to  the  office 
of  the  defendant,  in  Bloomington, 
about  a  week  after  it  was  sent,  with 
the  plaintiff,  and  there  saw  a  re- 
ceipt for  said  package  which  I  had 
signed.  The  receipt  was  in  the  book 
in  which  the  express  company  took 
receipts,  and  was  in  my  handwriting. 
I  did  not  at  first  remember  anything 
about  it.  After  reflecting,  and  see- 
ing the  receipt,  I  then  recollected 
of  Jacob  Shook,  the  driver  who  de- 
livered packages  for  the  express 
company,  coming  to  the  store  of 
the  plaintiff,  and  of  my  signing  the 
receipt.  I  did  not  get  the  package 
at  the  time  I  signed  the  receipt.  I 
supposed  that  it  was  for  a  package 
of  castings  and  was  left  on  the  side- 
walk. The  plaintiff  is  a  hardware 
merchant,  and  sells  reapers,  and 
other  agricultural  machinery.  I  was 
in  the  habit  of  signing  for  pack- 
ages of  castings  often,  sometimes 
two  or  three  times  a  day,  and  had 
receipted  for  money,  and  had 
authority  to  do  so.  After  it  w^as 
discovered  that  the  package  was 
lost,  I  wrote  to  my  father  in  Chicago 
about  it,  stating  the  facts,  and  he 
paid  the  plaintiff  (who  is  my  uncle) 
the  amount  of  the  loss,  and  charged 
it  to  me.  I  did  not  request  my 
father  to  pay  it.     I  was  then  under 


.  V.  HAGGARD.     (1865.    Illinois 

twenty-one  years  of  age,  and  am 
still  so."  .  .  .  Being  cross-exam- 
ined, the  witness  further  testified : 
"  When  Shook,  the  driver,  came  to  the 
store,  I  gave  him  the  receipt  now 
shown  to  me.  I  think  some  cus- 
tomers were  in  the  store  at  the 
time.  Plaintiff'  was  not  in  the  store. 
I  think  the  receipt  book  was  on  the 
show  case  when  I  signed  the  receipt. 
Shook  stood  by  the  counter.  I  saw 
no  package,  nor  did  he  call  my  atten- 
tion to  any  package.  Shook  was  in 
the  habit  of  laying  packages  of 
castings  on  the  sidewalk  and  coming 
in  and  getting  a  receipt.  If  Shook 
had  laid  it  down  on  the  counter,  it 
might  have  been  taken  up  by  some- 
body else.  I  did  not  look  for  any 
package  then,  nor  at  any  time  after- 
wards. I  did  not  think  of  it  again 
until  I  was  told  that  it  was  lost  and 
that  I  had  receipted  for  it.  I  did 
not  then  recollect  anything  at  all 
about  it.  After  two  or  three  days, 
when  I  saw  the  receipt,  I  recollected 
that  I  had  given  to  Shook  a  receipt, 
as  I  have  stated."  The  plaintiff 
here  rested  his  case. 

The  defendant  then  called  as  a 
witness,  L.  W.  Fuller,  who  testified  : 
"I  have  been  in  the  employ  of  the 
defendants  about  eight  years,  as 
agent  having  charge  of  offices. 
The  business  of  drivers  is  to  deliver 
packages,  and  collect  the  charges, 
and  get  receipts  for  packages.  He 
is  not  allowed  to  deliver  without 
getting  a  receipt,  and  always  takes 
the  package  to  the  consignee,  when  he 
calls  for  the  receipt."  Being  cross- 
examined,  this  witness  testified  that 
Jacob  Shook,  formerly  driver  for 
defendants,  stole  property  that  had 
been  brought  by  express ;  he  took 
part  out  of  packages  that  came  in 
bad  order,  and  delivered  the  bal- 
ance ;  he  was  discharged  by  the 
defendants ;  before  he  was  dis- 
charged, he  was  arrested,  and  gave 
up  about  $850,  and  some  valuable 
jewelry    to    the    defendants.     This 


262 


PART    I.       CIRCUMSTANTIAL    EVIDEXCE 


No.   136. 


was  not  equal  to  the  amount  he  had 
stolen.  "I  do  not  know  that  this 
claim  of  the  plaintiff  was  included 
in  the  claim  against  Shook ;  1  do 
not  recollect  about  that.  I  think 
I  spoke  to  the  tletective  who  had 
Shook  in  custody  about  this  claim 
of  plaintiff,  and  may  have  stated 
the  amount  to  him ;  also  about 
one  claimed  to  have  been  lost  by 
Mr.  Hyde,  together  with  other 
losses.  The  detective  got  all  the 
money  and  jewelry  that  was  got  from 
Shook,  and  delivered  the  same  to  me. 
The  detecti\e  turned  Shook  over 
to  an  officer  of  the  law  from  whom  he 
escaped  and  fled  from  justice."  The 
defendant  objected  to  the  testimony 
called  out  on  cross-examination, 
which  objection  was  overruled  by 
the  Court,  and  the  defendant  ex- 
cepted. The  Court  found  the  issue 
for  the  plaintiff",  and  rendered  judg- 
ment accordingly.  The  defendants 
thereupon  took  this  appeal.  .  .  . 

Mr.  R.  E.  Williams,  for  the 
appellants.  Mr.  W.  H.  Hanna,  for 
the    appellee. 

Mr.  Justice  Lawrence  delivered 
the  opinion  of  the  Court :  This  was 
an  action  on  the  case  brought  by 
the  appellee,  David  D.  Haggard, 
against  the  American  Express  Com- 
pany, for  not  delivering  a  package 
of  money  containing  $170.30,  sent  to 
the  appellee  at  Bloomington,  Illinois. 
.  .  .  The  admission  of  the  testi- 
mony of  W.  Haggard  is  also  assigned 
for  error.  It  appears  that  the  wit- 
ness was  a  clerk  in  the  hardware 
store  of  the  plaintiff,  who  was  his 
uncle ;  that  he  was  in  the  habit  of 
often  receipting  to  the  company  for 
goods,  sometimes  two  or  three  times 
a  day,  and  that  he  receipted  for  the 
package  in  question,  supposing,  as 
he  swears,   that  he  was   receipting 


for  castings  that  had  been  left  on 
the  sidewalk.  He  swears  he  never 
received  the  money  in  question. 
After  its  loss  was  discovered,  with  the 
fact  that  the  witness  had  given  the 
company  a  receipt  for  it,  he  wrote 
to  liis  father  in  Chicago,  stating  the 
circumstances,  and  thereupon  his 
father  paid  to  the  plaintiff  the 
amount  of  his  loss.  ...  It  is  also 
urged  that  the  evidence  of  Fuller 
called  out  on  the  cross-examination 
was  improperly  received.  Fuller 
was  the  agent  of  the  company,  and 
was  put  upon  the  stand  by  them  to 
pro\e  the  custom  of  the  drivers  of 
the  express  wagons,  in  regard  to 
the  delivery  of  parcels  and  taking 
of  receipts.  The  plaintiff,  on  the 
cross-examination,  proved  that  it 
was  the  custom  of  the  particular 
driver  who  had  this  package  to 
steal  money  parcels,  and  that  some 
time  after  this  occurrence  the  com- 
pany arrested  him,  made  him  sur- 
render SSoO  in  money  and  some 
valuable  jewelry,  and  that  the  driver 
escaped  from  the  officer  and  ran 
away.  We  think,  after  the  examina- 
tion in  chief,  this  evidence  was  ad- 
missible. .  .  .  Here  the  clerk  swears 
there  was  no  delivery,  that  he  neither 
saw  nor  heard  of  a  package  of  money, 
and  thought  he  was  receipting  for  a 
package  of  castings  on  the  sidewalk. 
The  company  is  a  common  carrier 
and  must  be  held  to  the  strictest  re- 
sponsibility for  the  honesty  of  its 
agents,  and  if  one  of  them  abstract 
a  parcel  while  in  the  act  of  delivering 
it,  the  company  will  be  liable  even 
though  a  receipt  be  signed  and  the 
form  of  delivery  gone  through,  by 
the  driver's  laying  the  property,  for 
a  moment,  out  of  his  hands.  We 
find  no  error  in  the  record.  Judg- 
ment affirmed. 


13G.    DENVER  &  RIO  GRANDE  RAILWAY  CO.  v.  GLASSCOTT. 
(1878,     Colorado  Supreme  Court.     4  Colo.  270.) 

Error  to  County  Court  of  Arapa-      plaintiff"  in  error.     Messrs.  Patterson 
hoe.     The    case    is    stated    in    the      d-  Ca)iif)bcll,  for  defendant  in  error, 
opinion.  Thatcher,    C.    J.  —  Robert    A. 

Messrs.  Wells,  Smith  &  Macon,  for      Glasscott   was   a  conductor  of   the 


No.   13G. 


IV.       PROOF    OF   HUMAN   ACT.       B.    4.    HABIT 


263 


defendant  company.  He  brought 
suit  against  the  company  for  the 
balance  claimed  to  be  due  him  for 
services  as  conductor  rendered  to 
the  company,  laying  his  damages  at 
five  hundred  dollars,  for  which  sum 
a  verdict  was  returned  and  judgment 
entered  in  the  court  below.  Unless 
the  defendant  was  entitled  to  an 
offset,  no  dispute  arises  as  to  the 
correctness  of  the  judgment.  The 
company  by  its  pleas  and  proof 
offered  to  offset  against  the  claim  of 
the  conductor,  the  sum  of  fifteen 
hundred  dollars,  which  it  is  alleged 
that  he,  as  conductor,  had  collected 
from  passengers  traveling  on  his 
train,  and  retained  and  converted 
to  his  own  use.  To  support  the 
allegations  of  conversion  and  the 
amount  of  the  same,  plaintiff  in 
error  called  R.  F.  Weitbrec,  its 
treasurer,  and  proved  by  him  that 
defendant  in  error  had  been  con- 
ductor of  passenger  trains  of  plain- 
tiff in  error,  running  between  Denver 
and  El  Moro,  during  eleven  months 
next  preceding  May  1,  1877 ;  that 
it  was  the  duty  of  defendant  in  error 
as  such  conductor,  to  collect  fare  of 
all  i^assengers  on  his  trains  not  pro- 
vided with  tickets ;  that  a  round 
trip  of  a  train  run  by  defendant  in 
error  was  from  Denver  to  El  Moro 
and  back  to  Denver,  a  distance  of 
220  miles  each  way ;  that  at  the 
conclusion  of  every  such  round 
trip,  defendant  in  error  was  required 
to  report  to  the  auditor  and  treasurer 
of  plaintiff  in  error  the  number 
of  passengers  carried  each  way, 
the  points  on  the  route  to  which  and 
from  which  they  were  transported, 
with  the  number  and  kind  of  tickets 
on  which  they  traveled,  the  number 
without  tickets,  and  the  amount 
of  money  collected  from  such  pas- 
sengers, which  money  it  was  his 
duty  to  turn  over  to  the  treasurer  at 
the  end  of  each  round  trip  ;  that  he, 
the  witness,  had  in  court  every  one 
of  such  reports  made  by  defendant 
in  error  during  said  eleven  months ; 
that  plaintiff  in  error  had  another 
conductor,  named  Cole  Lydon,  who 


conducted  trains  of  plaintiff  in 
error  on  alternate  days  with  de- 
fendant in  error ;  that  Lydon  made 
same  number  of  trips  as  defendant 
in  error  in  said  eleven  months  ;  that 
saitl  Lydon's  trains  generally,  al- 
though not  always,  contained  same 
number  of  cars  as  that  of  defendant 
in  error ;  that  number  of  cars  was 
liable  to  be  increased  or  diminished 
as  necessities  of  travel  required  ;  the 
schedule  of  fares  was  the  same  ;  that 
he,  witness,  also  had  all  of  Lydon's 
reports  for  said  eleven  months,  and 
that  they  were  the  same  as  those 
made  by  defendant  in  error,  but  dif- 
fered in  the  amount  of  money  shown 
to  have  been  received  during  said 
eleven  months. 

The  only  controversy  in  this 
case  arises  as  to  the  manner  in 
which  the  company  proposed  to 
prove  that  Glasscott  was  in  default. 
The  theory  of  the  company  seems  to 
be  that  upon  the  above  statement  of 
facts,  Glasscott  should  be  held 
liable  for  the  difference  between 
Lydon's  receipts  and  the  amount 
he,  Glasscott,  paid  to  the  treasurer. 
With  a  view  to  fix  his  liability  and 
the  amount  thereof,  the  attorney 
of  the  company  interrogated  the 
witness  as  to  the  difference  between 
the  receipts  of  the  two  conductors. 
This  evidence,  and  other  evidence 
belonging  to  the  same  class,  the 
court  excluded.  All  other  evidence 
offered  was  admitted.  Our  only 
inquiry,  therefore,  is :  Did  the 
court  err  in  excluding  the  evidence 
mentioned  ?  The  learned  counsel 
insist  that  had  it  been  made  to 
appear  that  there  was  a  difference 
in  favor  of  Lydon  between  the  total 
sums  paid  to  the  treasurer  by  the 
two  conductors,  "  if  the  jury  had 
found  for  the  plaintiff  in  error,  upon 
that  circumstance  alone,  the  court 
would  not  have  been  justified  in 
setting  the  verdict  aside."  This 
proposition  is,  we  think,  untenable. 
The  possibility  that  there  might 
be  an  exact  equality  in  the  receipts 
of  the  two  conductors  is  so  remote, 
and  subject  to  so  many  disturbing 


264 


PART    I.       CIRCUMSTANTIAL   EVIDENCE 


No.  136. 


influences,  that  we  cannot  believe 
that  it  can  justly  be  considered 
as  the  founchition  of  legal  liability. 
One  conductor  may  be  more  atten- 
tive to  the  patrons  of  the  road,  and 
therefore  more  popular  than  another. 
The  current  of  traxel  may  be  very 
unequal  on  two  successive  days, 
and  this  may  continue  for  weeks. 
Excursion  trains,  crowded  with  pas- 
sengers, may  have  been  run  on 
certain  days,  which  might  materi- 
ally increase  the  receipts  on  such 
days.  On  one  da}'  every  passenger 
getting  on  board  at  Denver  might 
be  provided  with  a  ticket,  and  the 
receipts  at  this  point  in  conse- 
quence be  nothing.  The  next  day 
one  or  a  dozen  passengers  may  have 
boarded  the  train  and  have  forgot- 
ten to  buy  tickets.  The  same  thing 
is  liable  all  along  the  line,  so  that 
even  if  the  number  of  passengers 
carried  by  each  conductor  during 
the  period  of  eleven  months,  or  any 
shorter  period,  should  be  the  same, 
it  is  by  no  means,  in  our  judgment, 
a  fair  inference  that  the  receipts  will 
be  the  same,  or  approximately  so. 

Counsel  treats  us  with  a  metaphys- 
ical disquisition  on  the  "  Doctrine 
of  Chances"  and  the  "Theory  of 
Probabilities,"  and  even  indulge  in 
algebraic  equations  for  the  purpose 
of  demonstrating  the  remoteness 
of  the  possibility  that  the  receipts  of 
the  two  conductors  would  l)e  the 
same.  We  have  not  thought  it 
necessary  to  solve  the  algebraic 
problem  with  a  view  to  determine 
the  chance  of  equality  of  receipts. 
It  is  true  that  "cseteris  paribus"  the 
position  that  an  equal  number  of 
persons  would  forget  to  buy  their 
ticket  each  day  before  entering  the 
cars  is  not  unsupportetl  by  meta- 
physical writers.  Says  Mr.  Henry 
Thomas  Buckle,  in  his  work  on  the 
History  of  Civilization  in  England 
(Vol.  I,  p.  32)  :  "  We  are  now  able 
to  prove  that  even  the  aberration  of 
memory  are  marked  by  a  general 
character  of  necessary  and  invariable 
order.  The  post  offices  of  London 
and  of  Paris  have  latterly  published 


returns  of  the  number  of  letters 
which  the  writers  through  forget- 
fulness  omitted  to  direct :  and  mak- 
ing allowance  for  the  difference  of 
circumstances,  the  returns  are  year 
after  year  copies  of  each  other. 
Year  after  year  the  same  proportion 
of  letter  writers  forget  this  simple 
act ;  so  that  for  each  successive 
period  we  can  actually  foretell  the 
number  of  persons  whose  memory 
will  fail  them  in  regard  to  this  trifling, 
and  as  it  might  appear,  accidental 
occurrence."  Whether  or  not  for- 
getfulness  is  under  unvarying  laws, 
certain  it  is,  in  our  opinion,  that  in 
addition  to  forgetfulness,  there  is 
such  a  complication  of  causes  tend- 
ing to  vary  the  receipts  of  the  two 
conductors,  that  it  would  be  unsafe, 
as  well  as  unwarranted,  to  adopt  the 
rule  for  which  plaintiff  in  error  con- 
tends. We  can  find  no  support 
for  it  in  the  adjudicated  cases. 

For  eleven  months  Glasscott  had 
been  the  trusted  agent  of  the  com- 
pany. With  regularity  at  the  close 
of  every  round  trip  he  accounted 
to  the  company  for  the  alleged 
amount  of  his  receipts.  Of  his  own 
accord,  without  the  slightest  sus- 
picion as  to  his  fidelity  having  been 
expressed  against  him,  he  quit  the 
company's  service.  The  fact  of 
the  difference  between  the  receipts 
of  the  two  conductors,  had  it  been 
proved,  would  have  been  far  from 
establishing  the  matter  in  dispute, 
viz.  that  the  difference  had  in  fact 
been  collected  and  embezzled  by 
Glasscott.  It  is  so  remote  a  cir- 
cumstance that,  had  the  rejected 
evidence  been  received,  the  jury 
would  not  have  been  warranted  in 
rendering  a  different  verdict.  The 
verdict,  had  the  excluded  evidence 
been  admitted,  not  only  might,  but 
must,  under  the  law,  have  been  the 
same.  In  such  case  the  rule  is 
that  the  verdict  should  not  be  dis- 
turbed. Citv  Bank  of  Brooklyn  v. 
Dearborn,  20  N.  Y.  246;  Starbird 
V.  Barrows,  43  id.  200.  The  judg- 
ment of  the  Court  below  will  be 
affirmed  with  costs.     Affirmed. 


TITLE  IV  (continued):    EVIDENCE   TO  PROVE   THE 
DOING   OF  A  HUMAN  ACT 

SUBTITLE   C:  RETROSPECTANT   CIRCUMSTANCES 

138.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)  ^ 
There  remains  the  third  group  of  circumstantial  evidence,  namely,  facts  hav- 
ing a  Retrospectant  indication.  The  inference  here  looks  backward  from 
the  evidentiary  fact  to  the  alleged  act ;  i.e.  taking  our  stand  at  the  fact 
offered,  we  infer  from  it  that  at  some  previous  time  the  act  was  or  was  not 
done.  The  common  feature  of  this  group  of  evidentiary  facts  is  that  they 
are  all  open  to  a  similar  source  of  weakness,  and  thus  offer  to  the  opponent  a 
general  mode  of  explaining  away  their  force.  Thus,  if,  to  show  that  A  on 
January  1  stole  a  bicycle,  there  is  offered  the  fact  of  his  possession  of  the 
bicycle  on  June  1,  the  probative  force  of  this  fact  rests  on  the  assumption 
that  the  hypothesis  that  will  explain  his  possession  is  that  he  obtained  the 
bicycle  by  stealing  it.  But  there  are  also  in  truth  other  possible  hypotheses, 
for  example,  that  it  was  given  or  sold  to  him  by  the  thief  or  by  a  purchaser 
from  the  thief,  or  that  he  found  it.  So,  if  in  proving  the  doing  of  an  act  by 
A  as  a  mark  of  his  identity  with  B,  there  is  offered  (as  in  the  Tichborne  case) 
the  fact  that  A  has  a  recollection  of  the  event,  or  if,  to  disprove  it,  we  offer 
the  fact  that  A  has  no  recollection  of  it,  the  opponent  may  show,  in  the  first 
instance,  that  the  recollection  has  come,  not  from  having  done  the  act,  but 
from  having  heard  or  read  about  it ;  and,  in  the  second  instance,  that  the 
lack  of  recollection  is  due,  not  to  not  having  done  the  act,  but  to  the  natural 
fading  of  memory.  In  short,  the  tests  of  relevancy  and  the  opportunities  of 
explanation  are  of  the  same  general  nature  in  this  group  of  evidentiary  facts. 
The  general  argument  runs :  Is  the  trace  one  whose  possession  (or  lack  of 
possession)  by  the  person  charged  could  be  explained  by  the  operation  of 
other  causes  than  the  doing  (or  not  doing)  of  the  act  in  question  ? 

The  kinds  of  facts  may  best  be  roughly  subdivided  according  to  the  mode 
in  which  such  causes  might  operate,  i.e.  according  as  the  connection  be- 
tween the  evidentiary  trace  and  the  act  in  questioa  is  Mechanical  (Physi- 
cal) or  Mental.  The  typical  case  of  the  first  sort  is  the  possession  of  stolen 
goods ;   of  the  second  sort,  consciousness  of  guilt. 

Topic  1.    Mechanical  (Physical)  Traces 

139.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)  ^ 
(1)  General  Principle.  The  presence  upon  the  person  or  premises  of  articles, 
fragments,  stains,  tools,  or  any  other  resulting  circumstance,  is  constantly 

1  [Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     Vol.  I,  §  148.)] 

2  [Adapted  from  the  same  author's  Treatise  on  Evidence.  (1905.  Vol.  I,  §§  149-160; 
in  part.)] 

265 


266  PART    I.       CIRCUMSTAX^TIAL    EVIDEN'CE  No.  139. 

employed  as  the  basis  of  an  inference  that  the  person  did  an  act  with  which 
these  circumstances  are  associated. 

In  criminal  cases  the  use  of  this  inference  is  typical.  But  it  is  no  less 
applicable  in  several  sorts  of  civil  cases,  where  its  nature  is  not  always  so 
obvious. 

(1)  (a)  When  an  animal  is  found  in  B's  possession,  and  the  animal  bears  a 
brand  or  other  mark,  and  one  of  the  issues  is  whether  A  is  the  owner  of  the 
animal,  it  i?  a  natural  and  immediate  inference  that  the  animal  belongs  to 
the  person  whose  brand  it  bears,  and,  if  that  brand  is  A's,  then  to  A.  This 
inference,  however,  while  sufficiently  probable  in  the  light  of  practical 
experience,  is  in  truth  a  composite  one,  made  up  of  two  steps  :  (1)  first,  the 
inference,  from  the  presence  of  A's  usual  mark,  that  A  placed  this  particu- 
lar mark,  —  a  genuine  argument  under  the  present  principle,  from  a  trace 
to  the  source  of  the  trace ;  and  (2)  secondly,  the  inference  from  the  fact 
that  A  placed  it  there,  to  the  fact  of  his  ownership  of  the  animal.  The 
latter  step  of  inference  is  the  vital  one ;  it  is  perhaps  not  less  natural  than 
the  former,  but  it  is  more  serious  in  its  effect.  It  would  seem  that  the 
latter  step  of  inference  has  been  rarely  conceded  by  Courts,  as  a  matter  of 
common  law ;  though  the  former  step  was  universally  conceded,  it  was 
said  that  the  presence  of  A's  brand  was  evidence  of  identity  {i.e.  of  the 
animal  being  one  of  those  originally  branded  by  A),  but  not  of  ownership. 
This  unduly  cautious  attitude  has  been  generally  corrected  by  legislation ; 
in  most  of  the  stock-raising  communities,  the  brand  on  animals  is  made 
evidence  of  ownership ;  though  in  order  to  encourage  registration  and  thus 
prevent  confusion,  the  rule  is  applied  only  to  brands  duly  registered  by  law. 
(6)  The  postmark  on  an  envelope  is,  upon  the  same  principle,  admissible 
to  show  that  the  envelope  bearing  it  had  passed  through  the  hands  of  the 
postal  officials  at  the  time  and  place  indicated,  (c)  The  payee  of  money 
naturally  leaves  behind  him  in  the  hands  of  the  payor  some  document  by 
way  of  receipt  or  evidence  of  payment ;  where  this  document  is  the  instru- 
ment of  obligation  itself,  its  possession  by  the  debtor  is  evidence  of  the 
discharge  of  the  debt,  (r/)  The  existence  of  a  document  in  a  certain  kind  of 
place  —  such  as  the  grantee's  custody  or  office  of  registry  —  may  be  suffi- 
cient evidence  of  the  delivery  of  the  document,  so  far  as  its  delivery  may 
be  material,  (e)  The  existence  of  a  document  of  ownership  of  land  (a  deed, 
lease,  or  license)  may  be  evidence  that  the  maker  of  the  document  had 
possession  of  the  land  at  the  time  of  making  it.  This  doctrine,  now  well 
settled  in  English  law,  is  applicable  in  proof  of  title  by  adverse  possession 
in  prior  generations,  where  no  evidence  has  survived  except  the  documents 
themselves  which  embodied  acts  of  claim  of  ownership.  (/)  Finally  the  re- 
verse of  the  preceding  inference  (4)  may  be  made ;  i.e.  from  the  present  pos- 
session of  land  the  Inference  that  there  once  existed  a  deed  of  it,  now  lost, 
may  be  made : 

This  is  the  logical  foundation  of  the  presumption  of  a  lost  grant,  which 
after  long  service  has  finally  degenerated  into  a  mere  rule  of  substantive 
law,  although  the  living  principle  of  the  original  inference  is  still  occa- 
sionally open  to  application. 

(2)  Negative  Traces.  If  certain  results  would  ha^•e  followed  if  an  act  or 
an  event  had  occurred  (or  not  occurred),  the  absence  of  those  results  is  some 
indication  that  the  act  or  event  has  not  occurred  (or  occurred),     (a)  A 


No.  139.  IV,       PROOF   OF   HUMAN   ACT.       C.    1.    TRACES  267 

common  class  of  evidence  of  this  sort  is  that  of  lack  of  news  to  show  prob- 
able death  of  a  person  or  the  probable  loss  of  a  ship ;  for  as  it  is  usual  for 
living  persons  to  be  heard  from  directly  or  indirectly,  by  persons  having 
an  interest  in  knowing,  and  for  ships'  officers  to  leave  word  of  their  journey 
at  the  ports  they  touch  or  with  the  other  ships  they  pass,  the  lack  of  any 
such  news  indicates  their  non-existence.  In  counterexplanation  (ante,  No. 
2)  such  facts  as  the  infrequency  of  communication  from  the  place  the  per- 
son went  to,  the  fixed  determination  of  the  person  to  give  up  all  connection 
with  his  former  home,  and  the  like,  may  of  course  be  used  to  explain  away 
the  force  of  the  fact  of  lack  of  news. 

(b)  It  is  a  natural  propensity  of  creditors  to  realize  their  claims,  when 
left  unsatisfied,  by  process  of  law,  within  a  fair  space  of  time ;  and  when 
it  is  found,  after  some  time,  that  a  creditor  has  not  resorted  to  law  for  the 
realization  of  his  claim,  there  is  a  natural  inference  that  this  failure  was 
due  to  the  lack  of  right  and  necessity  to  resort  to  law,  i.e.  that  the  claim 
had  been  satisfied  by  payment.  The  fact  may  be  explained  away  by  show- 
ing a  more  probable  hypothesis,  for  example,  the  insolvency  of  the  debtor, 
his  absence,  or  other  circumsta,nee  likely  to  prevent  the  creditor  from  pro- 
ceeding even  though  the  claim  was  unpaid,  (c)  In  various  other  situations 
a  retrospectant  inference  is  permissible  from  the  absence  of  certain  results 
to  the  absence  of  certain  causes ;  the  chief  of  these  are  the  inference,  from 
the  non-discovery  of  a  will  once  existing,  to  the  testator's  revocatory  de- 
struction of  it ;  the  inference  from  the  non-discovery  of  any  document  and 
the  lapse  of  time,  to  the  loss  of  the  document ;  and  the  infererice,  from  a 
debtor's  continued  possession  of  property,  after  its  mortgage  or  sale,  of  his 
fraudulent  intent  to  defraud  creditors  by  the  transfer.  In  general,  that  a 
certain  effect  was  not  seen  or  heard  by  those  who  would  naturally  have 
seen  or  heard  it  had  its  cause  occurred  is  some  evidence  of  the  non-occur- 
rence. But,  though  this  situation  can  thus  be  treated  as  permitting  an 
inference  from  circumstantial  evidence,  it  is  usually  more  natural  to  treat 
it  as  involving  testimonial  evidence ;  i.e.  the  argument  is  that  witness  A 
is  qualified  to  testify  that  act  X  was  not  done  by  B,  because  A  would  have 
seen  or  heard  it  if  it  had  been  done ;  thus,  the  principle  of  testimonial 
knowledge  is  here  the  controlling  one. 

2.  Traces  and  Identity.  The  question  may  be  asked,  What  is  the  dis- 
tinction between  evidence  of  traces  and  evidence  of  identity  f  For  ex- 
ample, to  prove  a  murder,  evidence  is  offered  that  a  gun  found  in  the  de- 
fendant's possession  is  exactly  fitted  by  the  bullet  found  in  the  body  of 
the  deceased ;  what  kind  of  evidence  is  this  ?  The  truth  is  that  this  evi- 
dentiary fact  is  double,  and  involves  both  kinds  of  inferences.  The  nature 
of  the  argument  to  prove  Identity  {ante,  No.  14)  is  that  a  certain  fact  offered 
is  an  essential  mark  of  sameness  of  person,  —  in  this  instance,  that  the  fit 
of  the  bullet  is  a  necessary  and  unique  mark  of  the  slayer.  The  weakness 
of  this  type  of  argument  is  that  the  mark  may  not  be  necessarily  associated 
with  one  person  but  may  be  common  to  a  number  of  persons ;  and  hence 
the  mode  of  explaining  away  such  evidence  is  to  show  that  other  persons 
also  have  the  same  mark,  —  here,  that  other  persons  in  the  neighborhood 
possessed  guns  of  the  same  bore.  Now  the  argument  from  Traces  assumes 
that  the  argument  to  Identity  has  been  settled  and  accepted,  i.e.  here  it 
assumes  that  the  use  of  the  gun  in  question  is  an  essential  or  sufficient 


268  PART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  130 

mark  of  the  murflerer,  and  it  then  sets  about  to  prove  that  the  accused 
possessed  that  mark,  i.e.  used  that  gun  ;  and  to  do  this  it  offers  the  fact  of 
its  subsequent  finding  in  the  accused's  possession.  Here  the  weakness 
of  the  argument  is  an  entirely  new  and  different  one,  namely,  the  trace  of 
subsequent  possession  does  not  necessarily  indicate  a  use  at  the  time  of 
the  murder,  since  the  gun  may  be  one  which  the  accused  has  recently  bor- 
rowed, or  it  may  be  his  own  gun  which  was  lent  to  another  person  at  the 
time  of  the  murder.  Thus,  there  are  two  wholly  different  evidentiary  ques- 
tions involved  in  the  use  of  this  evidence,  —  first,  the  question  of  identity, 
whether  this  individual  gun  is  a  necessary  mark  of  the  slayer ;  and,  secondly", 
the  question  of  traces,  whether  its  subsequent  possession  evidences  its  use 
at  the  time  of  the  murder.  The  present  type  of  argument,  then,  —  the 
argument  from  traces  to  a  former  act,  —  is  a  distinct  argument  from  that 
of  Identity. 

3.  Organic  Traces.  In  this  sort  of  Traces  may  be  included  those  which 
are  in  strictness  biologic  or  organic  rather  than  mechanical.  They  play 
an  important  and  well-recognized  part  in  a  few  classes  of  cases,  (a)  When 
a  child  X  is  born  to  a  wife  A  married  to  a  husband  B,  it  is  natural  to  infer 
that  the  intercourse  which  begot  the  child  was  the  intercourse  of  the  hus- 
band B,  i.e.  that  the  child  is  legitimate.  It  is  true  that  this  inference  is  less 
strong  where  the  birth  occurs  very  shortly  after  the  marriage ;  but  even 
here  the  likelihood  that  the  premarital  intercourse  was  B's  is  greater  than 
that  it  was  another  man's.  This  inference  is  the  foundation  of  the  pre- 
sumption of  legitimacy.  (6)  If  the  corporal  traits  of  the  progenitor  are  or 
may  be  transmitted  to  the  progeny,  then  a  specific  corporal  trait  of  the 
progeny  may  point  back  to  a  person  of  similar  trait  as  the  progenitor,  on  the 
condition  that  the  person  so  charged  as  progenitor  is  within  the  number  of 
those  who  by  association  and  opportunity  may  have  had  intercourse  (for 
otherwise  the  possible  number  of  similar  persons  would  leave  open  too  many 
hypotheses).  The  propriety  of  the  inference  rests  on  the  supposed  physio- 
logical likelihood  that  traits  may  be  transmitted  by  procreation,  (c)  A 
physiological  principle,  similar  to  the  preceding  one,  but  attended  usually 
w^ith  more  clearly  marked  results,  tells  us  that  the  progeny  of  persons  of  one 
race  receive  from  the  progenitors  certain  corporal  traits  very  different  from 
the  traits  transmitted  from  a  progenitor  of  another  race.  The  presence  of 
these  peculiar  traits  of  the  race  are  therefore  evidential  to  show  a  progenitor 
of  the  race  bearing  those  traits,  (d)  That  a  shock  received  by  the  mother 
during  pregnancy  may  leave  a  mark  upon  the  child  has  long  been  a  popular 
belief.  Should  it  ever  receive  scientific  sanction  in  any  defined  terms,  the 
child's  corporal  mark  after  birth  may  be  taken  as  evidential  of  the  act  which 
produced  it.  (e)  That  the  existence  of  venereal  disease  in  a  husband  is 
some  evidence  of  an  act  of  adultery  on  his  part  has  always  been  conceded  ; 
it  is  merely  a  question  of  the  strength  of  the  explanatory  circumstances. 
(/)  Here  also  may  be  classed  the  evidence  furnished  by  an  a)ii)n(d's  conduct 
in  recognition  of  a  physical  fact.  E.g.  the  trained  bloodhound,  after 
smelling  a  garment,  may  follow  and  point  to  a  particular  person  ;  the  strength 
of  the  inference  depends  on  experience  as  to  the  trustworthiness  of  the 
animal's  senses.  Or,  a  dog  or  a  l)ird  may  by  conduct  indicate  recognition 
of  a  person  said  to  be  his  owner ;  here  the  inference  arises  from  experience 
as  to  the  impressions  made  by  familiarity'  with  an  owner  and  as  to  the  cer- 
tainty of  interpretation  of  the  conduct  showing  recognition. 


No.   140.  IV.       PROOF    OF    HUMAN    ACT.       C.    1.    TRACES  269 

140.  Alexander  M.  Burrill.  A  Treatise  on  Cireumstcnttidl  FAidmce. 
(1SG8.  pp.  275,  539.)  I.  Traces,  marks,  or  indications  on  the  person  or 
premises  of  the  accused,  derived  or  supposed  to  be  derived  from  the  scene  or 
subject  of  the  crime,  embrace  the  following  appearances  and  objects. 

1.  Wounds  or  marks  of  violence  of  a  peculiar  kind;  that  is,  inflicted  by 
the  assaulted  person  in  self-defense,  or  in  the  course  of  resistance,  either 
with  a  particular  instrument,  or  in  a  particular  manner  :  as  where,  in  a  case 
of  robbery,  the  prosecutor,  when  attacked,  struck  the  robber  on  the  face  with 
a  key ;  and  a  mark  of  a  key,  with  corresponding  wards,  was  visible  on  the 
face  of  the  prisoner :  or  where  the  person  assaulted  made  several  cuts  at 
the  robber  with  a  clasp  knife,  and  corresponding  cuts  were  found  in  the  cloth- 
ing and  on  the  person  of  the  accused. 

2.  Stains  of  particular  substances,  visible  on  the  clothing.  These  often 
serve  to  indicate  the  presence  of  the  accused  at  the  scene  of  crime,  to  trace 
his  movements  there,  and  to  trace  him  from  it,  as  effectually  as  footprints 
of  a  peculiar  kind.  Thus,  in  the  case  of  Rex  v.  Richardson,  the  stockings  of 
the  accused,  which  had  been  hidden  by  him,  Avere  found  to  be  soiled  with 
mud,  which,  on  examination,  appeared  to  correspond  precisely  with  the 
soil  of  a  bog  or  puddle  adjoining  the  cottage  where  the  murder  was  com- 
mitted, and  which  w^as  of  a  very  particular  kind,  none  other  of  the  same 
kind  being  found  in  that  neighborhood.  .  .  . 

3.  Objects  found  on  the  person  or  premises  of  the  accused,  and  shown  to 
have  been  taken  from  the  scene  or  subject  of  the  crime ;  such  as  a  watch, 
keys,  and  similar  small  articles. 

4.  The  fruits  of  the  crime  ;  such  as  money,  or  papers  found  in  the  prisoner's 
possession,  and  shown  to  have  belonged  to  the  person  upon  whom  the 
crime  has  been  committed.  .  .  .  Such  possession  may  also  sometimes  be 
inferred  from  observed  circumstances,  as  by  a  sudden  and  material  change 
in  life  or  circumstances,  indicating,  beyond  question,  the  recent  receipt  of 
money  or  property  from  some  quarter ;  where  a  person,  previously  known 
to  be  poor,  is  found,  shortly  after  a  robbery,  larceny,  or  murder,  in  the  pos- 
session of  considerable  wealth,  it  is  always  a  circumstance  of  suspicion. 

5.  The  subject  of  the  crime  itself,  discovered  on  the  premises  of  the  ac- 
cused ;  such  as  the  body  of  the  murdered  person  found  buried  under  his 
house,  or  dismembered  and  concealed  in  a  box  or  other  private  depository. 

In  the  two  species  of  facts  last  mentioned,  we  arrive  at  the  most  con- 
vincing physical  materials  that  can  possibly  be  made  use  of  in  evidence,  to 
connect  a  person  accused  with  a  crime  committed. 

II.  The  exculpatory  considerations  applicable  to  these  facts,  are  brought 
forward  in  the  shape  of  possible  causes  or  reasons  assigned  for  their  existence ; 
and  these  also  seem  to  be  divisible  into  three  kinds  :  accident,  innocent  con- 
duct of  the  accused,  and  conduct  of  the  real  criminal  or  some  third  person. 
The  following  exhibit  the  principal  instances  of  their  application. 

1.  Criminative  objects  or  articles  found  in  possession.  First.  The  fact  of 
the  possession  of  a  stolen  article,  or  an  article  alleged  to  have  been  stolen, 
admits  of  the  following  suppositions,  as  its  possible  causes  : 

It  may  have  been  conveyed  to  the'  place  where  it  was  found,  by  some 
irresponsible  agency,  such  as  the  act  of  a  child,  or  even  of  an  animal.  It 
may  have  been  honestly  found  by  its  possessor.  It  may  have  been  pur- 
chased, borrowed,  or  received  as  a  gift  or  deposit,  from  the  thief  himself,  in 


270  PART   I.      CIRCUMSTANTIAL   EVIDENCE 


No.   140 


ignorancv  of  his  character :  or  it  may  liave  been  purchased,  borrowed,  or 
receivetl  fn.m  a  ihtsom  who  purchaseil  or  received  it  from  the  thief.  It 
muv  have  Ut-n  taken  from  tlie  owner,  while  in  a  state  of  intoxication,  with 
the  view  of  keeping  it  for  him,  and  returning  it  on  his  becoming  sober.  It 
may  have  l)een  taken  from  a  person  suspected  of  having  stolen  it,  and  kept 
with  the  view  of  seeking  out  the  true  owner,  or  bringing  the  thief  to  justice. 
It  may  have  l>een  dei>osite»l  with  the  possessor,  without  his  knowledj^e  or 
consciousness,  by  the  thief  himself,  in  order  to  avert  suspicion  from  himseli", 
or  from  a  malicious  design  to  injure  the  possessor.  It  may  have  been  de- 
|)o>ite<l  with  the  possessor,  by  the  owner  himself  (it  not  being  a  case  of 
theft  at  all)  fn>m  a  similar  malicious  motive.   .   .   . 

Secomllv.  The  fact  of  the  po.s.session  of  a  rritninatiir  artidr,  such  as  the 
instrument  with  which  a  crime  has  been  committed,  or  an  article  known  to 
have  belonge<l  to  the  subject  of  the  crime,  or  the  subject  of  the  crime  itself,  — 
may  a«lmit  of  similar  supi>ositions,  that  is  to  say  : 

It  may  have  been  thrown  away  or  dropped  by  the  real  criminal,  and 
innocently  picked  up  by  the  possessor;  there  being  nothing  in  its  mere  ap- 
pearance indicative  of  its  criminal  use.  It  may  have  been  purchased,  or 
i>orrowe<l,  or  received  as  a  gift  or  deposit,  from  the  real  criminal,  in  ignorance 
of  the  character  both  of  the  article  and  the  person.  It  may  have  been  de- 
IH)siti'<l  on  the  premises  of  the  possessor,  without  his  knowledge,  by  the 
criminal  himst-lf.  in  order  to  get  rid  of  it  or  conceal  it.  It  may  have  been 
«le|x»site«l  on  suih  j>remises.  or  even  attached  to  the  person  of  the  possessor, 
without  his  knowledge,  by  the  criminal,  from  a  malicious  design  to  criminate 
the  other.  It  may  have  been  deposited  on  the  premises  of  the  possessor, 
by  a  third  jhtsou.  ecjually  innocent  as  himself,  with  the  mere  view  of  getting 
rid  of  it,  ami  escaping  its  supposed  or  known  criminative  effect. 

2.  Criminal  in-  ai/jiKinnirtu  on  thr  prrson.  First.  Appearances  of  blood 
on  the  jxTson  or  clothing  admit  of  the  following  suppositions,  in  the  way  of 
explanation  :  It  may  not  be  blood  at  all,  but  a  stain  produced  by  a  liquid 
ur  >ubstance  (»f  similar  color.  But  supposing  it  ascertained  to  be  blood,  It 
may  havr  ln'cn  occasioned  by  an  accidental  bleeding  from  the  nose,  etc.,  or 
a  wound  on  tin-  person.  It  may  have  l)cen  occasioned  by  unconscious  con- 
tact with  another  imtsou  having  a  blee<ling  wound.  It  may  have  been 
<x-casione<l  by  having  conn-  in  contact  with  a  bleeding  body  in  the  dark. 
It  may  have  lM«<'n  pr<»du(ed  by  a  surgical  operation,  as  by  the  party's  having 
\h'v\\  n-<«-ntly  bh-.l.  «.r  having  recently  bled  himself.  It  may  not  be  human 
IiI.mmI.  but  that  of  an  aninml,  transferred  to  the  person  on  the  occasion  of  his 
having  slaughtered  it.  in  the  way  «)f  his  calling,  or  otherwise;  or  in  conse- 
ijuence  of  his  having  handled  it  in  any  way.  or  come  in  contact  with  it  or 
within  reach  of  blood  is.suing  from  it. 

S<-c«)ndly.  MnrL-M,  as  of  cuts,  scratches,  wounds,  or  bruises  on  the  face 
or  jM-rson.  may  have  been  produced  by  u  fall,  or  the  kick  or  scratch  of 
an  animal,  or  contact  with  sharp  substances  of  various  kinds. 


Ko.  1-U. 


IV.       PROOF   OF   HUMAN   ACT.       C.    1.    TRACES 


271 


141.    THE    BAKER'S    CASE. 

Remarkable    Trials  of  All  Countries. 

A  Maltese  jiulse  of  the  1700  s, 
named  Cambro,  who  was  an  early 
riser,  having  left  his  bed  one  morning 
before  sunrise,  hearing  the  footsteps 
of  people  running  ^'iolentIy  in  the 
street,  was  led  by  curiosity  to  see 
what  occasioned  it  at  that  unusual 
hour.  Most  of  the  houses  in  Val- 
letta are  furnished  with  balconies, 
covered  and  glazed,  which  when 
provided  with  curtains,  permit  the 
inhabitants,  if  inclined,  to  observe 
what  is  going  on  in  the  street, 
without  being  themselves  dis- 
covered. The  judge,  from  one  of 
these,  though  it  was  not  yet  day- 
light, perceived  a  man  running  in 
great  terror  from  another,  who 
followed  close  behind.  Directly 
under  the  judge's  window  the  pur- 
suer overtook  the  flyer,  and 
stabbed  him ;  the  wounded  man 
reeled  and  fell ;  in  the  act  of  strik- 
ing, it  is  to  be  remarked,  the  assas- 
sin's cap  came  off,  so  that  the  judge 
had  an  opportunity  of  viewing  his 
features  in  the  increasing  daylight ; 
hastily  recovering  it  he  instantly 
took  to  flight.  A  few  paces  further 
on,  he  threw  away  the  sheath  of 
his  stiletto  and  turned  into  another 
street ;  the  judge  consequently  lost 
sight  of  him. 

Scarcely  had  he  witnessed  this 
extraordinary  spectacle,  than  a 
baker,  with  his  basket  of  bread  for 
the  daily  consumption  of  his  custom- 
ers, made  his  appearance.  As  he 
walked  leisurely  along,  the  sheath 
of  the  stiletto,  which  lay  in  his 
path,  caught  his  eye ;  he  stooped, 
took  it  up,  and,  after  examining  it 
a  little,  put  it  in  his  pocket  and 
continued  his  course.  Just  then 
a  patrol  of  police,  either  by  accident 
or  drawn  by  the  noise  which  had 
attracted  the  attention  of  the  judge, 
entered  the  same  street.  In  the 
meantime,  the  baker,  a  little  lower, 
came  to  the  body  just  assassinated  ; 
the  police  took  the  same  direction, 
and  the  poor  man  at  this  instant 


(T.    DuNPHY  and  T.  J.  Cummins. 

1873.  p.  453.) 
perceived  them  behind  him  ;  terri- 
fied at  the  sight  of  the  corpse,  and 
fearful  of  being  suspected  and  ar- 
rested, he  lost  all  presence  of  mind, 
and  hifl  himself  in  the  entrance  of  a 
gentleman's  house  near  the  spot.  .  .  . 
It  was  not  long  before  they  detected 
the  unfortunate  baker  in  his  hiding 
place ;  his  incoherent  and  confused 
replies  created  suspicion  ;  on  search- 
ing him  they  found  the  sheath  on 
his  person;  the  stiletto  had  fallen 
from  the  wound,  and  lay  near  the 
body ;  on  applying  it  to  the  sheath, 
they  found  it  corresponded  exactly, 
and  less  than  all  these  circumstances 
would  have  warranted  the  arrest 
of  the  poor  baker.  He  was  accord- 
ingly carried  to  prison,  and  public 
report  gave  out  that  he  was  un- 
doubtedly the  murderer. 

Nor  was  this  prepossession  any 
way  contradicted  or  removed  by 
the  judge,  who,  though  he  had 
witnessed  the  whole  occurrence, 
kept  it  a  profound  secret  in  his  own 
breast.  Official  report  was  made 
to  him  within  an  hour  after  the 
event  —  still  he  communicated  the 
fact  to  no  one.  The  only  way  of 
accounting  for  his  extraordinary 
conduct  is,  that  he  presided  in  the 
criminal  court,  and  that  there  was  a 
doubt  in  the  existing  jurisprudence, 
how  far  a  judge  ought  to  act  from 
his  own  private  knowledge  of  a  case, 
and  whether  he  ought  not  alto- 
gether to  limit  himself  to  the  dis- 
position of  witnesses  and  other 
evidence  brought  forward  on  the 
trial,  without  any  reference  to 
information  he  might  have  casually 
received  from  other  sources.  The 
dull  and  heavy  intellect  of  Cambro, 
vmable  to  distinguish  between  the 
rule  and  the  exception,  embraced 
this  opinion. 

The  unhappy  baker  was,  in  due 
time,  brought  to  trial.  Circum- 
stances were  certainly  against  him  ; 
the  stupid  judge,  who  knew  his 
innocence,   particularly   listened   to. 


PART    I.      CIRCUMSTA>mAL   EVIDENCE 


No.  142. 


an«l  punctually  noted,  all  the  ap- 
parent proofs  of  his  guilt.  .  .  .  The 
liapless  wretch  was  condemned  to 
<lealh,  and  horril)le  to  relate,  soon 
after  umlerwent  the  sentence  of  the 
law. 

It  wa8  not  lonjj  before  the  dread- 
ful truth  was  brought  to  ligiit  :    the 


real  murderer,  arrested,  brought 
to  trial,  and  condemned  to  death.  .  .  , 
The  grand  master  not  only  de- 
graded and  dismissed  Cambro  from 
all  his  employments,  but  obliged 
him  to  provide  handsomely,  from 
his  private  fortune,  for  the  family 
of  this  victim  of  judicial  murder. 


14:     THE     CASE     OF     THE 

(S.  M.  I'aii.Lirrs.      J-  nniuas  Cn^-cs  of 

In  the  year  1723,  a  young  man 
who  was  serving  his  apprenticeship 
in  I^mdon  to  a  master  sailmaker, 
got  leave  to  visit  his  mother,  to 
spend  the  Christmas  holidays.  She 
live*!  a  few  miles  beyond  Deal,  in 
Kent.  He  walked  the  jourmy,  and 
on  his  arrival  at  Deal,  in  the  even- 
ing, being  much  fatigued,  and 
also  troul>led  with  a  bowel  com- 
plaint, he  applied  to  the  landlady  of 
a  public  house,  who  was  acquainted 
with  his  mother,  for  a  night's 
lodging.  Her  house  was  full,  and 
every  be<l  occupied  ;  but  she  told 
him,  that  if  he  would  sleep  with  her 
uncle,  who  had  lately  come  ashore, 
and  was  boatswain  of  an  Indiaman, 
he  should  be  welcome.  He  was 
glad  to  accept  the  offer,  and  after 
s|M'n«ling  the  evening  with  his  new 
comrade,  they  retired  to  rest.  In 
the  middle  of  the  night  he  was 
uttacketl  with  his  complaint,  and 
wak<'ning  his  bedfellow,  he  asked 
him  the  way  to  the  garden.  The 
l>oatswain  told  him  to  go  through 
the  kitchen;  but.  as  he  would  find 
it  difficult  to  open  the  door  into  the 
yard,  the  latc-h  Iwing  out  of  order, 
he  d«*>ire«l  him  to  take  a  knife  out 
of  his  [XK-ket.  with  which  he  could 
ruiH<*  the  latch.  The  yoinig  nuin 
<litl  a.s  he  was  directeil.  and  after 
remaining  near  half  an  hour  in  the 
yard,  he  returned  to  his  bed.  but 
was  much  surprisc<|  to  finri  his 
companion  had  ri>en  and  gone. 
Hritig  im|>atient  !«•  visit  his  mother 
ami  friends,  he  als<»  arose  before 
<lay,  and  ptirsu«-d  his  journey,  and 
arriveil  home  at  n«M»n. 


SAILMAKER'S     APPRENTICE. 

Circui/isfdiifidl  lu'idrncc.  No.  XL.) 
The  landlady,  who  had  been 
told  of  his  intention  to  depart  early, 
was  not  surprised ;  but  not  seeing 
her  uncle  in  the  morning,  she  went 
to  call  him.  She  was  dreadfully 
shocked  to  find  the  bed  stained  with 
blood,  and  every  incjuiry  after  her 
imde  was  in  vain.  The  alarm  now 
l)ecame  general,  and  on  further 
examination,  marks  of  blood  were 
traced  from  the  bedroom  into  the 
street,  and  at  intervals,  down  to 
the  edge  of  the  pierhead.  Rumor 
was  immediately  busy,  and  sus- 
picion fell,  of  course,  on  the  young 
man  who  slept  with  him,  that  he 
had  committed  the  murder,  and 
thrown  the  body  over  the  pier 
into  the  sea.  A  warrant  was  issued 
against  him,  and  he  was  taken  that 
evening  at  his  mother's  house.  On 
his  being  examined  and  searched, 
marks  of  blood  were  discovered  on 
his  shirt  and  trousers,  and  in  his 
pocket  were  a  knife  and  a  remarkable 
silver  coin,  l)oth  of  which  the  land- 
lady swore  positively  were  her 
uncle's  property,  and  that  she  saw 
them  in  his  possession  on  the  even- 
ing he  retired  to  rest  with  the  young 
man.  On  these  strong  circumstances 
the  unfortunate  youth  was  found 
guilty.  He  related  all  the  above  cir- 
cumstances in  his  defense  ;  but  as  he 
could  not  accoimt  for  the  marks  of 
blood  on  his  person,  unless  that  he  got 
them  whcji  he  returned  to  the  bed,  nor 
for  the  silver  coin  being  in  his  posses- 
sion, his  story  was  not  credited.  The 
certainty  of  the  boatswain's  dis- 
appearance, and  the  blood  at  the 
pier,  traced  from  his  bedroom,  were 


No.  143. 


IV.      PROOF   OF   HUMAN   ACT.       C.    1.    TRACES 


273 


two  evident  signs  of  his  being  mur- 
dered ;  and  even  the  judge  was  so 
convinced  of  his  guilt,  that  he 
ordered  the  execution  to  take  place 
in  three  days.  At  the  fatal  tree 
the  youth  declared  his  innocence, 
and  persisted  in  it  with  such  affect- 
ing asseverations,  that  many  pitied 
him,  though  none  doubted  the 
justness  of  his  sentence. 

The  executioners  of  those  days 
were  not  so  expert  at  their  trade  as 
modern  ones,  nor  were  drops  and 
platforms  invented.  The  young  man 
was  very  tall ;  his  feet  sometimes 
touched  the  ground,  and  some  of 
his  friends  who  surrounded  the 
gallows  contrived  to  give  the  body 
some  support  as  it  was  suspended. 
After  being  cut  down,  those  friends 
bore  it  speedily  away  in  a  coffin,  and 
in  the  course  of  a  few  hours  anima- 
tion was  restored,  and  the  innocent 
saved.  When  he  was  able  to  move, 
his  friends  insisted  on  his  quitting 
the  country  and  never  returning. 
He  accordingly  traveled  by  night 
to  Portsmouth,  where  he  entered 
on  board  a  man-of-war,  on  the  point 
of  sailing  for  a  distant  part  of  the 
world ;  and  as  he  changed  his 
name,  and  disguised  his  person,  his 
melancholy  story  never  was  dis- 
covered. After  a  few  years  of 
service,  during  which  his  exemplary 
conduct  was  the  cause  of  his  pro- 
motion through  the  lower  grades, 
he  was  at  last  made  a  master's 
mate,  and  his  ship  being  paid  off 
in  the  West  Indies,  he,  with  a  few 
more  of  the  crew,  were  transferred 
to  another  man-of-war,  which  had 
just  arrived  short  of  hands  from  a 
different    station.     What    were    his 


feelings  of  astonishment,  and  then 
of  delight  and  ecstasy,  when  almost 
the  first  person  he  saw  on  board 
his  new  ship  was  the  identical 
boatswain  for  whose  murder  he  had 
been  tried,  condemned,  and  executed, 
five  years  before !  Nor  was  the 
surprise  of  the  old  boatswain  much 
less  when  he  heard  the  story. 

An  explanation  of  all  the  mysteri- 
ous circumstances  then  took  place. 
It  appeared  the  boatswain  had  been 
bled  for  a  pain  in  his  side  by  the 
barber,  unknown  to  his  niece,  on  the 
day  of  the  young  man's  arrival  at 
Deal ;  that  when  the  young  man 
wakened  him,  and  retired  to  the 
yard,  he  found  the  bandage  had  come 
off  his  arm  during  the  night,  and 
that  the  blood  was  flowing  afresh. 
Being  alarmed,  he  rose  to  go  to  the 
barber,  who  lived  across  the  street, 
but  a  press  gang  laid  hold  of  him 
just  as  he  left  the  public  house. 
They  hurried  him  to  the  pier,  where 
their  boat  was  waiting ;  a  few 
minutes  brought  them  on  board  a 
frigate,  then  underway  for  the 
East  Indies,  and  he  omitted  ever 
writing  home  to  account  for  his 
sudden  disappearance.  Thus  were 
the  chief  circumstances  explained  by 
the  two  friends,  thus  strangely  met. 
The  silver  coin  being  found  in  the 
possession  of  the  young  man,  could 
only  be  explained  by  the  conjecture, 
that  when  the  boatswain  gave  him 
the  knife  in  the  dark,  it  is  probable 
that  as  the  coin  was  in  the  same 
pocket,  it  stuck  between  the  blades 
of  the  knife,  and  in  this  manner 
became  the  strongest  proof  against 
him. 


143.    JOHN  JENNINGS'  CASE.      (James  Ram.     On  Facts  as  Sub- 
jects of  Inquiry  by  a  Jury.      3d  Amer.  ed.      1873.      p.  439.) 


A  gentleman,  traveling  to  Hull, 
in  the  year  1742,  was  stopped  late 
in  the  evening,  about  seven  miles 
short  of  it,  by  a  single  highwayman, 
with  a  mask  on,  who  robbed  him  of 
a  purse  containing  twenty  guineas. 
The  highwayman  rode  off  a  different 


road,  full  speed,  and  the  gentleman 
pursued  his  journey.  It,  however, 
growing  late,  and  he  being  already 
much  affrighted  at  what  had  passed, 
he  rode  only  two  miles  farther,  and 
stopped  at  the  Bell  Inn,  kept  by 
James  Brunell.     He  went  into  the 


_'74 


CIRCUMSTANTIAL   EVIDENCE 


No.  143. 


kililien  to  give  tlirections  for  hi.s 
supptT,  where  he  rehited.  to  several 
jx-rsons  present,  his  having  been 
rohhetl ;  to  which  he  atitled  this 
p«H*uhur  cireunistanee,  that  when  he 
traveh**!  he  always  gave  his  goM  a 
pariicuhir  mark;  that  every  guinea 
in  the  purse  he  was  roltbed  of,  was 
so  pariiiuhiriy  niarke«l,  and  tliat, 
most  probably,  the  robber,  by  that 
means,  would  be  detected.  Supper 
being  ready,  he  retired.  He  had 
not  long  finished  his  supper,  before 
Hrunell  came  into  the  parlor. 
After  the  u.^ual  in«iuiries  of  land- 
lonls,  "Sir,"  says  he.  "  1  understand 
that  you  have  been  roiii>eil,  not  far 
from  hence,  thisevening."  —  "  I  have, 
sir."  —  "And  that  your  money  was 
all  marked  '/ "  —  "  It  was."  —  "  A 
circumstance  has  arisen  which  leads 
me  t(»  think  that  I  can  point  out 
the  robber."  —  "  Indeed  !"  —  "Pray, 
sir.  what  tinte  in  the  evening  was 
it?"  —  "It  was  just  setting  in  to 
be  dark."  —  "The  time  confirms 
my  suspicions!"  Hrunell  then  in- 
formed the  gentleman  that  he  had  a 
waiter,  one  .John  .Jennings,  who  had, 
of  late,  been  .so  very  full  of  money, 
at  times,  and  so  very  extravagant, 
that  he  had  had  many  words  with 
him  about  it,  and  had  determined  to 
part  with  him  on  account  of  his 
conduct  being  so  very  suspicious; 
that,  long  b«'f(»re  dark,  that  day, 
he  had  sent  him  out  to  change  a 
guinea  for  him,  and  that  he  had  only 
come  back  since  he  (the  gentleman) 
was  in  the  house,  .saying,  he  coidd 
not  get  change;  an<l  that  .Jennings 
being  in  licpior,  he  ha<l  sent  him  to 
be«l,  resolving  to  discliarge  him  in 
the  morning.  That,  at  the  time 
he  returned  him  the  guinea,  he 
iHrutielll  diti  not  think  it  was  the 
same  which  he  had  given  him  to 
get  silver  for.  having  perceived  a 
nnirk  u|>on  ihi^.  which  he  was  very 
clear  was  not  u|)on  the  other;  but 
that,  nevertheless.  In-  should  have 
thought  no  more  of  the  matter,  as 
.lemiings  had  so  fn-fpiently  gold  of 
his  own  in  his  pcK-ket,  had  he  not 
afterwards   heard    (for    he   was   not 


present  when  the  gentleman  was  in 
his  kitchen  relating  it)  the  partic- 
ulars of  the  robbery,  and  that  the 
guineas  which  the  highwayman  had 
taken,  were  all  marked ;  that, 
however,  a  few  minutes  previously 
to  his  having  heard  this,  he  had 
imluckily  paid  away  the  guinea 
which  Jennings  returned  him,  to  a 
man  who  lived  some  distance  off, 
and  was  gone;  but  the  circum- 
stance of  it  struck  him  so  very 
strongly,  that  he  could  not,  as 
an  honest  man,  refrain  from  giving 
this  information. 

Hrunell  was  thanked  for  his 
attention.  There  was  the  strongest 
reason  for  suspecting  Jennings  ;  and 
if.  on  searching  him,  any  of  the 
marked  guineas  should  be  found, 
as  the  gentleman  could  sw^ear  to 
them,  there  would  then  remain  no 
doubt.  It  was  now  agreed  to  go 
softly  up  to  his  room :  Jennings 
was  fast  asleep ;  his  pockets  were 
searched,  and  from  one  of  them 
was  drawn  forth  a  purse,  con- 
taining exactly  nineteen  guineas. 
Suspicion  now  became  demonstra- 
tion, for  the  gentleman  declared 
them  to  be  identically  those  of 
which  he  had  been  robbed  !  Assist- 
ance was  called,  Jennings  was 
awaked,  dragged  out  of  l)ed,  and 
charged  with  the  robbery.  He  denied 
it  firndy,  but  circumstances  were 
too  strong  to  gain  him  belief.  He 
was  secured  that  night,  and  the  next 
day  carried  before  a  neighboring 
justice  of  the  peace.  The  gentleman 
and  Hrunell  deposed  the  facts  on 
oath ;  and  Jennings  having  no 
proofs,  nothing  but  mere  assertions 
of  innocence  to  oppose  them,  which 
could  not  be  credited,  he  was 
committed  to  take  his  trial  at  the 
next  assizes. 

So  strong  were  the  circumstances 
known  to  be  against  him,  that 
.several  of  his  friends  advised  him 
to  plead  guilty  on  his  trial,  and  to 
throw  himself  on  the  mercy  of  the 
court.  This  advice  he  rejected, 
and,  when  arraigned,  pleaded  not 
guilty.     The    prosecutor    swore    to 


No.  144. 


IV.       PROOF   OF   HUMAN    ACT.       C.    1.    TRACES 


275 


the  being  robbed ;  but  that,  it 
being  nearly  dark,  the  highwayman 
in  a  mask,  and  himself  greatly 
terrified,  he  could  not  swear  to  the 
prisoner's  person,  though  he  thought 
him  of  much  the  same  stature  as 
the  man  who  robbed  him.  To  the 
purse  and  guineas,  which  were  pro- 
duced in  court,  he  swore,  —  as  to 
the  purse,  positively,  —  and  as  to 
the  marked  guineas,  to  the  best  of 
his  belief,  and  that  they  were  found 
in  the  prisoner's  pocket. 

The  prisoner's  master,  Brunell, 
deposed  to  the  fact  of  the  sending 
of  the  prisoner  to  change  a  guinea, 
and  of  his  having  brought  him  back 
a  marked  one,  in  the  room  of  the 
one  he  gave  him  unmarked.  He 
also  gave  evidence  as  to  the  find- 
ing of  the  purse,  and  the  nineteen 
marked  guineas,  in  the  prisoner's 
pocket.  And,  what  consummated 
the  proof,  the  man  to  whom  Brunell 
paid  the  guinea,  produced  the  same, 
and  gave  testimony  to  the  having 
taken  it,  that  night,  in  payment, 
of  the  prisoner's  master.  Brunell 
gave  evidence  of  his  having  received 
of  the  prisoner  that  guinea,  which  he 
afterwards  paid  to  this  last  witness. 
And  the  prosecutor  comparing  it 
with  the  other  nineteen,  found  in 
the  pocket  of  the  prisoner,  swore 
to  its  being,  to  the  best  of  his  belief, 
one  of  the  twenty  guineas  of  which 
he  was  robbed  by  the  highway- 
man. 

The  judge,  on  summing  up  the 
evidence,  remarked  to  the  jury,  on 
all  the  concurring  circumstances 
against  the  prisoner ;  and  the  jury, 
on  this  strong  circumstantial  evi- 
dence, without  going  out  of  court, 
brought  in  the  prisoner  guilty. 

Jennings  was  executed,  some  little 
time  after,  at  Hull,  repeatedly  de- 


claring his  innocence  to  the  very 
moment  he  was  turned  off. 

Within  a  twelvemonth  after,  lo  ! 
Brunell,  Jennings's  master,  was 
himself  taken  up  for  a  robbery 
done  on  a  guest  in  his  own  house ; 
and,  the  fact  being  proved  on  his 
trial,  he  was  convicted,  and  ordered 
for  execution.  The  approach  of 
death  brought  on  repentance,  and 
repentance  confession.  Brunell  not 
only  acknowledged  the  committing  of 
many  highway  robberies,  for  some 
years  past,  but  the  very  one  for 
which  poor  Jennings  suffered  ! 

The  account  he  gave  was,  that  he 
arrived  at  home,  some  time  before 
the  gentleman  got  in  who  had  been 
robbed.  That  he  found  a  man  at 
home  waiting,  to  whom  he  owed  a 
little  bill,  and  that,  not  having  quite 
enough  loose  money  in  his  pocket, 
he  took  out  of  the  purse  one  guinea, 
from  the  twenty  he  had  just  got 
possession  of,  to  make  up  the  sum  ; 
which  he  paid,  and  the  man  went 
his  way.  Presently  came  in  the 
robbed  gentleman,  who,  whilst 
Brunell  was  gone  into  the  stables, 
and  not  knowing  of  his  arrival, 
told  his  tale,  as  before  related,  in 
the  kitchen.  The  gentleman  had 
scarcely  left  the  kitchen,  before 
Brunell  entered  it ;  and  being  there 
informed,  amongst  other  circum- 
stances, of  the  marked  guineas,  he 
was  thunderstruck !  Having  paid 
one  of  them  away,  and  not  daring 
to  apply  for  it  again,  as  the  affair 
of  the  robbery  and  marked  guineas 
would  soon  become  publicly  known, 
—  detection,  disgrace,  and  ruin 
appeared  inevitable.  Turning  in 
his  mind  every  way  to  escape,  the 
thought  of  accusing  and  sacrificing 
poor  Jennings  at  last  struck  him. 
The  rest  the  reader  knows. 


144.    COURVOISIER'S  CASE. 

and  Evidence.  1908.  p.  191.)  .  . 
The  facts  shown  in  evidence  at 
Courvoisier's  trial  were,  that  Lord 
William  Russell,  an  old  gentleman 
of   the    age    of   seventy-three,    who 


(N.  W.  Sibley.      Criminal  Appeal 

lived  by  himself  in  Norfolk  Street, 
with  only  two  female  servants  and 
his  valet,  was  found  brutally  mur- 
dered   in   his    bedroom,    his    throat 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  144. 


being  cut,  and  the  bone  at  the  back 
of  the  neck  being  cut  through,  at 
one  tlesperate  blow.  The  hypoth- 
esis of  suicide  was  quite  untenable ; 
it  was  not  only  opposed  to  medical 
evidence,  but  no  instrument  was 
found,  at  or  near  the  spot,  by  which 
suicide  could  have  been  committed. 
Suspicion  early  attached  to  Cour- 
voisier,  but  it  has  always  been  rec- 
ognized that  the  evidence  was  en- 
tirely circumstantial.  Tindal,  C. 
J.,  in  his  charge  to  the  jury,  ob- 
served that  "the  case  was  one  of 
circumstantial  evidence.  No  eye 
saw  the  act  committed." 

The  question  really  at  issue,  ac- 
cording to  the  summing  up  of  the 
Chief  Justice,  was,  whether  the 
house  was  entered  from  without 
or  whether  the  robbery  was  com- 
mitted by  some  of  the  inmates, 
who  also  committed  the  murder. 
Was  it  a  genuine  robbery,  or  were 
valuable  articles  secreted  in  the 
pantry  and  scullery,  and  marks 
made  on  the  back  area  door,  wnth  the 
view  of  diverting  the  attention 
of  the  officers  of  justice,  so  that  the 
guilty  party  or  parties  might  escape 
detection  ?  The    hypothesis    of 

burglary  derived  some  prima-facie 
support  from  the  fact  that  the  back 
area  door  was  found  open  and  cer- 
tain marks  were  found  on  it,  and 
also  from  the  fact  that  there  was  a 
ladder  in  the  yard  that  would  have 
enabled  the  burglars  to  scale  the 
wall  of  the  area  yard.  The  hypothe- 
sis of  burglary  was,  however,  nega- 
tived on  what  seems  very  conclusive 
evidence.  Assuming  it,  it  became 
also  necessary  to  assume  that  the 
burglars  deliberately  selected  a  diffi- 
cult mode  of  access  and  broke  open 
a  door  which  required  considerable 
force  to  break  through,  when  they 
had  a  much  easier  access  through  a 
glass  door.  There  were  also  no 
marks  on  the  walls  or  leads,  over 
\v'hich,  according  to  the  hypothesis 
of  burglary,  the  burglars  must  have 
passed.  Yet  these  leads  were 
covered  with  dust,  which  was  undis- 
turberl.     Finally,  the  Chief  Justice 


asked  :  "  Was  it  possible  to  believe, 
if  thieves  had  entered  the  house 
for  purposes  of  plunder,  they  would 
have  made  their  exit,  leaving  so 
many  small  but  valuable  articles 
behind  them,  which  might  so  easily 
have  been  disposed  of  about  their 
persons  ?"  The  hypothesis  of  burg- 
lary and  constructixe  murder 
seemed  highly  improbable ;  but 
when  it  was  once  dismissed,  it 
became  essential  to  conclude,  that 
either  Courvoisier,  or  the  two  female 
servants,  must  have  murdered  Lord 
William  Russell.  Tindal,  C.  J., 
directed  the  jury  that  no  one 
except  the  prisoner,  the  two  female 
servants,  and  Lord  William  Russell 
were  there  that  night  in  the  house. 
The  hypothesis  that  any  one  might 
have  concealed  themselves  on  the 
premises  seems  to  have  not  been 
adverted  to,  as,  presumably,  there 
was  not  the  slightest  evidence  of  it. 
The  circumstantial  evidence 
against  Courvoisier  comprised  some 
five  facts:  (1)  He  had  observed 
to  the  female  servants,  "I  wish 
I  had  old  Billy's  money,  I  would 
not  be  long  in  this  country."  (2) 
His  agitation  and  contradictory 
statements  to  the  police.  (3)  The 
discovery  of  glo\es  and  handker- 
chiefs in  his  own  portmanteau 
slightly  stained  with  blood.  (4) 
The  secreting  of  certain  valuable 
articles,  including  a  ten-pound  note, 
all  belonging  to  Lord  Russell,  in 
the  scullery  and  pantry  (no  stranger, 
Tindal,  C.  J.,  observed  to  the  jury, 
could  think  of  putting  these  ar- 
ticles where  they  were  found). 
(5)  About  the  date  of  the  murder, 
Courvoisier  called  at  a  place  of 
entertainment  (also  used  as  a  hotel) 
in  Leicester  Square,  where  he  had 
previously  been  employed  as  a 
waiter,  under  the  name  of  John, 
and  deposited  a  brown-paper  parcel 
for  safekeeping  with  a  Mrs.  Pio- 
lane,  the  wife  of  the  master 
of  the  establishment.  As  Courvoi- 
sier was  not  known  in  the  establish- 
ment in  Leicester  Square  under  his 
proper  name,  at  the  time  the  parcel 


No.  1-45. 


IV.       PROOF   OF   HUMAN   ACT.       C.    1.    TRACES 


277 


was  left,  he  was  not  suspected. 
There  seems  a  conflict  of  evidence 
whether  the  parcel  was  left  before 
or  after  the  murder.  It  may  be 
assumed  that  it  was  left  before,  this 
being  so,  according  to  Mrs.  Piolane's 
evidence,  while  her  servant,  who 
failed  to  identify  Courvoisier,  thought 
it  had  been  left  after  the  date  of  the 
murder.  Some  six  weeks  after- 
wards, during  the  first  day  of  Cour- 
voisier's  trial,  Mrs.  Piolane  was 
attracted  by  the  suggestion  in  a 
paragraph  in  a  French  newspaper, 
in  which  the  crime  was  discussed, 
to  the  effect  that  the  articles  taken 
from  Lord  William  Russell's  house, 
for  which  a  reward  of  £50  had  been 
offered,  might  have  been  deposited 
in  some  foreign  hotel  in  London  by 
Courvoisier.  The  parcel  was  opened 
with  some  ceremony  in  the  presence 
of  three  persons,  including  a  solicitor, 
and  an  inventory  was  taken.  It 
was  found  to  contain  silver  spoons  and 
forks  marked  with  Lord  Russell's 
arms,  two  pairs  of  new  stockings,  a 
pair  of  gold  auricles,  a  pair  of 
dirty  socks,  and  an  old  flannel 
waitcoat.  A  jacket  and  tow  were 
wrapped  round  the  things  to  prevent 
them  rattling.  Thomas  Davis, 
formerly  in  the  service  of  Mr. 
Webster,  an  optician,  gave  evi- 
dence at  the  trial  of  Courvoisier 
that  he  made  a  pair  of  gold  auricles 
for  Lord  William  Russell  similar  to 
those  found  in  the  parcel  left  by 
the  prisoner  at  the  hotel  in  Leicester 
Square.  John  Ellis,  his  lordship's 
former  valet,  recollected  that  Lord 
William  Russell  wore  such  "ear-in- 
struments." Mr.  Molteno,  a  print- 
seller  in  Pall  Mall,  identified  the 
brown  paper  in  which  the  spoons 
and  forks  were  wrapped  up  as  the 
covering  of  a  print  sent  from  his 


shop,  and  he  believed  to  Lord 
William  Russell ;  he  knew  the 
brown  paper  was  sent  from  his  shop  ; 
his  own  stamped  label  was  on  it, 
and  he  was  in  the  habit  of  selling 
prints  to  Lord  William  Russell. 
Finally,  Lydia  Banks,  a  washer- 
woman, identified  the  socks  as  Cour- 
voisier's. 

It  may  be  doubted  if  a  more 
dramatic  moment  was  ever  reached 
in  a  trial  for  murder  than  this  dis- 
covery of  Lord  Russell's  plate  and 
the  identification  of  Courvoisier 
as  the  mysterious  bearer  of  the 
parcel  to  the  depositary,  Mrs. 
Piolane.  The  Times  observed  that 
"the  fact  of  the  plate  having  been 
discovered,  and  the  identity  of  the 
prisoner  proved,  a  communication  to 
that  effect  was  made  to  the  prisoner, 
and  on  hearing  a  piece  of  intelli- 
gence so  astounding  and  unexpected 
he  turned  deadly  pale  and  became 
extremely  agitated,  and  before  the 
time  arrived  for  his  being  again 
placed  at  the  bar  he  sent  for  Mr. 
C.  Phillips,  his  counsel,  and  dis- 
closed his  guilt  to  him."  On  the 
night  of  the  fatal  occurrence  he 
was  in  the  lower  part  of  the  house 
in  the  act  of  secreting  the  different 
valuable  articles  described  at  the 
trial  in  the  scullery  and  pantry, 
where  they  were  found  by  the  police. 
Lord  William  Russell,  being  taken 
suddenly  ill,  came  downstairs  un- 
expectedly while  he  was  so  employed 
and  caught  him  in  the  act  and  told 
him  he  would  discharge  him  from 
his  service.  This  roused  him  to  a 
state  of  madness  and  he  cut  his 
throat  with  a  carving  knife.  ...  It 
seems  impossible  to  doubt  that  Cour- 
voisier was  a  guilty  man ;  his  con- 
fession to  his  counsel  on  the  second 
day  appears  to  conclude  the  question. 


145.    STARNE   COAL   CO.    v.   RYAN.     (189L     Appellate  Court 


OF  Illinois.  48  111.  App.  216.)  .  . 
Opinion  of  the  Court,  the  Hon. 
Carroll  C.  Boggs,  Judge.  The 
appellee,  while  in  the  employ  of 
the  appellant  company  as  a  driver 


of  coal  cars  on  a  track  in  its  mine, 
was  thrown  from  a  car  and  injured. 
This  is  an  appeal  from  a  judgment 
in  his  favor  because  of  such  injuries. 


278 


PART    I.       CIRCUMSTANTIAL    EVIDENCE 


No.  140. 


The  declaration  contained  three 
counts,  the  pravanien  of  the  char{;e 
in  each  Uein^'  that  tlie  appeUant 
company  ne^h^ently  sutFereil  a  por- 
tion of  the  traik  of  its  road  in  the 
mine  to  hecome  and  remain  in  l)ad 
an«i  un>afe  repair  and  cunilition. 
und  that  l>y  rea.Min  thereof  the  car 
upon  wlnrh  appeUee  was  rithn^  and 
ilriviuK  left  the  track,  causing 
the  injuries  complained  of.  •  •• 

The  injury  was  received  at  a  point 
where  the  track  pa.-^sed  upon  a  some- 
what descending  grade  through  a 
rather  dark  entry.  The  ap|)eUeewas 
driving  a  nude  attached  to  a  train 
(if  three  cars,  upon  the  front  one  of 
which  he  was  riding.  He  came 
down  the  track  at  a  rather  rapid 
rate,  the  nude,  according  to  the 
testimony,  heing  in  a  "  lope,"  when 
the  car  "jumpeil"  the  track  and 
threw  him  against  one  of  the  props 
of  the  mine.  He  had  been  employed 
as  a  driver  in  this  mine  for  some  ten 
months  and  had  heen  driving 
thr«)Ugh  the  entry  in  wliich  he  was 
hurt  for  three  weeks,  during  which 
time  he  passed  and  repassed  fre- 
quently over  the  place  where  he  was 
hurt,  often  passing  there,  as  he 
testifie«l,  fifteen  to  twenty  times  per 
ilay.  On  the  day  that  he  was  hurt 
he  l>epan  work  at  7.30  in  the 
morning,  passed  the  place  in  ques- 
tion .sfven  times,  and  was  passing  it 
for  the  eighth  timi-  when  tlu'  acci- 
dent (K'curred.  His  testimony  is 
that  he  ohscrved  nothing  wrong 
with  the  track  during  any  of  the 
trips  prior  to  the  last  one,  and  he 
think-,  there  was  nothing  wrong 
Iwfore  that ;  that  the  car  jumped  the 
track  l>ecau.se  the  end  of  one  of  the 
rails  of  the  track  was  turned  in 
at  the  joint  ;  that  it  could  not  have 
IntMi  in  that  condition  when  he 
pai.-i.se<l  there  on  the  preceding  trij)s, 
nor  when  another  driv«'r  |)assed 
down  over  it  in  advance  of  hin)  or 
that  driver  woidd  have  l)een  tiirown 
off.  .  .  .  The  appcMee  contends  that 
the  tie,  upon  which  the  rail  rested 
and  to  which  it  ought  to  have  heen 
•,i-iiiril\     nailed,    was   defective   and 


insufficient  to  hold  the  nails  or  the 
rail,  and  for  that  reason  the  rail 
was  moved  from  its  place  at  the 
end  where  it  should  join  with  the 
ne.xt  rail. 

To  support  this  contention  and 
as  the  only  evidence  in  its  support, 
the  appellee  sought  to  show  that, 
immediately  after  he  was  injured 
and  before  the  cars  from  which  he 
fell  were  moved,  a  new^  tie  was 
placed  in  the  track.  From  this,  if 
true,  it  might  reasonably  be  in- 
ferred that  the  track  w^as  unsafe  with 
the  ties  already  there,  and  that 
another  tie  w^as  necessary  to  put  the 
track  in  good  and  safe  condition  for 
use.  Upon  this  point,  in  behalf 
of  the  appellee,  J.  R.  Burns  testi- 
fied that  he  saw  Michael  Lynch, 
appellant's  roadmaster,  putting  a 
tie  in  the  track  immediately  in  the 
rear  of  the  car  that  left  the  track, 
before  such  car  was  moved  after 
the  accident ;  and  Michael  Laudre- 
gan,  also  a  witness  for  the  appellee, 
testified  that  he  saw^  Lynch  there 
at  the  time  with  a  tie  in  his  hands 
and  that  he  seemed  to  be  working 
at  the  track.  This  was  all  the 
testimony  favorable  to  the  appellee 
on  this  point. 

Lj^nch  testified  that  he  went  at 
once  to  the  place  of  the  accident, 
found  two  cars  ofiF  the  track,  re- 
placed them,  examined  the  track 
and  the  iron  rails  carefully  to  see 
that  they  were  safe  for  use,  and 
found  them  in  good  condition  ;  that 
he  had  a  wooden  gauge  used  for 
ascertaining  whether  the  track  is 
level,  and  that  he  and  Michael 
Hickey,  who  was  assisting  him, 
placed  this  gauge  upon  the  track  to 
see  that  it  was  level ;  that  he  had 
no  tie  there;  did  not  find  it  neces- 
sary to  u.se  one;  and  did  not  use 
one ;  that  the  rail  was  not  l)ent  nor 
turned  in  at  the  joint,  but  that  the 
track  was  in  good  and  safe  condi- 
tion for  use,  and  they  began  at  once 
and  continued  haiding  cars  over  it 
after  the  accident  as  before.  John 
Hickey,  a  coal  miner,  stated,  as  a 
witness,   that  he  was  with  Lynch, 


No.   147. 


IV. 


PROOF   OF   HUMAN   ACT.       C.    2.    TRACES 


279 


assisting  in  the  work,  and  remained 
with  him  until  the  cars  were  run- 
ning again  over  the  track ;  that  he 
examined  the  track  and  the  rails, 
testing  the  rail  carefully  with  a 
hammer;  that  there  was  nothing 
wrong  with  either ;  that  he  and 
Lynch  gauged  the  track  and  found  it 
level ;  that  no  tie  was  removed,  nor 
was  a  tie  put  in  the  track ;  that  it 
was  not  necessary  to  put  one  in. 
That  the  cars  were  hoisted  on  the 
track  and  the  track  at  once  used  for 
the  passage  of  cars  as  before. 
George  Courdice,  engineer  of  the 
mine,  and  Comack  Cunningham, 
official  state  inspector  of  mines,  offi- 
cially examined  the  track  at  the 
place  in  question  the  next  day  after 
the  appellee  was  injured.  Both  tes- 
tified that  the  track  and  the  rails 
were  in  good  and  safe  condition ; 
that  they  saw  nothing  to  indicate 
that  a  tie  had  been  placed  in  the 
track,  and  that  if  such  had  been 
done,  indications  of  the  work  would 
have  been  found ;  that  there  were 
no  such  indications.  Both  join  in 
the  opinion  that  no  tie  had  been 
placed  in  the  track.  The  state 
inspector,  with  a  lamp  and  hammer, 
examined    carefully    the    rail    and 


spikes  by  which  it  was  attached  to 
the  ties,  and  could  find  nothing  in- 
dicating that  any  change  whatever 
had  been  made  in  the  track,  the 
rail,  or  the  ties. 

We  do  not  think  that,  under  this 
evidence,  the  jury  were  warranted 
in  finding  that  a  tie  was  placed  in 
the  track,  as  claimed.  Such  a  con- 
clusion seems  to  us  to  be  manifestly 
against  the  greater  weight  of  the 
testimony.  It  would  appear  more 
reasonable  to  conclude  that  Burns,  in 
the  darkness  prevailing  in  the  entry, 
mistook  for  a  tie  the  guage  which 
Lynch  and  Hickey  were  using,  than 
to  conclude  that  both  Lynch  and 
Hickey  willfidly  and  knowingly  tes- 
tified falsely,  and  that  they  did  break 
the  ground  and  place  a  tie  in  the 
track,  in  such  manner  as  to  leave  no 
discernible  trace  of  the  work.  If 
this  view  is  correct,  the  evidence 
fails  to  show  that  the  injury  re- 
ceived by  the  appellee  was  occa- 
sioned by  the  failure  of  the  appellant 
company  to  discharge  its  duty  to- 
ward the  appellee  as  its  employee  in 
the  respect  charged  in  the  declara- 
tion. In  the  absence  of  such  proof 
there  can  be  no  recovery. 


146.    MOUDY    V.    SNIDER.     [Printed  post,  as  No.  382.] 


Topic  2.     Mental  Traces 

147.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^ 
(1)  General  Principle.  The  struggle  of  a  victim  for  his  life,  and  the  act  of  tak- 
ing his  life,  may  leave  upon  the  perpetrator  indelible  traces  of  blood,  wounds, 
or  rent  clothing,  which  point  back  to  the  deed  as  done  by  him  ;  these  traces 
come  from  a  mechanical  contact  with  the  body,  weapons,  and  other  things 
involved  in  the  deed,  and  they  remain  upon  him  or  are  divested  from  him 
by  a  mechanical  process.  But  a  deed  may  also  leave  traces  upon  the  doer 
I  through  other  than  a  mechanical  process,  i.e.  through  a  mental,  moral,  or 
I  psychological  process.  These  traces  may  be  as  significant  in  their  way  as 
the  others,  —  perhaps  more  so ;  and  they  may  be  equally  relevant  evi- 
dentially to  show  their  bearer  to  be  the  doer  of  the  act.  These  traces,  like 
those  of  the  other  sorts,  may  be  employed  either  affirmatively  or  negatively  ; 


*  [Adapted  from  the  same  author's  Treatise  on  Evidence. 
in  part.)] 


(1905.     Vol.  I,  §§  172-177, 


2S0  PAHT    I.       CIRCIMSTANTIAL    EVIDENCE  No.   H7. 

the  presence  of  such  a  trace  may  be  used  as  indicating  the  doing  of  the  act 
by  the  perstm  In-aring  it ;  and  the  absence  of  the  trace  may  be  used  as  m- 
dicating  the  not  doing  it  by  the  person  not  bearing  the  trace.  The  traces 
..f  this  mental  or  psychoU)gical  sort  will  be  some  form  of  a  mental  con- 
dition. —  memor\-,  belief,  consciousness,  knowledge,  or  whatever  other 
name  may  l>e  more  usual  and  appropriate. 

How  to  evidence  this  mental  condition  —  by  conduct  or  the  like  —  is  a 
second  question.  Here  the  inference  is  to  a  mental  condition,  usually  from 
conduct  as  evidence.  This  falls  under  Title  III,  Human  Condition,  Sub- 
title (",  Knowknlge  and  Con-sciousness  {nntc,  No.  ;:!0).  This  second  .sort  of 
inference,  in  its  present  aspect,  is  seldom  forced  into  obviousness.  We  are 
apt  to  infer.  /•.;;.  from  an  accused's  flight  to  his  guilt,  forgetting  that  there 
are  two  steps  of  inferences,  one  from  Hight  to  a  consciousness  of  guilt,  and 
the  other  from  consciousness  to  actual  guilt  of  the  past  deed  in  issue. 
The  cases  usiuill\-  present  the  evidence  with  the  two  inferences  merged. 
In  the  study  of  the  subject,  they  must  be  separately  analyzed. 

It  is  in  criminal  cases  that  the  present  class  of  inferences  is  most  common. 
Hut  in  civil  cases  it  nuiy  become  equally  valid ;  the  following  are  some  of 
the  principal  forms : 

(2)  Ciril  Cimit.  (a)  Lrgitimacij  as  evidenced  by  Parents'  Conduct.  Upon 
an  issue  of  the  legitimacy  of  a  child,  the  conduct  of  the  parents  towards  the 
child  is  admissil)le  on  the  present  principle,  as  involving  an  inference  from 
the  parents'  conduct  to  their  belief  as  to  the  fact  on  wjiich  the  legitimacy 
tiepemis  (time  of  birth,  time  of  marriage,  identity  of  the  child,  and  the  like), 
and  then  from  that  Ix-lief  to  the  fact  itself.  Such  evidence  has  traditionally 
been  use<l  since  Solomon's  day  : 

The  Judgment  of  Soloiiioti,  (First  Book  of  the  Kings,  III,  16),  "  Then  came  there 
two  women,  that  were  liarl(»ts,  unto  tlie  king,  and  stood  before  him.  And  the  one 
woman  said,  ()  my  jonl,  I  aiid  this  woman  dwell  in  one  house ;  and  I  was  delivered  of 
a  rliild  witli  h<T  in  the  liouse.  And  it  rame  to  pass  the  third  day  after  that  I  was 
dflivere*!,  tliat  tliis  woman  was  (h'livered  also :  and  we  were  together;  there  was  no 
stranger  with  us  in  the  house,  save  we  two  in  the  house.  And  this  woman's  child 
died  ill  the  night.  l>e<'ause  she  overlaid  it.  And  she  arose  at  midnight,  and  took  my 
mm  from  liesiile  me,  wliile  thy  handmaid  slept,  and  laid  it  in  her  bosom,  and  laid  her 
dea<l  child  in  my  Uisom.  And  when  I  rose  in  the  morning  to  give  my  child  suck,  be- 
hold, it  was  dead  :  luit  when  I  had  considered  it  in  the  morning,  behold,  it  was  not  my 
son,  whii-h  I  did  Iwar.  .\nd  the  other  woman  said.  Nay;  but  the  living  is  my  son, 
and  the  dead  is  thy  son.  .\nd  this  said,  No,  hut  the  dead  is  thy  son,  and  this  is  my 
.•*on.  Thu.s  they  spuke  In-fore  the  king.  Then  said  the  king,  The  one  saith,  This  is 
my  win  that  livetli.  and  thy  s<jn  is  tlie  dead ;  and  the  other  saith.  Nay;  but  thy  son 
is  the  dead,  and  my  son  is  the  living.  And  the  king  said,  Bring  me  a  sword.  And 
they  hrouKht  a  swoni  In-fore  the  kin^.  And  the  king  said,  Divide  the  hving  child  in 
two,  and  give  half  to  the  one,  and  half  to  the  other.  Then  .spake  the  woman  whose 
the  living  ehilil  was  unto  the  king,  for  her  bowels  yearned  upon  her  son,  and  she  said, 
()  my  lonJ.  give  her  the  living  rhild.  and  in  nowise  slay  it.  But  the  other  said.  Let 
it  lie  neither  mine  nor  thine,  hut  divide  it.  Then  tlie  king  answered  and  said,  Give  her 
the  living  rhild.  and  in  nowis<-  slay  it :  she  is  the  mother  thereof.  And  all  Israel 
heard  of  the  judgment  which  the  king  had  judgwl ;  and  they  feared  the  king :  for 
they  luw  that  the  wi^lom  of  (Jixi  was  in  him,  to  do  judgment." 

(//)  hlarringr,  tu  rridrnnd  by  the  Partirn'  Conduct.  A  man  and  a  woman 
cohabiting  a.s  hu.slmnd  and  wife  show  by  their  conduct  that  they  believe 
thein.selves  to  have  made  a  contract  of  marriage,  ceremonial  or  informal,  at 


No.  147.  IV.       PROOF    OF   HUMAN   ACT.       C.    2.    TRACES  281 

some  prior  time.  This  is  the  commonest  evidence  of  marriage.  The  con- 
duct will  vary  in  its  significance ;  but  the  inference  is  obviously  of  the  pres- 
ent sort. 

(c)  Personality,  as  evidenced  by  Belief  and  Knowledge  of  Personal  Doings, 
Family  History,  and  the  Like.  On  an  issue  of  personal  identity,  the  present 
principle  finds  one  of  its  simplest  and  commonest  applications.  The  situa- 
tion is  this  :  Whether  X  is  A  is  the  fact  in  issue ;  A  is  shown  to  have  done 
a  certain  act,  to  have  had  certain  marked  and  individual  experiences ;  if  X 
did  this  act  or  had  this  experience,  he  probably  is  A ;  thus,  as  indicating 
whether  X  did  or  had  it,  the  fact  of  his  present  belief  or  consciousness  or 
recollection  becomes  relevant,  and  therefore  his  conduct  as  evidencing  that 
belief.  This  sort  of  evidence,  of  the  commonest  use  in  the  affairs  of  every- 
day life,  has  of  course  its  weaknesses  ;  the  fact  of  X's  belief  or  recollection  of 
the  act  may  be  explained  away  as  due,  not  to  his  having  actually  done  the 
act,  but  to  his  having  heard  of  it  from  others  ;  while  the  fact  of  his  non-recol- 
lection may  also  be  explainable  as  due  merely  to  that  failure  of  memory 
which  increases  in  proportion  to  the  lapse  of  time  and  the  insignificance  of 
the  act.  Thus  the  strength  of  the  inference  is  proportionate,  on  the  one 
hand  (when  he  claims  to  recollect),  to  the  improbability  of  the  person's  hav- 
ing learned  of  the  act  from  others,  and,  on  the  other  hand  (when  he  fails  to 
recollect),  to  the  improbability  of  a  forgetfulness  of  the  particular  act.  The 
theory  of  this  sort  of  evidence,  and  its  application,  are  well  expounded  in  that 
marvelous  feat  of  judicial  skill  and  endurance,  the  charge  of  the  presiding 
judge  in  the  second  Tichborne  trial : 

CocKBURN,  C.  J.,  in  R.  V.  Castro,  alias  Orton,  alias  Tichborne.  (1S74.  Official 
Report  of  the  Charge,  I,  16 ;  II,  327, 403.)  [The  claimant  to  the  rich  Tichborne  estate 
purported  to  be  Roger,  the  long-lost  son,  who  had  been  given  up  for  dead,  after  the 
news  of  his  loss  at  sea,  some  twenty  years  before,  in  a  vessel  last  heard  of  off  the  coast 
of  South  America ;  Roger  had  been  brought  up  a  Catholic,  and  attended  a  Catholic 
school  at  Stonyhurst,  but  had  spent  most  of  his  youth  in  France,  where  he  became  more 
fluent  in  French  than  in  English ;  he  afterwards  served  awhile  in  the  army ;  he  was 
some  twenty-five  years  of  age  when  he  left  on  his  travels.  The  claimant  had  lived  for 
most  of  his  manhood  life  in  the  backwoods  of  Australia ;  and  was  said  to  be  really 
Arthur  Orton,  a  butcher  of  Wapping.  At  the  civil  trial  for  the  title  to  the  estates, 
in  1871,  the  claimant's  case  finally  broke  down  and  was  not  submitted  to  the  jury; 
he  was  then,  in  1874,  put  on  trial  for  perjury  and  convicted ;  in  this  trial  he  was  not 
)  1  competent  as  a  witness,  but  his  testimony  at  the  civil  trial  was  used  against  him; 
and  it  is  in  this  cross-examination  that  most  of  the  instances  referred  to  by  the  Chief 
Justice  were  found.  On  the  claimant's  cross-examination  by  Sir  J.  Coleridge,  it 
appeared  that  though  Roger  had  been  three  years  at  Stonyhurst  School  and  lived  on 
the  quadrangle,  the  claimant  thought  that  the  quadrangle  was  "a  part  of  a  building" ; 
that,  though  Roger  had  studied  Latin  and  Greek,  the  claimant  replied,  when  asked, 
"Was  Caesar  in  verse  or  prose,"  "I  don't  recollect" ;  and  "Was  Caesar  a  Latin  wTiter 
or  a  Greek  WTiter?"  "I  can't  say;  I  suppose  it  was  Greek";  and  when  shown  a 
copy  of  Virgil,  "It  appears  to  me  to  be  Greek";  and  when  asked,  "Is  mathematics 
the  same  thing  as  chemistry?"  "I  have  no  recollection";  and  "Has  Euclid  any- 
thing to  do  with  mathematics?"  "I  don't  know";  and  when  asked,  "What  is 
physiology  ?"  "The  formation  of  the  head,  I  believe"  ;  and  when  asked  the  mean- 
ing of  the  Stonyhurst  motto,  "Laus  Deo  Semper,"  answered,  "They  mean,  'The  laws 
of  God  forever. '  "  A  list  of  Roger's  library  was  read  to  him ;  he  thought  that  the 
"Theatre  de  P.  Corneille"  was  written  "by  one  of  the  Fathers";  asked  as  to  the 
"  Life  of  John  Bunyan,"  whether  he  was  "a  sportsman,  a  general,  a  bishop,  a  master 
of  fox  hounds,  or  a  prize  fighter,"  the  claimant  said  it  was  "difficult  to  give  an  answer 


PART    I.      CIRCUMSTANTIAL    EVIDENCE 


No.   147. 


lo  surh  a  qiu-stlon."     Taking  up  these  instances,  the  Cliief  Justice  commented  as 

follows :]  •       J       •  1 

-Although  outwarti  ap|H«aranoe  may  deceive,  yet  if  you  are  acquainted  with 
what  ha-s  passed  tlirough  tlie  mind  of  a  man.  and  another  man  were  to  come  forward 
and  say.  'I  am  that  man.'  you  have  only  to  ask  him  as  to  the  events  of  the  other 
man's  life,  those  at  least  wliieh  must  have  remained  impressed  on  his  memory,  and 
which,  then-f.. re.  if  he  be  the  man,  he  must  of  necessity  retain,  to  enable  him  to  dem- 
oiusirate  that  he  is  the  num  he  says  he  is,  or  to  enable  you  to  pronounce  that  he  is 
not.  If  his  memory  is  not  the  memory  of  the  man  he  seeks  to  personate,  if  he  does 
not  know  the  events  of  that  man's  life,  if  he  does  not  know  what  thoughts,  what 
filling's,  what  emotions,  that  man's  mind  underwent,  he  cannot  be  the  individual.  .  .  . 
Now  you  are  in  danger,  in  an  incpiiry  of  this  nature,  of  being  led  into  error  by  one  of 
two  alternatives.  Vou  may  require  too  mucii ;  you  may  be  satisfied  with  too  little. 
Vou  may  ntjuire  t»x)  much  if  you  expect  a  man  ...  to  recollect  every  trifling  in- 
dividual'oc<-urreiKv  of  his  life.  .  .  .  Hut  there  are  things  which  it  is  next  to  impos- 
sible any  t)ne  should  forget,  and  in  respect  of  those  things  we  are  entitled  to  require 
that  a  num  shnul.l  exhil)it  some  knowledge  when  you  know  that  they  happened  to  a 
|x»rson  whom  he  re|)resents  himself  to  be.  .  .  .  Vou  must  consider  what  it  is  you 
may  fairly  and  reasonably  and  justly  expect  that  a  man  should  recollect.  .  .  .  Again, 
you  nuiy  .  .  .  also  l)e  satisfied  with  too  little  if  you  are  led  to  accept,  as  true  genuine 
kno\vle«lge,  that  which  is  not  tiie  honest  pnxluction  of  the  unaided  memory,  but 
ktuiwleilgi-  derived  from  extraneous  and  adventitious  sources.  This  is  the  danger 
into  which  jhtsohs  too  credulous  have  before  now  been  led  by  imposture.  .  .  . 
What.  then,  are  the  things  whicii  would  have  impressed  themselves  on  the  mind 
and  menutry  of  a  Iwy  growing  up  into  the  period  of  adult  life '?  For  the  recollections 
of  lj<»yh{H>d  still  cling  to  us  in  after  years  with  the  freshness  of  the  age  to  which  they 
belong,  and.  though  less  vivid,  even  those  of  childiiood  do  not  wholly  disappear.  .  .  . 
|.\fter  the  recital  of  various  instances,  the  cross-examination  is  then  quoted] :  'Do 
you  rwtjilect  (from  your  studies]  whether  Ciesar  was  written  in  verse  or  prose  'i*  No, 
1  do  not.  —  ...  Dill  you  ever  do  any  Ca»sar '?  —  I  do  not  remember  whether  I  did 
or  not.  —  Is  Cii'sar  a  Latin  writer  or  a  Greek  '?'...  To  which  comes  the  memorable 
answer.  'I  should  supi>ose  ('(r.sar  in  (Irrek.'  .  .  .  Caesar  a  Greek!  Would  Roger, 
do  you  think,  have  made  that  mistake';'  When  Roger  read  Caesar,  did  he  believe  he 
was  reading  Latin,  or  did  he  believe  he  was  reading  Greek '?  Is  that  a  thing  about 
which  a  |H'r»on  could  make  a  mistake?  Do  you  think  that  is  what  a  man  would 
be  likely  to  forget  ?  " 

(</)  Contract:*,  Deeds,  Ajiixilntmnits  to  Office,  Etc.  The  same  mode  of  rea- 
.soning  may,  of  course,  ujion  occasion,  he  resorted  to  in  evidencing  the  execu- 
tion of  a  contract  or  the  doing  of  any  other  important  act.  In  its  applica- 
tion to  contracts  anddeeds,  the  principle  is  probably  oftener  applied  than 
the  nuinlMT  of  recorded  rulings  indicates  : 

Kui.K.  J.,  in  H.  r.  Foi(i)r.Hi\r;iH{U)OK.  (1S.')S.  E.  B.  &  E.  678,  684;  admitting 
CDUilur  t  nf  master  and  apprentice  to  show  the  previous  execution  of  an  indenture  of 
apprrMiti<-<sliip)  ;  "The  exe<'ution  here  is  whether  upon  this  evidence  a  reasonable 
nianwiiuM  infer  that  the  man  had  been  bound  ajjprentice.  .  .  .  The  presumption  of 
the  rxistrncf  of  the  deed  Imay  be  made]  from  the  circumstances.  .  .  .  The  relations 
of  landlord  nn<l  tenant,  of  partnership,  of  marriages,  are  frequently  presumed  from 
the  eondufi  <.f  the  parties  In-ing  consi.stent  with  that  state  of  things,  and  more  con- 
sUtrnt  with  that  than  with  any  other." 


No.  148.  IV.       PROOF    OF   HUMAN   ACT.       C.    2.    TRACES  283 

148.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(1868.  pp.  420,  459,  465,  555,567.)  I.  That  the  legal  consequences  of  crime, 
—  the  loss  of  character,  liberty,  and  life,  attached  to  their  commission,  — 
are  rarely  contemplated  in  their  true  light  beforehand,  has  been  remarked 
under  a  former  head.  It  is  after  the  criminal  act  (especially  if  of  a  high 
grade)  has  been  done,  and  when  the  author  of  it  (if  perchance  touched  with 
a  feeling  of  penitence)  finds  that  it  cannot  possibly  be  undone,  and  that  his 
connection  with  the  facts  of  the  transaction  is  irrevocably  fixed,  that  the 
impending  consequences  flash  upon  his  mind  with  all  their  force.  They  are 
now  not  contemplated  as  ulterior  and  remote  contingencies  and  possibilities, 
but  seen  close  at  hand,  with  no  seducing  or  absorbing  objects  to  intercept 
the  view ;  and,  thus  seen,  they  have  power  to  agitate  the  natures  of  most 
men  thoroughly,  and  to  occupy  their  thoughts  exclusively.  To  avoid  these 
consequences,  by  the  concealment  of  either  the  crime,  or  the  criminal,  if 
not  of  both,  is  now  a  sort  of  natural  impulse,  which,  observation  shows,  is 
almost  universally  obeyed.  .  .  . 

But  even  in  cases  where,  apparently,  the  most  effectual  precautions  for 
concealment  have  been  taken,  the  idea  of  discovery  may  be  said  to  haunt  the 
mind,  and  the  fear  of  discovery  not  unf requently  to  agitate  it,  in  spite  of  all 
determination  to  assume  an  exterior  of  calmness  or  indifference.  Hence, 
where  a  case  of  suspected  crime  has  become  the  subject  of  judicial  investiga- 
tion, .  .  .  the  idea  —  now  converted  into  the  prospect  —  of  discovery, 
and  that  becoming  a  more  and  more  probable  event,  as  fact  after  fact  is 
brought  to  light,  naturally,  and  almost  necessarily,  fills  the  mind  with  alarm  ; 
particularly  where  the  criminal  finds  his  own  person  drawn  within  the  sphere 
of  the  investigation. 

Destruction,  Supjyrcssion,  and  Eloignmcnt  of  Evidence.  Among  the  most 
common  expedients  resorted  to  for  the  purpose  of  hiding  a  crime  are  :  the 
destruction  or  concealment  of  the  subject  of  the  crime  itself ;  such  as  the 
concealment  of  a  dead  body,  by  interment,  or  otherwise ;  the  removal  of  it 
to  a  distant  spot,  without  burial ;  the  mutilation  or  destruction  of  it,  where 
concealment  of  the  entire  body  is  impracticable ;  concealment  or  destruction 
of  the  clothing  of  the  body,  or  other  articles  upon  it,  by  which  the  crime 
might  be  traced  out ;  concealment  or  destruction  of  the  instrument  of  the 
crime ;  removal  of  the  physical  marks  and  traces  of  the  crime ;  con- 
cealment of  the  scene  of  the  crime,  and  of  the  criminal  himself,  while  en- 
gaged in  such  work  of  concealment  or  destruction ;  destruction  of  the 
scene,  the  subject  and  the  evidence  of  the  crime,  by  one  single  act  of  arson  ; 
concealment  of  the  fruits  of  the  crime ;  getting  witnesses  out  of  the  way, 
and  the  like. 

The  presumption  arising  from  any  of  these  acts  of  destruction,  suppression, 
or  eloignment  of  evidence,  where  they  have  been  fastened  upon  the  accused 
by  satisfactory  proof,  is  always  unfavorable.  Assuming  that  an  act  of  this 
kind  was  done  with  a  motive,  the  logical  inference  is  that  it  was  done  in 
order  to  get  rid  of  something  which  would  otherwise  prejudice  the  actor. 
Hence,  the  conclusion  is  warranted,  that  the  subject  of  action,  if  presented 
in  evidence,  would,  in  fact,  operate  against  him.  The  principle  of  this  pre- 
sumption is  a  general  one,  applicable  in  civil  as  well  as  criminal  cases  ;  and 
is  embodied  in  the  well-known  maxim.  Omnia  prcesumuntur  contra  spolia- 
tor em.     It  must  be  borne  in  mind,  however,  that  the  getting  rid  of  evidence, 


2S4  PART    I.       CIRCTMSTANTIAL    EVIDENCE  No.  148 

or  of  the  sourc-es,  materials,  or  instruments  of  evidence  by  any  of  the  methods 
which  have  just  been  eonsidereil.is  not.  in  itself,  and  necessarily,  incompatible 
witli  the  iimocenee  of  the  party  who  is  proved  to  have  resorted  to  such  ex- 
petlients.  as  will  be  more  fully  shown  under  a  future  head. 

Fahricaiiou  or  Forgery  of  Kridnur.  This  fabrication  is  effected  in  two 
principal  ways :  first,  Imlirrdh/,  by  intentionally  producing  on  the  senses  of 
observers,  impressions  which  shall,  without  fault  on  their  part,  lead  to  wrong 
i«leas  and  conclusions,  an<l  thus,  from  the  earliest  stages,  divert  suspicion 
ami  inquiry  to  other  objects  and  into  other  channels;  or,  in  the  event  of 
actual  discovery  and  conseiiuent  trial,  aid,  in  the  form  of  testimony,  in  dis- 
pro\ing  the  criminal  charge;  secondly,  directly,  by  prevailing  upon 
individuals  who,  it  is  supposed  or  feared,  may  be  called  on  for  information 
or  testimony,  to  misstate  one  or  more  of  the  facts  of  the  case ;  or  even 
to  state,  as  facts,  what  they  themselves  know  to  be  absolute  falsehoods. 

Cotnlnrt,  Devienitor,  and  Language  offer  the  Com  mission  of  a  Crime.  The 
principal  criminative  circumstances  usually  classed  under  this  head  are,  the 
alarm  anti  confusion  of  a  suspected  person  in  prospect  of  his  discovery ; 
his  concealment  and  Hight ;  his  agitation  and  other  conduct  on  arrest;  his 
silence  under  accusation  ;  his  giving  false,  evasive,  or  inconsistent  replies  to 
iiKjuiries  made  of  him  ;  his  unsatisfactory  explanations  of  suspicious  ap- 
pearances ;  ami  his  statements  of  a  confessional  character,  whether  judi- 
cial or  otherwise. 

II.  Infxrnuitire  lly}H)theses.  (1)  Suppression  of  Criminative  Objects.  The 
criminative  article  or  appearance  sought  to  be  destroyed,  suppressed,  or 
eloignrd.  may  have  been,  in  the  first  WMitance,  fabricated  by  the  real  criminal, 
by  j)lacing  it  in  the  possession  of  the  innocent  party,  or  even  annexing  it  to 
his  person  ;  and  the  removal  of  it  may  be  prompted  by  the  desire  of  avoiding 
the  effect  apprehended  to  follow  from  the  possession  of  such  an  article  or 
appearance.  .  .  . 

(2)  Fabrication  or  Forgery  of  Evidence.  An  innocent  person,  finding  a 
criminative  article  —  such  as  a  blood-stained  garment  or  a  bloody  knife  — 
u|>on  his  premi.ses,  atul  naturally  (however  injudiciously)  desiring  to  rid 
himself  of  it,  may  carr\  his  action  farther  than  mere  eloignment  or  removal, 
by  conveying  the  article  ui)on  the  premises  of  a  neighbor;  thus  actually 
fabricating  evidence  against  the  latter.   .   .   . 

Ci)  Giving  Different  and  Incon.tistent  Aceoiuit.s  of  the  Cause  of  the  Death  of 
a  Person.  This  fact  may  be  explained,  consistently  with  the  innocence  of  the 
accused,  on  the  supposition  of  the  statements  being  merely  conjectural,  with- 
out any  claim  to  the  character  of  accurate  information  ;  or  on  the  supposition 
of  the  information  having  been  received  from  various  persons,  and  at  differ- 
ent times,  <»r  obtained  front  mere  general  report. 

(4)  Objecting  to  the  Hxnmination  of  a  Dead  Body.  The  objection,  especially 
in  the  ca-se  of  a  near  relationship  to  the  deceased,  may  arise  from  a  natural 
fifling  of  rrpugmwre  against  having  the  body  of  a  friend  subjected  to  ana- 
tomical examination.   .   .   . 

('))  UeftLsal  to  hH,l:  at  a  Dead  Body.  This  circumstance,  also,  may  be  ex- 
plaine<l  on  the  .supposition  of  a  natural  feeling  of  repugnance  (which 
cannot  be  pronounced  uncommon  in  its  occurrence)  against  looking 
at  the  b<Hiy  of  a  p<-rson  who  has  come  to  a  violent  end;  especially  if  in  a 
blit'«ling.  mangled,  nnitilatcd,  or  decaying  state. 


No.  148.  IV.       PROOF   OF   HUMAN   ACT.       C.    2.    TRACES  285 

(6)  Alarm  in  view  of  Discovery .  ...  A  weak  or  ignorant  person  might  be 
led  to  overrate  the  effect  of  circumstances,  really  immaterial,  but  seemingly 
tending  to  criminate  him  ;  and  by  the  exhibition  of  needless  alarm  in  conse- 
quence, actually  create  against  himself  evidence  to  strengthen  the  force  of 
these  very  circumstances. 

(7)  Concealment  and  Flight.  It  may  be  one  of  those  ordinary  cases  of 
simple  change  of  residence  in  the  same  community  or  vicinity,  or  of  depar- 
ture from  it,  in  pursuit  of  health,  business,  or  pleasure,  which  are  constantly 
occurring  in  all  communities.  .  .  .  But,  supposing  it  a  case  of  actual  conceal- 
ment or  flight,  in  the  proper  judicial  sense,  induced  or  impelled  by  a  fear 
of  the  power  of  the  law,  it  may  have  arisen  from  a  source  wholly  unconnected 
with  the  particular  crime  charged  ;  such  as  a  desire  to  avoid  the  service  of 
civil  process,  or  the  inquiry  into  some  other  offense.  Finally,  supposing 
that  the  observed  act  of  departure  or  disappearance,  on  the  part  of  a  sus- 
pected person,  was  actually  caused  by  a  desire  to  avoid  the  charge  of  having 
committed  the  crime  which  has  been  discovered,  even  this  circumstance, 
though  proved  ever  so  clearly,  is,  in  itself,  by  no  means  conclusive  evidence 
of  guilt.  Under  certain  circumstances,  the  most  innocent  person  may  deem 
a  judicial  trial  too  great  a  risk  to  encounter.  .  .  . 

(8)  Conduct  and  Language  on  Arrest;  Fear  as  expressed  by  Deportment. 
The  force  of  these  manifestations,  as  criminative  circumstances,  depends 
on  the  correctness  of  the  inference  that  the  particular  symptom  observed 
has  been  produced  by  the  emotion  oi  fear ;  that  is,  of  fear  of  detection,  or 
punishment  for  the  offense  charged.  They  may  be  considered  as  subject  to 
the  following  infirmative  considerations  : 

The  appearance  observed  may  not  be  the  effect  or  manifestation  of  any 
mental  emotion  whatever,  but  of  a  purely  physical  fact ;  namely,  bodily  in- 
disposition. The  appearance  may  be  the  effect  of  mental  emotion,  but  of  a 
different  emotion  from  that  inferred ;  such  as  astonishment,  anger,  or  grief. 
Supposing  the  appearance  observed  to  be  actually  the  effect  of  the  emotion 
oi  fear ;  that  emotion  may  be  referable  to  other  causes  than  a  consciousness 
of  guilt;  thus.  It  may  arise  from  a  consciousness  that  appearances  are 
against  the  party,  and  a  consequent  apprehension  that  he  may  be  subjected 
to  judicial  annoyance  and  vexation,  or  possibly  condemned  as  guilty,  al- 
though innocent,  ...  or,  it  may  arise  from  an  apprehension  that  a  fact 
which  has  no  criminal  character  whatever  will  be  publicly  exposed,  to  the  in- 
jury, mortification,  or  vexation  of  the  party  himself,  or  some  other  individual 
connected  with  him  by  some  tie  of  sympathy. 

Supposing,  finally,  that  the  appearance  observed  is  not  only,  in  truth,  the 
effect  of  the  emotion  of  fear,  but  that  such  emotion  arises  from  a  conscious- 
ness of  guilt,  ...  it  may  be  a  consciousness  of  some  other  crime,  committed 
either  by  himself,  or  by  some  other  individual  connected  with  him, 
and  on  whom  the  inquiry  may  bring  down  suspicion  or  punishment. 

Confusion  manifested  on  being  charged  with  participation  in  the  com- 
mission of  a  crime,  or  questioned  as  to  some  circumstance  connected  or  sup- 
posed to  be  connected  with  it  may  arise  from  a  feeling  of  mortification  at  the 
discovery  of  a  fact  supposed  to  have  been  known  only  to  the  party  himself. 
The  apparently  strongly  criminative  fact  of  resisting  a  search  of  the  person 
may  arise  from  a  similar  feeling.  A  story  related  by  Mr.  Bentham,  as  one 
which  he  had  often  heard  or  read  of,  may  be  repeated  in  his  own  language,  as 


2S0  PART   1.      CIRCUMSTANTIAL   EVIDENCE  No.  149 

an  illustraiion  of  this  supposition.  "An  entertainment  was  given  by  some 
great  personage  to  a  numerous  and  mixed  company  :  in  the  course  of  it,  a 
trinket  was  disphiyetl,  the  vahie  of  which  had,  by  I  know  not  what  operation 
of  tlie  principle  of  association,  been  raised,  in  his  imagination  and  affections, 
above  all  ordinary  estimation.  On  a  sudden,  an  ahirm  was  given  that  the 
precious  article  was  missing.  '  Let  every  man  of  us  be  searched,'  said  one  of 
the  company.  'Yes,  let  every  man  of  us  be  searched,'  said  all  the  rest. 
One  man  alone  refused  :  the  eyes  of  all  were  instantly  upon  him :  his  dress 
betrayed  symptoms  of  ^-nury  :  no  doubt  remained  about  the  thief.  He 
entreattnl  and  obtained  of  the  master  of  tlie  house  a  moment's  audience  in  a 
private  room.  His  pockets  were  turned  inside  out,  when  in  one  of  them  was 
found  —  not  the  lost  trinket,  but  something  eatable.  He  had  a  wife  who, 
for  such  or  such  a  time,  had  gone  without  food."  This  was  a  secret,  the 
public  exposure  of  which  he  had  resisted. 

(9)  Silence  under  Accuxaiiou.  This  circumstance  is  subject  to  the  follow- 
ing infirmative  considerations  :  The  accused  or  suspected  party,  owing  to 
deafness,  or  any  other  cause,  may  not  have  heard  the  criminative  question 
askeil,  or  observation  made.  If  he  hearfl  it,  he  may  not  have  understood  it 
as  conveying  an  imputation  against  himself.  If  he  heard  and  understood  it, 
he  may  not  have  been  able  to  reply  at  the  moment,  owing  to  temporary  im- 
f>edinient  of  utterance,  or  a  feeling  of  surprise  at  the  imputation  conveyed. 
The  subject  of  the  statement  may  have  been  a  matter  not  within  his  knowl- 
edge. The  statement  may  have  been  made  under  circumstances  not  calling 
for  a  reply. 

(10)  Erujtive  and  Incomplete  Response.  The  following  infirmative  consid- 
erations may  be  mentioned  under  this  head : 

It  may  be  a  case  where  the  appearance  observed,  and  required  to  be  ex- 
plained, such  as  blood  on  the  clothing,  although  criminativeon  its  face,  was 
not  so  in  fact ;  but  the  accused  having  been  subjected  to  it  without  his 
knowledge,  as  by  having  come  in  contact  with  a  bleeding  body  in  the  dark, 
wa,s,  although  innocent,  actually  tmahle  to  explain  its  existence.  It  may  be  a 
case  where  the  accused,  though  innocent,  could  only  explain  particular  cir- 
cumstances, by  criminating  other  individuals  whom  he  was  unwilling  to  ex- 
|M>se.  or  disclosing  facts  which  he  was  anxious,  if  possible,  to  conceal.  It 
ma\  be  a  case  where  the  accused,  though  not  guilty  of  the  offense  charged, 
could  only  prove  himself  so  by  showing  his  guilt  of  some  other  offense. 
It  may  have  been  considered  by  the  accused  his  best  policy  not  to  disclose 
the  particulars  of  his  defense,  imtil  ./»f//V/V///?/ (jemanded  of  him  on  his  trial. 

(11)  Fahr  Hisjxmse.  It  may  be  attributaljle  to  the  same  cause  which  has 
.sometimes  le<l  innocent  persons  to  resort  to  false  evidence  in  their  defense,  as 
by  actually  fabricating  facts  and  appearances,  in  order  to  produce  false 
impressions. 


140.  THE  ESCAPED  CONVICT'S  CASE.  (H.  L.  Ad.^m.  The 
Story  of  ('rum .       li>— .      p.   171.)    .    .    . 

Sime  time  ago,  a  prisoner  who  boundaries  of  the  prison  propertv, 
escHiMMl  fn.m  I)artm<.or  was  re-  had  secured  a  change  of  clothing, 
captured  m  a  n.riuus  manner.  H,-  and  was  within  an  ace  of  getting 
had  succeeded  m  gettmg  beyond  the      dear  away.     He  had  to  pass  a  police 


No.  150. 


IV.       PROOF    OF   HUMAN    ACT.       C.    2.    TRACES 


287 


station,  and  as  he  approached  it,  he 
observed  a  poHce  constable  standing 
outside  with  a  dog.  Pulhng  him- 
self together  he  put  on  indifference 
and  managed  to  pass  the  policeman 
without  raising  his  suspicions. 
Having  got  a  few  yards  away,  he 
suddenly  heard  the  dog  bark  behind 
him  and  run  towards  him.  Think- 
ing that  the  policeman  had 
"spotted"  him,  he  took  to  his  heels. 
This  brought  the  policeman  after 
him,  and  he  was  taken.  The  dog  was 
merely  barking  at  him  as  dogs  will 
bark  at  passing  people,  and  it  was 
not  until  he  ran  away  that  the  police- 
man's suspicions  were  aroused.  .  .  . 
Some  years  ago  a  schoolmaster 
was  found  murdered  in  his  study. 
He  had  been  hit  over  the  head  wnth 
a  blunt  instrument.  The  assistant 
master,  who  it  was  proved  had 
been  enamored  of  his  employer's 
wife,  was  arrested  and  charged  with 
the  crime.  The  theory  propounded 
by  the  prosecution  was  as  follows. 
At  the  time  the  crime  was  com- 
mitted the  pupils  were  playing  in 
the  open  ground  adjoining  the 
school,  and  the  assistant  master 
was  with  them.  The  deceased  had 
gone  into  his  study  to  seek  a  little 
repose,  and  was  dozing.  The  as- 
sistant, so  the  prosecution  argued, 
left  the  pupils,  crept  noiselessly 
into  the  house,  secured  the  weapon, 


made  his  way  to  the  study,  com- 
mitted the  crime,  rejoining  the 
pupils  in  the  playground  as  though 
nothing  had  happened.  The  de- 
fense, however,  were  able,  by  means 
of  timing  the  man's  supposed  move- 
ments, to  make  it  appear  a  physical 
impossibility  for  him  to  have  com- 
mitted the  deed  in  the  manner  set 
forth.  But  the  most  pregnant  evi- 
dence of  all  was  that  which  turned 
on  a  mere  trifle.  One  of  the  wit- 
nesses for  the  prosecution  was  a 
small  boy,  a  pupil,  who  testified 
that  he  saw  the  prisoner  emerge 
from  the  house  and  come  up  to  the 
boys  as  they  were  tossing  coins  in 
the  air.  He  exclaimed,  said  the 
witness,  "You  don't  know  how  to 
toss  coins,  let  me  show  you,"  at  the 
same  time  taking  hold  of  a  coin  and 
spinning  it  in  the  air.  Whereupon 
the  judge  put  this  question  to  the 
witness,  "  Did  the  prisoner's  hand 
shake?"  to  which  the  witness  re- 
plied that  it  did  not.  That  prac- 
tically saved  the  prisoner's  life ; 
if  the  reply  had  been  in  the  affirma- 
tive, it  would  probably  have  sealed 
his  fate.  The  judge  argued  that 
it  was  highly  improbable  that  a 
man  could  come  fresh  from  such  a 
violent  deed  as  that  and  toss  a  coin 
in  the  air  without  his  hand  shaking. 
Opinions,  however,  will  differ  on 
this  point. 


150.    MULLINS'   CASE.      (Arthur  Griffiths.      Mysteries  of  Police 


and  Crime.  1898.  Vol.  I,  p.  23.) 
.  .  .  Criminals  continually  "give 
themselves  away  "  by  their  own  care- 
lessness, their  stupid,  incautious  be- 
havior. It  is  almost  an  axiom  in 
detection  to  watch  the  scene  of  a 
murder  for  the  visit  of  the  criminal, 
who  seems  almost  irresistibly  drawn 
thither.  The  same  impulse  at- 
tracts the  French  murderer  to  the 
Morgue,  where  his  victim  lies  in 
full  public  view.  This  is  so  thor- 
oughly understood  in  Paris  that  the 
police  keep  officers  in  plain  clothes 
among  the  crowd  which  is  always 
filing  past  the  plate-glass  windows 


separating  the  public  from  the 
marble  slopes  on  which  the  bodies 
are  exposed.  An  Indian  criminal's 
steps  generally  lead  him  homeward 
to  his  own  village,  on  which  the 
Indian  police  set  a  close  watch 
when  a  man  is  much  wanted.  Nu- 
merous instances  might  be  quoted 
in  which  offenders  disclose  their 
crime  by  ill-advised  ostentation : 
the  reckless  display  of  much  cash 
by  those  who  were,  seemingly, 
poverty-stricken  just  before ;  self- 
indulgent  extravagance ;  throwing 
money  about  wastefully ;  not  seldom 


2SS 


PART   I.      CIRCUMSTANTIAL   EVIDENCE 


No.  150. 


parading  in  the  very  clothes  of 
their  victims.  .\  curious  instance 
of  the  neglect  of  common  precau- 
tion was  that  t>f  Wainwright,  the 
murtlerer  of  Harriet  Lane,  who  left 
the  corpus  delicti,  the  danming 
prtK>f  of  his  guilt,  to  the  prying 
curiosity  of  an  outsider,  while  he 
went  off  in  search  of  a  cab. 

One  of  the  most  remarkable  in- 
stances of  the  want  of  reticence  in  a 
great  criminal  and  his  detection 
through  his  own  foolishness  occurred 
in  the  case  of  Mullins,  the  Stepney 
murderer,  who  betrayetl  himself  to 
the  police  when  they  were  really 
at  fault,  and  their  want  of  acutene.ss 
wa*;  the  subject  of  much  caustic 
criticism.  The  victim  in  this  case 
wa.s  an  aged  woman  of  eccentric 
character  and  extremely  parsimoni- 
ous habits,  who  lived  entirely  alone, 
only  admitting  a  woman  to  help 
her  in  the  housework  for  an  hour 
or  two  every  day.  .  .  .  She  was 
la.st  seen  on  the  evening  of  the  18th 
of  August.  When  people  came  to 
see  her  on  business  on  the  14th, 
1 ')th,  and  Ibth,  she  made  no  response 
to  their  loud  knockings.  but  her 
strange  habits  were  well  known ; 
morc»over,  the  neighborhood  was  so 
dens«'ly  inhabited  that  it  was 
thought  in»|>ossible  she  could  have 
l>een  the  victim  of  foul  play.  At 
la.st,  on  .\ugust  17th,  a  shoemaker, 
name<l  Kmm,  whom  she  sometimes 
employe<|  t(»  (((licet  rents  at  a  di.s- 
tance,  wetu  to  Mrs.  Klinsley's  law- 
yers and  exj)ressed  his  alarm  at  her 
non-apiM-arance.  The  police  were 
(•(•nsulted,  and  decide(l  to  break  into 
the  h(»use.  Its  owner  was  found 
lying  dead  rm  the  floor  in  a  lumber 
r(M»m  at  the  top  of  the  house.  Life 
had  been  extinct  for  some  days,  and 
death  had  been  caused  by  l)lows  on 
the  head  with  a  hea\y  plasterer's 
hummer.  The  body  lay  in  a  jkh)! 
of  IiKhmI,  which  also  sphished  the 
walls,  and  a  blcxtdy  foot|)rint  was 
impress*^!  on  the  floor,  pointing 
out  wards  from  the  room.  There 
were  no  a|)peurunces  of  forcible 
entry    to   the   house,    ami    the   con- 


clusion was  fair  that  whoever  haa 
done  the  deed  had  been  admitted 
by  Mrs.  Elmsley  in  all  good  faith. 
.  .  .  Yet  the  police  made  no  use- 
ful  deductions   from   these   data. 

While  they  were  still  at  fault,  a 
man,  named  ISIullins,  a  plasterer 
by  trade,  who  knew  Mrs.  Elmsley 
well  and  who  had  often  worked  for 
her,  came  forward  voluntarily  to 
throw  some  light  on  the  mystery. 
A  month  had  nearly  elapsed  since 
the  murder,  and  during  this  long 
period  Midlins'  attention  had  been 
drawn  to  the  man  Emm  and  his 
suspicious  conduct.  IVIullins  had 
served  in  the  Irish  constabulary ; 
his  powers  of  observation  had  been 
quickened  by  this  early  training,  and 
he  soon  saw  that  Emm  had  some- 
thing to  conceal.  He  had  Avatched 
him,  had  frequently  seen  him  leave 
his  cottage  and  proceed  stealthily 
to  a  neighboring  brickfield,  laden 
on  each  occasion  wath  a  parcel  he 
did  not  bring  back.  Mullins,  after 
giving  this  information  quite  un- 
sought, led  the  police  officers  to  the 
spot,  and  into  a  ruined  outbuilding, 
where  a  strict  search  was  made. 
Behind  a  stone  slab  they  discovered  a 
paper  parcel  containing  articles  which 
were  at  once  identified  as  part  of  the 
murdered  woman's  property.  Mul- 
lins next  accompanied  the  police  to 
Enun's  house,  and  saw  the  supposed 
criminal  arrested.  But  to  his  utter 
amazement  the  police  turned  on 
Mullins  and  also  took  him  into  cus- 
tody. Something  in  his  manner  had 
aroused  suspicion ;  and  rightly,  for 
eventually  he  w^as  convicted  and 
hanged  for  the  crime. 

Here  Mullins  had  only  himself  to 
thank.  Whatever  the  impulse  — 
that  strange  restlessness  that  often 
atlects  tlie  secret  murderer,  or  the 
consuming  fear  that  the  scent  was 
hot,  and  his  guilt  must  be  discovered 
unless  he  could  shift  suspicion  — 
it  is  certain  that  but  for  his  own 
act  he  would  never  have  been  ar- 
rested. It  may  be  interesting  to 
complete  this  case,  and  show  how 
further     suspicion     settled     around 


No.  152. 


IV.       PROOF    OF   HUMAN    ACT.       C.    2.    TRACES 


289 


Mullins.  .  .  .  The  most  conclusive 
evidence  was  the  production  of  a 
plasterer's  hammer,  which  was  also 
found  in  Mullins'  house.  It  was 
examined  under  the  microscope, 
and  proved  to  be  stained  with  blood. 
....  So  far  as  Emm  was  con- 
cerned, he  was  able  clearly  to  estab- 
lish an  alibi,  while  witnesses  were 
produced  who  swore  to  having  seen 
Mullins  coming  across  Stepney 
Green  at  dawn  on  the  day  of  the 
crime  with  bulging  pockets  stuffed 
full  of  something,  and  going  home ; 
he  appeared  much  perturbed  and 
trembled    all    over.     Mullins    was 


found  guilty  without  hesitation,  and 
the  judge  expressed  himself  per- 
fectly satisfied  with  the  verdict. 
The  case  was  much  discussed  in 
legal  circles  and  in  the  Press,  and 
all  opinions  were  unanimously  hos- 
tile to  Mullins.  The  convict  stead- 
fastly denied  his  guilt  to  the  last, 
but  left  a  paper  exonerating  Emm. 
It  is  difficult  to  reconcile  this  with  his 
denunciation  of  that  innocent  man, 
except  on  the  grounds  of  his  own 
guilty  knowledge  of  the  real  murderer. 
In  any  case,  it  was  he  himself  who 
first  lifted  the  veil  and  stupidly 
brought  justice  down  on  himself. 


151.    THE    UNCLE'S    CASE. 

104,  p.  232.) 

In  the  county  of  Warwick,  there 
were  two  brethren ;  the  one  having 
issue  a  daughter,  and  being  seized 
of  lands  in  fee,  devised  the  govern- 
ment of  his  daughter  and  his  lands 
until  she  came  to  her  age  of  sixteen 
years,  to  his  brother,  '  and  died. 
The  uncle  brought  up  his  niece  very 
well  both  at  her  book  and  needle, 
etc.,  and  she  was  about  eight  or 
nine  years  of  age ;  her  uncle  for 
some  offense  correcting  her,  she 
was  heard  to  say,  "  Oh  !  good  uncle, 
kill  me  not!"  After  which  time 
the  child,  after  much  inquiry,  could 
not  be  heard  of,  whereupon  the 
uncle,  being  suspected  of  the  murder 
of  her,  the  rather  for  that  he  was  her 
next  heir,  w^as  upon  examination, 
anno  8  Jac.  Regis,  committed  to  the 
jail  for  suspicion  of  murder ;  and 
was  admonished  by  the  justices  of 
assize  to  find  out  the  child,  and 
thereupon  bailed  him  until  the  next 
assizes.  Against  which  time,  for 
that  he  could  not  find  her,  and 
fearing  what  would  fall  out  against 
him,  took  another  child  as  like  unto 
her  both  in  person  and  years  as  he 


(Sir  E.   Coke.       Third  Institute,    c. 

could  find,  and  appareled  her  like 
unto  the  true  child,  and  brought  her 
to  the  next  assizes ;  but  upon  view 
and  examination  she  was  found  not 
to  be  the  true  child  ;  and  upon  these 
presumptions  he  was  indicted  and 
found  guilty,  had  judgment,  and 
was  hanged.  But  the  truth  of  the 
case  was,  that  the  child,  being  beaten 
overnight,  the  next  morning,  when 
she  should  go  to  school,  ran  away 
into  the  next  county;  and  being 
well  educated  was  received  and 
entertained  of  a  stranger ;  and  when 
she  was  sixteen  years  old,  at  which 
time  she  should  come  to  her  land, 
she  came  to  demand  it,  and  was 
directly  proved  to  be  the  true  child. 
Which  case  we  have  reported  for 
a  double  caveat ;  first,  to  judges, 
that  they  in  case  of  life  judge  not 
too  hastily  upon  bare  presumption, 
and,  secondly,  to  the  innocent  and 
true  man,  that  he  never  seek  to 
excuse  himself  by  false  or  undue 
means,  lest  thereby  he,  offending 
God  (the  author  of  truth),  over- 
throw himself  as  the  uncle  did. 


152.  GEORGE  RAUSCHMAIER'S  CASE.  (Anselm  von  Feuerbach. 
Remarkable   German   Criminal  Trials.      1846.      transl.  Gordon,  p.  291.) 

[In  Augsburg,  April  20,  1820,  She  Hved  on  the  upper  floor,  and 
Maria  Holzmann,  a  charwoman,  sublet  a  room  below  to  George 
aged  55,  disappeared  from  her  home.      Rauschmaier    and    Joseph    Steiner. 


290 


PART    I. 


CIRCUMSTANTIAL    EVIDENCE 


No.  152. 


Her  Ixxiy  was  afterwards  found  in 
the  loft.  Rauschniaier  and  Steiner 
were  arreste<i.  Kauseliniaier  after- 
wards confessed.  Meanwhile  Steiner 
denietl  his  own  guilt,  hut  sought 
to  turn  suspicion  on  Kausehniaier.] 

On  his  first  regular  examination 
of  the  2d  of  .lainiary,  1S21,  he 
asserted  not  only  his  own  innocence, 
hut  also  his  ignorance  of  the  cause 
of  Holzinaiurs  disappearance.  .  .  . 
He  was  examined  on  the  loth  of 
January,  merely  with  regard  to  his 
family  ancl  to  his  means  of  subsist- 
ence, when  he  began  suddenly  and 
of  his  own  accord,  a  long,  rambling 
narrative  to  the  following  effect: 

That  he  returned  home  almut  ten 
or  eleven  at  night  on  Good  Friday, 
and  went  to  wish  his  landlady  good 
night,  as  was  his  usual  custom;  but 
n«)t  finding  her  in  bed,  he  thought 
that  she  would  not  return  that 
night,  and  thereupon  got  into  her 
bed  him.self.  During  the  night 
he  heard  a  heavy  fall  overheacl,  and 
a  noise  as  if  .something  was  being 
dragged  backwards  and  forwards. 
On  the  ."Saturday  he  came  home 
about  ten  at  night  :  his  comrade 
ojK'ned  the  door  to  him,  and  would 
not  allow  him  to  enter  his  landlady's 
nM)n>,  but  lighted  him  at  once  to 
his  own.  He  had  scarcely  lain 
clown  when  .something  dropped  from 
the  ceiling  upon  his  no.se,  and^  when 
he  turned  in  bed,  uj)on  his  back. 
In  the  morning  he  found  that  this 
was  IjIcmmI.  He  called  Rau.sch- 
maier's  attention  to  this,  who  an- 
swere«l  that  he  c«)uld  not  account 
f«)r  it,  but  that  it  was  of  no  conse- 
(pienee.  M  first  he  titought  noth- 
ing of  it;  but,  on  seeing  IIolz- 
tnann's  n-mains  in  the  churchyard. 
the  thought  struck  him  that  she 
must  have  been  murdered  by  Kau.sch- 
inaier.  He  him.self  had  nexcr 
harm(*d  her.   .   .   . 

On  the  -ith  of  Kebruary  he  r«- 
«|Uest«Hi  another  audience.  ...  He 
au*  mcMlified  his  former  stat<"ment  ; 
It  WU.S  not  f)n  Friday,  but  on  .Sat- 
urday, that  he  had  slept  in  Ilol/- 
mann's    Ik'<1,    ami    ♦he    blond    Iia.) 


dropped  upon  his  nose  on  the  Thurs- 
day night,  not  on  Good  Friday.  He 
had  said  to  l^auschmaier,  early 
on  Friday,  "Surely,  in  God's  name, 
vou   have  not  murdered  our  land- 


lad) 


whereupon     Rauschniaier 


threatened  to  kill  him  if  he  said  a 
word  about  the  blood  or  their 
landlady.  He  then  showed  him  a 
tliick  knotted  club,  saying,  "I  will 
strike  you  dead  with  this  if  you 
say  a  word  of  the  matter  ! "  .  .  . 
He  then  proceeded,  after  some  in- 
terruption, "  It  now  strikes  me 
that  the  blood  must  have  been 
wiped  up  on  Easter  Sunday  with 
my  shirt,  which  I  found  in  a  corner 
soaked  with  blood.  No  doubt  my 
comrade  did  this  on  purpose  to 
throw  the  suspicion  on  me."  .  .  . 
He  further  added,  that  a  week  after 
Faster  he  was  with  Rauschniaier  at 
a  tavern,  and  when  they  were  alone 
his  comrade  offered  him  a  silver  ring 
and  a  pair  of  earrings,  to  say  nothing 
about  the  blood  or  their  landlady ; 
but  he  would  take  nothing  from  him. 
Steiner's  statement  had  every 
appearance  of  truth,  and  agreed  in 
the  main  with  what  was  already 
known :  and  so  long  as  Rausch- 
niaier withheld  his  confession  it 
appeared  of  the  utmost  importance. 
But  when  the  latter  was  asked,  after 
making  a  full  confession,  whether 
any  one  was  privy  to  the  murder 
which  he  had  committed,  he  an- 
swered, "No  human  being;  I  re- 
solved upon  and  committed  the 
murder  alone,  exactly  as  I  have 
already  confessed  it,  because  I 
trusted  no  one  ;  if,  perchance,  Joseph 
Steiner  or  Flizabeth  Ditscher  are 
suspected,  I  hereby  attest  their 
innocence;  nor  do  .1  believe  that 
Steiner  saw  anything,  at  any  rate 
he  never  gave  me  to  understand 
that  he  suspc^-ted  nie."  In  the 
following  examination  when  he  was 
told  that  Steiner  asserted  that  he 
had  discovered  traces  of  the  murder, 
and  that  he  had  taken  Rauschniaier 
to  task  about  it,  the  latter  replied, 
"  It  is  a  thorough  lie ;  he  never  said 
a  word  to  me  of  the  matter."   .   .  . 


No.  153. 


IV.       PROOF    OF   HUMAN    ACT.      C.    2.    TRACES 


291 


At  Steiner's  third  examination 
the  discrepancy  between  his  state- 
ment and  Rauschmaier's  repentant 
confession  was  fully  explained.  The 
judge  called  Steiner's  attention  to 
some  marked  contradiction,  where- 
upon he  exclaimed,  "  I  am  an  ass, 
and  have  said  a  great  deal  that  is 
not  true.  I  must  beg  pardon  for 
having  lied  so  much.  I  thought 
to  myself  that,  perhaps,  my  com- 
rade murdered  the  woman,  and  that 
I  was  suspected,  although  I  am  in- 
nocent ;  I  therefore  said  whatever 
came  into  my  head  to  strengthen 
the  suspicion  against  Rauschmaier, 
and  to  convince  you  of  my  own  in- 
nocence. All  that  I  have  said  about 
the  blood  dropping  upon  my  nose, 
and  my  shirt,  about  the  noise  of 
one  falling  and  being  dragged  over 
head,  and  about  my  observations  to 
Rauschmaier,  his  threatening  words, 
promises,  and  so  forth,  are  mere 
inventions.  I  neither  saw  nor  heard 
anything;     but    I    suspected    that 


Holzmann  had  been  murdered  by 
Rauschmaier.  I  then  considered 
how  it  must  all  have  been  done,  and 
told  it  accordingly.  I  wonder  how 
it  all  came  into  my  head ;  I  should 
soon  have  believed  the  story  myself. 
Forgive  my  stupidity.  I  am  a  mere 
ass.  Only  think  how  stupid  !  I 
now  begin  to  see  what  trouble  I  have 
got  myself  into  by  my  lies ;  but  I 
hope  I  shall  not  suffer  for  them,  as 
I  did  not  harm  the  old  woman.  I 
thought  I  was  doing  the  court  a 
pleasure  by  saying  what  I  fancied 
about  Rauschmaier,  for  I  still  be- 
lieve him  to   be   guilty."  .   .   . 

On  the  9th  of  May,  1822,  Rausch- 
maier was  found  guilty  of  murder, 
and  condemned  to  death  by  the 
sword,  with  previous  exposure  for 
half  an  hour  in  the  pillory.  Steiner 
was  acquitted,  and  Elizabeth  Dit- 
scher  w^as  condemned  to  an  eight 
days'  imprisonment  for  receiving 
stolen  goods. 


153.    ROBERT  HAWKINS'  CASE.      (G.  L.  Craik.     English  Causes 


Celebres.      1844.      p.  146.) 

[The  accused,  a  clergyman,  was 
charged  in  1668  with  robbery  from 
one  Larimore.  The  facts  are  more 
fully  stated  post,  No.  335.  The 
charge  was  said  by  the  defendant  to 
be  due  to  a  long-standing  spite  of 
Larimore,  and  to  his  plot  to  ruin 
the  accused.  But  one  of  the  cir- 
cumstances against  the  accused  was 
that  he  had  refused  to  let  his  house 
be  searched  for  the  robbed  goods.] 

L,  C.  B.  Hale.  —  Sir,  but  if  you 
were  innocent  of  this  robbery,  why 
did  you  refuse  to  open  your  doors, 
or  to  have  your  house  searched  ? 

Hawk. — My  Lord,  I  had  several 
reasons  that  moved  me  so  to  do. 
1.  In  general,  most  of  those  persons 
that  were  present  were  my  inveter- 
ate enemies,  and  several  of  them  had 
threatened  to  ruin  me  and  my  fam- 
ily ;  and  therefore  I  had  reason  to 
suspect  that  they  came  to  injure 
me,  either  in  my  profession  or  goods. 
For  the  first.  Sir  John  Croke  and 


Larimore  had  often  threatened  to 
pull  down  my  house,  and  for  that 
end  had  hired  several  persons  to 
make  a  forcible  entry  upon  it ; 
and,  particularly  they  had  lately 
hired  Jaires,  the  son  of  Leonard 
Styres,  of  Thame,  in  the  country  of 
Oxon,  by  a  ladder  to  climb  up,  and 
run  down  my  chimney,  and  open  my 
doors,  when  we  were  all  abroad. 
And  about  the  same  time  they  also 
contracted  with  one  Christopher 
Tyler,  of  Chilton,  for  the  same  pur- 
pose. And  —  2.  I  feared  the  seiz- 
ing of  my  goods  by  the  said  persons, 
because  they  had  then  a  writ  of 
Levari  (or  execution)  to  seize  them, 
which  Larimore's  son  had  a  few 
days  before  in  part  executed,  and 
he  was  then  present.  And  if  these 
reasons  are  not  sufficient,  I  have 
more  to  justify  my  act  in  refusing 
to  have  them  search  my  house.  .  .  . 
L.  C.  B.  —  Mr.  Hawkins,  can  you 
prove  what  you  have  said  ?     Haivk^ 


292 


PART   I.       CIRCUMSTANTIAL   EVIDENCE 


No.  154. 


—  Yes,  my  Lord.     Which  particular 
shall  I  prove? 

L.  C.  /f.  — Prove  that  about  the 
la<l«ler,  if  you  can.  Haul:.  —  1  pray, 
my  lA)nl.  call  John  Acrciiian.  He, 
Ijeing  calle«l.  »ii<l  fully  justify  what 
was  said  concerniii}:  their  intended 
forcilde  entry,  and  added  further, 
that  he  «lid  help  to  set  up  the  ladder 
f«»r  that  purpose,  heinji  called  by 
Sir  John  Croke's  own  sons,  they  and 


Larimore  standing  by  all  that  time 
to  watch. 

Hawk.  —  And  touching  the  second 
particular,  concerning  the  seizing 
of  my  goods,  Mr.  Sheriff  himself 
can  justify,  that  they  had  then  in 
their  hands  such  a  writ.  .  .  . 

My  Lord  Chief  Baron  Hale 
hearing  these  reasons  fully  proved, 
commended  Hawkins'  discretion  in 
not  opening  his  doors. 


l-)4.    DONELLAN'S  CASE.      (AV 
Amer.  ed.       ll)U3.      p.  114.) 

Perhaps  in  no  case  have  cinuni- 
stances  of  this  kind  told  with  such 
fatal  effect  as  in  the  case  of  Donellan 
(stateil  more  fully,  jto.ft,  Xo.  379], 
who  was  convicted  of  the  nmrder  of 
Sir  Theodosius  Houghton  by  poison. 
The  prisoner,  after  having  [sup- 
posedly] a<lministered  the  fatal 
«lraft  in  the  form  of  medicine, 
rinsed  out  the  vial  which  had  con- 
taini'd  it,  and  when  that  fact  was 
state«l  before  the  coroner,  he  was 
obst-rved  to  check  the  witness  by 
pulling  her  sleeve.  In  his  charge 
to  the  jury,  Mr.  Justice  Billf.r  laid 
great  stress  upon  that  circumstance. 
"Was  there  anything  .so  likely," 
said  the  learned  judge,  "  to  lead  to  a 
discovery  as  the  renuiins,  however 
small  they  might  have  been,  of 
meilicine  in  the  bottle  ?  But  that 
is  «lestroyed  by  the  prisoner.  In 
the  moment  he  is  doing  it,  he  is 
fc»und  fault  with.  What  does  he  do 
next  ?  He  lakes  the  second  bottle, 
puts  water  into  that,  and  rinses 
it  also.  He  is  checked  by  Lady 
Boughton,  and  asked  what  he  meant 
by  it  —  why  he  meddled  with  the 
liottjes.  His  answer  is,  he  did  it  to 
taste  it  ;  but  did  he  taste  the  first 
bottle?  Lady  Boughton  swears  he 
«lic|  not.  The  next  thing  he  does, 
is  to  get  all  the  things  sent  out  of 
the  rJH)m ;  for  when  the  servant 
comes  up,  he  orders  her  to  take 
away  the  bottles,  the  basin,  and  the 
ilirty  things.  He  puts  the  bottles 
int«)  her  hatui,  anci  she  was  going  to 
carry  them  away,  but  Lady  Bough- 


WiLLs.     Circumstantial  Evidence. 

ton  stoppefl  her.  Why  were  all 
these  things  to  be  removed  ?  Why 
was  it  necessary  for  the  prisoner, 
who  was  fully  advertised  of  the 
consequence  by  Lady  Boughton,  to 
insist  upon  having  everything  re- 
moved ?  Why  should  he  be  so 
solicitous  to  remove  everything  that 
might  lead  to  a  discovery?"  After 
dealing  with  the  prisoner's  conduct 
in  other  matters,  the  learned  judge 
continued :  "  Then  as  to  the  con- 
duct of  the  prisoner  before  the 
coroner.  Lady  Boughton  had  men- 
tioned the  circumstance  of  the  pris- 
oner's rinsing  out  the  bottle  —  one 
of  the  coroner's  jury  swears  that 
he  saw  him  pull  her  by  the  sleeve. 
Why  did  he  do  that  ?  If  he  w^as 
innocent,  would  it  not  be  his  wish 
and  anxious  desire,  as  he  expresses 
in  his  letter,  that  all  possible  inquiry 
should  be  made  ?  What  passes 
afterwards  ?  When  they  got  home, 
the  prisoner  tells  his  w^ife  that  Lady 
Boughton  had  given  this  evidence 
unnecessarily ;  that  she  was  not 
obliged  to  say  anything  but  in  an- 
swer to  questions  that  were  put  to 
her,  and  that  the  question  about 
rinsing  out  the  bottles  was  not 
asked  her.  Did  the  prisoner  mean 
that  she  should  suppress  the  truth  ? 
that  she  should  endeavor  to  avoid 
a  discovery  as  much  as  she  could  by 
barely  saying  Yes  or  No  to  the 
(luestions  that  were  asked  her,  and 
not  disclose  the  w^hole  truth  ?  If 
he  was  innocent,  how  could  the 
truth  affect  him?    but  at  that  time 


No.  155, 


IV.      PROOF   OF   HUMAN   ACT.      C.    2.    TRACES 


293 


the  circumstance  of  rinsing  out  the 
bottles  appeared  even  to  him  to  be 
so  decisive  that  he  stopped  her  on 
the  instant,  and  blamed  her  after- 
wards   for    having    mentioned    it. 


All  these,"  said  the  learned  judge, 
"  are  very  strong  facts  to  show  what 
was  passing  in  the  prisoner's  own 
mind." 


155.    ROBERT     WOOD'S     CASE.       (C.     Ainsworth     Mitchell. 


Science  and  the  Criminal.      1911. 

.  .  .  The  most  sensational  trial  that 
has  taken  place  in  this  country  for 
many  years  was  that  of  Robert 
Wood,  a  young  artist,  in  1907,  on 
the  charge  of  murdering  a  woman. 
The  story  of  the  crime  itself  is  a 
particularly  sordid  one,  but  the  be- 
havior of  the  prisoner  in  court,  and 
the  excited  state  of  public  feeling 
on  the  subject  gave  a  profound  psy- 
chological interest  to  the  trial.  A 
woman  had  been  found  brutally 
murdered  in  her  lodgings  in  a  small 
house  in  Camden  Town,  and  no 
trace  could  be  found  of  the  murderer. 
In  the  fire  grate,  however,  had  been 
found  some  charred  fragments  of  a 
letter,  while  in  the  chest  of  drawers 
a  postcard  that  had  escaped  notice 
had  been  discovered.  A  reproduc- 
tion of  this  postcard  was  posted 
up  at  the  police  stations  and  pub- 
lished in  the  papers,  and  was  soon 
recognized  by  several  people  as 
being  in  the  handwriting  of  Robert 
Wood. 

In  the  meantime.  Wood,  finding 
that  suspicion  was  likely  to  attach 
to  him,  persuaded  a  girl  of  his  ac- 
quaintance, named  Ruby  Young,  to 
promise  to  support  his  statement 
that  he  had  been  with  her  upon  the 
evening  when  the  murder  took 
place.  A  day  or  two  later  Ruby 
Young  became  uneasy  as  to  the 
effect  her  promise  was  likely  to  pro- 
duce, and  asked  the  advice  of  a 
journalist  as  to  what  would  be  the 
best  thing  to  do,  putting  the  case 
as  a  hypothetical  one.  The  man, 
however,  at  once  saw  to  what  she 
alluded,  and  immediately  telephoned 
to  the  police,  and  this  led  to  the  ar- 
rest of  Robert  Wood. 

At  the  police  court  proceedings 
an  expert  opinion   was   given   that 


p.  121.) 
the  fragments  of  charred  paper 
found  in  the  grate  of  the  dead 
woman  were  in  the  handwriting  of 
Wood,  and  evidence  was  also  given 
by  the  present  writer  that  the  pig- 
ment in  which  the  characters  were 
wTitten  was  identical  with  that  of  a 
marking-ink  pencil  found  upon  the 
prisoner.  For  a  long  time  Wood 
denied  that  he  had  had  anything  to 
do  with  these  fragments.  Subse- 
quently, at  the  beginning  of  the 
trial  at  the  Old  Bailey,  he  admitted 
that  he  had  written  them,  though  to 
the  end  he  strenuously  refused  to 
admit  that  the  words  had  the  mean- 
ing which  they  appeared  to  suggest. 
He  denied  that  they  referred  to  any 
appointment  made  with  the  dead 
woman  for  the  day  upon  which  she 
was  murdered.  The  proof  of  the 
fact  that  these  bits  of  charred  paper 
had  really  been  written  by  Wood 
brought  him  very  close  to  the  scene 
of  the  crime,  and  his  attempt  to 
create  a  false  alibi  and  to  get  Ruby 
Young  to  bear  this  out  still  further 
strengthened  the  suspicion  against 
him.  The  most  telling  evidence,  how- 
ever, was  the  statement  of  a  carman, 
who  had,  he  asserted,  seen  a  man 
leave  the  house  of  the  murdered 
woman  at  five  o'clock  in  the  morning. 
He  had  not  seen  the  face  of  the  man, 
but  had  noticed  that  he  had  a  char- 
acteristic swinging  walk,  and  when 
taken  to  the  police  station  had 
identified  the  prisoner  among  a 
number  of  other  men,  who  had  been 
made  to  walk  round  the  yard,  as 
the  man  that  he  had  seen  coming 
down  the  steps  of  the  house.  Other 
evidence  was  given  as  to  Wood's 
having  been  seen  in  the  company 
of  the  deceased  woman  on  several 
occasions  in  the  past,  although  he 


294 


PART    I.      CIRCUMSTANTIAL   EVIDENCE 


No.  155. 


asstTttil  that  he  had  only  known  her 
a  few  days  and  had  seen  her  only 
once  or  twice.  The  had  reputation 
of  most  of  these  witnesses  detracted 
from  the  value  of  their  e\  idenee. 
Mr.  Marshall  Hall,  who  comlucted 
WtKMl's  defense,  nuide  a  very  bril- 
liant speech,  in  which  he  laiil  stress 
upon  the  weak  points  in  the  case  for 
the  prosecution  —  the  eviilence  that 
had  luH-n  pithered  from  a  tainted 
M)urce,  the  complete  absence  of  any 
motive  for  the  crime,  and  the  fact 
that  the  jury  were  trying  the  pris- 
oner f«>r  murder  and  not  for  im- 
morality or  lyinj:.  He  urged  that 
the  keynote  in  this  case  was  that 
\VtM>d,  who  had  a  great  deal  of 
vanity,  ct)uld  not  take  upon  himself 
the  re.s[K)nsil)ility  of  admitting  what 
would  cause  him  to  occupy  a  lower 
IKJsiiion  in  the  estimation  of  those 
who  had  given  him  their  undivided 
res|x*ct  and  alfection.   .   .   . 

The  chief  evidence  called  for  the 
defense  was  that  of  Wood's  father 
and  brother,  who  stated  that  he  was 
at  home  on  the  night  of  the  nmrder, 
and  that  of  a  neighbor  who  had  lived 
beneath  them,  who  had  seen  Wood 
come  home  that  evening.  A  ticket 
collector  named  Westcott,  employed 
at  King's  Cross  station,  stated  that 
he  liveil  in  tin-  same  road,  and  that 
on  the  early  morning,  when  Wood 
wtLs  stated  to  have  been  seen,  he 
left  his  house  at  five  minutes  to  five. 
He  wa.s  then  wearing  a  loose  over- 
c<»at.  Westcott  wa.s  a  broad-shoul- 
dere<l  num,  and  a  boxer,  and  had  a 
brisk  .swinging  walk.  It  was  this 
man,  it  was  suggested,  whom  Mc- 
(lowan  had  mistaken  for  Wood. 
WikkI,  himself,  was  put  into  the 
Ixi.x  anri  gave  hi>  evidence  in  a  low, 
and  at  times,  nearly  inaudible  voice, 
though  he  showed  not  a  sign  of 
nervousness.  He  gave  emphatic 
defiiah  tf»  the  (pitstions  pvit  to  him 
in  cross-<-xumiiuition  by  Sir  (!harles 
Matthews,  but  In-  admitted  having 
lied  in  the  mutter  of  the  false  alibi 
that  he  had  attempted  to  set  up. 
He  was,  he  said,  in  ji  tight  corner, 
and  any  man  would  have  done  the 


same  if  placed  in  the  same  condi- 
tions. With  reference  to  the  frag- 
ments of  paper  on  which  were  words 
in  his  handwriting  he  denied  that 
they  were  part  of  a  letter,  and  sug- 
gested that  it  might  have  been  some 
scrap  of  writing  taken  from  his 
pocket  by  the  dead  woman.  The 
theory  of  its  referring  to  an  assig- 
nation was,  he  suggested,  an  act  of 
imagination  on  the  part  of  the  pros- 
ecuting counsel. 

The  judge,  Sir  William  Grantham, 
in  summing  up  the  case,  pointed  out 
tiiat  hatl  it  not  been  for  the  conduct 
of  Wood  himself  in  telling  lies  and 
keeping  back  what  he  knew-,  there 
would  have  been  no  justification 
for  such  a  lengthy  trial.  The  evi- 
dence of  McGowan  was,  he  said, 
open  to  a  certain  amount  of  doubt 
owing  to  the  fact  that  the  witness 
had  not  mentioned  at  once  about 
having  noticed  a  peculiarity  in  the 
walk  of  the  man  he  saw  leaving  the 
hou.se  in  St.  Paul's  Road,  just  before 
five  o'clock  on  the  morning  of 
September  12th.  .  .  . 

It  was  a  quarter  to  eight  in  the 
evening  when  the  jury  retired  to 
consider  their  verdict,  and  before 
eight  had  struck  they  were  back 
again  in  court,  and  had  pronounced 
their  verdict  of  "Not  guilty." 
Cheer  on  cheer  swept  through  the 
coiH't,  and  for  some  minutes  it  was 
impossible  for  the  judge  and  the 
court  officers  to  obtain  silence. 
Men  and  women  thronged  round  the 
dock  eager  to  grasp  the  hand  which 
Robert  Wood  held  out  to  them  over 
the  rail.  Outside,  in  the  street,  the 
dense  mob  that  thronged  up  to 
the  very  doors  of  the  court,  took  up 
the  cry,  and  yelled  itself  hoarse  with 
the  words  "  Not  guilty.  Not  guilty." 
.  .  .  Robert  Wood  had  become  the 
popidar  hero  of  the  hour.  It  is 
difficidt  how  to  account  for  this  hero- 
worship  of  a  man  who  had  done 
nothing  to  justify  such  worship, 
except  upon  the  theory  of  an  emo- 
tional infection  that  had  destroyed 
the  balance  of  collective  judg- 
ment. 


TITLE    V.     THE  DATUM  SOLVENDUM 

156.     John  H.  Wigmore.     Principles  of  Judicial  Proof.     (1913.) 

In  the  foregoing  outline  of  the  classes  of  Probanda  and  the  principal 
kinds  of  circumstantial  inference  usable  to  prove  each  kind,  it  has  been 
assumed  that  the  Probandum  is  a  simple  and  known  fact.  But  in  practice 
neither  of  these  assumptions  is  usually  correct.  The  Probandum  may  be 
more  or  less  complex,  and  it  may  be  more  or  less  disputed.  What  is  the 
effect  of  these  two  features  on  the  reasoning  process  in  dealing  with  the 
evidential  circumstances  ? 

A.  Probandum  Complex.  When  the  Probandum  is  complex,  each  item 
of  complexity  affects  the  range  of  evidential  facts,  and  the  force  of  the 
inferences,  by  fixing  some  detail  of  the  Probandum  to  which  the  proof 
must  be  directed.  Take  the  simple  fact  of  a  murder  on  Jan.  21.  When  a 
particular  person  is  charged  as  the  doer,  we  may  argue  that  the  accused 
was  near  the  place  at  the  time  when  the  death  occurred ;  that  he  was  seen 
running  away  soon  afterwards  ;  and  that  he  has  a  bad  character  for  robbery 
by  violence.  These  are  generic  evidences  suitable'  for  any  murder  in 
general.  But  if  the  further  details  are  given,  that  the  deceased  was  killed 
by  poison  which  must  have  been  taken  twelve  hours  before,  on  Jan.  20, 
and  that  a  large  sum  of  money  was  found  untouched  on  his  person,  the 
Probandum  now  becomes  :  an  act  of  giving  poison  on  Jan.  20,  and  no  motive 
of  taking  the  deceased's  money.  Thus  the  direction  of  the  proof  is  sub- 
stantially changed,  and  with  it  the  relevant  evidence.  Presence  on  Jan. 
21,  and  the  motive  of  robbery,  do  not  now  point  to  this  killing.  The 
added  details  thus  are  essential  to  know  in  estimating  the  proof.  Take 
again  the  case  of  a  robbery  of  a  bank  vault.  If  the  article  missing  is  a  roll 
of  money,  the  kinds  of  evidence  pointing  to  a  particular  person  will  be 
of  one  sort;  but  if  the  article  missing  is  a  contract  needed  for  closing  an 
investment  at  the  next  director's  meeting,  the  evidence  would  be  quite 
different ;  and  if  it  were  a  bundle  of  non-negotiable  securities  essential  for 
showing  a  correct  balance  to  the  bank  examiner  at  his  next  visit,  the  proof 
must  be  given  a  still  different  direction. 

In  another  aspect.  Complexity  of  detail  is  important.  It  may,  and 
usually  does,  involve  more  than  one  of  the  foregoing  classes  of  Probanda,  — 
External  Event,  Identity,  Human  Quality,  and  Human  Act.  A  Proban- 
dum involving  only  one  of  these  is  indeed  the  unusual  feature.  Hence, 
the  Probandum  must  be  analyzed  into  its  components,  so  that  the  various 
evidential  facts  can  be  grouped  so  as  to  exhibit  their  respective  indications. 
In  a  murder  charge  (for  example,  Courvoisier's),  where  the  one  question  is 
whether  the  murderer  was  an  inmate  of  the  house,  or  an  intruder,  and  a 

295 


296  PART    I.      CIRCUMSTANTIAL   EVIDENCE  No.  156. 

back  door  is  found  with  l)reaks  and  marks,  the  cause  of  these  breaks  and 
marks  depends  on  their  physical  features,  i.e.  it  is  a  fact  of  External  Nature. 
S«)  in  a  railroad  accident,  a  part  of  the  issue  may  be  whether  a  broken  rail 
«.r  a  misplaced  switch  was  its  cause ;  this  is  a  fact  of  External  Nature;  but 
aloiiK  with  it  may  thus  be  involved  the  issue,  Who  turned  the  switch;  and 
here  a  Human  Act  and  its  appropriate  evidences  become  a  subject  of  proof. 

Every  Prol)andum,  then,  may  be  complex;  and  the  details  of  its  com- 
plexity will  affect  the  probative  use  that  may  be  made  of  facts  offered  as 
evidence. 

B.  Prubanduin  Dhputvd.  Whin  the  Probandum  is  disputed,  the  pro- 
bative effect  of  specific  evidential  facts  cannot  be  surely  known  until  the 
Probandum  is  .settled.  Hence,  to  this  extent,  its  effect  is  only  hypothetical 
in  the  nu-antime.  The  Probandum  sometimes  is  disputed,  sometimes  not, 
in  practici'.  For  example:  \  tree  on  a  suburban  lawn  is  cut  down;  if 
this  is  undisputed,  the  only  i.s.sue  is.  Did  X  cut  it  down  ?  But,  instead, 
suppose  that  it  is  disputed  whether  a  tree  was  cut  down  at  all ;  we  may 
be  able  to  pro\e  that  there  was  a  tree  there  yesterday  and  that  there  is 
only  a  deep  hole  there  to-day,  and  we  may  not  prove  that  a  tree  was  cut 
down  at  all ;  thus  the  issue  whether  X  cut  it  down  is  never  reached.  Or 
.suppose  that  the  X  Co.  is  charged  with  the  loss  of  a  bag  of  valuables  left 
in  a  railroad  car;  whether  an  intruder  or  an  employee  took  it,  is  here  the 
issue.  Hut  perhaps  it  is  disputed  whether  there  was  ever  any  bag  there 
to  be  taken  ;  here  arises  a  prior  issue,  and  the  other  issue  may  never  really 
ari.se.  Or,  again,  on  a  charge  of  the  murder  of  M,  M's  body  is  found  ; 
and  the  <»nly  i.ssue  is,  DitI  X  kill  him  ?  But  perhaps  the  death  of  M  is* 
itself  disputed  ;  we  may  proceed  to  show  that  M  was  last  alive  seen  in  his 
office  on  Saturday  afternoon ;  that  he  did  not  come  home  that  night,  and 
that  a  body  was  ff)und  in  the  river  two  weeks  later.  If  this  is  not  enough 
to  provi'  the  death,  then  no  issue  as  to  X's  causing  it  can  arise.  This 
feature,  in  criminal  cases,  leads  to  the  well-know^n  maxim  that  the  "corpus 
delicti"  must  first  be  clearly  proved. 

Thus,  the  Probandum  may  be  in  dispute;  and  this  dispute  may  itself 
involve  a  separate  mass  of  proof  directed  to  an  External  Event,  a  Human 
Act.  etc. 

Furthermore,  a  dispute  as  to  a  detail  in  a  complex  Probandum  may 
leave  the  whole  direction  of  proof  of  the  Act  in  a  hypothetical  condition 
until  the  detail  be  regarded  as  settled.  For  example,  if  a  homicide  is 
committed,  a  d«'tail  of  the  Prf)ban(lum  may  be  that  a  pocketbook  full  of 
money  was  missing  fn!tt\  the  deceased's  person.  Suppose  this  is  disputed ; 
tlu-n  the  Probandum  becomes,  not  a  homicide  for  money,  but  a  homicide 
for  some  other  motive;  and  thus  the  direction  of  the  whole  line  of  motive 
evidrncc  n-mains  in  suspense  until  this  detail  be  regarded  as  settled,  .\gain, 
in  the  Ibilt  Will  ('a.se  (/xw/,  .No.  :i<)0),  the  supposed  will  arrived  l)y  mail  in 
the  hands  of  the  registrar  of  probate,  and  was  a  document  partly  burned 
ainl  bearing  the  attesting  signatures  of  General  Grant  and  General  Sher- 
man. One  hyix)thesi.s  was  that  the  tlocument  was  not  genuine;  the  other 
wa.s  that  it  was  a  genuine  document  revoked  by  the  testator.  But  these 
hyfM.theses  wen-  inconsist.-nt,  and  ol)viously  affected  in  essential  ways  the 
I.robatiye  b.-aring  of  various  evidential  facts.  Again,  in  the  Kent  Case 
(m,tr,  .\o.  Ill),  if  it  colli. I  l.;.v  b,.,-n  determined  whether  a  deceased  was 


No.  157.  V.      DATUM    SOLVENDUM  297 

killed  by  choking,  or  by  cutting  the  throat  with  a  razor,  the  direction  of 
proof  as  to  the  doer  would  have  been  materially  affected. 

Thus,  in  the  common  case  where  the  doing  of  a  Human  Act  is  to  be  the 
main  issue,  the  fixing  of  the  Probandum  and  its  details  becomes  a  pre- 
liminary and  independent  process  of  great  importance.  This  may  be 
termed  the  process  of  fixing  the  datum  soheiidum. 

The  canon  which  rests  on  the  feature  of  Complexity  may  be  thus  phrased  : 

(A)  Determine,  classify,  and  state  with  precision,  as  many  details  as  possible 
of  the  Datum  Solvendum. 

The  canon  which  rests  on  the  feature  of  Disputability  may  be  thus  phrased  : 

(B)  Distinguish  the  {practically)  disputable  and  indisputable  details  of  the 
Datum  Solvendum ;  treat  as  hypothetical  all  lines  of  proof  of  the  Act  which 
are  dependent  on  the  former ;  and  for  each  disputable  detail  trace  beforehand 
the  effect  of  either  settlement  of  it  iipon  the  lines  of  proof. 

Ordinarily,  to  be  sure,  the  importance  of  thus  giving  explicit  statement 
to  the  Datum  Solvendum  ends  with  the  process  of  the  detection  of  the  doer 
and  the  preparation  of  the  evidence.  By  the  time  a  case  is  presented 
before  the  jury,  all  of  the  details  of  the  Datum  have  taken  a  fixed  shape, 
and  all  of  the  evidence  is  marshaled  with  a  view  to  that  precise  shape.  E.g. 
whether  the  deceased  was  a  man  or  a  woman  would  doubtless  be  important 
in  searching  for  clews  to  the  murderer,  and  in  collating  the  evidence ;  but 
by  the  time  the  case  is  presented,  the  prosecution  will  have  made  up  its 
mind  which  is  the  fact ;  and  if  that  fact  be  that  the  deceased  was  a  woman, 
then  all  the  evidence  pro  and  con  will  be  directed  to  the  issue.  Did  the  deft 
kill  this  woman  ?  Thus,  the  labor  devoted  to  the  settlement  of  this  detail 
will  have  been  spent  before  the  issue  is  joined ;  the  course  of  the  evidence 
will  already  have  been  settled ;  and  the  deliberations  of  the  tribunal  will 
not  be  affected  by  any  uncertainty  of  the  Datum  Solvendum. 

But  from  time  to  time  cases  are  presented  in  which  both  the  complexity 
and  the  uncertainty  of  the  Datum  Solvendum  remain  after  the  evidence 
has  been  prepared.  It  is  presented,  in  part,  therefore,  hypothetically. 
Thus  the  tribunal  must  use  caution  in  separating  the  detailed  issues  and  in 
noting  the  uncertainty  of  some  part  of  the  probandum.  In  Thornton's 
Case  (post.  No.  162),  for  example,  the  uncertainty  of  the  place  and  time  of 
death  made  all  the  difference  in  the  effect  of  the  alibi  evidence.  In 
Hatchett  v.  Com.  {post.  No.  378)  the  fact  that  the  deceased  had  died 
from  poison  or  from  colic  was  open  to  argument.  In  such  cases,  therefore, 
the  Datum  Solvendum  and  its  details  remain  for  the  consideration  of  the 
tribunal  during  the  course  of  the  evidence ;  and  the  tribunal's  ultimate 
application  of  the  evidence  cannot  be  made  until  it  has  reached  a  conclusion 
as  to  the  Datum  Solvendum. 

The  following  cases  (Nos.  159—162)  serve  to  illustrate  the  importance  of 
an  accurate  fixing  of  the  Datum  Solvendum. 

157.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(1868.  pp.  253,  583.)  In  the  application  of  circumstantial  evidence  to  the 
judicial  investigation  of  the  truth  of  criminal  charges,  the  principal  or 
central  fact  just  spoken  of  is  the  crime  supposed  and  charged  to  have  been 
committed.  The  proof  of  the  general  fact  of  a  crime  committed,  or  "corpus 
delicti "  (as  it  is  technically  termed),  is  sometimes  a  short  and  simple  process  ; 


298  PART    I.       CIRCUMSTANTIAL    EVIDENCE  No.  157. 

the  circumstances  beinj;  few,  hut  cogent  in  their  indications,  and  the  con- 
chjsion  sought,  manifest  and  irresistible.  A  cry  of  distress  is  heard  from  a 
building  or  apartment,  followed,  successively,  by  sounds  as  of  a  mortal 
struggle  anil  a  heavy  fall.  The  place  is  entered  as  quickly  as  possible, 
and  a  person  is  found  extended  on  the  floor,  dying  from  mortal  wounds 
visibly  inHictetl  with  a  sharp  instrument,  in  such  a  part  of  the  body,  or  in 
such  "numl»ers  or  ilirections.  as  to  forbid  the  supposition  of  suicide,  and  the 
insirunifut  itself  is  nowhere  to  be  found.  .  .  . 

Suppt>'iing  it  proved,  and  returning  to  the  general  view  just  taken,  of 
minor  facts  in  their  relative  position  as  surrounding  a  principal  fact,  the 
pnxress  of  aggrcgaiing  these  elementary  circumstances  into  a  body  of  evi- 
dence may  be  mo>t  conveniently  illustrated  by  beginning  with  a  single 
circumstance,  and  atldlng  to  it  another;  and  .so  proceeding  gradually  by  a 
successiim  of  adilitions. 

The  original  basis  of  all  the  investigation  which  is  undertaken,  is  the 
ca.se  or  transaction,  a.s  it  actually  occurred;  composed,  in  addition  to  the 
principal  ai-t  of  the  crime  itself,  of  a  variety  of  circumstances,  —  precedent, 
concomitant,  and  sul»seiiucnt,  —  of  physical  facts,  psychological  facts,  and 
facts  of  conduct,  —  all  consistent  with  each  other,  and  all  connected  with 
each  other  and  with  the  criminal  act,  in  a  certain  order  and  relation.  This 
is  the  case  or  transaction,  in  its  absolute  form  of  reality  and  truth.  But 
this  transaction,  having  had  only  a  transient  existence,  has  passed  away.  .  .  . 
As  a  wh(jle,  in  its  full  character  and  extent,  and  in  the  true  relation  of  all 
its  parts,  it  was  unknown  to  any  human  being  besides  the  perpetrator 
(supposing  it  the  work  of  a  single  agent),  and  none  but  he  can  fully  repre- 
sent it  in  a  narrative  of  the  past.  It  has,  however,  left  traces,  more  or  less 
numerous,  consisting  of  physical  objects  and  appearances  (some  still  exist- 
ing in  specie)  and  contemporaneous  impressions  made  on  the  senses  and 
memories  of  individual  observers.  The  great  object  of  all  investigation  is 
to  collect  these  scattered  remnants  and  vestiges  of  action ;  to  examine  and 
compare  them  ;  to  adjust  them  to  each  other,  by  means  of  indications  which 
they  themselves  i^imediately  furnish,  as  well  as  by  the  aid  of  general  prin- 
ciples of  presum^ive  reasoning;  to  ascertain,  as  it  were,  their  original 
places  and  positions ;  and,  by  this  means,  to  reconstruct  the  case,  as  far  as 
possible,  out  of  them  ;  to  recall  it  from  the  past,  and  to  present  it  as  a  sub- 
ject for  consideration,  in  a  state  of  as  close  approximation  to  the  form  of 
its  original  occurrence  as  may  be  practicable.  The  more  adecjuately  this 
is  don<'.  the  more  easy  does  the  process  of  investigation  become,  and  the 
more  accurate  are  the  conclusions  ultimately  reached  by  it. 

The  following  list  of  items  illustrates  the  kinds  of  detail  there  to  be 
scjught  in  I'hiisiral  Facts  or  Circumstances: 

\ .  The  suhject  of  the  offense.  As,  in  murder,  the  person  killed,  or  mortally 
injured,  or  the  remains  of  .such  person  :  in  arson,  the  building  burned,  or 
It-*  remains :  in  rafH-  and  robbery,  the  person  assaulted  or  violated  :  in 
rohU-ry  and  larceny,  tin-  thing  stolen:  in  burglary,  the  building  broken 
into:  in  forg.-ry.  the  nu.ney  f,r  instrument  fabricated  :   and  the  like. 

2.  The  ni,praraur,,s  of  such  subject.  As,  in  murder,  the  position  of  the 
iHMJy.  lis  i.-ft  by  the  criminal,  or  as  concealed  by  burial,  immersion  in  water, 
..r  r,therwi..«.;  woun.ls  and  marks  of  violence  visible  upon  it;  the  position, 
direction,  anrl  number  ..f  the  wounds,  and   their  particular  appearances; 


No.  157.  V.      DATUM    SOLVENDUM  299 

foreign  substances,  attached  or  adhering  to  the  body ;  marks  of  violence 
visible  upon  the  dress  ;  mutilation,  dismemberment,  and  destruction  of  the 
body,  or  portions  of  it ;  outward  appearances  indicative  of  poison ;  detec- 
tion of  poison  in  the  body  :  in  rape  and  robbery,  marks  of  violence,  stains 
of  blood  upon  the  person  or  clothing :  in  arson,  the  appearances  of  a  fire 
kindled  by  design :  in  burglary  and  robbery,  marks  of  violence  upon 
windows,  doors,  walls,  and  the  like. 

3.  The  instruments  of  the  offense.  As,  in  murder,  the  weapon  or  instru- 
ment of  death,  —  the  gun,  pistol,  knife,  dagger,  razor,  hatchet,  axe,  club, 
or  stone ;  the  poison  and  its  vehicle  ;  the  cord  or  handkerchief  for  strangu- 
lation ;  the  explosive  machine  :  in  rape  and  robbery,  the  stupefying  liquor 
or  drug :  in  arson,  the  combustibles,  matches,  lights,  and  inflammable 
substances  :  in  burglary,  the  keys,  picks,  crows,  saws,  chisels,  and  other 
burglars'  tools  :  in  forgery  and  counterfeiting,  the  dies,  presses,  coining 
tools,  chemical  agents,  and  the  like. 

4.  The  appearances  of  such  instruments :  such  as  signs  of  a  firearm 
having  been  recently  discharged  ;  stains  of  blood  upon  a  knife,  sword,  or 
hatchet ;  curvature  of  a  sword  blade ;  indentations  or  fractures  of  a  club  ; 
fragments  of  an  exploded  machine ;  combustible  substances  strewed  about 
and  saturated  with  an  inflammable  liquid. 

5.  The  place  of  the  offense,  or  scene  of  the  crime :  as  the  building, 
yard,  street,  road,  field,  thicket  or  wood,  vehicle  or  ship,  where  the  victim 
of  the  murderous  or  violent  assault  is  found,  or  to  which  he  or  she  is  de- 
coyed or  forcibly  carried ;  the  chamber  where  the  poison  is  administered, 
or  into  which  the  explosive  machine  is  conveyed ;  the  apartment  where  the 
coin  is  counterfeited  ;    and  the  like. 

6.  The  place  of  the  offense,  considered  as  the  instrument  or  means  of 
its  commission  :  as  the  pond,  pit,  well,  or  stream  where  the  body  is  drowned  ; 
the  rock  or  precipice  over  which  it  has  been  pushed  or  thrown ;  and  the 
like. 

7.  The  appearances  of  the  place  or  scene  of  the  crime,  or  of  neighboring 
bodies  or  places.  As,  in  murder,  the  bloody  floor,  bed,  chair,  path,  or 
road;  spots  or  stains  of  blood  on  the  walls,  doors,  etc.,  of  a  house;  or  on 
well  curbs,  gates,  stiles,  or  fences  ;  or  on  trees,  grass,  snow,  or  the  ground 
itself ;  especially  when  concealed  or  attempted  to  be  concealed  from  view ; 
marks  of  instruments  of  violence,  as  indentations,  discolorations,  or  per- 
forations made  by  a  ball  from  a  firearm,  or  the  stroke  of  a  heavy  imple- 
ment ;  marks  made  by  the  explosion  of  a  machine ;  marks  of  struggles,  or 
resistance  to  violence ;  marks  of  footsteps  at  the  place,  or  leading  to  or 
from  it ;  marks  or  impressions  of  certain  parts  of  the  offender's  body,  as 
of  the  knee,  or  hand,  bloody  finger  marks,  etc. ;  marks  made  by  dragging 
a  body  into  a  place  of  concealment ;  lights  burning  on  premises  at  unusual 
hours ;  lights  suddenly  extinguished.  In  arson,  traces  of  smoke  or 
flame.     In  burglary,  marks  of  burglars'  instruments,  and  the  like. 

8.  Sounds  heard  at  the  scene  of  crime,  or  in  its  vicinity  :  such  as  cries 
of  distress ;  reports  of  firearms ;  sounds  of  an  explosion,  of  bodies  falling, 
of  footsteps,  of  a  scuffle,  and  of  voices  ;  alarms  given  by  animals  ;  the  sound 
of  wheels,  or  sleigh  bells,  or  of  the  trampling  of  a  horse ;  noises  made  by 
bursting  in  a  door  ;  sounds  heard  from  locked-up  premises,  such  as  the  clash- 
ing of  steel,  the  shivering  of  glass,  the  moving  of  articles  about,  the  tearing 


300  PART    I.       CIRCUMSTAXTIAL    EVIDENCE  No.  158. 

of  cloths,  the  ruhhinj:  of  a  Hoor.  the  running  of  water,  the  sawing  of  hoards, 
hammering,  ami  the  hke  ;  total  silence  iniinediately  following  unusual  or 
ulurming  sounils. 

9.  Sinclb  of  smoke  or  hurning  suhstances ;  the  odor  of  poisonous  sub- 
slanees;  the  odor  of  inllanunahle  liquids  prepared  for  arson  and  the 
hke. 

10.  Impressions  on  the  sense  of  touch:  as  the  heat  of  a  wall,  indicating 
an  unusual  fire ;   the  heat  or  coldness  of  ashes  in  a  stove ;  and  the  like. 

11.  Impressions  on  the  sense  of  taste:  as  of  a  poison  to  which  the  tongue 
is  applied  ;   of  a  garment  saturated  with  salt  water ;   and  the  like. 

12.  Ditarhnl  boilivs  found  at  the  scene  of  crime,  or  in  its  vicinity  :  as 
articles  of  <lress.  or  portions  of  them  ;  patches  for  the  charge  of  a  rifie ;  a 
hall  extracted  from  the  wootlwork  of  a  house,  or  found  at  the  foot  of  a 
tree ;  the  ramrod  of  a  pistol ;  grains  of  wheat  scattered  al>out ;  and  the 
hke. 

V.i.  Symptoms  of  poison :  as  contortions  of  the  body,  spasms,  vomiting, 
swelling,  discoloration,  complaint  of  liurning  and  pricking  sensations. 

14.  l*cculiaritiis  about  the  person  of  the  accused:  such  as  wounds, 
scratches,  bruises ;  stains  of  lilood  upon  the  person  or  clothing ;  rents,  in- 
cisions, and  other  injuries  to  clothing ;  disorder  or  wetness  of  the  dress ; 
stains  of  earth,  or  other  substances ;  natural  marks,  such  as  the  want  of  an 
eye,  finger,  or  front  tooth ;  the  being  left  handed,  or  carrying  the  head  on 
one  side;  peculiarities  of  size,  shape,  gait,  and  voice;  appearances  as  of 
something  concealed  under  the  dress;   and  the  like. 

lo.  Peculiarities  aliout  ohjrcts  in  the  possession  of  the  accused  :  as  the 
sweating  and  smoking  of  a  horse  in  his  stable,  horsehair  and  lint  adhering 
to  a  newly  discharged  rifle. 

1(>.  Matiridl.s  of  the  subject-matter  of  the  offense,  or  capable  of  being 
converted  into  instruments  of  the  offense,  including  the  means  of  their 
y)roduction.  .\s,  in  nnirdcr,  lead  for  casting  bullets,  l)ullet  molds,  leaves 
fntm  which  a  poison  could  be  distilled,  utensils  for  distilling;  in  arson, 
materials  for  making  inflammable  substances;  in  forgery  and  counter- 
feiting, metal  for  coining,  bank-note  paper,  l)ank-note  plates  engraved,  or 
in  process  of  being  engraved,  metallic  or  paper  money  in  process  of  being 
fabricated  ;    and  the  like. 

17.  Rrn  jitiirh.s  inclosing  or  having  inclosed  the  subject,  the  instrument, 
or  the  fruits  of  the  offense.  As,  in  murder,  the  clothes  of  the  person  killed ; 
the  box  or  chest  in  which  the  body  or  its  remains  are  concealed ;  the  box 
for  hoMing  an  exi)losive  machine;  the  drawer,  case,  or  trunk,  in  which 
pistols  are  found,  or  have  been  kept ;  vials  or  papers  containing  or  hliving 
contained  poison  ;  in  arson,  the  box  or  case  for  holding  combustibles  or 
secreting  a  candle;  barrels  containing  infiammable  liquids;  in  larceny  or 
robbery,  the  closet,  drawer,  trunk,  package,  or  case,  containing  or  having 
contained  the  articles  stolen  ;  the  Hof)r  or  wall  beneath  or  behind  which 
they  have  bcni  •■onccaled  ;  ami  the  like. 

158.  Hans  Gross.  Criminal  Imrstiqation.  (transl.  J.  and  J.  C.  Adam. 
1907.  p.  127.)  .  .  .  The  investigator,  however  inexperienced,  will  commit 
no  gnive  mistake  if  he  always  remembers  the  old  and  precious  maxim  of 
the  jurist. 


No.  158.  V.       DATUM    SOLVEXDUM  301 

Quis,  quid,  ubi,  quibus  auxiliis,  cur,  quomodo,  quando  ? 

Who,  what,  where,  with  what,  why,  how,  when  ?  -^ 

"  What  was  the  crime,  who  did  it,  when  was  it  done,  and  where, 

How  done,  and  with  what  motive,  who  in  the  deed  did  share?  " 

If  these  words  be  always  kept  prominently  before  one  in  one's  office,  they 
will  be  impressed  on  the  memory  and  imagination,  and  prevent  many  a 
grave  mistake.   .   .   . 

The  extent  of  the  description  in  the  first  place  naturally  depends  on  the 
nature  of  the  crime.  In  all  cases  (we  are  not  dealing  with  accidents)  the 
following  must  be  described : 

1.  The  place  itself;  2.  The  direction  from  which  the  guilty  person  came  ; 
3.  That  in  which  he  went  away ;  4.  The  spots  w'hence  the  witnesses  have 
seen,  or  could  have  seen,  anything ;  5.  All  points  where  traces  of  the  crime 
are  to  be  found  or  where  they  might  have  been  expected  to  be  found,  but 
where  in  fact  there  are  none. 

The  notification  of  even  purely  negative  facts  should  not  be  neglected, 
for  on  the  one  hand  they  may  lead  to  positive  inferences  and  on  the  other 
reassure  the  reader  and  show^  him  that  they  w^ere  not  forgotten  altogether. 
Suppose,  e.g.,  traces  of  blood  are  mentioned  as  having  been  found  in  the 
room  of  a  murdered  man ;  it  is  not  sufficient  merely  to  enumerate  these, 
but  what  has  not  been  found  must  also  be  stated,  as  e.g.  that  there  was  no 
bloody  water  in  the  wash-hand  basin  nor  an}-  imprints  of  blood-stained 
fingers  —  or  hands ;  or  if  the  report  concerns  a  search  for  compromising 
papers  which  has  been  without  result,  it  must  be  expressly  stated  that  no 
ashes  of  burnt  paper  were  to  be  found  in  the  fireplace.  The  special  cir- 
cumstances attaching  to  each  particular  crime  must  of  course  be  set  out, 
e.g.  in  cases  of  arson  the  objects  more  especially  exposed  to  danger  or  any- 
thing that  may  have  assisted  or  impeded  the  w^ind  —  in  riots,  places  from 
wdiich  weapons  have  been  taken  (such  as  a  fence,  pile  of  wood,  thatched 
roof  of  a  hut,  etc.).  After  the  general  sketch,  the  actual  place  of  occurrence 
must  be  described  in  detail,  as  e.g.  in  cases  of  murder  the  room  containing 
the  body  of  the  victim,  in  cases  of  burglary  the  place  where  the  house  was 
broken  into,  or  in  arson  the  place  wdiere  the  fire  first  started.  .  .  . 

In  doing  this  the  Investigating  Officer  must  proceed  step  by  step  examin- 
ing minutely  at  the  same  time  its  description  as  WTitten  down.  A  piece  of 
cloth,  for  instance,  lying  on  the  ground  will  be  primarily  described  accord- 
ing to  the  impression  it  produced  when  first  observed,  as  e.g.  "  Quite  near 
the  corpse,  an  inch  from  the  left  hand,  a  red  cloth  rolled  up  in  a  ball,  ap- 
parently of  cotton  and  about  the  size  of  a  pocket  handkerchief,  one  corner 
sticking  out,  lying  on  the  ground  in  the  direction  of  the  head  of  the  body. 
On  picking  up  this  piece  of  cloth  it  is  found  not  to  be  cotton,  but  half  silk. 
It  is  a  three-cornered  scarf  with  hemmed  borders  and  each  side  17  inches 
(43  cm.)  in  length.  It  is  unmarked,  and  has  a  hole  in  the  middle  about 
the  size  of  a  pie-piece  probal)ly  due  to  use.  Under  the  scarf  is  no  trace 
of  blood  or  anything  remarkable.  It  is  not  identified  by  any  one  present 
(naming  those  present.  A,  B,  C,  etc.) ;  it  probably  therefore  did  not  belong 
to  the  murdered  person."  He  then  passes  on  to  all  the  important  details 
that  may  serve  to  throw  light  on  the  case,  footprints,  marks  caused  by 
firearms  or  tools,  impressions  of  all  kinds,  in  short  everything  which  may 


302  PART    I.       CIRC  r.MSTANTIAL    EVIDENCE  No.  159. 

have  been  produced  by  the  jruilty  person,  antl  everything  which  may  have 
been  articles  left  behind  by  him.   .   .   . 

It  is  impossible  to  notice  everytliing  which  may  subsequently  turn  out 
to  be  of  importance,  even  though  folio  volumes  be  written ;  for  there  are 
always  certain  details  which  will  be  passed  over  owing  to  the  difficulty  of 
foreseeing  their  value.  In  one  case  it  turned  out  to  be  of  great  significance 
to  know  whether  the  sun  shone  into  a  certain  part  of  the  room  at  a  certain 
hour  of  the  day,  and  ft)r  this  purpose  the  locality  had  to  be  specially  re- 
visited, though  very  far  distant  from  the  place  where  the  court  was  sitting. 
In  another  case  everything  depended  upon  whether  any  sand  was  strewn 
about  on  the  floor  of  the  room,  a  point  that  no  one  had  thought  it  worth 
while  to  observe.  .  .  .  The  old  axiom  of  the  Civil  Law"De  minimis  non 
curat  lex"  does  not  hold  good  for  the  Investigating  Officer.  Only  too  often 
he  must  seek  the  strongest  proof  in  the  smallest  details.  Every  one  has 
seen,  every  one  has  read  in  thcnisands  of  criminal  tragedies,  cases  where  some 
trifle  has  become  the  pivot  upon  which  the  whole  case  turned ;  and  yet  the 
capital  fault  in  inspecting  localities  very  often  consists  in  the  neglect  of 
small  details,  the  importance  of  which  would  have  been  apparent  if  a 
proper  and  sustained  attention  had  been  brought  to  bear  upon  thera. 
The  following  cases  are  cited  from  the  author's  own  experience.  On  one 
occasion  everything  rested  on  whether  or  not  at  the  hour  of  the  crime  the 
latch  of  the  door  was  oiled  or  made  a  noise;  on  another,  whether  a  half- 
burnt  cigar  vas  in  an  ash  tray  or  beside  it ;  again,  whether  there  was  a 
spider's  web  near  a  nail  in  the  wall ;  on  another,  whether  there  was  still 
some  kerosene  in  a  lamp  (I.e.  whether  it  had  been  extinguished  or  had 
burnt  itself  out).  In  a  murder  case  the  assailant  would  certainly  have 
gone  undiscovered  if  the  Investigating  Officer  had  not  thought  of  examining 
the  t«)p  of  a  wooden  partition  about  eight  feet  in  height  and  not  reaching 
to  the  ceiling.  He  saw  that  the  top  of  the  partition  was  covered  with  a 
thick  coating  of  tlust  save  in  one  place  where  the  dust  had  been  displaced, 
and  naturally  concluded  that  a  man  must  have  quite  recently  climbed  over 
the  partition  at  the  spot.  He  made  a  search  and  discovered  the  accused 
among  people  living  in  the  room  separated  from  the  scene  of  the  crime  by 
the  partition  in  (juestion. 


150.    CHRISTOPHER     RUPPRECHT'S     CASE.       (Anselm     von 

Feukhb.\(  II.  li<  iiiitrhtihlr  (i(riitiui  Crliiiinal  Trialfi.  transl.  Gordon. 
1S40.      p.  112.) 

In  the  year  1.S17  there  lived  in  the  trade  or  of  the  money  he  lent  out 

town  of  M a  goldsmith  of  the  at  interest,  but  trusted  entirely  to 

name    of    ('hrist(»plier     Riipprecht.  his  memory  and  to  the  assistance  he 

He  was  between   the  ages  of  sixty  occasionally    received    from    others 

and  .sixty-fiv«-,  and  in  easy  circum-  in    arranging    and    drawing    up    his 

stances.     He  had  been  twelve  years  bills.     He  was  a  man  of  vulgar  mind 

a   widower,  and   had   but  one  child  and  coarse  habits,  fond  of  associat- 

living.    a    dauuhtcr.    married    to    a  ing  with  people  of  the  verv  lowest 

furrier  named    Hi«Tinger.   a   l)rothcr  class,  and  of  frequenting  alehouses, 

and   two  sisti-rs.      Hupi)rccht   could  where  his  chief  delight  was  in  slang 

neither   rea<l   nor   write   and    th.-rc-  and   al)use,   and    where   he   suffered 

fore  kept   no  account    cither  of  his  hiiiiself  to  be  made  the  butt  of  the 


No.   159. 


DATUM    SOLVENDUM 


303 


roughest  jokes  -Gnd  the  most  vulgar 
witticisms.  His  ruhng  passion  was 
avarice  and  his  favorite  business  the 
lending  money  at  usurious  interest. 
.  .  ,  For  about  a  year  he  had  been 
in  the  daily  habit  of  frequenting 
a  small  beer  shop,  commonly  called 
the  Hell.  .  .  .  The  party  as- 
sembled there  consisted  of  eleven 
respectable  burghers,  who  sat  talk- 
ing and  drinking  together  till  about 
half  past  ten,  when  Rupprecht  called 
for  another  glass  of  beer,  and  the 
host  left  the  upper  parlor  where 
his  guests  were  assembled,  and 
went  down  into  the  tap  to  fetch  it. 
As  he  was  going  upstairs  with  the 
beer,  and  had  almost  reached  the 
top,  he  heard  the  bell  over  the  street 
door,  and  on  asking  what  was 
wanted,  he  was  answered  in  a  strange 
voice  by  the  inquiry  whether  Mr. 
Rupprecht  was  there.  Without 
looking  round,  the  host  answered 
that  he  was,  and  the  stranger  re- 
quested him  to  desire  Rupprecht  to 
step  down  to  him  for  a  moment. 
The  host  delivered  the  message 
to  his  guest,  who  instantly  rose  and 
left  the  room.  Scarcely  a  minute 
had  elapsed,  when  the  other  guests 
were  alarmed  by  hearing  loud  groans 
like  those  of  a  person  in  a  fit  of 
apoplexy.  They  all  hastened  down- 
stairs, and  found  Rupprecht  lying 
just  within  the  door,  covered  with 
blood  which  was  pouring  out  of  a 
large  wound  on  his  head.  About 
a  foot  and  a  half  from  his  body  lay 
his  cap,  cut  evidently  by  a  sharp  in- 
strument. .  .  .  The  physician  and 
surgeon  attached  to  the  Criminal 
Court  was  sent  for,  and  found  a 
wound  four  inches  long,  which  had 
penetrated  the  skull.  .  .  . 

The  Hell  Tavern  stands  in  the  end 
of  a  narrow  dark  alley,  from  which 
there  is  no  outlet.  The  side  on 
which  is  the  door  forms  an  angle 
with  the  opposite  house,  so  deep  that 
no  light  falls  into  it  by  night.  Two 
stone  steps  lead  up  to  the  house 
door,  of  which  only  one  wing  opens, 
and  is  provided  with  a  bell.  Out- 
side the  door,  on  the  left  of  these 


steps,  is  a  stone  bench.     The  hall 
within  is  small,  narrow,  and  a  little 
more  than  six  feet  high  ;  the  wound 
could  not  therefore  have  been  in- 
flicted upon  Rupprecht  in  the  hall, 
as  space  and  height  were  required  to 
give  force  to   the  blow.     It  would 
moreover    have    been    madness    to 
attempt  the  deed  in  a  passage  which 
was  lighted  by  an  oil  lamp,  which, 
though    dim,    would    have    enabled 
the  victim  or  a  passer-by  to  recog- 
nize the  murderer.     In  the  hall,  too, 
Rupprecht  coming  down  the  stairs 
would  have  met  his  enemy  face  to 
face,  and  must  have  seen  him  pre- 
pare for  the  attack,  from  which  he 
might  easily  have  escaped  by  run- 
ning to  the  rooms  above.     Suppos- 
ing    the     woimd  —  which     slanted 
downward,  and  had    evidently  been 
inflicted  from  behind  —  to  have  been 
given  during  Rupprecht's  flight  up 
the  stairs,  those  who  ran  down  on 
hearing  his  screams  would  have  found 
the  wounded  man  on  the  staircase, 
or  at  any  rate  close  to  the  foot  of 
it.     But  he  was  found  just  within 
the  house  door  after  being  wounded 
in    endeavoring    to    escape    up    the 
stairs.     Again,   the  wound  was   on 
the  left  side  of  the  head,  and  the 
dark    corner  we  have   before  men- 
tioned is  on  the  left  hand  of  any  one 
leaving  the  tavern.     The  probability 
therefore  is  that  Rupprecht  received 
the  wound    on    the   very   doorstep. 
In  this  case  he  had  but  to  totter 
one  step  back  to  fall  on  the  spot 
where  he  was  found.     It  would  have 
been    scarcely   possible   for   one   in 
Rupprecht's     condition     to     retain 
sufficient  strength  to  crawl  up  the 
steps  from  the  street  into  the  hall. 
On  the  other  hand,  it  would  have 
been   impossible  for   the   murderer, 
standing  in  the  street,  to  have  struck 
Rupprecht   from   behind,   while   he 
stood  on  the  doorsteps.     This  diffi- 
culty   is,    however,    completely    re- 
moved by  the  stone  bench  on  the 
left  of  the  door,  which  we  have  al- 
ready mentioned. 

Thus  all    circumstances    combine 
to  make  us  conclude  that  the  occur- 


304 


PART    I.       CIRCrMSTAXTIAL    EVIDENCE 


No.  160. 


fence  took  place  as  follows :  As 
soon  as  the  murderer  luul  requested 
the  lamllord  to  send  Rupprecht 
tlown  to  him,  he  went  into  the  dark 
corner  on  the  left,  mounteil  the  stone 
bench  near  the  doorway,  and  stood 
there  in  readiness  to  strike.  Rup- 
precht   went    downstairs,    expecting 


to  find  some  one  who  wanted  to 
speak  to  him  on  l)usiness,  and  seeing 
no  one  in  the  passage,  went  outside 
the  door  and  turned  to  look  down 
the  street  after  tlie  man  who  had 
sent  for  him,  when  he  was  struck 
a  well-aimed  heavy  })low  from  the 
stone  bench  behind  him.   .   .   . 


IGO.    JOHN  PAUL  FORSTER'S 
Rcmarhahlc  Cnrman  Criminal  Trials. 

Christopher  Haumler,  a  worthy 
citi/en  of  Xiirnberg,  lived  in  the 
Kotiigsstra.s.se,  a  wide  and  much- 
fre(iuented  street,  where  he  carried 
on  the  trade  of  a  corn  chandler, 
which  there  includes  the  right  of 
selling  brandy.  He  had  lately  lost 
his  wife,  and  lived  quite  alone,  with 
only  one  maidservant.  Anna  Cather- 
ina  Schultz.  He  had  the  reputa- 
tion of  being  rich. 

Hamnler  was  in  the  habit  of 
o|)ening  his  shop  at  five  o'clock  in 
the  morning  at  latest.  But  on  the 
21st  of  September,  1S20,  to  the  sur- 
prise of  his  neighbors,  it  remained 
closed  until  past  six.  Curiosity  and 
alarm  drew  together  a  number  of 
peoj)le  before  the  house.  They 
rang  repeatedly,  but  no  one  came  to 
the  door.  At  last  some  neighbors, 
with  the  sanction  of  the  police, 
entered  the  first-Hoor  windows  by 
a  ladfler.  Here  they  foimd  drawers, 
chests,  and  closets  burst  open,  and 
presenting  every  appearance  of  a 
robbery  having  been  committed. 
They  hastened  downstairs  into  the 
shop,  where  they  discovered  in 
a  corner  close  to  the  street  door  the 
bloody  corpse  t)f  the  maid  ;  and  in 
the  i)arlor  they  found  Baumler 
lying  dead   beside  the  stoxe. 

The  house  stands  on  the  left  hand 
in  going  along  the  Konigsstrasse 
from  the  I-'rauf-n  Tlior,  not  far  from 
thf  <hunh  of  Saint  Laurence.  Sev- 
<Tal  houses,  chiefly  inns  and  shops, 
flank  it  on  ••ither  side;  on  the  right, 
an  inn  called  the  (Jolden  Lion 
stands  out  several  feet  beyond  it. 
Cl«)se  to  this  projecting  wall  is  tin- 
door  of    RaumhT's   hrnisi',   which    is 


CASE.      (Anselm  von  Feuerbach. 

transl.  Gordon.  184G.  p.  L) 
entered  by  one  low  step ;  the  hall 
serves  as  a  shop,  and  the  walls  are 
lined  with  shelves,  etc.  The  length 
of  this  hall  from  the  street  door  to 
the  opposite  end,  where  a  door  opens 
into  a  court,  is  about  sixteen  feet ; 
on  the  left,  a  staircase  leads  to  the 
floor  above.  The  breadth  is  unequal, 
for  on  the  right  hand  near  the  door 
there  is  a  corner  about  four  feet 
wide  and  three  feet  deep,  which 
forms  part  of  the  shop.  On  one 
side  is  the  wall  of  Baumler's  parlor; 
on  the  other,  the  main  wall  of  the 
house  towards  the  street,  where  a 
large  bow  windows  always  closed 
with  shutters  at  night,  admits  the 
light  into  the  shop,  and  thence  into 
the  parlor  through  a  window 
opening  into  this  corner.  About 
seven  feet  from  the  entrance  to  the 
shop  is  the  door  of  the  small  parlor, 
which  is  cut  off  from  the  street  on 
all  sides  and  furnished  with  tables 
and  benches  for  the  convenience 
of  the  customers  for  brandy.  The 
house  door,  as  is  usually  the  case 
in  shops  of  this  kind  in  Nurnberg, 
is  formed  of  two  wings  joined 
together,  one  of  which  folds  back 
upon  the  other,  and  is  fastened  by  a 
simple  contrivance  to  the  wall. 
During  the  day  a  glass  door  is  fixed 
in  the  half  of  the  doorway  thus  left 
open,  which  in  the  daytime  serves 
to  light  the  shop,  and  in  the  evening 
to  show  passers-by  that  the  host  is 
ready  to  receive  customers.  The 
door  of  Baumler's  .shop,  behind  the 
wing  of  which  a  man  could  perfectly 
conc(>al  himself  from  any  one  en- 
tering, opens  towards  the  left, 
exactly  opposite  to    the  corner   we 


No.  160. 


V.      DATUM    SOLVENDUM 


305 


have  already  described,  so  that 
any  one  coming  in  would  turn  his 
face  towards  the  corner ;  and  in  the 
event  of  being  attacked  l)y  a  person 
hidden  behind  the  door,  would 
naturally  run  towards  it.  A  bell 
hangs  over  the  entrance  which  rings 
whenever  either  the  glass  or  the 
wooden  door  is  opened. 

As  soon  as  the  police  were  in- 
formed of  the  murder,  a  commission 
was  appointed  to  visit  Baumler's 
house.  Immediately  on  entering 
the  shop,  to  the  right  of  the  door  in 
the  corner,  between  two  bins  of 
meal  and  salt,  the  maidservant 
Schultz  lay  on  her  back,  with  her 
head  shattered,  and  her  feet,  from 
which  both  her  shoes  had  fallen, 
turned  towards  the  door.  Her  face 
and  clothes,  and  the  floor,  were 
covered  with  blood ;  and  the  two 
bins  between  which  her  head  lay, 
as  well  as  the  wall,  were  sprinkled 
with  it.  As  no  other  part  of  the 
shop  showed  an}-  marks  of  blood,  it 
was  evident  that  she  had  been  mur- 
dered in  this  corner.  Not  far  from 
the  body  they  picked  up  a  small 
comb,  and  at  a  little  distance  from 
that  a  larger  one,  with  several 
fragments  of  a  second  small  one. 
In  the  very  farthest  corner  of  the 
parlor,  between  the  stove  and  a 
small  table,  upon  which  stood  a  jug, 
they  found  the  body  of  Baumler 
stretched  on  his  back,  with  his  head, 
which  was  resting  on  a  small  ovev- 
turned  stool,  covered  with  wounds 
and  blood.  A  pipe  and  several 
small  coins  lay  under  the  body, 
where  they  had  probably  fallen 
when  the  murderer  ransacked  the 
pocket  (which  was  turned  inside  out 
and  stained  with  blood)  for  money 
or  for  keys.  The  floor,  the  stove, 
and  the  wall  were  covered  with 
blood,  the  stool  was  saturated,  and 
even  the  vaulted  ceiling,  which  was 
nine  or  ten  feet  high,  was  sprinkled 
with  it.  These  circumstances,  es- 
pecially the  stool  on  which  Baum- 
ler's head  still  rested,  and  the  pipe 
which  lay  under  his  body,  showed 
that  the  murderer  must  have  sud- 


denly attacked  him  unawares  and 
felled  him  to  the  earth,  as  he  sat 
drinking  his  beer  and  smoking  his 
pipe  on  that  very  spot. 

One  drawer  of  the  commode  in  the 
upper  chamber  was  pulled  out,  the 
doors  of  two  cupboards  in  the  ad- 
joining room  were  open,  and  every- 
thing lay  scattered  about  the  floor. 
Several  other  presses,  however,  had 
not  been  opened,  and  many  things 
of  value,  such  as  clothes,  silver  orna- 
ments, a  gold  repeater,  etc.,  were 
left  in  them,  and  even  in  those  which 
had  been  opened.  The  rooms  on 
the  second  story  were  found  in  their 
usual  state.  On  the  table,  in  the 
parlor,  stood  a  wineglass  with 
some  red  brandy  at  the  bottom, 
and  a  closed  clasp  knife  stained  with 
blood  on  the  back  and  sides. 

Two  newly  baked  rolls  were  found 
near  the  entrance  door.  The  baker 
Stierhof  stated  that  Baumler's  maid 
had  fetched  these  rolls  from  his 
shop  the  evening  before,  at  about  a 
quarter  to  ten.  His  wife,  who  was 
examined  the  next  day  on  this 
point,  recognized  the  rolls  as  those 
bought  by  the  unfortunate  maid- 
servant on  the  evening  of  the  20th 
of  September,  adding,  "  The  evening 
before  last,  at  nearly  a  quarter  to 
ten,  the  maid  came  to  my  house  and 
asked  for  two  half-penny  rolls, 
which  I  gave  her.  I  did  not  recog- 
nize her  till  she  was  going  away, 
when  I  said,  '  It  is  you,  is  it  ? '  She 
answered  sulkily,  'Yes.'  I  asked 
if  they  still  had  guests  with  them ; 
and  she  said,  '  Yes,  there  are  a  few 
fellows  there  still.'  I  then  looked 
out  of  the  window  for  a  while : 
there  was  a  deathlike  silence  in  the 
street,  so  much  so  that  I  remarked 
it  to  my  people.  At  a  quarter  to 
ten  exactly  I  closed  the  shop." 
This  evidence  afforded  a  strong 
presumption  that  some  person  or 
persons  who  were  still  in  Baumler's 
shop  at  a  quarter  to  ten  had  com- 
mitted this  murder.  Furthermore 
it  was  certain  that  the  murder  of  the 
maidservant  could  not  have  taken 
place  earlier  than  a  quarter  to  ten ; 


300 


PART    I.       CIKCr-MSTANTIAL   EVIDENCE 


No.  161. 


the  two  rolls  which  she  had  fetched 
about  that  time  from  the  Baker 
Stierhof,  anth  which  were  found 
on  the  floor  near  the  entrance, 
showed  that  the  murderer  had  at- 
tacked her  as  she  entered  the  shop 
on  her  return  from  the  baker's,  that 
she  droppeil  the  rolls  in  her  fright, 
was  driven  into  the  corner  of  the 
shop,  and  there  murdered.  There 
could  be  no  doubt  that  Haumler  was 
murdered  before  the  maitiservant, 
for  he  was  found  beside  the  stool  on 
which  he  usually  sat  smoking  his 
pipe  by  the  stove.  Had  he  been 
alive  when  the  murderer  attacked 
his  maid,  he  would  have  been 
alarmed  by  the  noise,  and  have  gone 
out  into  the  shop ;  at  any  rate  he 
woidil  not  have  remained  cjuietly 
seated  for  the  murderer  to  dispatch 
him  at  his  leisure.  It  was  also  evi- 
dent that  Haumler  must  have  been 
nuirdered  during  the  maid's  absence. 
Now  the  distance  from  IJaumler's 
hftuse  to  the  baker's  shop  is  at  most 
a  hundrcfl  steps;  thus,  even  suppos- 
ing that  Schultz, angry  at  being  sent 
out  so  late,  went  very  slowly,  the 
walk  there  and  back,  including 
the  short  conversation  with  the 
baker's  wife,  could  not  have  occu- 
pied above  five  minutes,  and  during 
this  interval  the  murder  of  Baumler 
must  have  been  completed,  and 
that  of  Schultz  prepared.  This  was 
provefl  by  the  following  circum- 
stance :  As  long  as  the  gla.ss  door 
was     there,     the     murderer     could 


neither  attack  Schultz  on  her  en- 
trance nor  murder  her  within  the 
threshold,  as  he  could  not  possibly 
hide  himself  behind  the  glass  door, 
which  would  moreover  have  ex- 
posed him  to  the  risk  of  observation 
from  every  passer-by,  and  even  to 
the  chance  of  a  stray  guest  of  Bauni- 
ler's  entering  the  shop  and  surprising 
him  in  the  act.  It  was  therefore 
necessary  to  take  the  glass  door  off 
its  hinges,  and  to  shut  the  street- 
door,  before  attacking  Schultz  on  her 
return  to  the  house,  —  and  this  he 
accordingly  did.  Baumler's  house 
was  not  usually  closed  until  eleven, 
but  on  the  night  of  the  murder  a 
chandler  of  the  name  of  Rossel, 
who  lived  opposite,  happened  to 
look  out  at  a  cjuarter  to  ten,  and 
saw,  to  his  surprize,  that  Baumler's 
house  was  then  closed,  —  no  doubt 
by  the  murderer.  It  was  a  cjuarter 
to  ten  when  Schultz  was  at  the 
baker's  shop,  at  the  same  hour 
Rossel  saw  Baumler's  house  shut : 
we  may  therefore  infer  that  the 
murderer  killed  Baumler  soon  after 
his  maid's  departure,  cjuickly  im- 
hinged  the  glass  door,  lay  in  wait 
for  the  maid  behind  the  street  door, 
opened  it  for  her,  and  attacked  her 
as  she  came  in ;  the  concurring  evi- 
dence of  two  witnesses  thus  dis- 
tinctly pro\es  that  the  murder  of 
Baumler  and  his  maid  must  have 
taken  place  during  the  few  minutes 
before  and  after  a  quarter  to  ten. 


ltd.    NEWTON'S     CASE.     (W. 
Amer.  ed.    1905.      p.  148.) 

A  woman,  Newton,  who  was  tried 
for  the  murder  of  her  mother,  had 
lived  for  nine  or  ten  years  as  hou.se- 
keepcr  to  an  clijcrly  gentleman,  who 
was  paralyzed  and  helpless;  the 
only  f)ther  inmat«'  being  another 
female  servant,  who  slept  on  a  sofa 
in  his  bedrootn  to  att«'rid  upon  him. 
The  «l«'ccased  occa.sionally  visited 
her  daughter  at  her  master's  house, 
and  sotnetiines  stoi)ped  all  night, 
bleeping  on   a   .^ofa   in   the   kitchen. 


Wills.     Circumstantial    Evidence. 

She  came  to  see  her  daughter  about 
eight  o'clock  one  night  in  December, 
1848;  the  other  servant  retired  to 
bed  about  half  past  nine,  leaving 
the  prisoner  and  her  mother  in  the 
kitchen,  and  she  afterwards  heard 
the  prisoner  clo.se  the  door  at  the 
foot  of  the  stairs,  which  was  usually 
left  open  that  they  might  hear  their 
master,  if  he  wanted  assistance. 
Tlie  prisoner  usually  slept  upstairs. 
.\bout  two  o'clock  in   the   morning 


No.   161. 


DATUM    SOLVENDUM 


307 


the  other  servant  was  aroused  by 
the  smell  of  fire,  and  a  sense  of 
suffocation,  and  found  the  bed- 
room full  of  smoke ;  upon  which 
she  ran  downstairs,  finding  the  door 
at  the  bottom  of  the  stairs  still 
closed.  As  she  went  downstairs 
she  saw  a  light  in  the  yard,  and  she 
found  the  kitchen  full  of  smoke,  and 
very  wet,  particularly  near  the  fire- 
place, as  also  was  the  sofa,  but 
there  was  veiy  little  fire  in  the  grate. 
She  then  unfastened  the  front  door, 
and  ran  out  to  fetch  her  master's 
nephew,  who  lived  near,  and  who 
hastened  to  the  house.  He  found 
the  front  door  fastened,  but  was 
admitted  by  the  prisoner  at  the 
back  door.  He  at  once  hastened 
upstairs,  and  ascertained  that  his 
uncle  was  safe,  and  then  came  down 
into  the  kitchen,  where  he  found 
the  sofa  was  on  fire,  and  threw  some 
water  upon  it.  He  then  went  to 
let  the  servant  girl,  who  had  fetched 
him,  in  at  the  front  door,  which  he 
found  bolted,  and  not  merely 
latched.  He  then  again  went 
upstairs  with  the  servant  to  his 
uncle's  room,  and  they  raised  him 
up  in  bed,  and  saw  that  he  was  all 
right.  On  returning  to  the  kitchen, 
they  found  the  place  was  very  wet ; 
a  little  fire  was  still  smoldering 
on  the  sofa,  which  they  at  once 
extinguished.  The  pillows  and  en- 
tire back  part  of  the  sofa  cover  were 
burnt  to  the  breadth  of  a  person's 
shoulders. 

The  prisoner  then  came  in  from 
the  back  premises  in  her  night- 
dress ;  she  was  described  as  not 
drunk,  but  not  quite  sober.  She 
took  a  bottle  of  rum  from  the  cup- 
board, and  drank  from  it,  and  after 
that  she  soon  became  thoroughly 
intoxicated,  and  lay  down  on  the 
sofa.  The  girl  then  went  out  of 
the  kitchen  towards  the  brewhouse, 
and  found  the  deceased  lying  on 
her  face  on  the  steps  of  the  brew- 
house,  apparently  burnt  to  death. 
Her  arms  were  crossed  in  front 
over  her  breast,  or,  according  to  one 
witness,    across    her   face ;     on    the 


back  of  the  head  lay  a  piece  of 
the  sofa  cover,  and  near  the  body 
was  a  cotton  bag  which  had  been 
used  in  the  house  indiscriminately 
as  a  bag  or  a  pillow ;  it  was  be- 
smeared with  oil.  Near  the  feet 
of  the  body  were  the  remains  of 
four  pairs  of  sheets  which  had  been 
in  the  kitchen  the  night  before. 
They  were  almost  entirely  con- 
sumed by  fire ;  what  was  left  of 
them  was  wet.  The  prisoner's 
clothes  were  on  a  chair  in  the  kitchen 
—  the  explanation  being  given  that 
she  was  in  the  habit  of  undressing 
there.  Holes  had  been  burnt 
through  them,  and  it  was  found  that 
the  prisoner's  hands  were  scorched 
and  blistered,  and  that  she  had 
burns  on  her  arms  and  body  corre- 
sponding with  the  burns  in  her 
clothes.  It  appeared  from  the  state 
of  the  bedclothes  in  her  room  up- 
stairs that  she  had  not  been  in  bed, 
but  there  was  a  mark  as  if  some  one 
had  been  lying  upon  the  bed.  A 
butter  boat,  which  had  been  full 
of  dripping,  and  a  pint  bottle,  which 
had  been  nearly  full  of  lamp  oil, 
and  left  near  the  fire  overnight,  were 
both  empty,  and  there  were  spots 
of  grease  and  oil  on  the  pillow  case, 
sheets,  and  sofa.  A  stocking  had 
been  hung  up  to  cover  a  crevice  in 
the  window  shutter,  through  which 
any  person  outside  might  have  seen 
into  the  kitchen.  The  door  post 
of  the  kitchen  leading  into  the  yard 
was  much  burnt  about  three  feet 
high  from  the  ground ;  and  there 
was  a  mark  of  burning  on  the  door- 
post of  the  brewhouse.  The  sur- 
face of  the  deceased  woman's  body 
was  completely  charred,  the  tongue 
was  livid  and  swollen,  and  one  of 
the  toes  was  much  bruised,  as  if  it 
had  been  trodden  on.  There  was  a 
small  blister  on  the  inner  side  of  the 
right  leg,  far  below  where  the  great 
burning  commenced,  which  con- 
tained straw-colored  serum,  but 
there  was  no  other  blister  on  any 
part  of  the  body,  nor  any  marks  of 
redness  around  the  blister,  or  at  the 
parts  where  the  injured  and  unin- 


PAHT    I.       (  IK(  r.MSTA.NTIAL   EVIDENCE 


No.  101 


juretl  tissues  joiiietl.  The  iiost-, 
whirh  hiid  been  a  very  prominent 
organ  «luriiiK  life,  was  Hattened  down 
so  as  not  to  rise  to  nn»re  than  the 
eighth  of  an  ineh  ahove  the  level  of 
the  face,  and  as  it  never  recovered 
its  original  appearance,  it  was 
state<l  that  it  must  have  been  so 
flattened  for  some  time  before 
death.  The  lungs  anil  brain  were 
nuieh  congested,  and  a  (luantity  of 
l)lack  blood  was  fovnul  in  the  right 
aurici"  of   the   heart. 

From  these  facts  the  medical 
witnesses  examined  in  support  of 
the  prosecution  concluded,  that  the 
tiecea.seil  had  Ijeen  first  sutiocated 
by  pressing  something  over  her 
mouth  and  nostrils  so  forcibly  as 
to  break  and  flatten  the  nose  in  the 
way  described;  but  they  had  made 
no  examination  of  the  larynx  and 
trachea,  and  other  parts  of  the  body. 
A  physician  who  had  heard  the 
evidence  but  not  seen  the  deceased, 
gave  his  opinion  that  the  ap- 
pearances described  by  the  other 
witnesses  were  signs  of  tieath  by  suf- 
focation ;  that  the  absence  of  vesica- 
tion, and  of  the  line  of  redness  were 
certain  signs  that  the  body  had  been 
burnt  after  death;  but  he  added 
that,  as  there  were  no  marks  of 
external  injury,  an  examination 
should  have  been  made  of  the  parts 
of  the  body  above  mentioned,  in 
order  to  arrive  at  a  satisfactory 
conclusion.  Another  medical  wit- 
ness thought  it  possible  that  suffoca- 
tion might  have  been  produced  by 
the  flames  preventing  the  access 
of  air  to  the  lungs,  while  others 
again  thought  it  imi)ossibie  that  such 
could  ha\e  been  the  case,  as  no 
screams  had  been  hejird  in  the  night, 
and  they  were  also  of  opinion  that 
if  alive,  the  (h'ccased  nmst  have  been 
in  such  intense  agony  that  she  could 
not,  even  if  she  had  been  strong 
enough  to  walk  front  the  kitchen 
to  the  brewhouse,  have  refrained 
from  screaming.  One  of  thesj-  wit- 
nesses .stated  that  he  did  not  think 
it  fKJSsible  that  the  deceased,  if 
alive,  could  have  fallen  in  the  posi- 


tion in  which  she  was  found,  as  her 
first  impulse  would  have  been  to 
stretch  out  her  arms  to  prevent  a 
fall ;  but,  on  the  other  hand,  it 
was  urged  that  it  was  not  possible 
to  judge  of  the  acts  of  a  person  in 
the  last  agonies  of  death  by  the 
conduct  of  one  in  full  life.  Under 
the  will  of  her  grandfather  the 
prisoner  was  entitled  on  the  death 
of  her  mother  to  the  sum  of  £200, 
and  to  the  interest  of  the  sum  of 
£.S00  for  her  life.  She  had  frequently 
cruelly  beaten  the  old  woman, 
threatened  to  shorten  her  days, 
bitterly  reproaching  her  for  keeping 
her  out  of  her  property  by  living 
so  long,  and  declared  that  she  should 
never  be  happy  so  long  as  she  was 
above  ground,  and  she  had  once 
attempted  to  choke  her  by  forcing 
a  handkerchief  dow'n  her  throat, 
but  was  prevented  from  doing  so 
by  the  other  servant.  The  magis- 
trates had  been  frequently  appealed 
to,  but  they  could  only  remonstrate, 
as  the  old  woman  would  not  appear 
against  her  daughter. 

The  case  set  up  oii  behalf  of  the 
prisoner  was,  that  she  was  in  bed 
and,  perceiving  a  smell  of  fire,  came 
downstairs,  and  finding  the  sofa  on 
fire,  fetched  water  and  extinguished 
it,  and  that  she  knew  nothing  of 
her  mother's  death  until  she  heard 
it  from  others.  It  appeared  that 
the  old  woman  was  generally  very 
chilly,  and  in  the  habit  of  getting 
near  the  fire ;  that  on  two  former 
occasions  she  had  burned  portions 
of  her  dress ;  that  on  another  she 
had  burned  the  corner  of  the  sofa 
cushion  ;  that  she  used  to  smoke  in 
bed,  and  light  her  pipe  WMth  lucifer 
matches,  which  she  carried  in  a 
basket ;  and  that  on  the  night  in 
cjuestion  she  had  brought  her  pipe, 
which  was  found  on  the  following 
morning  in  her  basket.  It  was 
urged  as  the  probable  explanation 
of  the  position  in  which  the  l)ody  was 
found,  that,  finding  herself  on  fire, 
she  must  have  proceeded  to  the 
l)rewhouse,  where  she  knew  there 
was  water,  and  leaned  in  her  way 


DATUM    SOLVENDUM 


309 


there  against  the  doorpost,  and  that, 
feehng  cold  in  the  night,  she  had 
wrapped  the  sheets  around  her,  and 
did  not  throw  them  off  until  she 
reached  the  yard.  The  prisoner, 
though  accustomed  to  sleep  upstairs, 
was  in  the  habit  of  undressing  in 
the  kitchen,  which  was  stated  to  be 
the  reason  why  the  stocking  had 
been  so  placed  as  to  pre\ent  any 
person  from  seeing  into  the  kitchen. 
Mr.    Justice    Patteson,    in    his 


charge  to  the  jury,  characterized 
the  evidence  of  the  medical  practi- 
tioners who  had  examined  the  body 
as  extremely  unsatisfactory  in  con- 
sequence of  the  incompleteness  of 
their  examination.  The  jury  ac- 
quitted the  prisoner ;  and  indeed 
it  would  have  been  contrary  to  all 
principle  to  do  otherwise,  in  the 
midst  of  so  much  uncertainty  as 
to  the  corpus  delicti.^ 


162.    ABRAHAM  THORNTON'S  CASE. 

of  Celebrated  Trials.      1873.      Vol.  I,  p.  1.) 

On   the   evening   of   the   26th   of      in     Erdington,     alone. 


(W.  WooDALL.      Reports 


May,  1817,  the  deceased,  Mary 
Ashford,  accompanied  by  a  friend 
of  hers,  Hannah  Cox,  went  to  a 
dance  at  a  public  house  called  Ty- 
burn, not  far  from  Erdington,  a 
village  a  few  miles  distant  from 
Birmingham.  The  prisoner  Thorn- 
ton was  at  the  dance ;  and  about 
half  past  eleven,  or  from  that  to 
twelve,  he  and  the  deceased  left 
the  house,  and  went  together  along 
the  highroad  in  the  direction  in 
which  Mary  Ashford  resided.  They 
were  left  together  on  the  highroad 
about  midnight.  From  that  time 
until  three  o'clock  in  the  morning 
nothing  was  seen  of  them ;  but  a 
little  before  three,  a  man  named 
Umpage,  on  his  way  home,  came 
across  the  prisoner,  whom  he  knew, 
and  a  woman,  whom  he  could  not 
recognize,  but  who  was,  beyond  all 
doubt,  the  deceased,  at  a  stile 
leading  into  Bell  Lane.  Near  this 
stile  was  a  harrowed  field,  through 
which  it  was  proved  Thornton  and 
Mary  Ashford  had  been  in  the 
course  of  the  night,  and  in  which 
footsteps,  undoubtedly  those  of  the 
deceased  and  Thornton,  were  after- 
wards traced."^  Nothing  was  seen 
of  Thornton  after  this  for  some 
time ;  but  Mary  Ashford  was  traced 
to  her  friend's,  Hannah  Cox's,  house 


where  she 
changed  her  clothes.  She  left  Cox's 
at  about  fourteen  minutes  past 
four  in  the  morning,  and  went  up  to 
Bell  Lane ;  and  was  last  seen  alive 
going  in  the  direction  of  the  har- 
rowed field  where  the  footsteps 
were  found,  at  about  eighteen 
minutes  past  four.  She  had  then 
some  way  to  go  to  the  spot  where 
her  body  was  afterwards  found  in  a 
pit  of  water ;  and  in  all  probability 
she  could  not  reach  the  pit  until 
half  past  four  at  the  earliest.  Her 
body  was  discovered  in  the  pit 
about  half  past  six. 

The  theory  of  the  prosecution 
was,  that  Thornton  waylaid  Mary 
Ashford  on  her  way  home  from 
Cox's,  and  assaulted  her :  that  she 
fainted ;  and  that  he  then  threw 
her  body  into  the  pit.  In  support  of 
this  it  was  sought  to  prove,  from 
the  footmarks  in  the  field,  that 
Thornton  had  chased,  and  had 
ultimately  overtaken  the  deceased, 
and  then  violated  her,  not  far  from 
the  pit.  There  was  undoubtedly 
the  impress  of  a  human  figure  on  the 
grass  near  the  pit,  and  blood  was 
traced  from  it,  without  any  foot- 
marks, close  up  to  the  edge  of  the 
pit.  It  was  inferred  from  this  that 
Thornton  had  carried  Mary  Ash- 
ford   in    his    arms,    and    had    then 


1  Reg.  V.  Newton,  Shrewsbury  Spring  Assizes,  1850.  Two  former  juries,  at  the  Assizes 
in  the  preceding  year,  had  been  unable  to  agree,  and  had  been  discharged  —  a  circumstance 
unparalleled,  it  is  believed,  in  English  jurisprudence. 

*  [A  diagram  of  the  locality  is  given  with  No.  63,  ante,  p.  160.  —  Ed.] 


310 


PART    I.       CIRCrMSTAN'TIAL    EVIDENCE 


No.  162. 


thrown  her  into  the  water.  Allow- 
ing the  least  possible  time  for  the 
conunission  of  the  crime,  the  de- 
cea<ieii  having  been  last  seen  alive 
at  about  eighteen  minutes  past 
four,  it  (K'curretl  in  all  probability 
not  until  a  quarter  to  five.  At 
half  past  four,  however,  the  pris- 
oner was  indisputably  proved  to 
have  been  seen  at  a  distance  from 
the  pit.  in  a  straight  line,  of  one 
mil"  and  a  half;  but  by  the  nearest 
road,  of  two  miles  and  a  (piarter.' 
He  was  calm  and  did  not  seem  as 
if  he  had  been  running.  On  l)eing 
apprehended,  he  admitted  being 
■with  the  deceased  until  four  in  the 
morning,  and  that  he  had  been 
intimate  with  her,  but,  as  he  as- 
serted,   with   her  consent.   .   .   . 

The  trial  took  place  before  Mr. 
Justice  HoLKOYD  on  the  Sth  of 
August,    1817,   at   Warwick.   .   .   . 

Hannah  Cox,  examined  l)y  Mr. 
Sergeant  Coplry.  said :  "  I  lived 
in  the  service  of  Mr.  Machell,  of 
Krdington.  in  the  month  of  May 
last.  I  slept  at  my  mother-in-law's, 
Mrs.  Butler,  on  the  morning  of  the 
"27th  ;  her  house  is  nearly  opposite 
to  my  master's.  I  was  acquainted 
with  Mary  Ashford.  .  .  .  She 
<al!«'d  on  me  at  Mr.  Machell's 
about  ten  o'clock,  on  her  road  to 
liirmingham  market.  She  had  a 
bundle  with  her,  and  said  .she  was 
going  to  Birmingham  market.  In 
the  bundle  were  a  clean  frock,  a 
white  spencer,  and  a  pair  of  white 
stockings.  The  <lecea.sed  was 
dressed  in  pink  cotton  frock  or 
gown,  a  straw  bomict  with  straw- 
••olorcd  ribbons,  a  scarlet  spencer, 
half-boots,  and  black  stockings.  I 
went  with  her  to  Mrs.  Butler's  to 
leave  the  bundle.  The  decea.sed 
then  went  to  Birmingham,  having 
first  agree<l  that  she  and  I  should 
go  together  that  night  to  Daniel 
Clarke's,  at  'IVburn  Hf)use,  to  a 
<laticc.  Tlif  deceased  returned 
about  six  ti'clock  in  the  evening, 
and  called  on  me  at  Machell's.  I 
went    with    Imt    to    Mrs.    Butler's, 

•  (S.-.-  t)„-  t,...i,,„,ny  H(! 


where  she  put  on  the  clean  dress 
she  had  left  there  in  the  morning, 
and  a  new  pair  of  shoes,  wdiich  I 
bought  for  her  at  a  shoemaker's 
at  Krdington  in  the  course  of  the 
day.  The  clothes  she  pulled  off 
she  made  up  into  a  bundle  and  left 
at  Butler's.  We  set  off  for  Tyburn 
between  seven  and  eight  o'clock. 
The  dance  was  at  a  public  house 
there.  .  .  .  Mary  Ashford  was  at 
the  room  door  when  I  was  going ; 
she  told  me  she  would  not  be  long 
before  she  would  follow  me.  .  .  . 
Were  you  called  up  again  any  time 
in  the  course  of  the  morning  ?  — 
Yes.  —  Wlio  called  you  up  ?  —  Mary 
Ashford.  —  You  got  up  and  let  her 
in  to  your  mother's  house  ?  — 
Yes.  —  Do  you  know  what  time  it 
was  ;  did  you  look  at  the  clock  ?  — 
Yes.  .  .  .  Was  the  deceased  in 
the  same  dress  then  as  she  had  on 
overnight  ?  —  Yes.  ...  —  The  de- 
ceased did  not  go  into  another 
room  to  change  her  dress,  did  she ; 
she  remained  in  the  house  all  the 
time  and  you  stayed  wdth  her  ?  — 
Yes.  —  What  did  the  deceased  do 
with  the  clothes  she  took  off  ?  — 
She  tied  them  up  in  a  bundle  along 
with  some  market  things ;  she 
w  rapped  the  boots  in  a  handkerchief, 
and  kept  on  her  shoes."  .  .  . 

IVilliam  Lavell  was  the  first 
of  the  witnesses  who  spoke  to  the 
footmarks.  ...  "I  went  along  the 
footpath  to  see  if  I  could  discover 
any  footsteps.  ...  At  about  eight 
yards  distance  I  discovered  a 
woman's  footsteps  going  from  the 
footpath  in  the  same  way  to  my 
right.  ...  I  afterwards  went  with 
a  woman's  shoe  in  company  with 
Bird.  It  was  Mary  Ashford's  shoe. 
I  compared  that  shoe  with  the 
woman's  steps  I  had  traced,  and 
with  those  that  turned  to  the  right 
and  with  those  where  the  man  and 
woman  appeared  to  be  running, 
and  where  the  doubling  was,  in 
every  place.  The  shoe  corresponded. 
We  took  both  shoes.  I  have  no 
doubt  in  my  mind  that  the  woman's 

t  forth  ante,  No.  63.] 


No.  162. 


V.      DATUM    SOLVENDUM 


311 


Steps  all  along  were  made  by  those 
shoes."  .  .  . 

This  part  of  the  evidence  goes 
to  show  that  shoes  with  which  the 
footsteps  were  compared  were  those 
in  which  Mary  Ashford  had  been 
to  the  dance,  and  in  which  she  had 
been  walking  with  Thornton  for 
three  hours,  over  or  in  the  neigh- 
borhood of  this  identical  field.  At 
Hannah  Cox's,it  will  be  remembered, 
she  changed  everything  except  her 
shoes.  If  she  had  also  changed  her 
shoes,  the  whole  face  of  this  evi- 
dence against  Thornton  might  have 
assumed  a  very  different  aspect. 
It  is  curious  to  think  what  the 
effect  would  have  been  if  Mary 
Ashford  had  put  on  the  shoes  which 
she  had  left  at  Hannah  Cox's  in 
the    evening    on    her    return    from 


Birmingham,  and  in  which  she  had 
not  been  to  the  ball.  In  that  case, 
if  the  footsteps  in  the  field  were 
made  by  her  in  the  shoes  which 
she  had  changed  at  Hannah  Cox's 
in  the  morning  after  the  ball,  they 
would  have  been  conclusive  evi- 
dence against  Thornton.  As  how- 
ever they  were  not,  but  were  made 
by  the  shoes  which  she  wore  at 
and  after  the  ball  up  to  half  past 
three,  all  which  time  she  was  volun- 
tarily in  Thornton's  company,  the 
value  of  the  footsteps  as  evidence 
is  much  weakened.  It  is  singular 
and  unfortunate  that  the  only 
article  of  dress,  the  change  of 
which  could  have  thrown  any  light 
on  the  question  of  the  deceased's 
death,  were  those,  which  by  some 
fatality  or  other,  were  not  changed. 


PART  II:    TESTIMONIAL  EVIDENCE 


INTRODUCTION 

103.     John  H.  WiGMORE,      Principles  of  Judicial  Proof.      (1913.)^ 

The  plirase  "testimonial"  evidence  must  not  be  understood  as  appli- 
calde  exelusively  to  assertions  made  on  the  witness  stand.  Any  assertion, 
taken  as  tlie  basis  of  an  inference  to  the  existence  of  the  matter  asserted, 
is  testimony,  whetlier  made  in  court  or  not  (ajite,  No.  1).  Thus,  all  the 
statements  received  under  the  exceptions  to  the  hearsay  rule  are  genuinely 
testimony.  .Assertions  made  on  the  witness  stand  are  merely  the  com- 
monest class  of  testimonial  evidence.  It  follows  that  the  considerations 
applicable  to  a  witness  are  equally  applicable  in  the  use  of  extrajudicial 
assertions. 

1.  When  a  witness's  statement  is  ofl'ered  as  the  basij  of  an  evidential  in- 
ference to  the  truth  of  his  statement, — for  example,  the  statement  of  A 
that  H  struck  X,  —  it  is  plain  that  at  least  three  distinct  elements  are 
present ;  or,  put  in  another  way,  that  there  are  three  stages  to  the  process, 
in  the  al)sence  of  any  one  of  which  we  cannot  conceive  of  testimony.  First, 
the  witness  must  know  something,  i.e.  must  have  observed  the  affray  and 
received  some  impressions  on  the  question  whether  B  struck  X;  to  this 
element  may  be  given  the  generic  term  Perception.  Secondly,  the  witness 
must  have  a  recollection  of  the.se  impressions,  the  result  of  his  Perception ; 
this  may  be  termed  Recollection,  or  Memory.  Thirdly,  he  must  communi- 
cate this  recollection  to  the  tribunal;  that  is,  there  must  be  Communica- 
tion, or  Narration,  or  R(>lation  (for  there  is  no  single  term  entirely  appro- 
priate). Now  the  very  notion  of  taking  a  human  utterance  as  the  basis 
of  belief  in  the  truth  of  the  fact  a.s.serted  impliedly  attributes  these  three 
processes  to  the  witness,  —  Perception,  Recollection,  Communication. 
Whatever  principles,  therefore,  govern  the  l)elief  in  testimonial  assertions 
mu>t  have  reference  to  some  one  or  more  of  these  elements. 

Moreover,  in  the  function  fulfilled  by  each  of  the  three  elements  or  pro- 
cesses are  to  be  found  in  general  form  the  fundamental  canons  for  assigning 
to  each  its  probative  value.  Thus,  the  notion  of  Perception  is  that  the 
external  event  has  in  some  way  or  other  impressed  itself  on  the  witness's 
.sen.ses,  to  be  now  reprodured  to  us  in  court.  This  impression  of  the  wit- 
ness, then  ^knowledge,  perception,  or  whatever  it  be  called),  should  ade- 
(|uately  represent  or  correspond  to  the  fact  itself  as  it  really  existed  or 
exists  ;  and  the  practical  object  is  to  .secure  the  probability  of  a  fairly  accu- 

'  (.\<lapt.'<l  from  thf  miin.-  author's  Trratixr  on  Evidence.     (190.5.  Vol.  I,  §  478.)] 

312 


No.  163.  PART    II.       TESTIMONIAL    EVIDENCE  313 

rate  perception  on  the  part  of  the  witness.  Again,  the  function  of  Recol- 
lection is  to  recall  or  reproduce  the  original  impressions  of  observation ; 
and  the  fundamental  basis  of  trust  is  that  Recollection  fairly  corresponds 
with  or  reproduces  the  original  Knowledge  or  Perception.  Finally,  the  func- 
tion of  Narration  (or,  Communication)  is  to  reproduce  for  the  apprehension 
of  the  tribunal  the  Recollected  results  —  themselves  already  reproduced 
from  Observation ;  and  the  common  aim  in  the  varied  problems  under 
this  head  is  to  insure  that  the  story  as  told  shall  represent  with  fair  ac- 
curacy what  the  witness  once  observed  and  now  recollects. 

2.  But  this  process  of  the  individual  witness's  testimony  is  affected,  not 
merely  by  his  individual  traits,  but  also  by  certain  general  traits,  common 
to  humanity,  in  which  experience  has  enabled  us  to  generalize.  These 
generalizations  affect  traits  common  to  large  groups  of  individuals,  or  large 
classes  of  situations  in  which  any  individual  may  at  times  find  himself. 
Hence  the  elements  of  trustworthiness  in  testimony  may  conveniently  be 
studied  under  two  separate  heads : 

I.   Generic  Human  Traits  affecting  the  Testimonial  Process  in  general ; 

n.   The  Testimonial  Process  itself. 

The  principal  generic  traits  may  be  taken  up  under  the  following  heads : 
1.  Race;  2.  Age ;  3.  Sex;  4.  Mental  Disease;  5.  Moral  Character ;  6.  Feel- 
ing, Emotion,  and  Bias;    7.  Experience  (acquired  skill). 


TiTi.i:  I    fu:xi:iiic  htmax  traits  affecting  the 

Tli  I 'S  T  H  '0J{  2'HIXESS   OF  TES  TIMONY 


SUBTITLE   A:    RACE 

1»)4.  Kdwahi)  Wkstkhmarck.  Origin  and  Growth  of  Moral  Ideas.  (1908. 
Vol.  II,  p.  72.)  .  .  .  Various  uncivilized  races  are  conspicuous  for  their 
great  re^jartl  for  truth  ;  of  some  savages  it  is  said  that  not  even  the  most 
trying  circumstances  can  induce  them  to  tell  a  lie.  Among  others,  again, 
falsehood  is  found  to  he  a  prevailing  vice  and  the  successful  lie  is  a  matter 
of  popular  admiration.   .   .   . 

"The  genuine  Wood-Wedda  always  speaks  the  truth;  we  never  heard  a 
lie  from  any  of  them  ;  all  their  statements  are  short  and  true."  A  Veddah 
who  had  committed  murder  and  was  tried  for  it,  instead  of  telling  a  lie  in 
order  to  escape  punishment,  said  simply  nothing.  Other  instances  of  ex- 
treme truthfulness  are  provided  by  various  uncivilized  tril)es  in  India.  The 
Saoras  of  the  province  of  Madras,  "like  most  of  the  hill  people,  .  .  '.  are 
not  inclined  to  lying.  If  one  Saora  kill  anotlier,  he  admits  it  at  once  and 
tells  why  he  killed  him."  The  highlander  of  Central  India  is  described  as 
"the  most  truthful  of  l)eings,  and  rarely  denies  either  a  money  obligation 
or  a  crime  n-ally  chargeable  against  him."  A  true  Gond  "will  conmiit  a 
murder,  but  he  will  not  tell  a  lie."  The  Kandhs,  says  Macpherson,  "are, 
I  believe,  inferior  in  veracity  to  no  people  in  the  world.  ...  It  is  in  all 
ca-ses  imperative  to  tell  the  truth,  except  when  deception  is  necessary  to 
.save  the  lift*  of  a  guest."  .  .  .  The  Dyaks  of  Borneo  are  praised  for  their 
honesty  and  great  regard  for  trutli.  Mr.  Bock  states  that  if  they  could  not 
sati.sfactorily  reply  to  his  questions,  they  hesitated  to  answer  at  all,  and  that 
if  he  did  not  always  get  the  whole  truth,  he  always  got  at  least  nothing  but 
tin-  truth  from  them,  ^'eracity  is  a  characteristic  of  the  Alfura  of  Hal- 
mahera  and  the  Bataks  of  Sumatra,  who  only  in  cases  of  urgent  necessity 
have  recourse  to  a  lie.  The  Javanese,  says  ("rawfurd,  "are  honorably  dis- 
tinguished from  all  the  civilized  nations  of  Asia  by  a  regard  for  truth." 
"  In  their  intercourse  with  society."  Raffles  observes,  "they  display,  in  a  high 
degree,  the  virtues  of  honesty,  plain  dealing,  and  candor.  Their  ingenuous- 
ness is  sueli  that,  as  the  first  Dutch  authorities  have  acknowledged,  prisoners 
brought  to  the  bar  on  eriniiiiai  charges,  if  really  guilty,  nine  times  out  of  ten 
confess,  without  disguise  or  equivocation,  the  full  extent  and  exact  circum- 
stances of  their  oll'enses,  and  communicate,  when  required,  more  infornia- 
tir.ri  on  the  matter  at  issue  than  all  the  rest  of  the  evidence."  .  .  .  Castren 
states  that  the  Zyrians.  like  the  Finnish  tribes  generally,  are  trustworthy 
and  honest,  and  that  the  ( )styaks  have  no  other  oaths  but  those  of  purgation. 

.S14 


No.  164.  I.       GENERIC    TRAITS.       A.    RACE  315 

Among  them  "  witnesses  never  take  the  oath,  but  their  words  are  imcon- 
ditionally  beheved  in,  and  everybody,  with  the  exception  of  lunatics,  is 
allowed  to  give  evidence.  Children  may  witness  against  their  parents, 
brothers  against  brothers,  a  husband  against  his  wife  and  a  wife  against  her 
husband."  The  Aleuts  were  highly  praised  by  Father  Veniaminof  for  their 
truthfulness :  "  These  people  detest  lying,  and  never  spread  false  rumors. 
.  .  .  They  are  very  much  offended  if  any  one  doubts  their  word."  They 
"despise  hypocrisy  in  every  respect,"  and  "do  not  flatter  nor  make  empty 
promises,  even  in  order  to  escape  reproof." 

The  regard  in  which  truth  is  held  by  the  Eskimo  seems  to  vary  among 
different  tribes.  Armstrong  blames  the  Western  Eskimo  for  being  much 
addicted  to  falsehood,  and  for  seldom  telling  the  truth,  if  there  be  anything 
to  gain  by  a  lie.  .  .  .  The  Greenlanders  are  generally  truthful  towards 
each  other,  at  least  the  men.  But  if  he  can  help  it,  a  Greenlander  will  not 
tell  a  truth  which  he  thinks  may  be  unpleasant  to  the  hearer,  as  he  is  anxious 
to  stand  on  as  good  a  footing  as  possible  with  his  fellow  men.  ...  Of  the 
Australian  aborigines  we  are  told  that  some  tribes  and  families  display  on 
nearly  all  occasions  honesty  and  truthfulness,  whereas  others  "  seem  almost 
destitute  of  the  better  qualities."  .  .  . 

Very  different  from  these  accounts  is  Mr.  Gason's  statement  concerning 
the  Dieyerie  in  South  Australia.  "A  more  treacherous  race,"  he  says, 
"  I  do  not  believe  exists.  They  imbibe  treachery  in  infancy,  and  practice 
it  until  death,  and  have  no  sense  of  wrong  in  it.  .  .  .  They  seem  to  take 
a  delight  in  lying,  especially  if  they  think  it  will  please  you.  Should  you 
ask  them  any  question,  be  prepared  for  a  falsehood,  as  a  matter  of  course. 
They  not  only  lie  to  the  white  man,  but  to  each  other,  and  do  not  appear  to 
see  any  wrong  in  it."  .  .  .  We  are  told  by  Polack  that  among  the  Maoris 
of  New  Zealand  lying  is  universally  practiced  by  all  classes,  and  that  an 
accomplished  liar  is  accounted  a  man  of  consummate  ability.  But  Dief- 
fenbach  found  that,  if  treated  with  honesty,  they  were  always  ready  to- 
reciprocate  such  treatment ;  and,  according  to  another  authority,  they  be- 
lieved in  an  evil  spirit  who  they  said  was  "a  liar  and  the  father  of  lies." 
The  broad  statement  made  by  von  Jhering,  that  among  the  South  Sea 
Islanders  lying  is  regarded  as  a  harmless  and  innocent  play  of  the  imagina- 
tion, is  certainly  not  correct.  .  .  .  Nowhere  in  the  savage  world  is  truth 
held  in  less  estimation  than  among  many  of  the  African  races.  .  .  .  Miss 
Kingsley's  experience  of  West  African  natives  is  likewise  that  they  "will 
say  *Yes'  to  any  mortal  thing,  if  they  think  you  want  them  to."  The 
Wakamba  are  described  as  great  liars.  .  .  .  To  the  Wanika,  says  Mr, 
New,  lying  is  "  almost  as  the  very  breath  of  their  nostrils,  and  all  classes, 
young  and  old,  male  and  female,  indulge  in  it.  A  great  deal  of  their  lying 
is  without  cause  or  object ;  it  is  lying  for  lying's  sake.  You  ask  a  man  his 
name,  his  tribe,  where  he  lives,  or  any  other  simple  question  of  like  nature, 
and  the  answer  he  gives  you  will,  as  a  rule,  be  the  very  opposite  to  the  truth  ; 
yet  he  has  nothing  to  evade  or  gain  by  so  doing.  Lying  seems  to  be  more 
natural  to  him  than  speaking  the  truth.  He  lies  when  detection  is  evident, 
and  laughs  at  it  as  though  he  thought  it  a  good  joke.  He  hears  himself  called 
'  mulongo  '  (liar)  a  score  of  times  a  day,  but  he  notices  it  not,  for  there 
is  no  opprobrium  in  the  term  to  him.  To  hide  a  fault  he  lies  with  the  most 
barefaced  audacity  and  blindest  obstinacy.  .  .  .     When  his  object  is  gain,. 


310  PART    II.       TESTIMONIAL    EVIDENCE  No.  10  i. 

hf  will  invent  falsehoods  wholesale.  ...  He  boasts  that  'ulongo'  (lying) 
is  his  'pesa'  (piece,  ha'pence),  and  holds  bare  truth  to  be  the  most  un- 
profitable c-omniodity  in  the  world.  But  while  he  lies  causelessly,  object- 
lessly,  recklessly,  in  sell-tlefense  or  self-interest,  he  is  not  a  malicious  liar. 
He  does  not  lie  with  express  intent  to  do  others  harm  ;  this  he  would  con- 
sider inunoral.  and  he  has  sufficient  goodness  of  heart  to  avoid  indulging 
therein.  ...  I  ha\e  often  l)een  struck  with  the  manner  in  which  he  has 
controlleil  his  tongue  when  the  character  and  interest  of  others  have  been 
at  stake."  ... 

Hut  in  Africa,  also,  there  are  many  people  who  have  been  described  as  re- 
gardful of  truth  and  hostile  t^  falsehood.  Pearly  travelers  speak  very 
highly  of  the  sincerity  of  the  Hottentots.  ...  As  regards  the  truthfulness 
of  the  African  .\rabs  opinions  vary.  Parkyns  asks,  "  Who  is  more  trust- 
worthy than  the  desert  Arab?"  According  to  Rohlfs  and  Chavanne, 
on  the  other  hand,  the  Arabs  of  the  Sahara  are  much  addicted  to  lying  ; 
and  of  the  Arabs  of  Egypt  Mr.  St.  John  observes:  "  There  is  no  general 
appreciation  of  a  man's  word.  .  .  .  '  Liar '  is  a  plaj^ul  appellative  scarcely 
reproachful  ;  and  '  I  have  told  a  lie'  a  confession  that  may  be  made  with- 
out a  blush.".  .  .  In  .Japan,  Burma,  and  Siam  truth  is  more  respected 
than  in  China.  "  In  l<ne  of  truth,"  says  Professor  Rein,  "the  Japanese, 
.so  far  as  my  experience  goes,  are  not  inferior  to  us  Europeans."  The  Bur- 
mese, though  partial  to  much  exaggeration,  are  generally  truthful.  And 
"the  mendacity  so  characteristic  of  Orientals  is  not  a  national  defect  among 
the  Siamese.  Lying,  no  doubt,  is  often  resorted  to  as  a  protection  against 
injustice  and  oppression,  but  the  chances  are  greatly  in  favor  of  truth  when 
evidence  is  sought."  Lying  has  been  called  the  national  vice  of  the  Hindus. 
"It  is  not  too  much  to  assert  that  the  mass  of  Bengalis  have  no  notion  of 
truth  an<l  falsehood."   .   .   . 

Not  without  reason  did  the  Romansof  the  republican  age  contrast  their  own 
"fides"  with  the  mendacity  of  the  Greeks  and  the  perfidy  of  the  Phoeni- 
cians. .  .  .  The  ancient  Scandinavians  considered  it  disgraceful  for  a  man  to 
tell  a  lie.  to  break  a  proini.se,  or  to  commit  a  treacherous  act.  .  .  .  "Speak 
every  man  truth  with  his  neighbor,"  was  from  early  times  regarded  as  one 
of  the  most  imperative  of  Christian  maxims.  .  .  . 

Yet  from  early  times  we  meet  within  the  Christian  Church  a  much  less 
rigorous  doctrine,  which  soon  came  to  exercise  a  more  powerful  influence  on 
the  practice  and  feelings  of  men  than  did  St.  Augustine's  uncompromising 
love  of  truth.  .  .  .  This  zeal,  together  with  an  indiscriminate  devotion  to 
the  Church,  led  to  tho.se  "pious  frauds,"  those  innuinerable  falsifications  of 
documents,  inventions  of  legends,  antl  forgeries  of  every  description,  which 
made  the  Catholic  Church  a  veritable  seat  of  lying,  and  most  seriously 
impaired  the  .sense  of  truth  in  the  minds  of  Christians.  ...  An  oath  which 
wsus  contrary  to  the  good  of  the  ( "hurch  was  declared  not  to  be  binding.  The 
theory  was  laid  «lown  that,  as  faith  was  not  to  be  kept  with  a  tyrant,  pirate, 
or  robber,  who  kills  the  body,  it  was  still  less  to  be  kept  with  an  heretic,  who 
kills  the  soul.  Private  j)n)testations  were  thought  sufficient  to  relieve  men 
in  conscienc-e  from  being  bound  l)y  a  solemn  treaty  or  from  the  duty  of 
sjM'aking  tlu-  truth  ;  and  an  equivocation,  or  play  upon  words  in  which  one 
.sense  is  taken  by  the  speaker  and  another  sense  intended  by  him  for  the 
hearer,  was  in  sonic  cases  held  per!ni.ssil)le.   .   .   . 


No.  165.  .  I.       GENERIC    TRAITS.       A.    RACE  317 

Adherence  to  truth  and  especially  perfect  fidelity  to  a  promise  were 
strongly  insisted  upon  by  the  code  of  Chivalry.  .  .  .  The  knightly  duty  of 
sincerity  seems  to  have  gone  little  beyond  the  formal  fulfillment  of  an  en- 
gagement. "The  age  of  Chivalry  was  an  age  of  chicane,  and  fraud,  and 
trickery,  which  were  not  least  conspicuous  among  the  knightly  classes."  .  .  . 
In  modern  times,  according  to  Mr.  Pike,  the  Public  Records  testify  a  de- 
crease of  deception  in  England.  Commercial  honesty  has  improved,  and 
those  mean  arts  to  which,  during  the  reigns  of  the  Tudors,  even  men  in  the 
highest  positions  frequently  had  recourse,  have  now,  at  any  rate,  descended 
to  a  lower  grade  of  society. 

At'present,  in  the  civilized  countries  of  the  West,  opinion  as  to  what  the 
duty  of  sincerity  implies  varies  not  only  in  different  individuals,  but  among 
different  classes  or  groups  of  people,  as  also  among  different  nations. 

165.  G.  F.  Arnold.  Psychology  Applied  to  Legal  Evidence.  (1906. 
p.  435.)  .  .  .  There  is  a  general  danger,  to  which  the  psychologist  is  always 
alive,  of  misinterpreting  other  minds,  and  this  is  intensified  when  we  are  try- 
ing to  understand  one  of  another  race.  Professor  Sully  describes  it  as  fol- 
lows :  "  There  is  a  characteristic  danger  in  reading  the  minds  of  others  which 
arises  from  an  excessive  propensity  to  project  our  own  modes  of  thinking  and 
feeling  into  them.  This  danger  increases  w4th  the  remoteness  of  the  mind 
we  are  observing  from  our  ow^n.  To  apprehend,  e.g.  the  sentiments  and 
convictions  of  an  ancient  Roman,  of  a  Hindu,  or  of  an  uncivilized  African, 
is  a  very  delicate  operation.  It  implies  close  attention  to  the  differences  as 
well  as  the  similarities  of  external  manifestation,  also  an  effort  of  imagination 
by  which,  though  starting  from  some  remembered  experiences  of  our  own, 
we  feel  our  way  into  a  new  set  of  circumstances,  new  experiences,  and  a  new 
set  of  mental  habits.  Children,  again,  owing  to  their  remoteness  from  adults, 
are  proverbially  liable  to  be  misunderstood."  ^  A  similar  warning  is  gi^•en 
by  Professor  James  :  "  The  truth  is  that  we  are  doomed,  by  the  fact  that 
we  are  practical  beings  with  very  limited  tastes  to  attend  to,  and  special 
ideas  to  look  after,  to  be  absolutely  blind  and  insensible  to  the  inner  feelings 
and  to  the  whole  inner  significance  of  lives  that  are  different  from  our  own. 
Our  opinion  of  the  worth  of  such  lives  is  absolutely  wide  of  the  mark,  and 
unfit  to  be  counted  at  all."  ^  It  may  probably  be  safely  asserted  that  the 
difficulties  of  understanding  others  arise  mainly  from  want  of  sympathy 
with  them,  and  it  is  not  possible  to  have  such  sympathy  without  some  ex- 
perience of  pleasures  and  pains  similar  to  theirs,  or  without  the  exercise  of  an 
imagination  which  must  be  based  in  part  on  such  experience.  Only  thus 
can  a  man  know  what  causes  such  feelings  in  them.  Now  it  is  specially 
difficult  to  enter  into  the  feelings  of  others,  when  their  conditions  of  life 
(internal  or  external)  are  very  different  from  our  own.  Difference  of  lan- 
guage (as  between  Greeks  and  Barbarians),  of  color  (as  with  Negroes),  of 
rank  and  of  faith,  have  afforded  long  and  stubborn  resistance  to  the  growth 
of  sympathy  in  the  human  race.  .  .  . 

It  follows  from  this  that  the  highly  civilized  European  must  be  extremely 
careful  when  judging  what  it  is  probable  a  less  civilized  man  of  another  race 
said  or  did  ;  for  what  is  improbable  to  him,  because  it  conflicts  with  his  knowl- 
edge and  experience,  would  not  be  so  to  a  person  endowed  with  less  knowl- 

1  Sully,  Outlines  of  Psychology,  p.  G.  ^  w_  James,  Human  Immortality,  p.  125. 


31S  PART    II.       TESTIMONIAL    EVIDENCE  No.  166. 

edpe  and  differiMit  fxpcrience.  and  courses  of  action,  which  to  the  European 
are  manifestly  inferior  to  others,  will  be  those  pursued  by  the  more  savage 
race  bwause  they  will  be  the  only  courses  to  occur  to  their  minds.  •  •  • 

A  defect  of  Eastern  races  which  particularly  strikes  the  European  mind 
is  their  want  (»f  veracity.  It  has  always  seemed  to  us  that  to  so  great  an 
extent  tloes  this  prejudice  some  Europeans  against  them  that  it  renders  them 
blind  to  many  gooil  (lualities  which  these  nations  possess,  an  unfortunate 
result  which  has  done  much  to  keep  the  two  races  apart,  for  to  a  mind  which 
does  not  value  this  single  virtue  at  so  high  a  rate  such  wholesale  condemna- 
tion naturally  appears  most  unjust.  Yet,  as  the  late  Mr.  Lecky  points  out, 
there  is  nothing  .so  intrinsically  great  about  veracity,  in  the  sense  in  \thich 
we  now  employ  the  term,  and  it  is  only  the  force  of  circumstances  which  has 
led  the  Englishman  to  prize  it  so  highly.  "That  accuracy  of  statement  or 
fidelity  to  engagements  which  is  commonly  meant  when  we  speak  of  a  truth- 
ful man,  is  usually  the  special  virtue  of  an  industrial  nation,  for  although 
industrial  enterprise  affords  great  temptations  to  deception,  yet  mutual 
confidence,  and  therefore  strict  truthfulness,  are  in  these  occupations  so 
transcendently  important  that  they  acquire  in  the  minds  of  men  a  value 
they  had  never  before  possessed.  Veracity  becomes  the  first  virtue  in  the 
moral  type,  and  no  character  is  regarded  with  any  kind  of  approbation  in 
which  it  is  wanting.  It  is  made  more  than  any  other  the  test  distinguishing 
a  good  from  a  bad  man.  .  .  .  The  usual  characteristic  of  nations  where 
the  industrial  spirit  is  wanting  {e.g.  the  Italians,  Spaniards,  or  Irish)  is 
a  certain  laxity  or  ihstability  of  character,  a  proneness  to  exaggeration, 
a  want  of  truthfulness  in  little  things,  an  infidelity  to  engagements  from 
which  an  Knglishinan.  educated  in  the  habits  of  industrial  life,  readily  infers 
a  c-omi)lete  absence  of  moral  principle.  But  a  larger  philosophy  and  a  deeper 
experience  dispel  his  error.  He  finds  that  where  the  industrial  spirit  has  not 
penetrated,  truthfulne.ss  rarely  occupies  in  the  popular  mind  the  same  prom- 
inent position  in  the  catalogue  of  virtues.  It  is  not  reckoned  among  the 
fundamentals  of  morality  ;  and  it  is  possible  anfl  even  common  to  find  in 
these  nations  —  what  would  be  scarcely  possible  in  an  industrial  society  — 
men  who  are  habitually  dishonest  and  untruthful  in  small  things,  and  whose 
lives  are  ne\ertheless  influenced  by  a  deep  religious  feeling,  and  adorned 
by  the  consistent  practice  of  .some  of  the  most  difficult  and  painful  virtues. 
Trust  in  Providence,  content  and  resignation  in  extreme  poverty  and  suffer- 
ing, the  most  genuine  aniiability  and  the  most  sincere  readiness  to  assist 
their  brethren,  an  adherence  to  their  religious  opinions  which  no  persecutions 
and  no  l)ribes  can  shake,  a  capacity  for  heroic,  transcendent,  and  prolonged 
self-sacrifice,  may  be  fojind  in  some  nations  in  men  who  are  hal)itual  liars 
and  habitual  cheats."  ' 

We  have  reprotluced  this  somewhat  lengthy  (juotation  because  so  much 
of  it  appears  to  us  to  apply  to  Eastern  races,  especially  to  the  Burmese  people, 
and  because  it  not  only  appears  to  explain  the  want  of  veracity  among  them, 
but  also  at  the  .same  time  to  correctly  estimate  the  whole  character  of  such 
a  pi'oplf. 

1()().    F.  W.  CoLEGKovE.      Memory,  an  Inductive  Study.    (1900.      p.  246.) 
Till-  Inrlians  who  sent  returns  represent  25  different  tril)es,  and  may  be  con- 
'  E.  H.  L«fky.  Ilintoru  of  European  Morals,  Vol.  I,  pp.  137  et  seq. 


No.  167.  I.       GENERIC    TRAITS.       A.    RACE  319 

sidered  fairly  representative.  Some  of  the  tribes  are  in  a  low  state  of  civili- 
zation, but  many  came  from  families  of  wealth  and  culture.  Many  of  these 
memories  may  be  termed  crystal ized  racial  experiences,  and  the  question 
arises  whether  the  memory  tone  is  not  modified  by  atavistic  tendencies. 
As  will  be  seen  later,  their  memories  for  pleasant  and  unpleasant  occurrences 
savor  of  racial  experiences.  The  curves  for  the  first  three  memories  of  both 
males  and  females  average  higher  than  those  of  the  whites. 

Comparing  the  Indian  males  with  the  white  males  of  the  same  period,  the 
Indians  show  a  higher  percentage  of  memories  for  hearing,  taste,  mother  and 
playmates,  crying  and  grief,  corporal  punishment,  trees,  quarrels,  and  almost 
double  for  domestic  fowls  and  animals.  They  have  a  higher  percentage  of 
tactile  memories,  and  a  smaller  percentage  for  dress  and  persons  not  relatives. 
The  following  memories  are  wholly  or  chiefly  Indian :  fishing,  snakes, 
squirrels,  negroes,  hunting  (bow  and  arrows),  lakes  and  streams,  and  tobacco. 

Comparing  Indian  females  with  white  females  of  the  same  age,  the  Indians 
have  a  larger  percentage  of  auditory,  gustatory,  and  motor  memories,  also  for 
father,  mother,  playmates,  fear,  and  dolls  ;  much  greater  for  crying  and  grief, 
and  double  the  percentage  for  domestic  fowls  and  animals.  They  have 
a  smaller  percentage  of  memories  for  persons  not  related,  dresses  and  other 
clothing,  fewer  typographical  and  logical  memories,  and  less  for  sickness  and 
accident  to  self  and  others,  and  for  the  activity  of  others.  The  following 
memories  belong  wholly  or  chiefly  to  the  Indians  :  lakes,  rivers,  wolves, 
coons,  owls,  fishing,  skating,  and  negroes. 

The  curves  for  the  age  of  the  negroes  at  the  time  of  the  first  three  memories 
show  a  higher  average  than  those  for  the  whites.  The  negroes  do  not  seem 
to  differentiate  the  memories  from  the  memory  complex  until  late  in  life. 
This  may  be  due  to  the  poverty  of  the  mental  experience  in  early  life.  The 
memory  tone  is  monotonous.  Further  evidence  of  this  is  a  strong  tendency 
to  remember  by  comparison.  Such  an  event  occurred  "in  Garfield's" 
or  "in  Harrison's  administration,"  or  "after  I  went  to  school."  But  the 
best-educated  negroes,  as  would  be  expected,  have  sharply  defined  and  well 
differentiated  early  experiences.  Their  memories,  too,  have  less  of  the 
grotesque  character.  The  story  of  hardships,  wrong,  and  suffering  is  deeply 
imprinted  on  many  memories.  .  .  . 

The  pleasant  and  unpleasant  memories  of  the  male  whites  rise  and  fall 
together  until  the  age  of  21.  At  22,  in  the  case  of  the  males,  the  curve  for 
impleasant  memories  is  the  higher,  after  which  the  pleasant  memories  are 
in  the  ascendency.  After  the  age  of  30,  unpleasant  memories  are  little  re- 
called by  the  males.  The  unpleasant  memories  play  the  important  role  in 
the  case  of  the  Indian  and  negro  males.  One  can  hardly  fail  to  see  in  it  a 
suggestion  of  persecution  and  slavery.  The  Indian  females  show  a  slight 
tendency  toward  remembering  unpleasant  experiences  best,  and  share  the 
sorro^vful  experiences  of  their  brothers.  On  the  other  hand,  in  the  case  of 
the  negro  females,  impleasant  experiences  play  a  very  minor  part  indeed. 
With  them  a  dress  of  striking  color  appears  easily  to  efface  grief. 

167.  M.D.Chalmers.  Petty  Perjury.  (1895.  Law  Quarterly  Review. 
Vol.  XI,  p.  219.)  .  .  .  Though  most  of  the  perjury  committed  in  county 
courts  and  police  courts  is  of  a  petty  nature,  still  in  the  aggregate  it  constitutes 
a  serious  impediment  to  the  administration  of  justice.  .  .  .     Few  people, 


320  PART   II.      TESTIMONIAL   EVIDENCE  No.  168. 

I  tliiiik.  realize  the  extent  to  which  perjury  is  prevalent  among  the  lower 
classes  in  Englaml.  I  happen  to  have  administered  justice  in  three  different 
countries,  namely.  England.  Gibraltar,  and  India,  so  perhaps  I  have  some 
basis  of  comparison.  In  Gibraltar  there  was  a  mixed  population  of  Spaniards, 
Maltese,  and  Barbary  Jews,  but  there  was  nothing  to  complain  of  in  the  way 
of  perjury.  In  India,  no  doubt,  there  was  a  good  deal  of  lying,  but  many  of 
the  lies  were  of  a  stereotyped  form  (like  fictitious  averments  in  pleading), 
ami  I  certainly  think  it  is  harder  to  get  at  the  truth  in  an  English  county 
court  than  it  was  in  a  northwest  cutcherry.  In  the  High  Court  a  higher 
grade  of  witnesses  is  reached,  and  perjury  is  comparatively  rare.  More- 
over, a  witness  who  will  freely  commit  a  perjury  in  a  money  matter  will 
hesitate  to  do  so  in  a  criminal  cause.  Wales  has  not  a  high  reputation  for 
truth-telling,  but  if  I  may  judge  from  a  single  circuit,  the  Welshmen  are  no 
worse  than  their  neighbors.  With  one  exception,  I  was  struck  with  the  care- 
ful honesty  of  the  witnesses  all  round  the  circuit.  .  .  .  Some  time  ago  I 
took  a  note  of  a  hundred  consecutive  cases  for  less  than  £20  tried  before  me 
at  Birmingham.  1  found  there  was  hard  cross-swearing  in  sixty-three.  Of 
course  there  is  much  hard  swearing  which  is  not  perjury.  .  .  .  My  county- 
court  experience  is  mainly  confined  to  Birmingham,  but  I  have  no  reason  to 
believe,  and  I  do  not  believe,  that  Birmingham  is  worse  than  other  large 
urban  courts.  If  that  be  so,  after  making  all  allowance  for  hard  swearing 
which  is  not  perjury,  there  remains  a  terrible  residuum  of  willful  and  corrupt 
perjury,  which  urgently  calls  for  a  remedy,  if  the  administration  of  justice 
is  not  to  be  reduced  to  a  farce. 

IftS.    Minnie  MooRE-WiLLSON.    The  Seminoles  of  Florida.    (1910.    p.  93.) 
.    .   .    Thi  Seminoli's  i'nwrittcn  Verdict  of  the  White  Race. 

"  Es-ta-had-kee,  ho-Io-wa-gus,  lox-ee-o-jus  " 
(White  man  no  good,  lie  too  much.) 
In  some  mysterious  way,  the  Seminole's  conception  of  the  Decalogue  neither 
to  lie,  nf>r  steal,  nor  cheat,  is  the  foundation  stone  upon  which  he  builds  his 
character.  princii)le,  and  honor  ;  for  it  is  taught  to  the  race,  from  the  cradle 
to  the  grave,  to  the  swinging  papoose  on  its  mother's  shoulders,  all  through 
life,  till  the  Great  Spirit  calls  to  the  Happy  Hunting  Grounds.  Let  the 
reader  stop  and  consider  that  here  is  a  community  of  hundreds,  living  in 
op<-n  palmetto  camps.  Xo  locks,  no  doors,  no  courts,  and  no  officers  to  keep 
the  law  ;  a  peojjle,  who  for  generations  have  lived,  pure  in  morals,  with  no 
thieving,  no  trespassing,  and  no  profanity  (for  the  Seminole  has  no  oath  in 
his  language).  .  .  .  With  the  Seminole's  power  to  condense  into  a  single 
phra.se,  he  crystallizes  his  verdict  of  the  white  man  into  the  above  forcible 
expression.  In  pathetic  but  terse  language,  it  tells  of  generations  of  wrong 
treatment  at  the  hands  of  the  white  brother;  sharp  practices  and  broken 
treaties  and  misrepresentations  are  all  included  in  the  general  summing  up. 
From  his  oral  lexicon,  he  has  chosen  these  few  words,  which  reveal  the  throb- 
bing inner  soul  of  these  red  children  of  the  forests.  .  .  .  With  a  stoicism 
born  r.f  generations  of  training,  the  Seminole  shows  no  ill  will,  no  resentment, 
and  the  harshest  criticism  he  ever  makes  against  his  white  conquerors  and 
victorious  brothers  is  this  phrase,  "Es-ta-had-kee,  ho-lo-wag-us,  lox-ee-o- 
jus.''  And  whether  in  vindication  of  some  offense,  or  given  as  a  simple 
opinion,  lii.s  pent-up  feelings  find  expression  in  this  one  forcible  epithet,  and 


No.  169. 


GENERIC    TRAITS.       A.    RACE 


321 


seems  to  be  the  missile  he  hurls  at  the  white  man.  The  average  American, 
with  his  standard  of  morals  calloused  by  dealings  in  the  business  and  social 
world,  smiles  at  the  Seminole's  verdict  of  his  character,  and  with  indifferent 
shrug  jocularly  repeats  it  as  being  only  —  the  opinion  of  an  Indian. 


169.    SHELP    V.    UNITED  STATES.       (1897.       Federal  Circuit 


Court  of  Appeals.     81  Fed.  694.) 

Hawley,  District  Judge.  This 
appeal  is  taken  from  a  judgment  of 
the  District  Court  of  Alaska,  upon 
the  conviction  of  the  plaintiffs  in 
error  (hereinafter  designated  as 
"defendants")  of  the  crime  of  un- 
lawfully selling  intoxicating  liquor. 
.  .  .  The  next  error  assigned  is 
that  the  Court  erred  in  its  charge 
to  the  jury.  In  order  to  fully 
understand  the  parts  of  the  charge 
objected  to,  it  is  essential  to  state 
briefly  the  general  character  of  the 
testimony  at  the  trial. 

One  Indian  witness,  on  behalf  of 
the  government,  testified  as  follows  : 
"  My  name  is  Dennis.  I  live  at 
Chilkoot.  ...  I  know  these 
defendants.  .  .  .  Their  boat  was 
anchored  off  the  shore.  The 
younger  man  (meaning  the  defend- 
ant Cleveland)  waved  his  hat  to 
me ;  picked  up  a  keg ;  then  drank 
out  of  a  tin  cup.  When  I  came  to 
their  boat,  they  .gave  me  whisky 
to  drink,  and  told  me  to  tell  the 
other  people  at  the  village  that 
they  had  plenty  of  whisky.  I  went 
and  told  at  the  village,  and  12  of 
us  came  down  in  a  canoe,  and  got 
whisky  from  the  white  men.  I 
got  two  bottles  and  paid  four  ($4) 
for  it."  Several  other  Indians  testi- 
fied substantially  to  the  same  effect. 
The  defendants  testified  that  they 
resided  at  Douglas ;  that  on  the 
12th  of  August,  1894,  they  started 
on  a  prospecting  expedition  in  a 
sloop ;  that  they  went  to  Bear 
Creek,  on  Douglas  Island ;  that 
they  left  there,  and  arrived  at 
Funter  Bay,  on  Admiralty  Island, 
August  16th,  and  left  on  the  17th, 
and  arrived  at  Bartlett  Bay  on  the 
18th ;  left  there  on  the  19th,  and 
arrived  at  Hoona  Sound  on  the  20th  ; 
and      stayed      there,      prospecting 


around  the  sound,  for  8  or  10  days. 
The  defendant  Shelp,  in  the  course 
of  his  testimony,  said :  "  I  was 
never  at  Chilkoot  in  my  life.  I 
never  saw,  to  my  knowledge,  any 
of  the  Indians  who  testified  in  this 
case.  ^Ye  had  no  whisky  on  board 
of  our  sloop ;  neither  sold  nor  gave 
away  any  whisky  to  Indians." 

It  is  also  necessary  to  consider 
what  was  said  by  defendants'  coun- 
sel in  the  argument  to  the  jury, 
for  it  is  evident  that  some  of  the 
sentences  objected  to  in  the  charge 
were  given  by  the  Court  in  reply 
thereto.  In  discussing  the  weight 
to  be  given  to  the  evidence  by  the 
jury,  one  of  the  defendants'  attor- 
neys said  :  "  That  the  evidence  of 
ignorant,  half-civilized  barbarians, 
whose  moral  and  religious  sense  was 
not  developed,  and  who  did  not 
understand  and  appreciate  the  bind- 
ing force  of  an  oath  as  understood 
by  Christian  people,  and  who  had 
little  or  no  appreciation  of  our 
religious  ideas,  from  which  the  oath 
gets  its  binding  force  and  efficacy, 
and  who  had  no  appreciation  of  the 
enormity  of  perjury,  —  that  the 
evidence  of  such  witnesses  was  not 
entitled  to  as  much  credit  as  the 
evidence  of  a  witness  whose  moral 
ideas  were  more  fully  developed, 
and  who  understood  the  binding 
nature  of  an  oath,  and  the  pains 
and  penalties  of  perjury."  The 
Court,  after  referring  to  the  re- 
marks of  counsel,  charged  the  jury 
as  follows  :  "  (1)  It  is  a  fact  that 
Indians  lie,  and  it  is  also  a  fact 
that  white  men  lie,  and  some  of  the 
most  civilized  and  cultured  men  are 
among  the  greatest  liars.  The  evi- 
dence of  Indian  witnesses  is  entitled 
to  as  much  credit  and  weight  as 
the  evidence  of  white  men,  and  such 


322 


PART    II.       TESTIMONIAL    KVIDENCE 


No.  170. 


credibility  and  weight  are  <ieter- 
niined  by  the  same  rules  of  law.  (2) 
In  weighing  the  evidence  of  wit- 
nesses, you  have  the  right  to  con- 
sider their  intelligence,  their  ap- 
pearance upon  the  witness  stand, 
their  apparent  candor  and  fairness 
in  giving  their  testimony,  or  the 
want  of  such  cantlor  or  fairness, 
their  interest,  if  any,  in  the  result 
of  this  trial,  their  opportunities  of 
seeing  and  knowing  the  matters 
concerning  which  they  testify,  the 
probable  or  improbable  nature  of 
the  story  they  tell ;  and  from  these 
things,  together  with  all  the  facts 
and  circumstances  surrounding  the 
case,  as  disclosed  l)y  the  testimony, 
determine  where  the  truth  of  this 
matter  lies.  (3)  You  have  the 
right  to  use  your  own  knowledge 
of  this  country,  the  habits  and  dis- 
position of  the  Indians,  and  your 
knowledge  and  observation  of  the 
fact  that  whisky  ped<llers  cruise 
about  this  coast,  going  from  one 
Indian  village  to  another,  selling 
vile  whisky  to  the  natives.  (4) 
There  is  no  evidence  that  these 
defendants  located  a  claim  or  drove 
a  stake,  and  it  is  for  you  to  deter- 
mine from  the  evidence  whether 
they  were  out  prospecting  with 
pick  and  pan  and  shovel,  as  honest 
miners,  with  a  view  of  locating 
claims,  or  whether  they  were  out 
with  a  keg  «)f  whisky  and  a  tin  cup, 
prospecting  for  the  aboriginal  na- 
tive." To  which  charge  of  the 
Court  the  defendant  then  and  there 
exci'pted.   .   .   . 

It  is  evident   from  tl>'.-  tcstimonv 


that  either  the  defendants  or  the 
Indians  had  lied,  and  it  was  not 
error  for  the  Court  to  call  the  at- 
tention of  the  jury  to  that  fact, 
and  point  out  what  the  jurors  were 
entitled  to  consider  in  determining 
the  truth.  The  statement  that 
"  the  evidence  of  Indian  witnesses 
is  entitled  to  as  much  credit  and 
weight  as  white  men's"  must  be 
construed  with  reference  to  the 
other  portions  of  the  charge.  No 
witness  is  to  be  discredited  simply 
on  account  of  his  race  or  color. 
Every  witness,  whether  white,  dark, 
black,  or  yellow,  unless  otherwise 
disqualified  by  statute,  is  competent 
to  testify.  It  may  be  that  an  In- 
dian, whose  religious  ideas  have  not 
been  as  fully  developed  as  some 
white  men's,  may  have  as  keen  a 
peception  of  the  facts  which  tran- 
spired in  his  presence,  and  be  as 
able  to  satisfy  a  jury  of  the  truth 
of  his  statement,  as  any  white  man 
could  be ;  and  this  may  be  true 
notwithstanding  the  fact  that  the 
white  men  might  be  able  to  express 
his  ideas  or  knowledge  of  the  prin- 
ciples of  the  Christian  religion,  or 
the  nature  of  an  oath,  better  than 
the  Indian.  .  .  .  The  truth  is  that, 
in  law,  both  cljisses  stand  upon 
the  same  plane.  The  weight  and 
credibility  of  every  witness  is  to  be 
determined  in  the  manner  set  forth 
in  the  clause  marked  (2)  which 
contains  a  clear  and  correct  state- 
ment as  to  the  duty  of  jurors  in 
weighing  the  testimony  of  the  wit- 
nesses, whether  they  be  white  men 
or  Indians. 


170.   UNITED  STATES  i;.  LEE  HUEN  ct  al.     (1902.     U.  S.  District 
Cot'RT.      Northern  District  of  New  York,  118  Fed.  442). 


Ray,  District  Judge.  .  .  .  I'.S. 
V.  FoiKj  Ham,  alias  Iln  Fong  Siiifi, 
and  Yir  Yiti,  alias  llo  Ltr  Ditch. 
It  was  conceijed  that  the  defend- 
ants an*  Chinese  persons,  not 
members  of  the  exempt  class,  and 
that  they  came  into  the  Cnitetl 
States  from  the  Domitiion  of  ( 'anada 
a.s   charged    in    the   (-r)mplaints   and 


warrants.  The  only  question  pre- 
sente<i  is  the  sufficiency  of  the  evi- 
dence to  satisfy  the  conmiissioner 
that  the  defendants,  who  claim  to 
l)e  brothers,  were  born  in  the  United 
States.  Only  one  witness,  a  Chinese 
person  born  in  China,  an  alleged 
uncle  of  the  defendants,  gave  testi- 
mony.    He   says:     "Am   36   years 


No.  170. 


GENERIC    TRAITS.       A.    RACE 


323 


old.  Have  been  in  the  United 
States  23  years.  Came  from  China 
with  my  brother  and  sister-in-law 
(this  brother's  wife,  presumably), 
landed  at  San  Francisco,  and  re- 
mained there  ten  years,  at  503 
Dupont  street,"  and  while  there 
the  defendants  were  born,  and  are 
nephews  of  the  witness.  It  is 
left  to  conjecture  whether  or  not 
they  are  the  children  of  the  brother 
who  came  over  with  him ;  whether 
or  not  the  sister-in-law  who  came 
over  at  that  time  is  the  mother. 
Says  that  at  the  end  of  the  ten  years 
he  returned  to  China,  and  his  brother, 
sister-in-law,  and  the  defendants 
went  with  him.  Witness  remained 
in  China  one  year,  then  returned  to 
the  United  States,  landed  at  San 
Francisco,  where  he  remained  five 
days,  when  he  came  on  to  New 
York,  where  he  remained  ten  days, 
and  then  went  to  Brooklyn,  where 
he  remained  eight  years,  and  then 
returned  again  to  China,  and  re- 
mained one  year.  States  that  he 
saw  the  defendants  there  daily 
during  that  year.  The  witness  then 
returned  to  Brooklyn,  and  has 
resided  at  457  Central  avenue, 
Brooklyn.  Says  the  boys.  Ho  Fong 
Sing  and  Ho  Lee  Duck,  identifying 
the  defendants  in  court,  are  the 
same  persons  who  were  born  in 
Dupont  street,  San  Francisco,  Cali- 
fornia, and  the  same  he  saw  in  China, 
as  stated.  On  cross-examination, 
says  he  lived  at  Ho  Uk  with  his 
father  and  this  brother  before  he 
first  came  to  the  United  States,  and 
attended  school  two  years.  The 
brother  married  Wong  She,  who 
lived  at  Wong  Uk,  two  thirds  of  a 
mile  from  his  father's  home,  but 
witness  does  not  know  whether 
she  had  any  brothers  or  sisters.  In 
China  he  knew  Ho  Sew,  Ho  Lew, 
and  Ho  Fat,  aged  14,  12,  and  13 
years,  respectively,  but  remembers 
no  other  persons  he  knew  in  China. 
He  gives  the  day,  hour,  and  minutes 
of  his  leaving  home,  arrival  in  Hong 
Kong  (except  the  day  and  minute), 
and  arrival  in   San  Francisco    (ex- 


cept minutes).  He  then  says  he  and 
this  brother  (alleged  father  of  de- 
fendants) ran  a  store  at  Dupont 
street  those  ten  years,  and  that  he 
(the  witness)  had  $300  in  the  firm, 
which  he  borrowed  from  a  friend. 
Ho  Kong,  who  came  with  him 
from  China  to  the  United  States. 
He  had  failed  to  recall  the  exist- 
ence of  this  financial  friend  and 
backer  of  his  childhood  when  asked 
to  give  the  name  of  persons  he  knew 
in  China.  He  names  the  firm  of 
Hop  Lung,  on  Dupont  street,  but 
forgets  the  address,  and  cannot 
remember  the  name  of  any  other 
firm  or  the  location  of  any  firm  in 
Dupont  street,  except  his  own. 
Says  he  seldom  went  out,  and  does 
not  know  or  remember  the  streets 
running  parallel  with,  or  those 
crossing,  Dupont  street,  although  he 
was  doing  business  in  the  store  No. 
503  Dupont  street,  buying  and 
selling  goods  and  cooking,  all  the 
time  while  he  grew  from  13  to  23 
years  of  age.  Does  not  remember 
the  particulars  of  his  arrival  in 
New  York  and  Brooklyn.  He  does 
not  state,  and  no  one  asked,  the 
ages  of  the  defendants,  or  as  to 
any  of  the  circumstances  of  their 
birth  or  life  in  San  Francisco. 

All  this  evidence  amounts  to  is 
that  the  defendants  enter  the  LTnited 
States  from  Canada  and  are  arrested. 
A  Chinese  person  from  Brooklyn, 
whose  general  character  is  not  im- 
peached or  questioned,  claims  to  be 
their  uncle,  and  says  they  were 
born  in  Dupont  street,  San  Fran- 
cisco, California,  at  some  time  during 
the  ten  years  following  the  coming  of 
their  parents  to  the  LTnited  States, 
and  went  with  their  parents  to 
China,  where  they  were  seen  by  this 
uncle  every  day  for  a  year  on  a  visit 
he  made  to  his  native  land  eight 
years  later.  This  witness  exhibited 
such  a  vivid,  special,  and  remarkable 
memory  as  to  some  things,  and 
such  an  absolutely  blank  memory 
as  to  others  he  would  naturally 
observe  and  remember,  that  the 
commissioner  doubted  his  truth  and 


PART    II.       TESTIMONIAL    E\IDEXCE 


No.  170. 


veracity,  and  held  that  hi.s  testi- 
mony did  not  estabhsh  to  his  satis- 
faction that  these  defendants  were 
born  in  tlie  United  States.  Does 
it  estal)Hsh  the  asserteil  fact  ? 

The  record  discloses  no  evidence 
to  the  effect  that  the  financial 
precocity  of  the  Chinese  race  gener- 
ally, or  of  this  witness  in  particular, 
justified  this  alleged  loan  of  the 
$300  to  a  boy  of  13,  who  had  no 
property,  so  far  as  appears,  gave  no 
security,  had  no  business  experi- 
ence, anil  only  two  years'  .school- 
ing. On  the  other  hand,  it  may  be 
urged  with  great  force  that  this 
boy's  friend  had  the  right  to  let 
him  have  the  money ;  that  the  sum 
is  not  large,  and  that  such  acts  of 
friendship,  even  towards  boys,  are 
not  uncommon  ;  and  that  the  story 
is  not  iniprobal)le.  This  story,  how- 
ever did  not  relate  directly  to  the 
point  in  issue,  but  to  a  collateral 
matter,  and  the  same  is  true  of  the 
rather  remarkable  exhibitions  of 
memory  and  want  of  memory  in 
the  witness.  May  the  evidence  of 
a  witness  be  disregarded  when  the 
only  discrediting  features  are  of 
this  nature,  and  appear  in  a  detail- 
ing of  such  collateral  matters  ? 
Does  the  law  compel  the  commis- 
sioner to  be  satisfied  with  such 
evidence,  and  may  or  ought  the 
appellate  court  to  reverse  the  judg- 
ment of  the  commissioner  who  acted 
thereon  ? 

.  .  .  I'.  S.  V.  Chin  Iloir,  and  Chin 
Tung,  alias  Chin  Tank.  Only  one 
witness  was  sworn  in  this  case;  it 
having  been  admitted  that  defend- 
ants are  Chinese  persons,  not 
members  of  the  exempt  class,  and 
that  they  came  into  the  United 
States  from  the  Dominion  of  Canada, 
and  were  af)preliende<l,  as  charged. 
Is  this  testimony,  given  by  the 
alleged  nncle  of  the  defendants,  so 
contradiftory  that  the  commissioner 
was  justified  in  Indding  that  the 
birth  of  the  defendants  in  the 
United  States  had  not  been  proved 
to  his  satisfaction  ?  Sam  Sing  (( 'hin 
Sam  Sing),  a  Chinese  person,  says 


he  is  4.5  years  old ;  lives  at  14  Main 
Street,  Yonkers,  New  York;  has 
been  in  the  United  States  25  years. 
Says  on  direct  examination  that 
he  landed  at  San  Francsico,  where 
he  remained  three  months,  when  he 
went  to  Chico,  where  he  remained 
ten  years.  From  there  went  to 
San  Francisco,  and  remained  one 
year,  after  which  he  came  on  to 
New  York,  where  he  remained  a 
year  and  a  half.  Then  went  to 
China  for  one  year,  returned,  and 
has  been  in  Yonkers  since.  Has 
l)een  in  Yonkers  six  to  seven  years. 
This  time,  allowing  three  months 
for  travel,  makes  only  21  years. 
The  witness  says  the  defendants 
were  born  in  Chico,  and  that  Chin 
How  is  24  years  of  age,  and  Chin 
Tung  23.  Says  the  boys  were  in 
Chico  when  he  left ;  that  he  saw 
them  in  China  on  his  visit  there ; 
that  his  older  brother  wrote  him 
the  boys  and  their  father  and  mother 
returned  to  China  soon  after  wit- 
ness left  Chico.  Says  the  children 
are  his  nephews,  children  of  his 
older  brother.  On  his  cross-ex- 
amination he  repeated  in  detail  his 
places  of  residence  in  the  United 
States,  and  the  time  he  lived  in 
each  place,  without  variation,  and 
stated  that  he  had  not  lived  in  any 
other  place  in  the  United  States. 
There  is  nothing  in  the  evidence 
given  by  the  witness  that  discredits 
him  in  any  way,  except  this  vari- 
ance between  the  time  of  his  being 
in  the  United  States,  21  years, 
allowing  three  months  for  travel, 
and  the  ages  he  gives  the  defend- 
ants, 23  and  24  years,  respectively. 
He  testifies  to  the  last  fact  (that  of 
age)  as  positively  as  to  the  former 
facts  (those  of  his  residence  in  this 
country).  If  the  defendants  were 
born  in  Chico,  or  elsewhere  than  in 
China,  23  and  24  years  ago,  the 
witness  was  in  China  at  the  time, 
and  cannot  know  the  fact  testified 
to  by  him.  If  they  were  born  in 
Chico  when  the  witness  was  there, 
they  are  not  of  the  ages  sworn  to. 
It  cannot  be  law  that  the  commis- 


Xo.   170. 


GENERIC    TRAITS.       A.    RACE 


325 


sioner  was  bound  to  find  that  this 
witness  was  mistaken  merely  as  to 
the  ages  of  the  defendants,  or  as  to 
the  time  he  has  been  in  the  United 
States.  The  discrepancy  may  arise 
from  an  honest  error  of  the  witness, 
from  his  ignorance  of  the  facts, 
from  his  inabihty  to  add  or  sub- 
tract, or  from  his  want  of  truth  and 
veracity.  This  court  will  not  under- 
take to  guess  where  the  truth  is. 
It  was  for  the  defendants  to  prove 
the  facts.  The  record  shows  that 
attention  was  sharply  drawn  to  this 
discrepancy,  and  that  no  substantial 
effort  was  made  to  correct  or  ex- 
plain. Was  not  the  commissioner 
justified  in  holding  that  this  testi- 
mony given  by  the  alleged  uncle, 
and"  entirely  unsupported  and  un- 
corroborated, was  too  weak,  uncer- 
tain, and  contradictory  to  establish 
to  his  satisfaction  that  these  defend- 
ants were  born  in  the  United 
States  ? 

.  .  .  Chinese  persons  within  the 
United  States  (meaning  thereb}-  the 
organized  States  and  territories),  and 
their  descendants,  when  born  therein 
of  parents  residing  there,  and  not 
employed  in  a  diplomatic  or  official 
capacity  under  the  emperor  of 
China,  are  citizens  of  the  United 
States,  and,  when  such  fact  is 
established  in  the  mode  and  manner 
prescribed  by  the  proper  authori- 
ties, are  entitled  to  be  and  remain 
therein,  and  are  entitled  to  the  equal 
protection  of  the  laws.  .  .  .  Section 
3  of  the  act  of  May  5,  1892  (27 
Stat.  25),  has  wisely  and  necessarily 
provided  (if  the  law  is  to  be  en- 
forced) :  "  That  any  Chinese  per- 
son or  persons  of  Chinese  descent 
arrested  under  the  provisions  of 
this  act  or  the  acts  hereby  extended, 
shall  be  adjudged  to  be  unlawfully 
within  the  United  States  unless 
such  person  shall  establish,  by  af- 
firmative proof,  to  the  satisfaction 
of  such  justice,  judge,  or  commis- 
sioner, his  lawful  right  to  remain 
in  the  United  States."  The  burden 
of  proof,  not  of  evidence,  merely, 
is  on  the  defendant.  ... 


What  shall  be  accepted  as  satis- 
factory proof  is  evidence  that  satis- 
fies the  judicial  mind.  The  defend- 
ant is  not  required  to  satisfy  the 
prejudiced,  the  capricious,  the  un- 
reasonable, or  the  arbitrary  mind ; 
but  he  must  satisfy  the  judgment  of 
a  reasonable  man,  acting  honestly 
and  with  good  judgment,  and  with- 
out prejudice  or  bias.  The  com- 
missioner may  not  arbitrarily  or 
capriciously,  or  against  reasonable, 
unimpeached,  and  credible  evidence, 
containing  no  element  of  inherent 
improbability,  and  which  is  uncon- 
tradicted in  its  material  points,  and 
susceptible  of  but  one  fair  con- 
struction, refuse  to  be  satisfied.  .  .  . 
The  truth  of  the  unsupported  state- 
ments of  a  single  witness  may  be 
tested  by  their  inherent  probability, 
by  their  clearness  and  their  consis- 
tency with  each  other,  by  the  intelli- 
gence of  the  witness  in  observing 
and  reporting  upon  the  facts  to 
which  he  testifies,  by  his  freedom 
from  bias  and  prejudice  as  evi- 
denced by  words  or  conduct,  or 
by  his  known  character  for  honesty 
and  truth.  .  .  .  Evidence  from  a 
male  person,  not  the  father,  that  a 
certain  person  was  born  at  a  cer- 
tain time  and  place  (that  being  the 
fact  in  controversy)  unaccompanied 
by  any  details  as  to  how  or  why  he 
knows  such  fact,  may  not  be  con- 
clusive on  the  court.  But  to  war- 
rant a  finding  against  the  state- 
ment of  the  witness,  something 
should  appear  upon  the  record  to 
justify  the  court  in  refusing  to  give 
it  full  faith  and  credit.  .  .  . 

There  is  some  apparent  conflict 
in  the  cases  whether  mere  interest  in 
the  result  is  sufficient  to  justify  the 
court  or  jury  in  finding  against  the 
evidence  of  the  witness,  when  un- 
contradicted or  otherwise  unim- 
peached, and  his  testimony  is  clear, 
reasonable,  and  inherently  prob- 
able. .  .  .  This  court  cannot  as- 
sent to  the  proposition  that  in  one 
of  these  cases  a  witness  for  the  per- 
son sought  to  be  deported  is  inter- 
ested merelv  because  he  is  a  Chinese 


J2G 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  170. 


ptTson.  Such  ii  rule  would  make 
most  witnesses  in  a  court  of  justice 
interested  witnesses,  antl,  if  interest 
alone  justifies  the  court  in  refusing 
credence  to  the  testimony  of  a  wit- 
ness, then  many  in  every  trial  would 
be  more  or  less  discredited  by  reason 
of  mere  national  kinship,  and  the 
court  or  jury,  as  the  case  might  be, 
woulil  l)e  at  liberty  to  refuse  to  be 
bound  by  their  testimony  when 
testifying  in  favor  of  a  party  of 
their  own  nationality.  There  is  no 
rule  of  law  that  justifies  the  assump- 
tion that  a  Chinese  person  is  more 
interested  in  his  countrymen  than  is 
a  person  of  sonic  other  nationality 
in  his.  A  Yankee  may  testify  for  a 
Yankee,  but  he  is  not  therefore  in- 
terested. .\n  Irishman  may  testify 
for  an  Irishman,  an  Englishman  for 
an  Englishman,  a  German  for  a  Ger- 
man ;  but  such  witnesses  are  not, 
in  the  eye  of  the  law,  interested. 
No  discredit  can  legally  attach  to  the 
testimony  of  a  person  because  he 
gives  his  evidence  in  behalf  of  a 
party  who  belongs  to  his  own  nation- 
ality. A  Chinese  witness  in  one 
of  these  cases,  if  engaged  in  securing 
the  entrance  of  Chinese  persons  into 
the  Unitccl  States,  is  open  to  sus- 
picion ;  and  if  he  is  engaged  in  aiding 
the  entrance  of  such  a  person,  and 
gives  evidence  in  that  behalf,  he  is 
interested,  and  .such  fact  tends  to 
legitimately  discredit  his  testimony. 
\Vc  arc  all  l»rothers  in  the  family  of 
Ailam,  —  all  brothers  in  the  na- 
tional family  to  which  by  birth  or 
adoption  we  belong,  —  but  these 
ti»'s  of  race  or  color  do  not  make  us 
interestetl  witnesses  when  we  testify 
in  court,  within  the  rule  that  per- 
mits interest  to  be  used  as  a  di.s- 
crediting  circumstance.  If  it  affirm- 
atively app<ars  that  a  witness  has 
a  bias  in  fav(tr  of  jjcrsons  of  his  own 
nationality,  in  whose  behalf  he  is 
testifying,  or  against  the  r)thcr  party 
to  the  litigation,  or  a  bias  in  favor  of 
jKTsons  of  his  own  nationality  gener- 
ally, or  against  those  of  anotlier 
nationality,  such  fact  may  be  userl 
t(»    dis<Tc<lil     his     tc^t  imonv        Siicji 


facts  may  be  considered  by  the  court 
and  jury,  but  we  cannot  assume  or 
presume  the  existence  of  such  a 
bias  either  in  favor  of  persons  of  the 
same  nationality,  or  against  persons 
of  another  nationality.  The  one 
assuinption  is  as  unjust  and  ill- 
founded  as  the  other. 

It  is  quite  true,  however,  that  the 
testimony  of  foreigners  and  of  others 
who  are  brought  from  a  distance  to 
the  place  of  trial  requires  to  be 
scrutinized  with  more  than  common 
caution.  The  tribunal  before  which 
they  speak  knows  little  of  them, 
and  they  care  little  for  it,  and  may 
have  no  respect  for  the  laws  of  the 
country  in  which  they  are  giving 
evidence.  They  have  little  to  fear 
from  having  their  falsehoods  -  ex- 
posed, as  there  is  little  danger  of 
conviction  for  perjury,  and  they 
lose  nothing  in  reputation  among 
their  fellows.  In  our  courts  a  wit- 
ness who  does  not  understand  or  who 
cannot  speak  our  language,  but  who 
speaks  through  an  interpreter,  if  at 
all,  has  the  time  and  opportunity  to 
prepare  his  answers  to  each  ques- 
tion with  care,  and  hence  the  force 
of  a  cross-examination  is  broken, 
if  not  destroyed. 

So,  too,  it  is  common  knowledge 
that  enslaved  peoples  develop  an 
inordinate  propensity  for  lying,  and 
this  is  characteristic  of  most  oriental 
nations.  This  comes  largely  from 
their  being  subject  to  the  caprice  and 
exactions  of  their  masters  or  supe- 
riors, and,  having  no  sense  of  moral 
responsibility  to  them,  they  come 
to  regard  lying  to  them  as  no  sin, 
and  an  habitual  disregard  of  the 
truth  is  thus  engendered.  .  .  . 
Hence  in  all  these  Chinese  exclusion 
cases  the  testimony  of  Chinese  wit- 
nesses, unknown  and  coming  from 
a  distance,  —  especially  that  of  for- 
eigners, —  may  be  regarded  as  more 
or  less  weak  ;  and,  when  contradicted 
or  re:.!ly  impeached  in  any  of  the 
modes  suggested  and  recognized  by 
our  law,  the  commissioner  is  justified 
in  regarding  such  testimony,  stand- 
ing alone,  as  insufficient  to  convince 


No.  171. 


GENERIC    TRAITS.       A.    RACE 


327 


the  judicial  mind.  This  conclusion 
must  not  be  reached  arbitrarily  or 
capriciously  or  from  prejudice,  but 
from  conviction  that  the  case  is  not 
made  out ;  and  in  such  cases  the 
appellate  court  or  judge  is  not 
justified  in  reversing  the  finding  of 
the  tribunal  which  had  the  oppor- 
tunity of  observing  the  witness,  and 
noting  his  manner  and  sincerity  or 


want   of   sincerity   in   giving   testi- 
mony. .  .  . 

A  full  and  careful  examination  and 
consideration  of  all  of  the  evidence 
in  each  of  the  cases  now  before  the 
court  fails  to  disclose  any  ground  of 
reversal  in  either  case,  and  hence  the 
judgments  of  deportation  must  be 
affirmed. 


171.    THE  GENERAL  RUCKER. 

Tennessee.     35  Fed.  152.) 

...  In  Admiralty.  Libel  in  per- 
sonam demanding  .*$2500  damages 
for  personal  injuries  to  the  libelant, 
caused  by  a  blow  on  the  head  with  a 
monkey-wrench  in  the  hand  of  the 
mate  while  both  were  engaged  in 
loading  machinery  from  a  barge 
alongside  of  the  steamboat  General 
Rucker,  of  which  the  defendant  was 
the  owner.  The  facts  are  stated  in 
the  opinion  of  the  Court. 

./.  <S.  Duval  and  J.  M.  Greer,  for 
libelant.  Poston  &  Poston,  for  de- 
fendant. 

Hammond,  J. — The  disputed  issue 
of  fact  in  this  case  must  be  decided 
for  the  libelant,  unless  it  is  to  be  taken 
as  a  rule  of  evidence  that  the  testi- 
mony of  a  white  man  shall  prevail, 
"per  fas  et  nefas,"  over  that  of  a 
negro  ;  which  can  never  be  tolerated 
in  any  intelligent  and  impartial 
tribunal  for  the  trial  of  such  issues, 
whether  by  judge  or  jury,  either 
avowedly  or  covertly,  by  the  in- 
vention of  some  pretense  to  dis- 
guise the  operation  of  pure  prejudice 
on  that  subject.  In  what  was  said 
about  this  matter  at  the  bar,  the 
learned  counsel  for  the  defendant 
justly  and  somewhat  indignantly 
repudiated  any  reliance  upon  such 
a  prejudice,  but  insisted  that  the 
difference  between  witnesses  in  in- 
telligence, moral  stamina,  and  like 
elements  of  substantial  character 
entering  into  the  problem  of  deci- 
sion, should  turn  the  scale  in  any 
event,  whether  that  difference  arises 
from  race  distinctions  or  other  causes  ; 
and  there  can  be  no  doubt  of  the 


(1888.    Federal  District  Court, 

justice  of  that  rule,  as  he  states  it. 
But,  like  all  other  considerations  of 
that  kind,  in  the  application  of  the 
principle,  there  must  be  a  careful 
scrutiny  into  all  the  circumstances, 
so  that  there  shall  be  no  unjust 
exaggeration  of  it  into  one  of  mere 
aversion  against  the  testimony  of 
the  witness  on  account  of  his  race. 
The  mate  swears  positively  that 
he  did  not  strike  the  libelant  at  all, 
and,  if  they  were  both  white  or  both 
black,  the  burden  being  on  the 
libelant,  he  would  necessarily  fail, 
if  that  were  all  the  proof,  and  each 
were  equally  with  the  other  entitled 
to  credit.  But  the  corroborating  cir- 
cumstances certainly  proved  are  with 
the  libelant.  First,  his  wounded 
skull,  exhibited  immediately  after 
the  occurrence,  with  a  persistent 
statement  that  the  wound  was  made 
in  the  manner  he  no^  states  it  to 
have  been,  corroborates  his  story. 
There  is  not  the  faintest  suggestion 
in  the  proof  to  account  for  that 
wound  in  any  other  way  except  the 
reluctant  and  very  evasive  answers 
of  the  mate,  on  cross-examination, 
that  he  might  have  struck  him  with 
the  stick  which  he  admits  he  threw 
at  the  gang  of  roustabouts  at  work 
on  the  vessel.  But  another  one  of 
them  it  was  he  struck  on  that  oc- 
casion, and  he  was  arrested  at  the 
time  on  the  affidavit  of  that  other. 
The  counsel  here  suggests  that  the 
wound  may  have  been  made  by  con- 
tact with  the  sides  of  the  vessel  or 
barge  as  the  libelant  fell  into  the 
river  between  them,  or  bv  some  con- 


328 


PAKT    II.      TESTIMONIAL   EVIDENCE 


No.  171. 


tact  like  that  in  falling.  Certainly, 
it  may  have  l)een,  hut  nothing  then 
oeeurring  in  relation  to  that  cir- 
cunistaiue  .suggest.s  that  as  a  cause 
of  the  wound.  The  lii)elant's  wit- 
nesses swear  tiuit  he  then  and  there 
vociferously  accused  the  mate  of 
striking  him  with  the  monkey- 
wrench,  and  knocking  him  into  the 
river,  and  that  the  mate  suppressed 
his  complaints  hy  compelling  him 
to  return  to  work,  with  threats  of 
shooting  him.  The  mate  denies 
this,  as  he  does  the  striking,  and  his 
witnt'sse-;  diil  not  hear  it,  some  of 
them  saying  they  saw  no  wounds  or 
hlood  on  the  face ;  but  two  of  his 
witnesses,  most  favorably  situated 
to  see  what  occurred,  did  see  the 
wound  and  blood.  One  of  these, 
Pat  .^heridan,  heard  no  remark  about 
the  wound,  being  evidently  atten- 
tive to  his  duty  as  engineer  of  the 
"  nigger  engine,"  with  which  the 
machinery  was  being  lifted  from  the 
barge  to  the  ves.sel,  and  possibly  too 
far  away  to  hear  everything  that  was 
said  ;  but  the  other,  Bradford,  an- 
other mate,  whom  all  agree  w^as 
right  at  hand,  not  only  saw  the 
w(jund  and  blood  on  the  face,  but 
also  heard  libelant  accuse  the  mate 
of  striking  him  and  knocking  him 
into  the  river.  He  says  the  mate 
denied  it.  and  that  he  remarkeil  that 
libelant  might  have  got  the  hurt  in 
falling,  but  tRat  he  continued  to  ac- 
cuse the  mate  of  having  struck  him, 
which  corroborates  the  libelant's 
witnesses  on  that  point.   .   .   . 

Again,  the  conduct  of  tlic  libel- 
ant, and  others  who  were  struck,  of 
going  to  the  magistrate  tiiat  night 
anil  swearing  out  warrants  for  the 
mate's  arrest,  corroborates  libelant. 
Of  course  it  is  j)ossil)lc  that  this 
negro  inan  of  inferior  intelligence 
conceived  the  idea,  as  did  the  other 
two,  of  taking  advatitage  of  the  cir- 
cumstance that  in  falling  he  had 
cut  his  head,  to  wholly  fabricate  a 
story  of  being  beaten,  and  of  all  three 
going  before  a  justice  of  the  peace, 
and  each  falsely  ••omplaining  of  an 
a.s.suidt    and   bcniiiig   liy   this   mate; 


also  that  he  would  set  up  such  a 
charge  in  order  to  bring  this  suit 
for  damages.  But  that  theory  of 
accounting  for  their  conduct  is  im- 
prol)able ;  for  it  w^as  well  said  by 
the  learned  counsel  of  libelant  that 
these  simple-minded  negroes  are 
scarcely  equal  to  such  a  scheme  as 
that.  Under  the  explanation  given 
by  Capt.  Sims,  the  defendant,  for 
settling  those  prosecutions  and  pay- 
ing the  costs,  that  circumstance  can- 
not be  taken  as  corroborative  of 
libelant's  testimony ;  but  the  mere 
fact  of  an  immediate  accusation 
before  the  officers  of  the  law  is,  con- 
sidering the  simplicity  of  the  negro 
character,  taken  in  connection  with 
his  then  bleeding  wound,  and  the 
complaints  of  the  others  of  a  beating 
at  the  same  time,  strongly  suggestive 
of  the  fact  that  this  mate  was  pur- 
suing the  usual  method  —  to  which 
they  are  nearly  all  addicted,  and 
which  they  dishke  to  give  up  —  of 
enforcing  obedience  to  his  orders 
by  physical  force.  Under  these 
circumstances  it  is  more  probable 
that  he  struck  this  man  than  that 
he  did  not,  notwithstanding  that  he 
denies  doing  it  and  that  he  is  a 
white  man  and  the  other  a  negro. 
But,  besides  this,  we  have  the 
positive  testimony  of  libelant's  wit- 
nesses that  they  saw  the  blow  struck, 
and  the  story  they  tell  is  reasonable 
enough,  after  making  allowance  for 
their  exaggerations  of  the  enormity 
of  the  mate's  conduct.  Their  belief 
that  the  mate  intentionally  knocked 
libelant  into  the  river  is  probably  not 
at  all  true,  and  they  no  doubt  mag- 
nify the  force  of  the  blow,  and  all 
their  impressions  of  the  occurrences 
are  crude  and  distorted,  perhaps; 
and  yet  out  of  it  all  the  real  facts  are 
easily  discernible.  It  is  fairly  to  be 
inferred  that,  substantially,  the  facts 
are  that  the  mates  were  engaged  in 
(lri\ing  the  hands  to  the  speedy 
work  necessary  to  enable  the  boat 
to  leave  that  evening,  and  trying  to 
keep  them  up  to  the  mark  of  effi- 
ciency necessary  to  accomplish  that 
purpose;      and     that,    in     reply    to 


No.  171. 


GENERIC    TRAITS.      A.    RACE 


329 


libelant's  suggestion  that  they  were 
green  hands  at  the  business,  he 
tapped  him  on  the  head  with  the 
monkey-wrench,  or  some  hke  in- 
strument, severely  enough  to  make 
an  ugly  wound,  which  turned  out  to 
be  not  very  serious,  and  that  the 
libelant,  in  his  haste  to  get  away 
and  escape  further  blows,  or  to  get 
about  his  work,  fell  between  the 
vessel  and  the  barge  from  which  the 
machinery  was  being  transferred  and 
into  the  river,  from  which  danger  the 
mate  promptly  rescued  him,  and 
saved  his  life. 

Turning  now  to  the  defendant's 
proof,  I  find  nothing  in  it  necessarily 
overcoming  the  circumstances  tend- 
ing to  establish  the  above  conclu- 
sion of  fact.  Of  course,  there  is  the 
denial  of  the  mate ;  but  that  has 
already  been  treated,  and  the  other 
proof  must  prevail  against  it.  Noth- 
ing in  the  proof  of  the  other  wit- 
nesses establishes  his  denial  or 
necessarily  tends  to  support  it. 
Every  one  of  them  testifies,  to  be 
sure,  that  he  did  not  see  the  blow,  and 
some  of  them  think  they  would  have 
seen  it  if  there  had  been  one  struck ; 
but  it  is  manifest  from  the  nature  of 
the  act  and  the  situation  of  each,  as 
described  by  himself,  that  the  blow 
could  have  been  struck  and  not  one 
of  them  have  seen  it.  It  is  a  kind 
of  negative  testimony  of  not  much 
value.  .  .  .  The  libelant  says  that 
the  other  mate,  the  witness  Brad- 
ford, stood  by  and  saw  the  blow,  and 
no  doubt  he  was  close  enough  to 
have  seen  it ;  but  that  witness  was 
himself  engaged  in  the  business  of 
hurrying  up  the  work  by  superin- 
tending it,  and,  notwithstanding 
his  proximity,  may  not  have  seen 
the  blow.  He  is  very  positive  none 
was  struck  ;  but  he  did  not  belong  to 
the  "  gang  "  of  workmen  and  was  not, 
like  them,  at  that  moment  sub- 
jected to  the  immediate  supervision 
of  the  mate  and  brought  into  direct 
contact  with  him.   .   .   . 

Now,  there  can  be  no  question 
whatever  that  if  we  rigidly  confine 
the   libelant   to   the  minutiae  of  his 


story  and  that  of  the  witnesses,  and 
demand  that  every  detail  of  it  shall 
be  precisely  consistent  with  the 
ascertained  fact  before  any  corrob- 
oration shall  be  established  by 
those  facts,  it  would  fail.  So  would 
the  story  of  the  mate  and  his  wit- 
nesses fail  under  such  a  process. 
But  it  is  an  unreasonable  require- 
ment, and  the  law  of  evidence  does 
not  demand  such  consistency  of 
detail  in  the  relation  of  occurrences 
of  that  nature.  The  truth  is  that 
no  two  witnesses  on  such  occasions 
quite  agree  as  to  the  details  of  an 
occurrence,  and  no  single  witness 
can  tell  with  absolute  precision  what 
took  place  and  describe  accurately 
all  the  details.  The  most  that  any 
trier  of  the  issue  can  do  is  to  ex- 
tract from  the  consistencies  and  the 
inconsistencies  of  statements  the 
truth  as  nearly  as  it  may  be.  That 
the  blow  was  struck  in  this  case  will 
always  remain,  argumentatively,  per- 
haps, a  matter  of  doubt ;  but  for 
the  practical  purposes  ,  of  judicial 
judgment  it  must  be  taken  as  an 
established  fact. 

Perhaps  I  should  refer  to  the 
attack  on  the  libelant  for  his  false 
statement  that  he  remained  at  home 
six  weeks,  when  the  proof  shows  that 
in  less  than  ten  days  he  worked  a 
week  in  Memphis.  If  this  be  mate- 
rial, it  may  be  said  that  it  is  doubtful 
if  negroes  of  this  class  can  ever  be 
accurate  as  to  time  and  its  relation 
to  events.  It  is  notorious  that  the 
most  intelligent  witnesses  find  diffi- 
culty in  estimating  time,  and  gener- 
ally say,  "four  or  five  weeks,"  and 
"  five  or  six  days,"  etc.,  in  measuring 
it ;  but  negroes  seem  to  be  most 
unreliable  in  this  respect,  almost 
always.  The  libelant  doubtless 
thought  to  exaggerate  his  sufferings 
by  making  the  time  longer,  but  it  is 
hardly  fair,  under  the  circumstances 
already  stated,  to  disbelieve  him  on 
that  account  as  to  the  blow.  iVIore- 
over,  he  may  well  reply  "  tu  quo- 
que  "  ;  for  this  mate  swore  positively 
that  he  paid  the  libelant  that  night  be- 
fore he  left  the  boat,  while  the  truth 


330                                          PART    II.       TESTIMONIAL    EVIDENCE  No.  172. 

i^  that  he  escaped    from  the    boat  stance  of  his  story  as  the  Hbeiant's 

with   the   other   negroes,   and   went  woukl  have  been  a  material  aggrava- 

to   the  magistrate's  office,   and   re-  tion  of  his  damages. 

turned  next  day  for  his  pay,  sHpping  So  much  attention  to  a  dispute 

on  board  to  avoid  tlie  mate,  whom  he  about  a  mere  matter  of  fact  is  neces- 

was   evidently   afraid   to   meet.     It  sary,    under   the   circumstances,   to 

is   not   quite  satisfactory   to   argue  avoid  any  misunderstanding  or  mis- 

that  the  one  statement  is  material  representation  as  to  the  grounds  of 

and    the    other    immaterial    to    the  this    judgment.   .   .   .     The    libelant 

i.ssue.     The     mate's    statement,     if  will  be  allowed  SlOO  damages,  and 

true,    would    have    been    quite    as  his  costs  of  suit.     So  ordered, 
strong  as  a   corroborating  cireum- 


SUB-TITLE   B:    AGE 

172.  Robert  Louis  Stevenson.  Virghnhus  Puerisque.  Essay  on 
Child's  Play.  The  regret  we  have  for  our  childhood  is  not  wholly  justifi- 
able :  so  much  a  man  may  lay  down  without  fear  of  public  ribaldry  ;  for 
although  we  shake  our  heads  over  the  change,  we  are  not  unconscious  of 
the  manifold  advantages  of  our  new  state.  What  we  lose  in  generous  im- 
pulse, we  more  than  gain  in  the  habit  of  generously  watching  others ;  and 
the  capacity  to  enjoy  Shakespeare  may  balance  a  lost  aptitude  for  playing 
at  soldiers.  Terror  is  gone  out  of  our  lives,  moreover  ;  we  no  longer  see  the 
devil  in  the  bed-curtains  nor  lie  awake  to  listen  to  the  wind.  We  go  to 
school  no  more ;  and  if  we  have  only  exchanged  one  drudgery  for  another 
(which  is  by  no  means  sure),  we  are  set  free  forever  from  the  daily  fear  of 
chastisement. 

And  yet  a  great  change  has  overtaken  us ;  and  although  we  do  not  enjoy 
ourselves  less,  at  least  we  take  our  pleasure  differently.  We  need  pickles 
nowadays  to  make  Wednesday's  cold  mutton  please  our  Friday's  appetite ; 
and  I  can  remember  the  time  when  to  call  it  red  venison,  and  tell  myself 
a  hunter's  story,  would  have  made  it  more  palatable  than  the  best  of  sauces. 
To  the  grown  person,  cold  mutton  is  cold  mutton  all  the  world  over ;  not  all 
the  mythology  ever  invented  by  man  will  make  it  better  or  worse  to  him ; 
tli^  broad  fact,  the  clamant  reality,  of  the  mutton  carries  away  before  it 
such  seductive  figments.  But  for  the  child  it  is  still  possil)le  to  weave  an 
enchantment  over  eatables  ;  and  if  he  has  l)ut  read  of  a  dish  in  a  story  book, 
it  will  be  heavenly  manna  to  him  for  a  week.  .  .  .  Children  may  be  pure 
spirits,  if  they  will,  and  take  their  enjoyment  in  a  world  of  moonshine.  Sensa- 
tion does  not  count  for  so  much  in  our  first  years  as  afterw  ards ;  something 
of  the  swaddling  mnnbness  of  infancy  clings  about  us;  we  see  and  touch 
and  hear  through  a  sort  of  golden  mist.  Children,  for  instance,  are  able 
enough  to  see,  but  they  have  no  great  faculty  for  looking;  they  do  not  use 
their  eyes  for  the  pleasure  of  using  them,  but  for  by-ends  of  their  own  ;  and 
the  things  I  eall  to  mind  seeing  most  vividly  were  not  l)eautiful  in  themselves, 
but  menly  interesting  or  enviable  to  me  as  I  thought  they  might  l)e  turned 
to  practical  account  in  play.  Nor  is  the  sense  of  touch  so  clean  and  poignant 
in  children  a,s  it  is  in  a  man.  If  you  will  turn  over  your  old  memories,  I 
think  the  sensations  of  this  sort  you  remember  will  be  somewhat  vague,  and 


JSTo.  172.  I.       GENERIC    TRAITS.       B.    AGE  331 

come  to  not  much  more  than  a  blunt,  general  sense  of  heat  on  summer  days, 
or  a  blunt,  general  sense  of  well-being  in  bed.  ...  As  for  taste,  when  we 
bear  in  mind  the  excesses  of  unmitigated  sugar  which  delight  a  youthful 
palate,  it  is  surely  no  very  cynical  asperity  to  think  taste  a  character  of  the 
maturer  growth.  Smell  and  hearing  are  perhaps  more  developed  ;  I  remem- 
ber many  scents,  many  voices,  and  a  great  deal  of  spring  singing  in  the  woods. 
But  hearing  is  capable  of  vast  improvement  as  a  means  of  pleasure  ;  and  there 
is  all  the  world  between  gaping  wonderment  at  the  jargon  of  birds,  and  the 
emotion  with  which  a  man  listens  to  articulate  music. 

At  the  same  time,  and  step  by  step,  with  this  increase  in  the  definition  and 
intensity  of  what  we  feel  which  accompanies  our  growing  age,  another  change 
takes  place  in  the  sphere  of  intellect,  by  which  all  things  are  transformed  and 
seen  through  theories  and  associations  as  through  colored  windows.  We 
make  to  ourselves  day  by  day,  out  of  history,  and  gossip,  and  economical 
speculations,  and  God  knows  what,  a  medium  in  which  we  walk  and  through 
which  we  look  abroad.  We  study  shop  windows  with  other  eyes  than  in  our 
childhood,  never  to  wonder,  not  always  to  admire,  but  to  make  and  modify 
our  little  incongruous  theories  about  life.  .  .  .  According  to  my  con- 
tention, this  is  a  flight  to  which  children  cannot  rise.  .  .  .  We  grown  people 
can  tell  ourselves  a  story,  give  and  take  strokes  until  the  bucklers  ring,  ride 
far  and  fast,  marry,  fall,  and  die ;  all  the  while  sitting  quietly  by  the  fire 
or  lying  prone  in  bed.  This  is  exactly  what  a  child  cannot  do,  or  does  not 
do,  at  least,  when  he  can  find  anything  else.  He  works  all  with  lay  figures 
and  stage  properties.  When  his  story  comes  to  the  fighting,  he  must  rise, 
get  something  by  way  of  a  sword  and  have  a  set-to  with  a  piece  of  furniture, 
until  he  is  out  of  breath.  Wlien  he  comes  to  ride  with  the  king's  pardon,  he 
must  bestride  a  chair,  which  he  will  so  hurry  and  belabor  and  on  which  he 
will  furiously  demean  himself,  that  the  messenger  will  arrive,  if  not  bloody 
with  spurring,  at  least  fiery  red  with  haste.  If  his  romance  involves  an 
accident  upon  a  cliff,  he  must  clamor  in  person  about  the  chest  of  drawers  and 
fall  bodily  upon  the  carpet,  before  his  imagination  is  satisfied.  Lead  soldiers, 
dolls,  all  toys,  in  short,  are  in  the  same  category  and  answer  the  same  end. 
Nothing  can  stagger  a  child's  faith  ;  he  accepts  the  clumsiest  substitutes  and 
can  swallow^  the  most  staring  incongruities.  The  chair  he  has  just  been 
besieging  as  a  castle,  or  valiantly  cutting  to  the  ground  as  a  dragon,  is  taken 
away  for  the  accommodation  of  a  morning  visitor,  and  he  is  nothing  abashed  ; 
he  can  skirmish  by  the  hour  with  a  stationary  coal  scuttle ;  in  the  midst 
of  the  enchanted  pleasance,  he  can  see,  without  sensible  shock,  the  gardener 
soberly  digging  potatoes  for  the  day's  dinner.  He  can  make  abstraction 
of  whatever  does  not  fit  into  his  fable ;  and  he  puts  his  eyes  into  his  pocket, 
just  as  we  hold  our  noses  in  an  unsavory  lane.  .  .  . 

In  the  child's  world  of  dim  sensation,  play  is  all  in  all.  " Making  believe" 
is  the  gist  of  his  whole  life,  and  he  cannot  so  much  as  take  a  walk  except  in 
character.  I  could  not  learn  my  alphabet  without  some  suitable  "  mise-en- 
scene,"  and  had  to  act  a  business  man  in  an  office  before  I  could  sit  down 
to  my  book.  Will  you  kindly  question  your  memory,  and  find  out  how  much 
you  did,  work  or  pleasure,  in  good  faith  and  soberness,  and  for  how  much  you 
had  to  cheat  yourself  with  some  invention  ?  I  remember,  as  though  it  were 
yesterday,  the  expansion  of  spirit,  the  dignity  and  self-reliance,  that  came 
with  a  pair  of  mustachios  in  burnt  cork,  even  when  there  was  none  to  see. 


332  PART    II.       TESTIMONIAL    EVIDENCE  No.  172. 

Children  are  even  too  content  to  forego  what  we  call  the  realities,  and  prefer 
the  shadow  to  the  substance.  When  they  might  be  speaking  intelligibly 
together,  they  chatter  senseless  gibberish  by  the  hour,  and  are  quite  happy 
because  they  are  making  believe  to  speak  French.  I  have  said  already  how 
ex-en  the  imperious  appetite  of  hunger  suffers  itself  to  be  gulled  and  led  by 
the  nose  with  the  fag  end  of  an  old  song.  .  .  .  When  my  cousin  and  I  took 
our  porridge  of  a  morning,  we  had  a  device  to  enliven  the  course  of  the  meal. 
He  ate  his  with  sugar,  antl  explained  it  to  be  a  country  continually  buried 
under  snow.  I  took  mine  with  milk,  and  explained  it  to  ))e  a  country  suffer- 
ing gradual  inundation.  You  can  imagine  us  exchanging  bulletins  ;  how  here 
was  an  island  still  unsubmerged,  here  a  valley  not  yet  covered  w'ith  snow  ; 
what  inventions  were  made ;  how  his  population  lived  in  chains  on  perches 
and  traveled  on  stilts,  and  how  mine  was  always  in  boats ;  how  the  interest 
grew  furious,  as  the  last  corner  of  safe  ground  was  cut  oft'  on  all  sides  and 
grew  smaller  every  moment ;  and  how,  in  fine,  the  food  was  of  altogether 
secondar\-  importance,  and  might  even  have  been  nauseous,  so  long  as  w; 
sea.soned  it  with  these  dreams.  .   .   . 

One  thing,  at  least,  comes  very  clearly  out  of  these  considerations  :  that 
whatever  we  are  to  expect  at  the  hands  of  children,  it  should  not  be  any 
peddling  exactitude  about  matters  of  fact.  They  walk  in  a  vain  show,  and 
among  mists  and  rainbows ;  they  are  passionate  after  dreams  and  uncon- 
cerned about  realities  ;  speech  is  a  difficult  art  not  wholly  learned  ;  and  there 
is  nothing  in  their  own  tastes  or  purposes  to  teach  them  what  we  mean  by 
abstract  truthfulness.  When  a  bad  writer  is  inexact,  even  if  he  can  look 
back  on  half  a  centiny  of  years,  we  charge  him  with  incompetence  and  not 
with  dishonesty.  And  why  not  extend  the  same  allowance  to  imperfect 
speakers  'i  Ix't  a  stockbroker  be  dead  stupid  about  poetry,  or  a  poet  inexact 
in  the  details  of  l)usiness,  and  we  excuse  them  heartily  from  blame.  But 
show  us  a  miserable,  un])reeched,  human  entity,  whose  whole  profession  it 
is  to  take  a  tub  for  a  fortified  town,  and  a  shaving  brush  for  the  deadly 
stiletto,  and  who  passes  three  fourths  of  his  time  in  a  dream  and  the  rest 
in  open  self-deception,  and  we  expect  him  to  be  as  nice  upon  a  matter  of 
fact  as  a  scientific  expert  bearing  evidence.  Upon  my  heart,  I  think  it  less 
than  decent.  You  do  not  consider  how  little  the  child  sees,  or  how  swift 
he  is  to  weave  what  he  has  seen  into  bewildering  fiction  ;  and  that  he  cares 
no  more  for  what  you  call  truth,  than  you  for  a  gingerl)read  dragoon. 

1  am  reminded,  as  I  write,  that  the  child  is  very  inquiring  as  to  the  precise 
truth  of  stories.  But  indeed  this  is  a  very  dift'erent  matter,  and  one  bound 
ujj  with  the  subje<-t  of  play,  and  the  precise  amount  of  playfulness,  or 
I)layability,  to  be  looked  for  in  the  world.  Many  such  })urning  questions 
must  arise  in  the  course  of  nursery  education.  Among  the  fauna  of  this 
planet,  which  already  embraces  the  pretty  soldier  and  the  terrifying  Irish 
beggarman,  is,  or  is  not,  the  child  to  expect  a  Bluebeard  or  a  Cormoran  ? 
Is  he,  or  is  he  not,  to  look  out  for  magicians,  kindly  and  potent  ?  May  he, 
or  nujy  he  n«tt.  reasonably  hope  to  be  cast  away  upon  a  desert  island,  or 
turned  tf>  such  dimimiiivc  proportions  that  he  can  live  on  equal  terms  with 
hi>  lead  soldiery,  and  go  a  cruise  in  his  own  toy  schooner?  Surely  all  these 
are  practical  questions  to  a  neophyte  entering  upon  life  with  a  view  to  play. 
Pn-cision  upon  such  a  point,  the  child  can  understand.  But  if  you  merely 
a>k  hitri  of  his  past  behavior,  as   to  wlio    threw  such   a  stone,  for  instance, 


No.  173.  I.       GENERIC    TRAITS.       B.    AGE  333 

or  struck  such  and  such  a  match ;  or  whether  he  had  looked  into  a  parcel 
or  gone  by  a  forbidden  path,  —  why,  he  can  see  no  moment  in  the  inquiry, 
and  it  is  ten  to  one  he  has  already  half  forgotten  and  half  bemused  himself 
with  subsequent  imaginings. 

173.  Hans  Gross.  Criminal  Psychology  (transl.  Kallen,  1911.  §§  79- 
82,  pp.  368-374,  in  part) ;  and  Criminal  luvestigation  (transl.  Adam,  1907. 
p.  91.)  .  .  .  Of  course  we  cannot  fix  absolutely  the  age  at  which  witnesses 
are  more  or  less  worthy  of  credit ;  we  must  in  addition  and  even  to  a  greater 
extent  take  into  account  all  the  other  elements  which  go  to  make  up  a  man, 
his  natural  qualities  and  intellectual  culture.  But  still  certain  broad  rules 
may  be  laid  down  as  to  age.  The  conditions  of  the  child's  bringing-up,  the 
things  he  learned  to  know,  are  what  we  must  first  of  all  learn.  If  the  ques- 
tion in  hand  can  fit  into  the  notion  the  child  possesses,  he  will  answer  better 
and  more,  though  quite  unendowed,  than  if  a  very  clever  child  who  is  foreign 
to  the  notions  of  the  defined  situation.  I  should  take  intelligence  only  to  be 
of  next  importance  in  such  cases,  and  advise  giving  up  separating  clever 
from  stupid  children  in  favor  of  separating  practical  and  unpractical  chil- 
dren. The  latter  makes  an  essential  difference.  Both  the  children  of  talent 
and  stupid  children  may  be  practical  or  unpractical.  .  .  .  The  practical 
child  will  see,  observe,  properly  understand,  and  reproduce  a  group  of  things 
that  the  unpractical  child  has  not  even  observed.  Of  course,  it  is  well,  also, 
to  have  the  child  talented,  but  I  repeat :  the  least  clever  practical  child  is 
worth  more  as  witness  than  the  most  clever  unpractical  child.  What  the 
term  "practical"  stands  for  is  difficult  to  say,  but  everybody  knows  it, 
and  everybody  who  has  cared  about  children  at  all,  has  seen  that  there  are 
practical  children. 

In  one  sense  the  best  witnesses  are  children  of  7  to  10  years  of  age.  Love 
and  hatred,  ambition  and  hypocrisy,  considerations  of  religion  and  rank, 
of  social  position  and  fortune,  are  as  yet  unknown  to  them ;  it  is  impossible 
that  preconceived  opinions,  nervous  irritation,  or  long  experience,  should 
lead  them  to  form  erroneous  impressions ;  the  mind  of  the  child  is  but  a 
mirror  that  reflects  accurately  and  clearly  what  is  found  before  it.  These 
are  great  advantages,  accompanied  by  certain  corresponding  drawbacks. 
The  greatest  is  that  we  cannot  place  ourselves  at  the  point  of  view  of  the 
child ;  it  uses  indeed  the  same  words  as  we  do,  but  these  words  convey  to 
it  very  dift'erent  ideas.  Further,  the  child  perceives  things  differently  from 
grown-up  people.  The  conception  of  magnitude  —  great  or  small,  of  pace 
—  fast  or  slow,  of  beauty  and  ugliness,  of  distance  —  near  or  far,  are  quite 
different  in  the  child's  brain  from  in  ours ;  still  more  so  when  facts  are  in 
question.  Facts  to  us  perfectly  indifferent  delight  or  terrify  the  child, 
and  what  for  us  is  magnificent  or  touching  does  not  affect  it  in  the  least. 
We  are  ignorant  of  the  impression  produced  on  the  child's  mind.  There  is 
yet  another  difficulty ;  the  horizon  of  the  child  being  much  narrower  than 
ours,  a  large  number  of  our  perceptions  are  outside  the  frame  within  which 
alone  the  child  can  perceive.  We  know,  within  certain  limits,  the  extent  of 
this  frame  ;  we  should  not,  for  instance,  question  a  child  as  to  how  a  compli- 
cated piece  of  roguery  was  committed,  or  how  adulterous  relations  have 
developed  ;  we  know  it  is  ignorant  of  such  things.  But  in  many  directions 
we  do  not  know  the  exact  point  where  its  faculty  of  observation  commences 


334  PART    II.       TESTIMONIAL    EVIDENCE  No.  173. 

or  Stops.  At  times  we  cannot  explain  how  it  does  not  understand  something 
or  other,  while  at  other  times  we  are  astonished  to  see  it  find  its  bearings 
easily  among  matters  thought  to  he  well  beyond  its  intelligence. 

\Ve  are.  as  a  rule,  too  tlistrustful  of  the  capacity  of  a  child.  We  have  rarely 
found  t(K)  much  expected  of  it,  while  we  have  often  discovered  that  it  knew 
and  note<l  nmch  more  than  any  one  imagined.  The  same  experience  occurs 
to  us  in  daily  life.  How  many  times  do  not  people  speak  in  its  presence  of 
things  a  child  is  not  supposed  to  understand,  only  to  discover  later  that  it  has 
not  only  understood  very  well,  but  has  combined  the  information  with  other 
things  heard  before  or  after.  Again  it  must  not  be  forgotten  that  a  child 
is  peculiarly  exposed  to  external  influences,  whether  designed  or  accidental. 
Any  one.  knowing  that  a  child  is  to  appear  as  a  witness  in  a  court  of  justice, 
if  he  is  interested  in  his  statements,  and  has  the  chance  of  influencing  it 
himself,  will  almost  certainly  exert  that  influence.  The  child,  as  yet  devoid  of 
principles,  places  great  faith  in  the  words  of  grown-up  people  ;  so  if  a  grown-up 
person  brings  influences  to  bear  on  it,  especially  some  time  after  the 
occurrence,  the  child  will  imagine  it  has  really  seen  what  it  has  been  led  to 
believe.  This  result  is  obtained  with  certainty  if  the  man  proceeds  slowly 
and  by  degrees,  leading  the  child  to  the  desired  goal  by  repeated  simple 
questions,  as  "  Is  it  not  so  ?"  "  It  was  not  so,  was  it  not  thus  ?"  The  result 
is  the  same,  when  the  influence  is  undesigned.  An  important  event  hap- 
pens ;  it  is  naturally  much  talked  of,  all  sorts  of  hypotheses  are  started, 
there  is  gossip  of  what  others  have  seen  or  might  in  certain  circumstances 
have  seen.  If  a  child,  which  has  itself  seen  something  of  the  occurrence, 
hears  these  conversations,  they  become  deeply  engraved  on  its  young  mind, 
and  ultimately  it  believes  it  has  itself  seen  what  the  others  have  related. 
One  must  therefore  be  always  careful  in  questioning  children,  but  their 
statements,  if  judiciously  obtained,  generally  supply  material  of  great  value. 

In  passing  from  the  child  to  the  succeeding  age,  it  becomes  necessary  to 
distinguish  sex ;  for  just  as  sex  differentiates  in  external  appearance  the 
youth  from  the  girl,  so  are  they  differentiated  in  their  methods  of  percep- 
tion. An  intelligent  boy  is  undoubtedly  the  best  observer  to  be  found. 
The  world  begins  to  take  him  by  storm  with  its  thousand  matters  of  in- 
terest ;  what  the  school  and  his  daily  life  furnish  cannot  satisfy  his  over- 
flowing and  generous  heart.  He  lays  hold  of  everything  new,  striking, 
strange,  all  his  sen.ses  are  on  the  stretch  to  assimilate  it  as  far  as  possible. 
No  one  notices  a  change  in  the  house,  no  one  discovers  the  bird's  nest,  no 
one  observes  anything  out  of  the  way  in  the  fields ;  but  nothing  of  that 
sort  escapes  the  boy,  everything  which  emerges  above  the  monotonous  level 
of  daily  life  gives  him  a  good  opportunity  for  exercising  his  wits,  for  extend- 
ing his  knowledge,  and  for  attracting  the  attention  of  his  elders,  to  whom 
he  crmirntniicates  his  discoveries.  The  spirit  of  the  youth  not  having  as 
yet  been  led  astray  by  the  necessities  of  life,  it's  storms  and  battles,  its 
faction.s  and  (|uarrels,  he  can  freely  abandon  himself  to  everything  which 
appears  out  of  the  way;  his  life  has  not  yet  been  disturbed  by  education 
though  he  often  observes  more  clearly  and  accurately  than  any  adult.  .  .  . 
We  say  again  that  an  intelligent  boy  is,  as  a  rule,  the  best  witness  in 
the   world. 

It  is  a  (lifferent  affair  with  a  young  girl  of  the  same  age.  Her  natural 
qualities  and  her  education  prevent  her  acquiring  the  necessary  knowledge 


No.  173.  I.       GENERIC    TRAITS.       B.    AGE  335 

and  the  breadth  of  view  which  the  boy  soon  achieves,  and  these  are  the 
conditions  absolutely  indispensable  for  accurate  observation.  The  girl 
remains  longer  in  the  narrow  family  circle,  at  her  mother's  apron  strings. 
.  .  .  The  girl  has  no  training  of  the  boy's  sort ;  she  goes  out  less,  she  has 
little  to  do  with  workmen,  artisans,  or  tradesmen,  who  are  in  many  ways 
the  schoolmasters  of  the  boy  anxious  to  learn ;  she  sees  nothing  of  human 
life,  and  when  anything  extraordinary  happens  she  is  incapable,  one  might 
almost  suggest,  of  seizing  it  with  her  senses,  that  is  to  say,  of  observing 
accurately.  If  besides  there  be  danger,  noise,  fear,  all  which  attract  the 
boy  and  serve  to  excite  his  curiosity,  she  gets  out  of  the  way  in  alarm,  and 
either  sees  nothing  or  sees  it  indistinctly  from  a  distance.  A  young  girl 
may  even  in  certain  circumstances  be  a  dangerous  witness,  when  she  is 
interested  in  the  matter  or  is  herself  perchance  the  center.  In  such  a  case 
strong  exaggerations  and  even  pure  inventions  are  to  be  feared.  Natural 
gifts,  imagination,  dreaming,  romantic  exaltation,  such  are  the  natural 
degrees  by  which  the  girl,  too  young  yet  to  have  had  any  interesting  ex- 
periences of  her  own,  arrives  at  last  at  "Byronism."  Now  Byronism  is  a 
sort  of  ennui  or  weariness  of  life,  always  urging  one  to  seek  for  change ; 
and  what  happier  variety  could  there  be  than  a  criminal  matter  in  which 
the  little  lady  finds  herself  mixed  up.  It  is  interesting  enough  in  itself  to 
appear  in  the  witness  box,  to  make  a  deposition  and  to  intervene  in  the 
destiny  of  another;  but  how  much  more  noteworthy  is  it  when  an  im- 
portant matter  is  in  question,  when  the  attention  of  every  one  is  turned 
upon  the  witness,  when  all  the  world  is  breathless  to  learn  what  she  has 
been  asked,  what  she  has  replied,  and  how  the  case  is  going  to  turn.  Thus 
an  insignificant  theft  is  easily  magnified  into  a  robbery  with  violence ;  the 
witness,  out  of  a  miserable  swindler,  manufactures  a  pale  and  interesting 
young  man  ;  a  coarse  word  becomes  a  blow  ;  an  insignificant  event  develops 
into  a  romantic  abduction  ;  stupid  chaff  turns  up  as  a  great  conspiracy.  '.  .  . 
But,  to  be  just,  we  must  recognize  on  the  other  hand  that  no  one  notices 
and  knows  certain  things  more  cleverly  than  a  young  girl.  If  her  imagina- 
tion does  not  carry  her  away,  she  can  furnish  information  more  valuable 
than  any  grown-up  person.  .  .  .  No  one  discovers  more  rapidly  than  a 
sprightly  young  girl  approaching  maturity  the  little  carryings-on  and  in- 
trigues of  her  neighbors.  .  .  .  Connected  with  this  is  the  trick  young 
girls  have  of  spying  on  certain  people.  An  interesting  beauty  or  a  young 
man  acquaintance  have  no  more  vigilant  watcher  of  all  their  goings  on  than 
their  neighbor  —  a  little  girl  of  twelve  to  fourteen.  No  one  knows  better 
than  she  who  they  are,  what  they  do,  what  company  they  keep,  when 
they  go  out,  and  how  they  dress.  She  even  notes  the  moral  traits  of  those 
coming  under  her  supervision,  —  their  joy,  their  grief,  their  disappoint- 
ments, their  hopes,  and  all  their  experiences.  If  one  desires  information 
on  such  subjects,  the  best  witnesses  are  schoolgirls  —  always  supposing 
that  they  are  willing  to  tell  the  truth. 

From  youth  we  pass  to  adults,  who  though  in  the  flower  of  their  exist- 
ence, are  far  from  furnishing  the  best  witnesses.  The  adult  is  in  general 
the  worst  of  all  observers.  Finding  himself  in  the  happiest  epoch  of  his 
life,  full  of  hope  and  ideals,  interested  only  in  himself  and  his  desires,  the 
young  man  finds  nothing  important  but  himself.  .  .  .  The  typical  repre- 
sentative of  this  age  is  the  young  lady,  to  whom  the  disappearance  of  the 


330  PAKT    II.       TESTIMONIAL   EVIDEXCE  No.  173. 

world  would  he  a  matter  of  no  moment  compared  with  the  momentous 
matter  of  a  hall;  or  the  student,  to  whom  his  club  or  society  is  the  most 
serious  thing  under  the  sun.  All  this  of  course  changes  with  time ;  but 
youth  with  its  plenitude  of  force  is  the  personification  of  that  robust  egoism 
which  takes  pos.session  of  the  world  and  in  all  its  diversions  sees  only  itself. 
Any  one  who  has  critically  watched  him.self  and  watched  others  knows  all 
this ;  whoever  has  had  the  opportunity  of  questioning  young  people  about 
important  facts  happening  in  their  neighborhood  is  at  once  irritated  and 
ddightecl  at  the  sul)liine  indifference  exhibited.  But  if  perchance  the  young 
man  has  observed,  his  deposition  will  be  true  and  trustworthy;  he  has 
preserved  his  good  principles,  not  yet  scatteretl  by  the  storms  of  life. 

In  middle  age,  man  employs  all  the  forces  with  which  he  has  been  endowed 
by  nature;  his  good  and  bad  ciualities  alike  have  reached  their  fullest  de- 
velopment ;  and  what  the  middle-aged  man  and  woman  want  to  perceive, 
they  can  perceive  and  describe.  Their  career,  the  goal  of  their  labors  is 
fixed;  their  likes  and  their  dislikes  are  formed,  and  that  decisively;  the 
midtlle-aged  man  thus  has  a  clearly  defined  position  in  all  circumstances ; 
when  it  is  a  (juestion  of  testimony  as  to  justice  or  injustice  he  advances 
with  a  firm  and  a  decided  step.  True,  this  is  the  case  only  WMth  the  man 
of  souiul  moral  principles.  For  there  is  no  period  of  life  in  which  man  is 
assailed  more  violently  by  his  passions,  malevolence,  egoism,  self-seeking, 
discord,  than  when  he  mounts  to  the  highest  plane  of  his  life,  when  he  is 
the  most  active  but  also  the  most  unreasonable.  These  passions  never 
e.xert  their  inHuence  on  him  more  strongly  than  at  this  age;  their  omnip- 
otence makes  him  an  imconscious  liar ;  and  ihere  is  no  witness  more  diffi- 
cult to  tackle,  or  more  dangerous,  than  the  man  in  full  possession  of  all  his 
faculties,  both  good  and  bad.   .   .   . 

The  old  man  comes  last ;  he  is  either  sweet  and  conciliatory,  or  sour  and 
cynical,  according  to  his  luck  in  life.  His  senses  and  faculties  of  observation 
are  weakened  ;  but  experience  tells  him  by  a  sort  of  insight  what  his  eyes 
do  not  catch,  and  frequently  his  opinion  may  be  summed  up  in  the  words, 
"To  understand  is  to  forgive."  In  fact,  the  old  man  has  become  a  child 
again  ;  accurate  perception  of  external  ol)jccts  is  wanting,  but  also  his 
passions  are  dulled.  He  sees  simply  and  without  cunning,  the  dift'erence 
between  the  sexes  is  again  accentuated,  the  old  man  and  the  old  woman 
see  and  understand  things  like  children,  and  the  suggestions  of  another  in 
favor  of  this  or  that  regain  their  power,  just  as  when  they  were  young. 

.S-nile  indi\i(luals  rcfuiire  especial  treatment  as  witnesses.  .  .  .  Accurate 
observation  will  re\'eal  only  two  types  of  senility.  There  is  the  embittered 
lyiH' ;  and  there  is  the  character  expressed  in  the  phrase,  "  to  understand  all 
is  to  forgive  all."  Senility  rarely  succeeds  in  presenting  facts  objectively. 
Everything  it  tells  is  bound  up  with  its  judgment,  and  its  judgment  is  either 
negative  or  positive.  The  judgment's  nature  depends  less  on  the  old 
man's  emotional  efiaraeter  than  on  his  experience  in  life.  If  he  is  one  of 
the  embittered,  he  will  probably  so  describe  a  po.ssibly  harmful,  but  not 
bad,  event  as  to  be  able  to  complain  of  the  wickedness  of  the  world,  which 
brought  it  abf)Ut,  that  at  one  time  such  and  such  an  evil  happened  to  him. 
The  excusing  senile  will  begin  with  "  (Jood  God,  it  wasn't  so  bad.  The 
jM-ople  were  young  and  merry,  and  so  one  of  them  — ."  That  the  same  event 
is  |.r...ni.d  ill  :i   rinidamentally  dill'erent  light  by  each  is  obvious.     For 


No.  174.  I.       GENERIC    TRAITS.       B.    AGE  337 

tunately  the  senile  is  easily  seen  through  and  his  first  words  show  how  he 
looks  at  things.  He  makes  difficulties  mainly  by  introducing  memories 
which  always  color  and  modify  the  evidence.  The  familiar  fact  that  very 
old  men  remember  things  long  past  better  than  immediate  occurrences,  is 
to  be  explained  by  the  situation  that  the  ancient  brain  retains  only  that 
which  it  has  frequently  experienced. 

174.  G.  Stanley  Hall.  Children'' s  Lies.  (American  Journal  of  Psychol- 
ogy, 1891.  Vol.  Ill,  p.  59.)  These  returns  [from  a  systematic  inquiry]  now 
represent  nearly  three  hundred  city  children  of  both  sexes,  mostly  from 
twelve  to  fourteen  years  of  age.  ...  A  general  statement  of  them,  ac- 
cording to  the  groups  into  which  they  naturally  fall,  will  be  serviceable,  it 
is  hoped,  to  thoughtful  parents  and  teachers  as  well  as  to  psychologists. 

I.  No  children  were  found  destitute  of  high  ideals  of  truthfulness.  Per- 
haps the  lowest  moral  development  is  represented  by  about  a  dozen  chil- 
dren who  regarded  every  deviation  from  the  most  painfully  literal  truth  as 
alike  heinous,  with  no  perspective  or  degrees  of  difference  between  white 
and  black  fibbing  and  the  most  barefaced  intended  or  unintended  lies. 
This  mental  state,  though  in  a  few  cases  probably  priggish  and  affected, 
became  in  others  so  neurotic  that  to  every  statement,  even  to  yes  and  no, 
"'I  think"  or  "perhaps"  was  added  mentally,  whispered,  or  in  two  cases 
aloud,  and  nothing  could  prompt  a  positive,  unqualified  assertion.  This 
condition  (not  unknown  among  adults  in  certain  morbid  states  of  conscience) 
we  will  designate  as  pseudophobia,  and  place  it  among  the  many  other 
morbid  fears  that  prey  upon  unformed  or  vmpoised  minds.  One  boy  told 
of  "spells"  of  saying  over  hundreds  of  times  when  alone  the  woi-d  "not," 
in  the  vague  hope  it  might  somehow  be  interpolated  into  the  divine  record 
of  his  many  wrong  stories,  past  and  future,  to  disinfect  them  and  neutralize 
his  guilt.  Another  had  a  long  period  of  fear  that  like  Ananias  and  Sap- 
phira  he  might  some  moment  drop  down  dead  for  a  chance  and  perhaps 
unconscious  lie.  .  .  .  This  moral  superstition,  which  seemed  mostly  due 
to  mixing  ethical  and  religious  teaching  in  unpedagogic  ways  or  propor- 
tions in  home  or  Sunday  school,  is  happily  rare,  generally  fugitive,  is  not 
germane  to  the  nature  of  childhood,  and  is  likely  to  rectify  itself.  Where 
it  persists,  it  begets  a  quibbling,  word-splitting  tendency,  a  logolatry,  or  a 
casuistic  habit,  resulting  sometimes  in  very  systematic  palliatives,  tricks, 
and  evasions,  which  may  become  distinctly  morbid.  .  .  . 

II.  Strongly  contrasted  with  this  state,  and  far  more  common,  is  that 
in  which  lies  are  justified  as  means  to  noble  ends.  Children  all  admire 
burly  boys  who  by  false  confessions  take  upon  themselves  the  penalties  for 
the  sins  of  weaker  playmates,  or  even  girls  who  are  conscious  of  being 
favorites  with  teacher  or  parent,  or  of  superior  powers  of  blandishment, 
and  who  claim  to  be  the  authors  of  the  misdeeds  of  their  more  disfavored 
mates.  ...  A  teacher  who  told  her  class  of  thirteen-year-old  children 
the  tale  of  the  French  girl  in  the  days  of  the  Commune,  who,  when  on  her 
way  to  execution  on  a  petty  charge,  met  her  betrothed  and  responded  to 
his  agonized  appeals,  "Sir,  I  do  not  know  you,"  and  passed  on  to  death 
alone,  because  she  feared  recognition  might  involve  him  in  her  doom, 
was  saddened  because  she  found  it  so  hard  to  make  her  pupils  name  as  a  lie 
what  was  so  eclipsed  by  heroism  and  love.     Children  have  a  wholesome 


S6S 


I'AKl    11.       TESTIMOXIAL    EVIDENCE  No.  174. 


instinct  for  viewinj:  moral  situations  as  wholes,  but  yet  are  not  insensitive 
to  that  eager  and  soinetiines  tragic  interest  which  has  always  for  men  in- 
vested those  situations  in  both  life  and  literature  where  duties  seem  to 
etiiiHict.  The  normal  child  feels  the  heroism  of  the  unaccountable  instinct 
iif  self-sacritice  far  earlier  and  more  keenly  than  it  can  appreciate  the  sub- 
limity of  truth.   ... 

lli.  With  most  chiUlrcn,  as  with  savages,  truthfulness  is  greatly  affected 
by  personal  likes  anil  dislikes.  In  many  cases  they  could  hardly  be  brought 
to  see  wrong  in  lies  a  parent  or  some  kind  friend  had  wished  them  to  tell. 
Often  suspectetl  lies  were  long  persisted  in,  until  they  were  asked  if  they 
would  have  said  that  to  their  mothers,  when  they  at  once  weakened.  .  .  . 
The  girls  in  our  returns  were  more  addicted  to  this  class  of  lies  than  boys. 
Boys  keep  up  joint  or  complotted  lies,  which  girls  rarely  do,  who  "tell  on" 
others  because  they  are  "sure  to  be  found  out,"  or  "some  one  else  will 
tell'" :  while  boys  can  be  more  readily  brought  to  confess  small  thefts,  and 
are  surer  to  own  up  if  caught,  than  girls.  .  .  .  All  children  find  it  harder 
to  cheat  in  their  lessons  with  a  teacher  they  like.  ...  To  simulate  or 
dissinmlate  to  the  priest,  or  above  all,  to  God,  was  repeatedly  referred  to 
as  w«)rst  of  all.  .  .  .  Truth  for  our  friends  and  lies  for  our  enemies  is  a . 
practical,  though  not  distinctly  conscious  rule,  widely  current  with  chil- 
dren, as  with  uncivilized  and,  indeed,  even  with  civilized  races.  .  .  . 

IV.  The  greatest  number  of  lies  in  our  collections  are  prompted  by  some 
of  the  more  familiar  manifestations  of  selfishness.  Every  game,  especially 
every  exciting  one,  has  its  own  temptation  to  cheat;  and  long  records  of 
mi.scounts  in  tallies,  moving  balls  in  croquet,  crying  out  "no  play"  or  "no 
fair"  at  f-ritical  moments  to  divert  impending  defeat,  false  claims  made  to 
umpires,  and  scores  of  others,  show  how  unscrupulous  the  all-constraining 
passion  to  e.xcel  often  renders  even  young  children.  .  .  .  School  life  is 
re>ponsibK-  for  very  many,  if  not  most,  of  the  deliberate  lies  of  this  class.  .  .  . 
<  hihlreri  copy  school  work,  and  monitors  get  others  to  do  theirs  as  pay  for 
not  reporting  them,  while  if  a  boy  is  reported,  he  tells  of  as  much  disorder 
as  possible  on  the  part  of  others,  to  show  that  the  monitor  did  not  do  his 
duty.  .  .  .  The  long  list  of  headaches,  nosebleeds,  stomach-aches,  etc. 
feigned  to  get  out  of  going  to  school,  of  false  excuses  for  absence  and  tardi- 
ness, the  teacher,  especially,  if  disliked,  being  so  often  exceptionally  fair 
game  for  all  the  arts  of  deception,  —  all  this  seems  generally  prevalent. 
This  cla.ss  of  lies  ease  children  over  so  many  hard  places  in  life  and  are 
convenient  covers  for  weakness  and  even  vice.   .   .   . 

\'.  Much  c-hildish  play  owes  its  charm  to  partial  self-deception.  Chil- 
«lren  imagiue  or  make  i)elieve  they  are  animals,  making  their  noises  and 
imitating  their  activities  ;  that  they  are  soldiers,  and  imagine  panoramas  of 
warlike  events;  that  they  are  hunters  in  extreme  peril  from  wild  beasts; 
Indians,  artisans,  and  tra<lesmen  of  many  kinds;  doctors,  preachers,  angels, 
ogres.  They  play  school,  court,  meeting,  congress.  If  hit  with  wooden 
(luggers  in  the  game  of  war,  they  stand  aside  and  play  they  are  dead.  .  .  . 
They  baptize  cats,  bury  dolls,  have  puppet  shows  with  so  many  pin  admis- 
sion, all  with  elaborate  details.  They  dress  up  and  mimic  other,  often 
old«T.  jM-opl«-.  ride  on  the  horse  cars  and  imagine  them  fine  carriages,  get  up 
<l«.Il  liospitals  an<l  |)lay  surgeon  or  Florence  Nightingale.  The  more  severe 
the  discipline  of  the  play-teacher  and  tlie  more  savage  the  play-mother,  the 


No.  174.  I.       GENERIC    TRAITS.       C.    SEX  339 

better  the  fun.  ...  It  seems  almost  the  rule  that  imaginative  children 
are  more  likely  to  be  dull  in  school  work,  and  that  those  who  excel  in  it  are 
more  likely  to  have  fewer  or  less  vivid  mental  images  of  their  own.  .  .  . 
One  early  manifestation  of  the  shadowy  falsity  to  fact  of  the  idealizing 
temperament  is  often  seen  in  children  of  three  or  four,  who  suddenly  assert 
that  they  saw  a  pig  with  five  ears,  a  dog  as  big  as  a  horse,  or,  if  older,  apples 
on  a  cherry  tree,  and  other  Munchausen  wonders,  which  really  means  at 
once  but  little  more  than  that  they  have  that  thought  or  have  made  that 
mental  combination  independently  of  experience.  They  come  to  love  to 
tell  semiplausible  stories,  and  perhaps,  when  the  astonishment  is  over,  to 
confess.  .  .  .  We  might  almost  say  of  children  at  least,  somewhat  as 
Froschamer  argues  of  mental  activity,  and  even  of  universe  itself,  that  all 
their  life  is  imagination.  .  .  . 

VI.  A  less  common  class  of  what  we  may  call  pathological  lies  was  illus- 
trated by  about  a  score  of  cases  in  our  returns.  The  love  of  showing  off 
and  seeming  big,  to  attract  attention  or  to  win  admiration,  sometimes 
leads  children  to  assume  false  characters,  e.g.  on  going  to  a  new  town  or 
school,  kept  up  with  difficulty  by  many  false  pretenses  awhile,  but  likely 
to  become  transparent  and  collapse,  and  getting  the  masker  generally  dis- 
liked. A  few  children,  especially  girls,  are  honeycombed  with  morbid 
self-consciousness  and  affectation,  and  seem  to  have  no  natural  character 
of  their  own,  but  to  be  always  acting  a  part  and  attracting  attention  ;  boys 
preferring  fooling,  and  humbugging  by  tricks  or  lies,  sometimes  of  almost 
preternatural  acuteness  and  cleverness. 

VII.  Finally,  children  have  many  palliatives  for  lies  that  wound  the 
conscience.  .  .  .  An  acted  lie  is  far  less  frequently  felt  than  a  spoken  one  ; 
so  to  nod  is  less  sinful  than  to  say  yes ;  to  point  the  wrong  way,  when  asked 
where  some  one  is  gone,  is  less  guilty  than  to  say  wrongly.  Pantomimed 
lies  are,  in  short,  for  the  most  part  easily  gotten  away  with.  It  is  very 
common  for  children  to  deny  in  the  strongest  and  most  solemn  way  wrongs 
they  are  accused  of,  and  when,  at  length,  evidence  is  overwhelming,  to 
explain  or  to  think,  "My  hand  or  foot  did  it,  not  I."  The  distinction  is  not 
unnatural  in  children  whose  teachers  or  parents  so  often  snap  or  whip  the 
particular  member  which  has  committed  the  offense.  In  short,  hardly  any 
of  the  sinuosities  lately  asserted,  whether  rightly  or  wrongly,  of  the  earlier 
Jesuit  confessionals,  and  all  the  elaborated  pharmacopoeia  of  placebos  they 
are  said  to  have  used  to  ease  consciences  outraged  by  falsehood,  seemed 
reproduced  in  the  spontaneous  endeavors  of  children  to  mitigate  the  poign- 
ancy of  this  sense  of  guilt. 

In  fine,  some  forms  of  the  habit  of  lying  are  so  prevalent  among  young 
children  that  all  illustrations  of  it,  like  the  above,  seem  trite  and  common- 
place. Thoroughgoing  truthfulness  comes  hard  and  late,  and  school  life 
is  so  full  of  temptation  to  falsehood  that  an  honest  child  is  its  rarest,  as  well 
as  its  noblest,  work.  The  chief  practical  point  is  for  the  teacher  to  dis- 
tinguish the  different  forms  of  the  disease  and  apply  the  remedies  best  for 
each.  So  far  from  being  a  simple  perversity,  it  is  so  exceedingly  complex, 
and  born  of  such  diverse  and  even  opposite  tendencies  that  a  course  of 
treatment  that  would  cure  one  form  would  sometimes  directly  aggravate 
another. 


340  PART    II.       TESTIMONIAL    EVIDENCE  No.  179. 

175.  Amos  C.  Miller.  Examination  of  JVitncsscs.  (Illinois  Law  Review. 
Vol.  II,  2()0.)  .  .  .  Cro.s\s-exaniining  Children.  This  is  a  matter  of  great 
(Iflicaoy.  I  have  seen  (li.stingiii.-^heci.  able,  and  skillful  trial  lawyers  make 
the  fatal  mistake  of  being  imnecessarily  severe  in  cross-examining  children. 
They  were  prol)al)ly  unconscious  of  their  attitude.  But  the  effect  was 
to  excite  sympathy  for  the  child  and  resentment  toward  the  lawyer,  with 
the  quite  natural  result  that  the  jury  believed  the  child.  My  own  belief, 
from  personal  observation,  is  that  children  are  very  unreliable  witnesses. 
They  are  impressionable,  tiieir  imaginations  are  active,  and  their  memories 
are  short.  They  can  easily  be  trained  to  believe  they  saw  or  heard  what 
they  did  not  see  or  hear.  They  are  \ery  hard  to  corner.  I  know  of  no 
other  way  to  handle  them  than  by  kindness,  patience,  and  persistence. 
.Sometimes  l)y  these  means  it  will  be  shown  that  they  are  uncertain  on 
many  points,  or  that  they  have  been  talked  to  l)y  some  other  witness,  or 
that  certain  things  that  they  have  testified  to  they  know  only  by  hearsay, 
or  perhaps  on  some  collateral  matter  they  can  be  led  to  testify  directly 
contrary  to  what  every  one  knows  is  the  truth.  If  some  of  the  opposing 
witnesses  are  children,  don't  fail  to  o.s7.-  that  the  ivitnesses  he  excluded  from  the 
court  room  during  the  opening  statements  and  the  taking  of  testimony. 

170.  Grv  M.  Wiiii'PLE.  Manual  of  Mental  and  Physical  Tests.  [Printed 
jjosl,  as  No.  290.1 

177.  THE  DISBELIEVED  CHILD'S  CASE.  [Printed  post,  as 
No.  ;i.j(i.J 

17S.    LAURENCE  BRADDON'S  TRIAL.     [Printed  2>o5<,  as  No.  39 L] 


SUB-TITLE   C:  SEX 

179.  II.ws  Gross.  Criminal  P.^t/eholofiy.  (1911.  transl.  Kallen,  §  63, 
p.  ;i(K). )  One  of  the  most  dilhcult  tasks  of  the  criminalist  who  is  engaged  in 
psyc-hologi<-al  investigation  is  the  judgment  of  woman.  Woman  is  not  only 
somatically  and  psychically  rather  different  from  man;  man  never  is  able 
wholly  and  completely  to  put  himself  in  her  place.  ...  To  the  nature  of 
woman,  we  men  totally  lack  avenues  of  approach.  We  can  find  no  parallel 
between  women  and  (.ursclves,  and  the  greatest  mistakes  in  criminal  law 
were  made  where  the  conclusions  would  have  been  correct  if  the  woman 
ha«l  b<-en  a  man.  We  have  always  estimated  the  deeds  and  statements  of 
women  by  the  same  standards  as  those  of  men,  and  we  have  always  been 
wrong.  .  .  .  W«-  proceed  wrongly  in  the  valuation  of  woman.  We  cannot 
uttam  proper  knowledge  of  her  because  we  men  were  never  women,  and 
woriH-n  can  ruver  explain  them.selves  to  us  because  they  were  never 
men.    .    .    . 

(a)  lulrUiijnur.  Feminine  intelligence  properly  deserves  a  separate 
se<-tion.  Intelligence  is  a  function  that  has  in  both  sexes  some  basis  and 
purjK.se.  and  pnx-eeds  according  to  the  same  rules;  but  the  meaning  of 
intelligence  must  be  abandoned  if  we  are  to  suppo.se  it  so  rigid  and  so  diffi- 


No.  179.  I.       GENERIC    TRAITS.       C.    SEX  341 

cult  to  hold,  that  the  age-long  differences  between  man  and  woman  could 
have  had  no  influence  on  it. 

(1)  Conception.  In  sense  perception  there  is  no  significant  difference 
between  the  two  sexes ;  although  in  conceptual  power  we  find  differences 
very  distinct.  It  may  be  generally  said,  as  the  daily  life  shows,  that  women 
conceive  dift'erently  from  men.  Whatever  a  dozen  men  may  agree  on 
conceptually,  will  be  dift'erently  thought  of  by  any  one  woman.  In  the 
apprehension  of  situations,  the  perception  of  attitudes,  the  judgment  of 
people  in  certain  relations,  in  all  that  is  called  tact,  i.e.  in  all  that  involves 
some  abstraction  or  clarification  of  confused  and  twisted  material,  and 
finally,  in  all  that  involves  human  volitions,  women  are  superior,  and  more 
reliable  individually,  than  ten  men  together.  But  the  manner  in  which 
the  woman  obtains  her  conception  is  less  valuable,  being  the  manner  of  pure 
instinct.  .  .  .  The  process  is  mainly  unconscious,  and  is  hence  of  less  value 
only,  if  I  may  say  so,  as  requiring  less  thought.  In  consequence,  there 
is  not  only  not  a  decrease  in  the  utility  of  feminine  testimony ;  also  its 
reliability  is  very  great.  There  may  be  hundreds  of  errors  in  the  dialec- 
tical procedure  of  a  man,  while  there  is  much  more  certainty  in  the  in- 
stinctive conception  and  the  direct  reproduction  of  a  woman.  Hence, 
her  statements  are  more  reliable.   .   .   . 

We  need  not  call  the  source  of  this  instinct  God's  restitution  for  femi- 
nine deficiency  in  other  matters ;  we  can  show  that  it  is  due  to  natural 
selection,  and  that  the  position  and  task  of  woman  requires  her  to  observe 
her  environment  very  closely.  This  need  sharpened  the  inner  sense  until 
it  became  unconscious  conception.  Feminine  interest  in  the  environment 
is  what  gives  female  intuition  a  swiftness  and  certainty  unattainable  in  the 
meditations  of  the  profoundest  philosophers.  The  swiftness  of  the  intui- 
tion, which  excludes  all  reflection,  and  which  merely  solves  problems,  is 
the  important  thing.  .  .  .  Woman  does  not  reason  and  infer,  and  if  things 
miss  her  intuition,  they  do  not  exist  for  her. 

Objectivity  is  another  property  that  women  lack.  They  tend  always  to 
think  in  personalities,  and  they  conceive  objects  in  terms  of  personal  sym- 
pathies. Tell  a  woman  about  a  case  so  that  her  interest  will  be  excited 
without  your  naming  the  individuals  save  as  A  and  B,  and  it  will  be  impos- 
sible to  get  her  to  take  a  stand  or  to  make  a  judgment.  Who  are  the  people, 
what  are  they,  how  old  are  they,  etc.  ?  These  questions  must  be  answered 
first.  Hence  the  divergent  feminine  conceptions  of  a  case  before  and  after 
the  names  are  discovered.  The  personalizing  tendency  results  in  some 
extraordinary  things.  Suppose  a  woman  is  describing  a  brawl  between  two 
persons,  or  two  groups.  If  the  sides  were  equally  matched  in  strength  and 
weapons,  and  if  the  witness  in  question  did  not  know  any  of  the  fighters 
before,  she  will  nevertheless  redistribute  sun  and  wind  in  her  description 
if  one  of  the  brawlers  happens  accidentally  to  have  interested  her,  or  has 
behaved  in  a  "knightly"  fashion,  though  under  other  circumstances  he 
might  have  earned  only  her  dislike.  (In  such  cases  the  fairy  tale  about 
telling  "mere  facts"  recurs,  and  I  have  to  repeat  that  nobody  tells  mere 
facts  —  that  judgment  and  inference  always  enter  into  statements  and  that 
women  use  them  more  than  men.)  .  .  .  The  same  is  true  in  purely  individual 
cases.  In  the  eyes  of  woman  the  same  crime  committed  by  one  man  is 
black  as  hell ;  committed  by  another,  it  is  in  all  respects  excusable.   ...     Of 


342  PART    II.      TESTIMONIAL   EVIDENCE 


No.  179. 


course  women  are  not  alone  in  taking  such  attitudes  ;  but  they  are  never  so 
clear,  so  typical,  nor  so  determined  as  when  taken  by  women. 

(2)  JuJgmnit.  Avenarius  tells  of  an  English  couple  who  were  speaking 
about  angels'  wings.  It  was  the  man's  opinion  that  this  angelic  posses- 
sion was  doubtful ;  the  woman's,  that  the  angels  lacked  wings  because  they 
couldn't  have  any.  Many  a  woman  witness  has  reminded  me  of  this  story, 
and  I  have  l)een  al)le  to  explain  by  use  of  it  many  an  event.  Woman  says 
"because"  when  she  knows  of  no  reason;  "Ix'cause"  when  her  own  argu- 
ments bore  her;  "because"  when  she  is  confused;  when  she  does  not 
understand  the  evidence  of  her  opponent,  and  particularly  when  she  desires 
something,  rnfortunately,  she  hides  this  attitude  under  many  words,  and 
one  often  wishes  for  the  simple  assertion  of  the  English  woman,  "because." 
In  conseciuence.  when  we  want  to  learn  their  ratio  sciendi  from  women,  w^e 
get  into  difficulties.  They  ofi'er  us  a  collection  of  frequently  astonishing 
anil  important  things,  l)ut  when  we  ask  for  the  source  of  this  collection  we 
get  "because"  in  variations,  from  a  shrug  of  the  shoulders  to  a  flood  of 
words.  The  inexperienced  judge  may  he  deceived  by  the  positiveness  of 
such  expressions  and  believe  that  such  certainty  must  be  based  on  some- 
thing which  the  witness  cannot  utter  through  lack  of  skill.  If,  now,  the 
judge  is  going  to  help  the  "unaided"  w^itness  with  "of  course  you  mean 
because,"  or  "  perhai)s  because,"  etc.,  the  witness,  if  she  is  not  a  fool,  will 
say  "  yes."  Thus  we  get  apparently  well-founded  assertions  which  are 
really  founded  on  nothing  more  tlian  "  because." 

Cases  dealing  with  divi.sions,  distinctions,  and  analysis  rarely  contain  un- 
grounded assertions  by  women.  Women  are  well  able  to  analyze  and  explain 
data,  and  what  one  is  capable  of  and  understands,  one  succeeds  in  justify- 
ing. Their  diHiculty  is  in  synthetic  work,  in  progressive  movements  and 
there  they  simply  assert.  The  few  women  witnesses  for  the  defense  often 
become  the  most  dangerous  for  the  defenders. 

But  here.  also,  women  find  a  limit,  perhaps  because,  like  all  weaklings, 
they  are  afraid  to  draw  the  ultimate  conclusions.  As  Leroux  says  in  De 
rHuinanite,  "If  criminals  were  left  to  women,  they  would  kill  them  all 
in  the  first  burst  of  anger,  and  if  one  waited  until  this  burst  had  subsided, 
they  woultl  release  them  all."  The  killing  points  to  the  easy  excitability, 
the  pas-^ionateness,  and  the  instinctive  sense  of  justice  in  women  which 
ilemands  imnuMliate  revenge  for  evil  deeds.  The  lil)eration  points  to  the 
fact  that  women  are  afraid  of  every  energetic  deduction  of  ultimate  conse- 
quences, i.r.  they  have  no  knowledge  of  real  justice.  "Men  look  for 
rea-sons,  women  judge  by  love ;  women  can  love  and  hate,  but  they  can- 
not be  just  without  loving,  nor  can  they  ever  learn  to  value  justice."  So 
says  Schiller,  and  how  freciut-iitly  do  we  not  hear  the  woman's  question 
whether  the  accu.sed's  fate  is  going  to  depend  on  her  evidence.  If  we  say 
yes,  there  is,  as  a  rule,  a  restriction  of  testimony,  a  titillation  and  twisting 
of  consequences,  and  this  circumstance  must  always  be  remembered.  If 
you  want  to  get  truth  from  a  woman,  you  must  know  the  proper  time  to 
begin  and.  what  is  more  iini)ortant.  when  to  stop.  As  the  old  proverb  says, 
and  it  is  one  to  take  to  heart,  "  Women  are  wise  when  they  act  unconsciously, 
fools  when  they  reflect." 

(3)  Quarrrh  with  U'nmni.  This  little  matter  is  intended  only  for  very 
young  and  ine\|><rience(l  criminal  justices.     There  is  nothing  more  excit- 


No.  179.  I.       GENERIC    TRAITS.       C.    SEX  343 

ing  or  instructive  than  a  quarrel  with  clever  and  trained  women  concerning 
worthy  subjects ;  but  this  does  not  happen  in  court ;  and  90  per  cent 
of  our  woman  witnesses  are  not  to  be  quarreled  with.  .  .  .  Women  have  an 
obstinacy,  and  it  is  no  easy  matter  to  be  passive  against  it.  But  in  the 
interest  of  justice,  the  part  of  the  wise  man  is  not  to  lose  any  time  by 
making  an  exhibition  of  himself  through  verbal  quarrels  with  w^omen  wit- 
nesses.  .   .   . 

(b)  Honrsiy.  We  shall  speak  here  only  of  the  honesty  of  the  sort  of 
women  the  courts  have  most  to  do  with,  and  in  this  regard  there  is  little  to 
give  us  joy.  Not  to  be  honest,  and  to  lie,  are  two  different  things  ;  the  latter 
is  positive,  the  former  negative  ;  the  dishonest  person  does  not  tell  the  truth, 
the  liar  tells  the  untruth.  It  is  dishonest  to  suppress  a  portion  of  the  truth, 
to  lead  others  into  mistakes,  to  fail  to  justify  appearances,  and  to  make 
use  of  appearances.  The  dishonest  person  may  not  have  said  a  single  un- 
true word,  and  still  may  have  introduced  many  more  difficulties,  confusions, 
and  deceptions  than  the  liar.  He  is  for  this  reason  more  dangerous  than 
the  latter.  Also,  because  his  conduct  is  more  difficult  to  uncover,  and 
because  he  is  more  difficult  to  conquer  than  the  liar.  Dishonesty  is,  how- 
ever, a  specially  feminine  characteristic ;  in  men  it  occurs  only  when  they 
are  effeminate.  Real  manliness  and  dishonesty  are  concepts  which  can- 
not be  united.  Hence,  the  popular  proverb  says,  "Women  always  tell  the 
truth,  but  not  the  whole  truth." 

And  this  is  more  accurate  than  the  charge  of  many  writers,  that  women 
lie.  I  do  not  believe  that  the  criminal  courts  can  verify  the  latter  accusa- 
tion. I  do  not  mean  that  women  never  lie  —  they  lie  enough  —  but  they 
do  not  lie  more  than  men  do,  and  none  of  us  would  attribute  lying  to  women 
as  a  sex  trait.     To  do  so,  would  be  to  confuse  dishonesty  with  lying.   .   .   . 

Balzac  asks,  "  Have  you  ever  observed  a  lie  in  the  attitude  and  manner 
of  woman  ?  Deceit  is  as  easy  to  them  as  falling  snow  in  heaven."  But 
this  is  true  only  if  he  means  dishonesty.  It  is  not  true  that  it  is  easy  for 
women  really  to  lie.    .   .   . 

But  even  her  simplest  affirmation  or  denial  is  not  honest.  Her  "no"  is 
not  definite;  e.g.hev  "no"  to  a  man's  demands.  Still  further,  when  a 
man  affirms  or  denies,  and  there  is  some  limitation  to  his  assertion,  he 
either  announces  it  expressly  or  the  more  trained  ear  recognizes  its  presence 
in  the  failure  to  conclude,  in  a  hesitation  of  the  tone.  But  the  woman  says 
"yes"  and  "no,"  even  when  only  a  small  portion  of  one  or  the  other  asserts 
a  truth  behind  which  she  can  hide  herself.  .   .   . 

So  Schopenhauer  agrees :  "  Nature  has  given  women  only  one  means  of 
protection  and  defense  —  hypocrisy  ;  this  is  congenital  with  them,  and  the 
use  of  it  is  as  natural  as  the  animal's  use  of  its  claws.  Women  feel  they 
have  a  certain  degree  of  justification  for  their  hypocrisy." 

With  this  hypocrisy  we  have,  as  lawyers,  to  wage  a  constant  battle. 
Quite  apart  from  the  various  ills  and  diseases  which  women  assume  before 
the  judge,  everything  else  is  pretended  ;  innocence,  love  of  children,^  spouses, 
and  parents  ;  pain  at  loss  and  despair  at  reproaches ;  a  breaking  heart  at 
separation  ;  and  piety,  —  in  short,  whatever  may  be  useful.  This  subjects 
the  examining  justice  to  the  dangers  and  difficulties  of  being  either  too 
harsh,  or  being  fooled.  He  can  save  himself  much  trouble  by  remembering 
that  in  this  simulation  there  is  much  dishonesty  and  few  lies.  ... 


344  PART    II.       TESTIMONIAL    EVIDENCE  No.  ISO. 

((/)  Emotional  Disposition,  and  Related  Subjects.  Madame  de  Kriidener 
writes  in  a  letter  to  Bernardin  de  St.  Pierre:  "Je  voulais  etre  sentie." 
These  laconic  words  of  this  wise  pietist  give  us  an  insight  into  the  significance 
of  emoti<uial  hfc  of  woman.  Man  wants  to  he  understood,  woman  to  be 
felt.  Witli  this  emotion  slie  spoils  much  that  man  might  do  because  of 
his  sense  of  justice.  Indeed,  a  number  of  qualities  which  the  woman  uses 
to  nuike  herself  noted  are  bound  up  with  her  emotional  life,  more  or  less. 
Coutpassion.  self-sacrifice,  religion,  superstition, — all  these  depend  on  the 
highly  dcNcloped.  almost  iliseased  formation  of  her  emotional  life.  Femi- 
nine charity,  feminine  activity  as  a  nurse,  feminine  petitions  for  the  pardon 
of  crimiiuils.  infinite  other  samples  of  women's  kindly  dispositions,  must 
convince  us  that  these  activities  are  an  integral  part  of  their  emotional 
life,  and  that  women  perform  them  only,  perhaps,  in  a  kind  of  dark  percep- 
tion of  their  own  hcljilcssness. 

Spencer  says  that  the  feminine  mind  shows  a  definite  lack  with  regard  to 
the  sense  of  justice.  .  .  .  These  assertions  show  that  women  are  deficient  in 
justice,  but  (lo  not  show  why.  The  deficiency  is  to  be  explained  only  in  the 
superabunilance  of  emotional  life.  This  superabundance  clarifies  a  number  of 
facts  of  their  daily  routine.  .  .  .  The  rich  emotion  restores  a  thousand  times 
what  may  l)e  missing  in  justice,  and  perhaps  in  many  cases  hits  better 
upon  what  is  absolutely  right  than  the  bare  masculine  sense  of  justice.  We 
are,  of  course,  frequently  mistaken  by  relying  on  the  testimony  of  women, 
but  only  when  we  assume  that  our  rigorously  judicial  sentence  is  the  only 
correct  one,  and  when  we  do  not  know  how  women  judge.  Hence,  we 
interpret  women's  testimonies  with  difficulty  and  rarely  with  correctness ; 
we  forget  that  almost  every  feminine  statement  contains  in  itself  much 
more  judgment  than  the  testimony  of  men  ;  we  fail  to  examine  how  much 
real  juiigment  it  contains  ;  ami  finally,  we  weigh  this  judgment  in  other 
scales  than  those  used  by  the  woman.  We  do  best,  therefore,  when  we 
take  the  testimony  of  man  and  woman  together  in  order  to  find  the  right 
average.  This  is  not  easy,  for  w^e  are  unable  to  enter  properly  into  the 
emotional  life  of  woman,  and  cannot  therefore  discount  that  tendency  of 
hers  to  drag  the  objective  truth  in  some  biased  direction.  .  .  .  She  fights  with 
all  her  strength  on  the  side  that  seems  to  her  to  be  oppressed  and  innocently 
pcTsecuted,  irrespective  of  whether  it  is  the  side  of  the  accused  or  of  his 
enemy.  In  consefjuence,  we  nmst  first  of  all,  when  judging  her  statements, 
determiru'  the  direction  in  which  her  emotion  impels  her,  and  this  cannot 
be  done  with  a  mere  knowledge  of  human  nature.  Nothing  will  do  except 
a  careful  stiuly  of  the  specific  feminine  witness  at  the  time  she  gives  her 
evidence.    .    .    . 

When  we  summariz*'  all  we  know  about  woman,  we  may  say  briefly: 
W(»man  is  neither  better  nor  worse,  neither  more  nor  less  valual)le  than 
num.  hut  she  is  different  from  him.  Inasmuch  as  nature  has  created  every 
object  correctly  for  its  purpose,  woman  has  also  been  so  created.  The  reason 
of  her  exi.stence  i.s  dilferent  from  that  of  man's;  hence,  her  nature  is 
different. 

ISO.  .Vhmii  kC.Thmn.  The  I'ri.vwerat  the  Bitr.  (1908.  2d ed.  p.  279.) 
Roughly  speaking,  women  exhibit  about  the  same  idio.syncrasies  and  limi- 
,  ,t;..,,.  ;,,  .1...  wWm.--.  <liair  as  the  opposite  sex,  and  at  first  thought  one 


No.  180.  I.       GENERIC    TRAITS.       C.    SEX  345 

would  be  apt  to  say  that  it  would  be  fruitless  and  absurd  to  attempt  to 
predicate  any  general  principles  in  regard  to  their  testimony,  but  a  careful 
study  of  female  witnesses  as  a  whole  will  result  in  the  inevitable  conclusion 
that  their  evidence  has  virtues  and  limitations  peculiar  to  itself. 

Whatever  difference  does  exist  in  character  between  the  testimony  of 
men  and  women  has  its  root  in  the  generally  recognized  diversity  in  the 
mental  processes  of  the  two  sexes.  Men,  it  is  commonly  declared,  rely 
upon  their  powers  of  reason ;  women  upon  their  intuition.  Not  that  the 
former  is  frequently  any  more  accurate  than  the  latter.  But  our  courts 
of  law  (at  least  those  in  English-speaking  countries)  are  devised  and  organ- 
ized, perhaps  unfortunately,  on  the  principle  that  testimony  not  apparently 
deduced  by  the  syllogistic  method  from  the  observation  of  relevant  fact  is 
valueless,  and  hence  woman  at  the  very  outset  is  placed  at  a  disadvantage 
and  her  usefulness  as  a  probative  force  sadly  crippled. 

The  good  old  lady  who  takes  the  witness  chair  and  swears  that  she  Jaiows 
the  prisoner  took  her  purse  has  perhaps  quite  as  good  a  basis  for  her  opinion 
and  her  testimony  (even  though  she  cannot  give  a  single  reason  for  her 
belief  and  becomes  hopelessly  confused  on  cross-examination)  as  the  man 
who  reaches  the  same  conclusion  ostensibly  by  virtue  of  having  seen  the 
defendant  near  by,  observed  his  hand  reaching  for  the  purse,  and  then  per- 
ceived him  take  to  his  heels.  She  has  never  been  taught  to  reason  and 
has  really  never  found  it  necessary,  having  wandered  through  life  by  in- 
ference or,  more  frankly,  by  guesswork,  until  she  is  no  longer  able  to  point 
out  the  simplest  stages  of  her  most  ordinary  mental  processes. 

As  the  reader  is  already  aware,  the  value  of  all  honestly  given  testimony 
depends,  first,  upon  the  witness's  original  capacity  to  observe  the  facts ; 
second,  upon  his  ability  to  remember  what  he  has  seen  and  not  to  confuse 
knowledge  with  imagination,  belief,  or  custom,  and,  lastly,  upon  his  power  to 
express  what  he  has,  in  fact,  seen  and  remembers. 

Women  do  not  differ  from  men  in  their  original  capacity  to  observe, 
which  is  a  quality  developed  by  the  training  and  environment  of  the  in- 
dividual. It  is  in  the  second  class  of  the  witness's  limitations  that  women 
as  a  whole  are  more  likely  to  trip  than  men,  for  they  are  prone  to  swear  to 
circumstances  as  facts,  of  their  own  knowledge,  simply  because  they  confuse 
what  they  have  really  observed  with  what  they  believe  did  occur  or  should 
have  occurred,  or  with  what  they  are  convinced  did  happen  simply  because 
it  was  accustomed  to  happen  in  the  past. 

Perhaps  the  best  illustration  of  the  female  habit  of  swearing  that  facts 
occurred  because  they  usually  occurred,  was  exhibited  in  the  Twitchell 
murder  trial  in  Philadelphia,  cited  in  Wellman's  "Art  of  Cross-examina- 
tion." The  defendant  had  killed  his  wife  with  a  blackjack,  and  having 
dragged  her  body  into  the  back  yard,  carefully  unbolted  the  gate  leading 
to  the  adjacent  alley  and,  retiring  to  the  house,  went  to  bed.  His  purpose 
was  to  create  the  impression  that  she  had  been  murdered  by  some  one 
from  outside  the  premises.  To  carry  out  the  suggestion,  he  bent  a  poker 
and  left  it  lying  near  the  body  smeared  with  blood.  In  the  morning  the 
servant  girl  found  her  mistress  and  ran  shrieking  into  the  street. 

At  the  trial  she  swore  positively  that  she  was  first  obliged  to  unbolt  the 
door  in  order  to  get  out.  Nothing  could  shake  her  testimony,  and  she  thus 
unconsciously  negatived  the  entire  value  of  the  defendant's  adroit  precau- 


34C  PAHT    II.       TESTIMONIAL    EVIDENCE  No.  180 

tions.     He    was    justly    convicteil,  although    upon    absolutely    erroneous 
testimony.   .   .   . 

Though  the  conclusions  to  which  women  frequently  jump  may  usually 
he  shown  hy  careful  interrogation  to  be  founded  upon  observation  of  actual 
fact,  their  iiabit  «)f  stating  inferences  often  leads  them  to  claim  knowledge 
of  the  impossible  —  "  wiser  in  [tlieir]  own  conceit  than  seven  men  that  can 
render  a  reason." 

In  a  \ery  recent  case  where  a  clever  thief  had  been  convicted  of  looting 
various  apartments  in  New  York  City  of  over  eighty  thousand  dollars' 
worth  of  jewelry,  the  female  owners  were  summoned  to  identify  their 
property.  The  writer  believes  that  in  every  instance  these  ladies  were 
absolutely  ingenuous  and  intended  to  tell  the  absolute  truth.  Each  and 
every  one  positively  identified  various  of  the  loose  stones  found  in  the 
possession  of  the  prisoner  as  her  own.  This  w^as  the  case  even  when  the 
diaiiiomls,  emeralds,  and  pearls  had  no  distinguishing  marks  at  all.  It  w'as 
a  human  impossil)ility  actually  to  identify  any  such  objects,  and  yet  these 
eminently  respectable  and  intelligent  gentlewomen  swore  positively  that 
they  could  recognize  their  jewels.  They  drew  the  inference  merely  that 
as  the  prisoner  had  stolen  similar  jewels  from  them  these  must  be  the 
actual  ones  which  they  had  lost,  an  inference  very  likely  correct,  but  value- 
less in  a  tribunal  of  justice. 

Where  their  inferences  are  questioned,  women,  as  a  rule,  are  much  more 
ready  to  "swear  their  testimony  through"  than  men.  They  are  so  accus- 
tomed to  act  upon  inference  tliat,  finding  themselves  unable  to  substantiate 
their  a.ssertion  by  any  sufficient  reason,  they  become  irritated,  "show 
fight,"  and  seek  refuge  in  prevarication.  Had  they  not,  during  their  entire 
lives,  been  accustomed  to  mental  short  cuts,  they  would  be  spared  the 
humiliation  of  seeing  their  evidence  "stricken  from  the  record." 

One  of  the  ladies  referred  to  testified  as  follows: 

"Can  you  identify  that  diamond?" 

"/  (iin  quite  sure  that  it  /.v  mine." 

"How  do  you  know?" 

"  //  loolci  rxtii'tUi  nice  it." 

"Hut  may  it  not  be  a  similar  one  and  not  your  own?" 

"  Ao;    it  i.s  inint." 

"Hut  how?     It  has  no  marks." 

"  /  don't  can:     I  hnow  it  i.<i  mine.     I  SIVKAR  IT  IS!  " 

The  g«)od  lady  supposed  that,  unless  she  swore  to  the  fact,  she  might 
lose  her  jewel,  which  was,  of  course,  not  the  case  at  all,  as  the  sworn  testi- 
mony founded  upon  notliiiig  but  inference  left  her  in  no  better  position 
than  she  was  in  In'fore. 

The  writer  regrets  to  .say  tliat  observation  would  lead  him  to  l)elieve 
that  women  as  a  rule  have  somewhat  less  regard  for  the  spirit  of  their  oaths 
than  m«'n,  and  that  they  are  mf)re  ready,  if  it  be  necessary,  to  commit 
|)erjury.  Thi>  may  arise  from  the  fact  that  women  are  fully  aware  that 
their  sex  protects  them  from  the  same  severity  of  cross-examination  to 
whirh  men  would  be  subjecKul  mider  similar  circumstances.  It  is  to-day 
fatal  to  a  lawyi-r's  case  if  he  bo  not  invariably  gentle  and  courteous  with  a 
female  witn<'ss.  and  this  is  true  even  if  she  be  a  veritable  Sapphira. 

In  spite  of  th.-se  limitations,  which,  of  course,  aftect  the  testimonv  of 


No.  ISO.  I.       GENERIC    TRAITS.       C.    SEX  347 

almost  every  person,  irrespective  of  sex,  women,  with  the  possible  excep- 
tion of  children,  make  the  most  remarkable  witnesses  to  be  found  in  the 
courts.  They  are  almost  invariably  quick  and  positive  in  their  answers, 
keenly  alive  to  the  dramatic  possibilities  of  the  situation,  and  with  an  un- 
erring instinct  for  a  trap  or  compromising  admission. 

A  woman  will  inevitably  couple  with  a  categorical  answer  to  a  question, 
if  in  truth  she  can  be  induced  to  give  one  at  all,  a  statement  of  damaging 
character  to  her  opponent.     For  example : 

"Do  you  know  the  defendant?" 

"Yes,  —  to  my  cost !" 

Or: 

"  How  old  are  you  ?" 

"Twenty-three,  —  old  enough  to  have  known  better  than  to  trust  him." 

Forced  to  make  an  admission  which  would  seem  to  hurt  her  position, 
the  explanation,  instead  of  being  left  for  the  redirect  examination  of  her 
own  counsel,  is  instantly  added  to  her  answer  then  and  there. 

"Do  you  admit  that  you  were  on  Forty-second  Street  at  midnight?" 

"Yes.  But  it  loas  in  response  to  a  message  sent  by  the  defendant  through 
his  cousin." 

What  is  commonly  known  as  "silent  cross-examination"  is  generally  the 
most  effective.  The  jury  realize  the  difficulties  of  the  situation  for  the 
lawyer,  and  are  not  unlikely  to  sympathize  with  him,  unless  he  makes  bold 
to  attack  the  witness,  when  they  quickly  change  their  attitude. 

One  question,  and  that  as  to  the  witness's  means  of  livelihood,  is  often 
sufficient. 

"  How  do  you  support  yourself  ?  " 

"I  am  a  lady  of  leisure!"  replies  the  witness  (arraj'ed  in  flamboyant 
colors)  snappishly. 

"That  will  do,  thank  you,"  remarks  the  lawyer  with  a  smile.  "You 
may  step  down." 

The  writer  remembers  being  nicely  hoisted  by  his  own  petard  on  a  similar 
occasion : 

"What  do  you  do  for  a  living?"    he  asked. 

The  witness,  a  rather  deceptively  arrayed  woman,  turned  upon  him  with 
a  glance  of  contempt : 

"  I  am  a  respectable  married  woman,  with  seven  children,"  she  retorted. 
"  I  do  nothing  for  a  living  except  cook,  wash,  scrub,  make  beds,  clean  windows, 
mend  my  children's  clothes,  mind  the  baby,  teach  the  four  oldest  their 
lessons,  take  care  of  my  husband,  and  try  to  get  enough  sleep  to  be  up  by 
five  in  the  morning.  I  guess  if  some  lawyers  worked  as  hard  as  I  do,  they 
would  have  sense  enough  not  to  ask  impertinent  questions." 

There  is  no  witness  in  the  world  more  difficult  to  cope  with  than  a  shrewd 
old  woman  who  apes  stupidity,  only  to  reiterate  the  gist  of  her  testimony  in 
such  incisive  fashion  as  to  leave  it  indelibly  imprinted  on  the  minds  of  the 
jury.  The  lawyer  is  bound  by  every  law  of  decency,  policy,  and  manners 
to  treat  the  aged  dame  with  the  utmost  consideration.  He  must  allow  her 
to  ramble  on  discursively  in  defiance  of  every  rule  of  law  and  evidence  in 
answer  to  the  simplest  question ;  must  receive  imperturbably  the  opinions 
and  speculations  upon  every  subject  of  both  herself  and  (through  her)  of 
her  neighbors ;   only  to  find  when  he  thinks  she  must  be  exhausted  by  her 


34S  PART    II.      TESTIMONIAL   EVIDENCE  No.  180. 

own  volubility,  that  she  is  reatly.  at  the  slightest  opportunity,  to  break 
away  aj:ain  into  a  tan^Me  of  guesswork  and  hearsay,  interwoven  witli  con- 
clttsion.-ran(l  ejaculation.  Woe  be  unto  iiiin  if  he  has  not  sense  enough  to 
waive  her  otf  the  stand  !  He  might  as  well  try  to  harness  a  Valkyrie  as  to 
restrain  a  pugnacious  old  Irishwoman  who  is  intent  on  getting  the  whole 
business  before  the  jury  in  her  own  way. 

In  the  recent  case  of  Gustav  Dinser,  convicted  of  murder,  a  vigorous  old 
lady  iot)k  the  stand  ami  testiHcd  forcibly  against  the  accused.  She  was  as 
"smart  as  paint."  as  the  saying  goes,  and  resolutely  refused  to  answer  any 
questions  put  to  her  by  counsel  for  the  defense.  Instead,  she  would  raise 
her  voice  and  make  a  savage  on.slaught  upon  the  prisoner,  rehearsing  his 
brutal  treatment  of  the  deceased  on  previous  occasions,  and  getting  in  the 
most  damaging  testimony. 

"  Do  you  say,  Mrs.   ,"  the  lawyer  would  inquire  deferentially,  "  that 

you  heard  the  sound  of  thrrc  l)lows?" 

"Oh,  thim  blows  1"  the  old  lady  would  cry  —  "  thim  turrible  blows  !  I 
could  hear  the  villain  as  he  laid  thim  on  !  I  could  hear  the  poor,  pitiful 
groans  av  her,  and  she  so  sufierin'  !  'Twas  awful  I  Howly  Saints,  'twould 
make  yer  blood  run  cowld  !" 

"Stop  I   stop!"    exclaimed  the  lawyer. 

"  Ah,  stop  is  it  ?  Ye  can't  stop  me  till  Oi've  had  me  say  to  tell  the  whole 
truth.  I  says  to  me  daughter  Ellen,  says  I:  'Th'  horrid  baste  is  afther 
murtlicrin'  the  poor  thing,'  says  I ;   'run  out  an'  git  an  ofKcer  !'" 

■■  1  ol)ject  to  all  this  !"   shouts  the  lawyer. 

"Ah.  ye  objec',  do  ye?"  retorts  the  old  lady.  "Shurean'  ye'd  have  been 
after  objectin'  if  ye'd  heard  thim  turrible  blows  that  kilt  her  —  the  poor, 
sutferin'.  swate  crayter  I  I  hope  he  gits  all  that's  comin'  to  him  —  bad 
cess  to  him  for  a  bloody-thirsty  divil  !" 

The  lawyer  ignominiously  abandoned  the  attack. 

To  recai)itulate,  the  quickness  and  positiveness  of  women  make  them 
ordinarily  l>etter  witnesses  than  men  ;  they  are  vastly  more  difficult  to 
cross-examine ;  their  sex  protects  them  from  many  of  the  most  effective 
weapons  of  the  lawyer,  with  the  result  that  they  are  the  more  ready  to 
yield  to  prevarication  ;  and,  even  where  the  possibility  of  complete  and 
unrestricted  cross-H-xamination  is  afl'orded,  their  tendency  to  inaccurately 
inferential  reasoning,  and  their  ehisivene.ss  in  dodging  from  one  conclusion 
to  another,  render  the  opportunity  of  little  value. 

In  g«-neral.  however,  women's  testimony  differs  little  in  quality  from  that 
f)f  men.  all  testimony  being  sul)ject  to  the  same  three  great  limitations 
irrespective  of  the  .sex  of  the  witness,  and  the  conclusions  set  forth  above  are 
merely  the  result  of  an  elfort  on  the  part  of  the  writer  to  comment  some- 
what upon  those  small  diil«rences  which,  under  clo.se  scrutiny,  may  fairly 
be  suid  to  j-xist.  These  dill'erences  are  quite  as  noticeable  at  the  breakfast 
table  a,s  in  the  court  rooiri  ;  and  are  no  more  patent  to  the  advocate 
than  to  the  ordinary  male  animal  whose  forehead  habitually  reddens 
when  he  hears  the  imansweral)le  reason  which,  in  default  of  all  others, 
explains  and  glorifies  the  mental  action  of  his  wife,  sister,  or  mother: 
"Just  because  !" 


No.  181.  I.       GENERIC    TRAITS.       C.    SEX  349 

181.  Charles  C.  Moore.  A  Treatise  on  Facts,  or  the  Weight  and  Value 
of  Eddence.  (1908.  \o\.ll,^^9U-920)....Obserimtiono/Wome7i.  We 
have  seen  that  attention  is  essential  to  accuracy  of  observation.  Experi- 
mental researches  upon  voluntary  attention  show,  says  Ribot,  that  atten- 
tion generally  requires  more  time  in  women  than  in  men.  But  he  remarks 
in  another  place,  that  "  the  janitor's  wife  will  spontaneously  lend  her  whole 
attention  to  the  gossip  of  her  neighbors,"  and  that  "a  woman  will  take  in, 
in  the  twinkling  of  an  eye,  the  complete  toilet  of  a  rival,"  thus  giving  them 
credit  for  celerity  of  attention  commensurate  with  intensity  of  interest,  — 
which  is  about  as  much  as  can  be  conceded  to  anybody.  Dr.  Gross,  an 
authority  of  very  high  rank,  says  "a  woman  is  more  patient,  more  atten- 
tive, more  cunning,  and  more  reflecting  than  a  man."  Professor  James 
says  "women  in  general  train  their  peripheral  visual  attention  more  than 
men,"  that  is  to  say,  their  attention  to  objects  lying  in  the  marginal  por- 
tions of  the  field  of  vision.  .  .  . 

Memory  of  ]]'omen.  There  is  little  or  no  ground  for  contending  that  a 
woman  is  sui  generis  in  respect  of  her  faculty  of  memory.  Some  things 
naturally  engage  a  woman's  special  attention  and  interest  which  would  be 
regarded  with  comparative  indifference  by  a  man.  But  very  many  men  are 
likewise  inattentive  to  things  which  have  a  strong  attraction  for  other  men. 
Professor  Thorndike  declares  that  "  many  a  woman  of  generally  feeble 
memory  can  remember  every  dress  she  has  owned  since  she  was  ten  years 
old."  Methodical  inquiries  by  Professor  Colegrove  have  led  him  to  con- 
clude that  in  the  general  average  for  the  whole  life  women  have  a  slightly 
higher  percentage  of  visual,  auditory,  gustatory,  and  tactile  memories  than 
men.  .  .  . 

Veracity  of  IVomen.  Schopenhauer  declared  that  women,  being  the 
weaker  sex  and  dependent  therefore  upon  craft  and  not  upon  strength, 
have  an  instinctive  capacity  for  cunning  and  an  ineradicable  tendency  to 
say  what  is  not  true ;  and  that  it  is  as  natural  for  them  to  make  use  of 
dissimulation  on  every  occasion  as  it  is  for  beasts  to  employ  their  means 
of  defense  when  they  are  attacked.  But  it  was  remarked  by  Chancellor 
Zabriskie  of  New  Jersey  as  not  unnatural  that  weak  and  ignorant  men  should 
resort  to  falsehood  as  a  protection  against  adversaries  of  superior  knowl- 
edge and  sagacity.  Schopenhauer  also  said  that  a  perjury  in  a  court  of 
justice  is  more  often  committed  by  women  than  by  men,  and  that  it  may, 
indeed,  be  generally  questioned  whether  women  ought  to  be  sworn  at  all. 
Like  the  unenlightened  observers  of  the  epileptic  and  the  insane  in  former 
days,  he  ascril^ed  women's  actual  shortcomings,  physical  and  intellectual, 
to  fundamental  and  innate  characteristics.  .  .  .  Spencer,  who  found  his 
data  in  England,  advances  reasons  for  believing  that  the  physical  and  mental 
infirmities  of  women  are  the  outcome  of  environment  and  heredity,  not  of 
fundamental  differences  based  on  sex.  Darwin  expressed  the  same  opinion, 
which  he  placed  upon  a  strictly  scientific  basis.  Mascardus  said  :  "  Feminis 
plerumque  omnino  non  creditur,  et  id  dumtaxat,  quod  sunt  feminse,  quae 
ut   plurimum   solent   esse  fraudulentse,   fallaces,    et   dolosae." 

Believe  a  woman  or  an  epitaph ; 
Or  any  other  thing  that's  false. 

Byron,  "  English  Bards  and  Scotch  Reviewers." 


350  PART    II.      TESTIMONIAL   EVIDENCE  No.  182. 

Han  W'onun  IWulkir  Traits-  thai  affect  Their  Testiirumijf  They  have,  if 
we  are  to  believe  the  striking  utterances  of  Mr.  Justice  Wayne,  of  the  United 
States  Supreme  Court,  who  said:  "The  distinguished  Sherlock  says,  with- 
out anv  satirical  intention  or  meaning  to  say  that  women  are  inferior  to 
men.  'Whilst  she  trusts  her  instinct  she  is  scarcely  ever  deceived,  and  she 
is  generally  lost  when  she  begins  to  reason.'  And  I  need  not  tell  my  brethren, 
as  evidence  rests  upon  our  faith  in  human  testimony  as  sanctioned  by 
experience,  that  the  conclusion  of  the  great  divine  is  that  of  the  law,  and 
that  the  testinK)ny  of  women  is  weighed  with  caution  and  allowances  for 
iluiM  (litT.Tciitly  from  that  of  men."  Mr.  Train  says:  "Women  in  the 
witne--'  chiir  .  .  .  are  prone  to  swear  to  circumstances  as  facts,  of  their 
own  knowledge,  simply  l)ecause  they  cnnfu.'^e  what  they  have  really  ob- 
served with  what  they  believe  did  occur  or  should  have  occurred,  or 
with  what  they  are  convinced  did  happen  simply  because  it  was  accus- 
tomeil  to  happen  in  the  past." 

If  the  foregoing  observations  in  pais,  so  to  speak,  of  Sherlock,  Mr.  Justice 
Wayne,  and  Mr.  Train  are  sound,  we  ought  to  find  some  confirmation  of 
them  among  the  immense  number  of  reported  opinions  of  judges  of  courts 
of  first  instance  in  the  last  hundred  years.  The  author  of  this  work  has 
n-ad  all  of  the  reported  opinions  of  Sir  John  NichoU,  Dr.  Lushington,  Sir 
William  ."^cott  (Lord  Stowell),  and  others  who  sat  as  the  sole  triers  of  facts 
in  the  olil  English  ecclesiastical  courts;  every  opinion  in  all  of  the  New- 
Jersey  Equity  and  Law  reports,  the  former  especially  enriched  by  the 
utterances  of  Chancellors  Zabriskie,  Williamson,  Magie,  and  McGill,  and 
of  Vice  Chancellors  Van  Fleet  and  Pitney,  on  the  w'eight  of  testimony  in 
cases  decided  l)y  them  in  tlie  e.xercise  of  the  "one-man  power";  nearly  all 
the  opinions  ever  delivered  by  a  federal  judge,  particularly  in  chancery 
ca-ses ;  and  tens  of  thousands  of  other  opinions  by  United  States,  Canadian, 
anfl  English  judges.  With  his  attention  alert  to  notice  any  judicial  expres- 
sion derogat(»ry  to  the  testimony  of  any  class  of  witnesses,  the  author 
certifies  that  he  has  not  seen  a  single  allusion  to  constitutional  limitations 
of  women  as  trustworthy  witnesses,  ami  most  of  the  judges  above  named 
were  much  in  the  habit  of  philosophizing  on  the  characteristics  of  witnesses 
of  various  sorts  and  conditions  —  children,  youths,  aged  persons,  negroes, 
orientals,  sailors,  etc.  The  "distinguished  Sherlock,"- whose  specious  state- 
ment was  intlorsed  by  Justice  Wayne  —  an<l  whose  laudation  of  the  female 
iii'^tinct  is  Hatly  contradicte  1  li\  judicial  experience  in  at  least  one  im-. 
portant  partic^ilar  —  lived  in  a  i>eriod  when  male  witnesses'  "inferences," 
devoured  by  male  juries  and  judges,  were  sending  witches  to  a  dreadful 
d(Mtni.  .bulges  nowadays,  as  well  as  the  professional  psychologists,  are  fully 
aware  that  all  human  l)eings  are  prone  to  do  exactly  what  Mr.  Train,  as 
abov«'  fpioted.  attributes  especially  to  women,  namely,  to  substitute  infer- 
ence for  recollection.  This  vice  and  kindred  aberrations  are  not  peculiar 
to  women,  according  to  a  great  munber  of  reported  cases. 

1.S2.  (i.  M.  Wiiii'i'LK.  Manual  of  Mental  and  Physical  Tests.  [Printed 
post,  a-s  No.  290.) 

IKIi.    GEORGE   CANT'S  CASE.      (Printed  post,  as  No.  364.] 


No    191.  I.       GENERIC    TRAITS.       D.    MENTAL    DISEASE  351 

184.  THE  PERREAUS'   CASE.      [Printed  post,  as  No.  361.] 

185.  THOMAS  HOAG'S   CASE.      [Printed  post,  as  No.  363.] 

186.  MRS.   MORRIS'   CASE.      [Printed  post,  as  No.  287.] 

187.  CHICAGO  &  ALTON  R.  CO.  v.  GIBBONS.  [Printed  post, 
as  No.  365.] 

188.  LAURENCE  BRADDON'S  TRIAL.     [Printed  post,  as  No.  391.] 

189.  HILLMON  r.  INSURANCE   CO.      [Printed  post,  as  No.  389.] 

190.  THROCKMORTON   v.  HOLT.      [Printed  post,  as  No.  390.] 

SUB-TITLE   D:  MENTAL   DISEASE 

191.  G.  F.  Arnold.  Psychology  applied  to  Legal  Emdence.  (1906.  pp. 
283,  296,  318.)  .  .  .  The  importance  of  insanity  in  law  is  manifold  :  it  raises 
the  question  whether  a  criminal  is  to  be  held  responsible  or  not  for  some 
lawless  act,  whether  a  witness  is  competent  to  give  evidence,  whether  a 
party  is  qualified  to  contract,  whether  a  partnership  or  agency  is  terminated, 
and  other  similar  points.  ...  At  the  outset  some  general  features  of  in- 
sanity will  be  noted.  The  effect  of  mental  disease  is  in  general  to  substitute 
for  the  complex  balanced  system  of  psychical  forces  which  we  have  in  health, 
a  comparatively  simple  state  of  things  in  which  certain  tendencies  grow 
abnormally  strong  and  predominant  through  the  suppression  of  others. 
More  particularly,  the  higher  and  later  acquired  forms  of  psychosis,  regula- 
tive processes  of  ideation,  and  self-control  generally,  tend  to  be  dissolved, 
leaving  the  earlier  and  more  instinctive  tendencies  uncontrolled.  Thus 
through  the  weakening  of  the  regulative  volitional  factor  the  patient  is 
unable  to  control  his  ideas,  and  his  intelligence  is  wrecked  :  or  he  becomes 
a  prey  to  unregulated  emotion,  as  where  overweening  conceit,  timidity,  or 
animosity  becomes  predominant,  and  helps  to  maintain  corresponding  men- 
tal illusions.  We  draw  attention  to  the  fact,  for  reasons  that  will  appear 
later,  that  stress  is  here  laid  on  the  weakening  of  the  volitional  factor,  and 
this  feature  again  appears  as  the  explanation  of  the  crowd  of  associations 
of  ideas  which  run  riot  in  the  insane  mind.  "  If  there  is  any  single  criterion 
of  mental  derangement,"  says  Wundt,  "it  is  this  —  that  logical  thought 
and  the  voluntary  activity  of  the  constructive  imagination  give  way  to  the 
incoherent  play  of  multifarious  associations."  He  attributes  the  purpose- 
less vacillation  of  the  insane  and  the  manner  in  which  they  express  their 
thoughts  to  a  lack  of  voluntary  control  over  the  unruly  associations,  and 
says  that  it  is  in  this  very  mobility  of  association  that  the  germ  of  decay 
is  to  be  looked  for.  .  .  . 

Let  us  now  briefly  gather  up  the  results  of  this  discussion.  There  are 
no  such  things  as  cognitive  faculties  existing  apart  from  the  emotions  and 
the  will,  nor  can  our  cognitive  processes  be  separated  off  from  our  emo- 


352  PAKT    II.       TESTIMONIAL    EVIDENCE  No.  191. 

tional  and  \i)litional  ones,  except  for  the  purposes  of  study  and  exposition. 
These  mental  states  are  interconnected  and  occur  together  in  one  total 
stale  of  consciousness,  ami  states  of  consciousness  are  bound  together  by 
the  existence  of  the  organism.  All  ultimately  depend  on  that,  but  the 
emotional  states  do  so  more  directly  than  the  intellectual  ones,  and  it  is 
our  emotions  which  have  the  preponderating  influence  in  the  whole  psy- 
chical complex  wliich  represents  the  mind  at  any  time.  They  guide  the 
iniellect  ami  direct  it,  and  the  latter  cannot  make  decisions  in  opposition 
to  them  on  purely  intellectual  grounds.  It  follows  from  this  that  the  emo- 
tions and  the  will  cannot  be  affected  without  also  affecting  our  cognition, 
ami  delusions,  illusions,  etc.,  and  what  are  generally  known  as  derangements 
of  the  intellect  can  be  traced  to,  and,  in  fact,  explained  as,  the  products  of 
perversion  of  the  emotions  and  affection  of  the  organic  sensations.  .  .  . 
As,  for  the  reasons  already  given,  the  close  interconnection  of  the  cogni- 
tive, emotional,  and  volitional  processes  is  established,  if  the  affection  of 
any  one  of  them  is  proved  it  ought  to  be  presumed  that  the  others  are  also 
atfected  until  those  who  assert  in  the  contrary  prove  their  view  to  be  cor- 
rect.  .   .   . 

To  the  popular  mind,  fixed  ideas  and  delusions  are  very  frequently  signs 
of  madness,  but  neither  are  necessarily  so.  Delusions  are  false  opinions 
about  a  matter  of  fact  and  sometimes  do  and  sometimes  do  not  involve 
false  perceptions  of  sensible  things.  In  the  case  of  the  insane  they  are  apt 
to  affect  certain  typical  forms  hartl  to  explain  :  in  many  instances  they  are 
theories  which  the  patients  invent  to  account  for  their  abnormal  bodily 
sensations  ;  in  other  cases  they  are  due  to  hallucinations  of  hearing  and 
sight.  .  .  .  Fixed  ideas  always  coincide  w'ith  an  advanced  stage  of  mental 
ili.sease  though  tliey  often  are  not  a  form  of  insanity  in  the  legal  sense. 
They  may  be  merely  a  diseased  excrescence  which  does  not  suppose  a  total 
transformation  of  the  individual.  There  are  practically  three  classes  of 
them,  viz.  :  (1)  simple  fixed  ideas  of  a  purely  intellectual  nature;  (2)  fixed 
ideas  accompanied  by  emotions,  such  ds  terror  and  agony,  the  insanity  of 
doubt ;  and  i'.i)  fixed  ideas  of  an  impulsive  form.  These  last  manifest 
themselves  in  violent  or  criminal  acts,  such  as  suicide  and  homicide  and 
are  the  only  kind  that  should  be  held  to  indicate  irresponsibility  in  law. 
They  are,  in  fact,  in  such  ca.ses  the  irresistible  tendencies  already  alluded  to.^ 
S|>caking  of  fixed  ideas  in  general,  Ribot  says  that  they  are  a  symptom  of 
d«gemTatii»n  and  the  persons  who  have  them  are  not  therefore  insane.  .  .  . 
He  al.-^o  shows  how  the  mechanism  of  the  fixed  idea  resembles  that  of 
ordinary  attenti(»n  :  there  is  no  difference  of  kind,  but  only  of  degree.  The 
fi.xed  idea  has  a  greater  intensity  and  a  longer  duration,  but  if  a  state  of 
siMMitaiieous  attention  were  similarly  strengthened  and  rendered  per- 
riiatieiit.  the  whole  array  of  irrational  conceptions  that  form  the  retinue 
and  pnvsc-nt  a  fictitious  ai)pearance  of  insanity  would  of  necessity  be 
ad«le«l  to  it  as  the  mere  result  of  the  logical  mechanism  of  the  mind. 
At  the  sarm-  time  the  fixed  idea  presupposes  a  considerable  weakening  of 
the  will,  that  i.s.  of  the  power  to  react.  When  a  man  possessed  by  a  fixed 
idea  is  merely  a  witness  who  has  to  give  evidence,  his  evidence  will  be  ac- 
cepte.1  on  other  points  than  that  to  which  the  fixed  idea  relates.  At 
least   this  is  the  ca.se  of   the   monomaniac,  concerning  whom  it  has  been 

'  Hil.Mt  nil  Altrntion.  pp.  78-79. 


No.  191.  I.       GENERIC    TRAITS.       D.    MENTAL   DISEASE  353 

SO  laid  down,  and  who  is  termed  in  the  law  decisions  "partially  insane." 
This  agrees  with  the  view  of  Ribot  already  quoted  that  a  fixed  idea  is 
often  only  a  diseased  excrescence  which  does  not  suppose  a  total  trans- 
formation of  the  individual.  .  .  . 

There  remain  for  consideration  lucid  intervals  in  insanity,  and  idiocy. 
"The  idiot,"  it  is  said  [by  a  law  writer],  "can  never  become  rational;  but 
a  lunatic  may  entirely  recover  or  have  lucid  intervals ;  .  .  .  thus  a  lunatic 
during  a  lucid  interval  maj^  be  examined."  .  .  .  [This  statement  is  correct 
enough  as  to  the  lunatic]  There  is  no  permanently  existing  diseased  self 
which  appears  and  disappears  at  intervals,  and  thus  may  infect  the  inter- 
vening period  during  which  the  subject  is  apparently  sound ;  but  the  pre- 
ponderating state  of  consciousness  at  each  moment  constitutes  to  the  in- 
dividual and  to  others  his  personality.  .  .  .  But  that  the  idiot  can  never 
become  rational  is  perhaps  too  sweeping  a  statement :  it  ignores  the  fact 
that  there  are  degrees  of  the  state.  "  Idiocy  has  various  degrees  from  com- 
plete nullity  of  intelligence  to  simple  weak-mindedness,  according  to  the 
point  at  which  arrest  of  development  has  taken  place."  At  the  same  time 
it  is  true  that  when  the  idiot  is  one  whose  brain  does  not  contain  the  whole 
cerebral  mass  you  cannot  create  it  (though  in  the  case  of  the  young  where 
it  has  been  due  to  some  malformation  which  has  prevented  the  brain  from 
developing,  removal  of  the  cause  will  lead  to  improvement).  To  educate 
imbeciles  and  idiots  is  extremely  difficult,  because  they  are  bereft  of  the 
faculty  of  attention  ;  the  system  is  to  make  use  of  those  senses  which  fulfill 
their  function  in  order  to  develop  those  which  do  not,  and  after  a  long  course 
of  training  "  it  becomes  possible  to  raise  the  idiot  more  or  less  near  to  the 
level  of  ordinary  perceptual  consciousness."  It  has  sometimes  been  re- 
marked that  persons  of  this  type  are  particularly  trustworthy  as  messengers 
and  in  carrying  out  instructions,  if  you  can  once  get  into  their  heads  what 
it  is  they  are  required  to  do :  this  is  due  to  their  narrow  range  of  interests 
and  the  resulting  absence  of  distracting  considerations.  For  the  same 
reason  they  sometimes  show  unusual  powers  of  memory ;  they  recall  re- 
markable series  of  objects  contiguous  in  time  and  space  because  there  are 
no  other  divergent  lines  of  association  to  compete  with  those  which  are 
formed  by  the  mere  sequence  of  external  impressions.  To  systematically 
distrust  the  idiot  as  a  witness  would  therefore  be  an  error :  within  the 
limits  of  his  observation  he  may  be  expected  to  be  particularly  correct  in 
his  account  of  occurrences. 

There  is  said  to  be  a  presumption  in  law  that  insanity  which  has  been 
once  established  will  continue,  and  that  the  burden  of  proof  of  a  subsequent 
lucid  interval  lies  on  the  party  who  asserts  it.  This  is  based  on  another 
general  presumption  that  things  generally  remain  the  same,  including  per- 
sons, personal  relations,  states  of  things,  individual's  opinions  and  states  of 
mind.  It  is  not  supposed  that  such  a  presumption  really  weighs  very 
much,  but  we  cannot  refrain  from  remarking  that  the  value  of  it  is  simply 
nil :  it  is  mere  prejudice,  and,  as  Mr.  Bradley  says,  "the  general  disposition 
to  believe  that  what  has  been  is,  or  that  what  is  usually  is  always,  cannot 
seriously  be  offered  as  a  conclusive  argument."  .  .  .  The  fact  appears  to 
be  that  no  general  presumption  can  be  drawn  concerning  the  continuance 
or  non-continuance  of  insanity :  it  is  possible  to  draw  presumptions  from 
the  symptoms  of  certain  kinds,  because  these  indicate  that  the  madness  is 


334  PART    II.       TESTIMONIAL    EVIDF.XCE  No.  192. 

an  incipient  stage  of  a  furin  that  never  disappears  but  continues  to  progress. 
As,  however,  some  forms  are  only  periodic  and  in  others  recovery  is  usually 
certain,  unless  other  causes  supervene,  to  presume  here  that  the  insanity 
will  contiiuic  is  mere  error. 

192.  Ch.xklesMercier.  Sanity  and  Insanity.  (1S95.  p.  382.)  Different 
causes  of  mania  differ  from  one  another,  howe\'er,  in  other  respects  besides 
the  violence  of  the  maniacal  manifestations.  The  variety  in  the  mani- 
festations is  almost  infinite.  It  is  a  very  common  supposition  among  the 
laity  that  every  madman  entertains  a  delusion,  and  the  existence  of  a  de- 
lusion is  regarded  as  the  essence,  the  criterion,  and  the  test  of  insanity.  It 
will  be  apparent,  to  every  reader  who  has  got  thus  far,  that  this  is  by  no  means 
the  case.  In  point  of  fact,  the  lunatics  who  entertain  delusions  are  in  a 
minority,  and  not  a  very  large  minority,  of  the  whole  number.  In  dementia, 
which  is  unquestionable  insanity  —  unquestionable  failure  of  the  process  of 
adjustment  of  self  to  surroundings  —  there  is  commonly  no  delusion. 
There  is  merely  a  weakening,  degradation,  and  narrowing  of  mind,  so  that 
the  patient  becomes  incompetent  to  manage  himself  and  his  affairs,  simply 
because  he  is  no  longer  able  to  appreciate  and  understand  his  affairs,  or  to 
estimate  truly  his  own  wants.  In  that  modification  of  dementia  which  we  call 
mania,  there  may  be  no  delusion.  .  .  .  The  lunatic  is  still  able  to  get  about, 
to  run,  to  walk,  to  play  cricket,  to  ply  his  trade;  but  the  more  elaborate 
nervous  arrangements,  which  actuate  the  higher  phases  of  his  conduct, 
being  disordered,  he  cannot  effect  these  higher  phases  of  conduct  normally. 
It  does  not  necessarily  follow  that  his  mind  is  distorted  and  his  conduct 
biased  by  delusion.  There  may  be  simply  mental  enfeeblement,  that  is  to 
.say.  the  higher  processes  of  his  mind  are  bemuddled.  When  he  attempts  to 
think  out  an  elaborate  course  of  conduct,  he  falls  into  a  state  of  confusion. 
When  he  attempts  to  carry  out  an  elaborate  course,  he  gets  astray,  he  does 
things  wrong,  he  makes  mistakes,  he  fails  to  appreciate  the  force,  and  to  esti- 
mate the  comparative  value  of  circumstances,  and  his  acts  are  wrongly 
directed,  confused,  and  iiuiddlcfl  ;  but  throughout  it  all,  there  is  none  of  that 
definite  di>tortion  of  mind  that  we  call  delusion.  Wecanngt  lay  a  finger  upon 
any  one  point  and  say,  "This  is  a  delusive  belief;  that  is  a  delusive  idea." 
We  can  only  find  a  general  state  of  mist  and  fog  and  bemuddlement.  We  find 
vague  expressions  of  confusion,  but  no  definite,  sharp-cut,  fixed  belief,  that 
we  can  call  a  delusion. 

Consider  such  an  uit;  laiue  as  the  following,  taken  from  a  letter  that  I 
received  this  morning :  "  Knowing  the  only  chance  to  escape  from  such 
awful  nuisance  for  ages  of  delusions  besides  all  ladies'  honor  concerned  for 
upon  that  marriage  of  Lamb  had  depended  triumph  of  faith  crave  happi- 
n.-s.s  just  had  la-en  heartless  way  preventing  such  deluded  ladies  to  have 
sueh  picture  ui  th.-ir  reach  all  cry  shame  were  such  revealed  the  scores  in 
liible  which  shall  bring  that  marriage  seen  Messiah's  Kingdom  teach 
woman  s  heart  that  divine  love."  It  is  insane  enough;  but  it  exhil)its  no 
definite  .lelusion.  It  is  a  farrago  of  incoherent  nonsense.  The  erroneous 
idea-s  that  are  i.reval.-nt  with  regard  to  the  mental  operations  of  the  insane 
<epend  largely,  of  course,  npon  ignorance,  but  largclv  also  upon  want  of  the 
dramatic  faculty  -  want  .,f  the  capacity  to  take  upon  one's  self,  as  it  were, 
another  person  s  individuality,  and  realize  vicariou.slv  their  mental  condi- 


No.  192.  I.       GENERIC    TRAITS.       D.    MENTAL   DISEASE  355 

tion.  The  person  who  wrote  the  passage  given  above  does  not  entertain  any 
delusion.  The  lower  strata  of  his  highest  nerve  regions  are  in  good  order. 
So  long  as  he  is  dealing  with  concrete  facts  he  is  not  only  sane,  but  clever. 
He  is  a  capable  artisan,  a  skillful  fly-fisher,  a  good  shot,  a  brilliant  billiard 
player,  and  a  good  chess  player.  For  all  these  concrete  employments  his 
mind  works  well  and  clearly.  But  when  he  tries  to  deal  with  abstractions ; 
when  he  tries  to  bring  into  operation  the  highest  faculties  of  his  mind  ;  the 
highest  strata  of  his  brain ;  he  falls  at  once  into  confusion.  The  truth  is 
that  the  highest  strata  of  his  brain  are  seriously  and  permanently  damaged, 
and  that,  although  he  can  set  to  work  the  fragmentary  remains  of  them, 
they  can  no  more  turn  out  a  complete  and  coherent  piece  of  work,  than  can 
a  blunted  chisel  cut  a  clean  groove  in  wood,  or  a  damaged  loom  weave  a 
fair  piece  of  cloth.  With  the  damaged  chisel  you  may  cut  a  groove  —  of 
a  kind  ;  and  from  the  damaged  loom  you  may  get  cloth  —  of  a  sort ;  and 
from  the  damaged  nerve  centers  you  may  get  conduct  —  of  some  descrip- 
tion. .  .  . 

The  characters  of  the  delusions  that  are  entertained  by  insane  people  are 
almost  infinitely  various,  there  being  only  one  class  of  circumstances  to  which 
they  never  refer,  viz.  circumstances  unconnected  with  the  deluded  per- 
son. Insanity  being  disorder  of  the  adjustment  of  self  to  surroundings,  it 
is  evident  that  delusion  which  is  a  part  of  insanity  must  implicate  self. 
There  are  an  almost  infinite  variety  of  delusions,  but  we  never  find  a  de- 
lusion which  refers  wholly  to  outside  circumstances,  and  has  no  reference 
to  self.  A  man  will  entertain  the  belief  that  he  is  Emperor  of  China,  but 
he  will  never  entertain  the  belief  that  another  person  is  Emperor  of  China, 
except  he  believe  that  the  person  so  exalted  gains  by  his  exaltation  a  power 
of  interfering  in  some  way  with  the  deluded  person  himself.  Maclean,  who 
was  tried  for  high  treason  in  1882,  had  a  delusion  that  almost  everybody 
was  dressed  in  blue,  but  he  also  believed  that  they  dressed  in  this  color  in 
order  to  annoy  him. 

Delusions  fall  naturally  into  three  classes :  Delusions  of  self ;  delusions 
of  the  relation  of  self  to  surroundings ;  and  delusions  of  the  relation  of  sur- 
roundings to  self.  The  first  class  we  have  already  dealt  with  ;  the  remain- 
ing classes,  which  depend  on  alterations  of  the  other  moiety  of  the  nervous 
circulation,  have  also  been  dealt  with  in  part.  .  .  .  All  the  delusions  of 
self  and  of  the  relation  of  self  to  surroundings  have  this  feature  in  common  — 
that  the  conduct  to  which  they  prompt  is  very  rarely  directly  hurtful  to  others. 
They  often  prompt  to  direct  injury  to  self,  and  to  suicide,  but  only  rarely 
to  injury  to  others.  In  the  third  class  of  delusions  the  alteration  is  in  the 
relation  in  which  circumstances  are  believed  to  stand  to  self.  The  difference 
between  the  delusions  of  this  class  and  those  of  the  last  is  very  distinct. 
In  the  delusions  of  the  class  just  considered,  the  alteration  is  in  the  way  that 
the  self  acts,  has  acted,  or  may  act  on  his  surroundings.  The  delusions  of 
the  present  class  are  concerned  with  the  way  in  which  circumstances  act 
on  self.  The  peculiarity  of  these  delusions  is,  that  the  action  of  circumstances, 
to  which  the  delusion  refers,  is  almost  always  considered  to  be  unfavorable. 
Persons  with  delusions  of  this  character  are  the  objects  of  fancied  machi- 
nations and  conspiracies.  Their  wives  and  children  are  endeavoring  to 
injure  them  ;  people  are  laughing  at  them,  talking,  whispering,  thinking 
about  them.     People  are  thinking  their  thoughts,  controlling  their  thoughts, 


356  I'AKT    II.       TESTIMONIAL    EVIDENCE  No.  192. 

putting  vile  ideas  into  their  minds  ;  speaking  to  them,  or  acting  on  them,  or 
inHuencing  their  minds  from  great  distances,  in  occult  ways,  by  mesmerism, 
l.y  electricity,  hy  telephones,  by  wires,  through  the  gas,  the  water,  the  air, 
the  sunlight.  People  are  in  a  conspiracy  against  them.  Spirits  are  in- 
Huencing them,  working  upon  them,  playing  upon  them.  People  follow 
them  al)out.  point  at  them,  and  whisper  about  them.  Or  they  are  tormented 
by  spirits.  Horrible  suggestions  and  promptings  are  made  to  them.  They 
hear  voices  or  see  writing  reviling  them,  or  commanding  or  suggesting  to 
them  to  do  this  or  that.  They  are  persecuted  ;  the  police  are  after  them, 
thev  are  to  be  tried,  hanged,  burnt,  boiled  in  oil,  roasted  alive,  starved,  dis- 
emboweletl.  They  have  been  robbed,  swindled,  cheated.  Their  wives  are 
unfaithful ;  their  children,  relatives,  friends,  acquaintances  —  the  whole 
world  is  in  one  vast  conspiracy  to  do  them  harm. 

D.'lusions  of  this  third  class  difi'er  from  those  of  the  two  preceding  classes 
in  the  fact  tliey  that  are  very  prone  to  prompt  to  conduct  that  is  dangerous 
to  others.  From  the  belief  that  one  is  being  injured,  to  the  attempt  to  re- 
taliate upon  the  injurer.  is  l)ut  a  very  short  step ;  and  as  the  injurious 
agency  is  readily  shifted  in  imagination  from  one  person  to  another,  the  ill 
deeds  maybe  ascril)ed  to  any  one  whomsoever.  Oftenest  they  are  ascribed 
to  relatives,  friends,  or  acquaintances  —  to  people  who  have  a  direct  re- 
lation of  proximity  to  the  patient.  Not  seldom  the  injurious  agency  is 
ascribed  to  some  prominent  personage  —  to  the  Queen,  the  Prime  Minister, 
to  a  judge,  or  a  local  magnate.  Occasionally  the  attempt  at  retaliation  is 
made  against  an  entire  stranger,  one  who  is  unknown  to,  and  has  never  been 
seen  before  by.  the  insane  person.  Lunatics  who  entertain  delusions  of  this 
character  are  never  safe  to  be  at  large.  The  commission  of  some  deed  of 
violence  by  them  is  a  matter  simply  of  time,  and  sooner  or  later  they  are 
sure  to  become  dangerous. 

It  is  not  merely  by  direct  retaliation  that  such  persons  become  danger- 
ous. It  is  common  for  them  to  commit  some  deed  of  violence  on  a  person  in 
prominent  position,  for  the  purpose  of  drawing  attention  to  their  grievances, 
with  the  vague  idea  that,  once  attention  is  drawn  to  them,  they  will  be 
rtMiirclicd.  Such  persons  have  commonly  wearied  out  the  patience  of  their 
frit-mis  by  their  continual  complaints,  which,  at  first  combated  and  reasoned 
against,  are  at  last  regarded  with  indifi'erence,  and  passed  by  as  a  matter 
of  course.  This  kind  of  demeanor  towards  a  person  who  is  subject  to  de- 
lusions of  this  character  does  not  answer.  To  him  his  grievances  are  very 
real,  and  his  sufferings  very  painful.  When  lie  finds  that  his  complaints  are 
habitually  disregarded  and  ignored,  he  will  seek  some  method  of  proininently 
bringing  them  before  the  public  eye  and  compelling  attention  to  them. 
Commonly  he  has  carried  his  complaints  before  some  public  official.  He 
ha-s  invoked  the  assistance  of  the  police  against  his  persecutors  ;  if  a  soldier, 
he  has  deriuinded  redress  from  the  commander  in  chief.  He  has  applied 
to  nunister  after  minister,  oflieial  after  olHcial,  and  all  his  complaints  have 
been  disregarded.  ...  It  was  on  this  motive  that  the  Queen  was  shot  at 
hy  Maclean  ;  that  the  Master  of  the  Rolls  was  shot  at  by  Dodswell ;  that 
President  ("arnot  was  shot  at  by  Perrin  ;  and  many  other  instances  wiH 
present  theniselves  to  tin-  memory  of  my  readers. 

The  character  of  the  delusions  that  an  insane  person  entertains  depends 
in  part  uj.oii  the  area  and  nature  of  the  nervous  .strata  which  have   been 


No.  193.  I.       GENERIC    TRAITS.       D.    MENTAL   DISEASE  357 

removed,  or  rather  upon  the  character  of  those  which  remain.  .  .  .  The 
general  features  of  the  delusion  being  thus  determined,  its  individuality 
will  be  settled,  in  part  by  nature  of  the  person  in  whom  it  occurs,  his  history 
and  experience ;  and  in  part  by  impressions  made  upon  him  by  passing 
events.  Thus  a  person  who  is  naturally  suspicious  will  have  his  suspicions 
morbidly  exaggerated  ;  a  person  who  is  naturally  vain  of  the  impressions 
he  makes  on  the  opposite  sex  will  believe  that  he  is  persecuted  by  their 
attentions  :  a  person  who  is  naturally  religious  will  believe  himself  the  direct 
depositary  of  the  commands  of  the  Deity.  .  .  .  The  impressions  made  by 
passing  events  will  frequently  give  color  to  a  delusion.  In  the  case  of  a  man 
who  believes  that  this  or  that  eminent  person  exercises  influence  for  good  or 
evil  over  him,  the  particular  person  to  whom  the  influence  will  be  ascribed 
is  the  one  who  is  at  the  moment  most  prominently  before  the  world.  A 
series  of  political  speeches  reported  in  the  papers  will  lead  to  the  ascription 
of  the  influence  to  the  leading  political  orators.  .  .  .  The  description  of 
a  new  invention  in  the  newspapers  will  determine  delusions  to  the  telephone, 
the  microphone,  the  phonograph,  the  electric  light  machine,  and  so  forth. 
Important  as  delusions  undoubtedly  are,  as  manifestations  of  insanity,  let 
me,  however,  again  impress  upon  the  reader  that  the  existence  of  a  delusion 
is  by  no  means  of  universal  or  regular  occurrence,  but  that  on  the  contrary, 
in  the  majority  of  cases  of  insanity  no  definite  delusion  exists.  In  the  ma- 
jority of  cases  the  condition  of  the  mind  is  one  of  enfeeblement  or  of  con- 
fusion ;  and  this  condition  of  enfeeblement  or  confusion  may  extend  through- 
out all  the  mental  operations,  or  may  affect  only  a  restricted  and  elevated 
portion  of  them.  It  may  be  conspicuously  prominent  at  all  times,  or  it  may 
at  some  times  be  imperceptible,  at  others  elicitable,  and  at  others  manifest. 
While  it  is  easy,  upon  evidence,  to  come  to  the  conclusion  that  a  person  is 
insane,  it  is  extremely  fallacious  and  dangerous,  from  the  absence  of  such 
evidence,  to  conclude  that  a  person  is  sane.  If  there  has  arisen,  within  any 
recent  period,  prima  facie  reason  to  think  that  a  person  is  insane,  no  pru- 
dent man  will  venture,  upon  a  single  interview,  to  pronounce  positively 
that  that  opinion  was  not  justified  by  the  facts. 

193.  Hans  Gross.  Criminal  Investigation,  (transl.  Adam,  1907,  p.  171.) 
.  .  .  Certain  people  afflicted  with  mental  troubles  are  very  fond  of  writing  : 
especially  when  misanthropic  they  are  prone  to  substitute  letters  or  peti- 
tions for  personal  interviews.  Moreover,  people  suffering  from  the  monoma- 
nia of  persecution  are  particularly  fond  of  appearing  before  the  courts, 
believing  they  are  safest  there.  We  have  all  had  experience  of  habitues 
among  this  latter  class  of  unfortunate  madmen  who  come  from  time  to  time 
to  seek  news  of  their  suit,  legacy,  fortune,  etc.  It  sometimes  happens  that 
these  persons  will  on  no  account  appear  before  the  court  for  fear  of  being 
shut  up,  deceived,  or  even  executed  ;  they  prefer  to  make  their  accusations 
in  writing.  Such  accusations  of  imaginary  crimes  come  before  every  court 
and  cause  most  disagreeable  confusion,  when,  led  astray  by  apparently  per- 
fectly reasonable  explanations,  cases  are  rashly  taken  up  against  the  parties 
accused.  ... 

But  all  that  an  insane  person  may  say  or  write  is  not  always  devoid  of 
truth  or  inaccurate,  and  every  accusation,  even  coming  from  a  person  notori- 
ously mad,   is  worthy  of  examination.      It  only  too  often  happens  that 


3-vS 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  194. 


people  profit  hy  tlie  eiivuiustances  of  an  iiKlividual's  madness  to  say  "all 
the  same,  no  one  will  believe  that  madman."  If  this  be  so,  the  unfortunate 
lunatic  is  at  the  mercy  of  the  whole  world  and  exposed  to  the  exploitation, 
tejiiiing,  and  bail  treatment  of  ill-conditioned  and  ill-minded  people,  espe- 
cially when  they  find  out  that  their  victim's  repeated  complaints  have  not 
l)een  believed.  '  It  is  therefore  the  duty  of  the  Investigating  Officer  to  verify 
the  accuracy  of  all  the  statements  of  a  lunatic ;  on  every  occasion  he  should 
make  sure  that  there  is  really  no  truth  in  the  case,  even  where  the  evil 
complaineil  of  has  been  foimd  on  previous  occasions  to  be  false.  We  re- 
member a  case  in  which  a  crazy  old  peasant  had  made  innumerable  repre- 
sentations to  the  authorities  in  which  he  declared  that  "his  enemy"  had 
made,  before  his  house  or  on  his  way,  pits,  traps,  and  similar  contrivances, 
by  which  he  woulil  l>c  killed  or  injured.  ]Many  of  these  representations 
were  furnisheil  with  clear  sketches  of  the  asserted  pitfalls,  etc.  These  rep- 
resentations became  known  to  the  people  of  the  neighborhood  and  on  one 
occasion  the  village  boys  played  a  practical  joke  and  really  made  a  pit  before 
his  front  door  and  fillctl  it  with  manure.  The  unfortunate  man  fell  right 
into  it  and  was  nearly  drowned.  .  .  . 

It  is  often  necessary  to  cite  lunatics  as  \vitnesses ;  they  should  never  be 
sent  away  merely  on  the  ground  that  they  are  demented,  for  they  can  some- 
times rentier  consideral)le  assistance.  It  has  been  frequently  remarked  that 
madmen,  especially  certain  varieties  of  madmen,  are  excellent  observers. 
They  are  not  nearly  so  adverse  to  telling  the  truth  as  many  people  who  re- 
joice in  all  their  faculties,  for  they  do  not  allow  themselves  to  be  guided  by 
considerations  of  propriety.  They  have  also  more  opportunities  for  observa- 
tion, for  things  are  done  and  said  in  the  presence  of  a  lunatic  which  would 
not  be  done  or  said  before  others.  But  it  is  self-evident  that  the  statements 
of  a  madman  imist  be  well  weighed  before  beingutilized  as  evidence  in  a  case. 


194.    REGINA   v.   HILL.     (1851. 

.  .  .  This  prisoner  was  tried  before 
CoLKKilxJE,  .1.,  assisted  by  Cress- 
WKLi.,  .1.,  at  the  Keliruary  sittings  of 
the  Central  Criminal  Court,  1851, 
for  the  manslaughter  of  Moses 
James  Harnes.  He  was  convicted  ; 
but  a  (juestion  was  reserved  for  the 
opinion  of  this  court,  as  to  the  pro- 
priety of  having  admitted  a  witness 
of  the  name  of  Hichard  Donelly, 
on  the  part  of  the  prosecution. 
The  deceased  and  the  witness  were 
both  lurtatic  patients  in  ;i  Mr. 
.\rmstrong's  Asylum,  at  Camber- 
well,  at  the  time  of  the  su|)posed 
injury,  anfl  they  w<r<'.  at  that  time, 
placed  inaw.ird  ("illed  the  Infirmary. 
It  appearerl  that  a  single  sane  at- 
tendant (the prisoner)  had  thecharge 
of  this  ward,  in  which  as  many  as 
nine  palient.s  slept,  atid  that  he  was 


5  Cox  Cr.  259,  2  Den.  &  P.  254.) 
assisted  by  three  of  the  patients,  of 
whom  the  witness  Donelly  w'as  one. 
It  was  opened  for  the  prosecution, 
that  the  witness  Donelly  was  to  be 
called,  and,  therefore,  on  both  sides, 
some  evidence  was  gone  into  in  the 
course  of  the  case,  before  he  was 
called,  in  order  to  found  and  to 
meet  the  objection  to  his  compe- 
tency. 

Minu-iusicr,  who  had  been  an 
attendant  in  charge  of  the  infirmary 
ward  before  the  prisoner,  stated : 
"  1  )onelly  labors  under  the  delu- 
sion that  he  has  a  number  of  spirits 
about  him  which  are  continually 
talking  to  him ;  that  is  his  only 
delusion ;  he  has  never  been  free 
from  it,  to  my  knowledge,  since  I 
have  known  him." 

Jose  {ill  Sfuarf  Burton,  the  medical 


No.  194. 


GENERIC    TRAITS.       D.    MENTAL   DISEASE 


359 


superintendent,  stated  the  same  ;  but 
added,  "  I  believe  him  to  be  quite 
capable  of  giving  an  account  of  any 
transaction  that  happened  before  his 
eyes.  I  have  always  found  him  so ; 
it  is  solely  with  reference  to  the 
delusion  about  spirits,  that  I  attrib- 
ute to  him  being  a  lunatic :  when 
I  have  had  conversation  with  him 
on  ordinary  subjects,  I  have  found 
him  perfectly  rational,  but  for  this 
delusion  ;  I  have  seen  nothing  in  his 
conduct  or  demeanor  in  answering 
questions,  otherwise  than  the  de- 
meanor of  a  sane  man." 

James  Hill,  a  doctor  in  medicine, 
who  had  been  formerly  a  medical 
superintendent  at  the  same  Asy- 
lum, stated  :  "  The  memory  of  an  in- 
sane man  is  not  necessarily  affected  ; 
it  frequently  is,  but  frequently 
is  not.  I  have  seen  Dr.  Haslam's 
work.  I  do  not  agree  in  all  cases 
with  his  remark  that  '  memory  ap- 
pears to  be  perfectly  defective  in 
cases  of  insanity, '  —  certainly  not ; 
it  may  probably  be  so  in  the  gener- 
ality of  cases.  Madness  is  commonly 
accompanied  by  a  great  deal  of 
excitability  of  the  brain,  but  in  some 
cases  it  is  not ;  it  is  very  often  ac- 
companied by  physical  irritation  of 
the  brain ;  it  is  one  of  the  most 
common  causes  of  madness,  either 
primarily  or  secondarily.  In  cer- 
tain cases  of  acute  madness,  the 
ideas  in  the  mind  of  a  madman 
succeed  each  other  more  rapidly 
than  in  the  mind  of  a  sane  man,  and 
in  a  more  confused  manner,  that  is, 
where  there  is  actual  irritation  of 
the  brain ;  it  is  quite  possible  for  a 
man  to  entertain  a  delusion  on  one 
subject  without  its  affecting  his 
mind  generally  on  other  subjects ; 
in  most  cases  where  a  delusion  pre- 
vails, and  the  man  is  mad,  the  rest 
of  his  mind  is  affected  to  some  ex- 
tent. I  agree  with  Dr.  Pritchard 
in  his  observation,  that  'In  mon- 
omania, the  mind  is  unsound,  but 
unsound  in  one  point  only.'  There 
is  no  doubt,  however,  that  all  the 
mental  faculties  are  more  or  less 
affected ;    but  the  affection  is  more 


strongly  manifested  in  some  than  in 
others.  It  is  difficult  to  ascertain, 
without  strict  inquiry,  the  extent  of 
a  madman's  delusions ;  they  have 
sometimes  the  power  of  concealing 
their  delusions,  even  from  their 
medical  attendants,  especially  after 
having  been  frequently  conversed 
with  about  the  dehisions,  and  know- 
ing that  the}'  are  the  cause  of  their 
detention,  —  but  it  is  unfrequent. 
It  is  a  doubtful  point  whether  what 
they  say  is  not  for  a  particular  pur- 
pose,—  for  instance,  to  obtain  lib- 
erty. If  a  madman  has  an  object 
to  answer,  he  is  sometimes  capable  of 
concealing  his  delusions ;  I  have 
known  it,  but  not  as  a  general  rule : 
they  are  probably  capable  of  a  good 
deal  of  dissimulation,  —  many  are, 
I  know ;  but  many  do  not  exhibit 
that  tendency.  It  is  common  for  a 
certain  class  of  madmen  to  exhibit 
a  great  deal  of  cunning.  Donelly 
labored  under  a  delusion  with  re- 
spect to  spirits ;  he  is  in  the  strict 
sense  of  the  word,  a  lunatic,  inas- 
much as  he  labors  under  a  delu- 
sion ;  he  is  not  excitable  by  any 
means.  I  have  known  instances  of 
lunatics  concealing  their  delusions, 
but  in  all  these  cases  there  is  an 
evident  and  apparent  motive.  I 
have  known  decided  lunatics,  not 
monomaniacs,  in  what  are  called 
lucid  intervals,  capable  of  going 
about  and  managing  their  own  af- 
fairs ;  in  ordinary  cases  there  is  no 
particular  difference  between  a  mon- 
omaniac, apart  from  his  particular 
delusion,  and  an  insane  person 
in  a  lucid  interval ;  during  the  lu- 
cid interval  of  the  insane  person, 
he  is  well ;  but  a  monomaniac 
is  a  monomaniac  all  the  time. 
In  the  instance  of  a  monomaniac, 
you  produce  the  insanity  the  mo- 
ment you  touch  the  particular 
chord.  It  is  possible  that  you 
might  revive  insanity  in  a  madman 
during  a  lucid  interval  by  touching 
on  the  same  subject,  if  it  is  but  re- 
cent. I  always  found  Donelly  per- 
fectly rational  except  on  the  subject 
of  his  particular  delusion." 


300 


PART   II.      TESTIMONIAL   EVIDENCE 


No.  195. 


Domlly  was  then  called  and  be- 
fore being  sworn,  was  examined  by 
the  prisoner's  counsel.  He  said, 
"  1  am  fully  aware  that  I  have  a 
spirit,  and  twenty  thousand  of  them  ; 
tliey  are  not  all  mine ;  I  nuist  in- 
quire —  I  can  where  I  am  ;  I  know 
which  are  mine.  Those  ascend  from 
my  stomach  to  my  head,  and  also 
those  in  my  ears;  I  don't  know  how 
many  there  are.  The  flesh  creates 
spirits  by  the  palpitation  of  the 
nerves  and  the  'rheumatics' ;  all  are 
now  in  my  body  and  round  my  head  ; 
they  speak  to  me  incessantly,  — 
particularly  at  night.  That  spirits 
are  immortal  I  am  taught  by  my 
religion  from  my  childhood,  no 
matter  how  faith  goes  :  all  live  after 
my  death,  those  that  belong  to  me 
and  those  which  do  not ;  Satan 
lives  after  my  death,  so  does  the 
Living  God."  After  more  of  this 
kind,  he  added,  "They  speak  to  me 
constantly;  they  are  now  speaking 
to  me;  they  are  not  separate  from 
me ;  they  are  roimd  me,  speaking 
to  me  now;  but  I  can't  be  a  spirit, 
for  I  am  flesh  and  blood  ;  they  can 
go  in  and  out  through  walls  and 
places  which  I  caimot.  I  go  to  the 
grave,  they  live  hereafter,  —  unless, 
indeed,  I've  a  gift  rliH'erent  from  my 
father  and  mother  that  I  don't 
know.  After  death  my  spirit  will 
ascerul  to  Heaven  or  remain 
in  l'urgatf)ry.  I  can  prove  Pur- 
gatory. I  am  a  Roman  Catho- 
lic;   I  attended   Moorfidds,  ( 'helsea 


Chapel,  and  many  other  chapels 
round  London.  I  believe  Purga- 
tory ;  I  was  taught  that  in  my 
childhood  and  infancy.  I  know 
what  it  is  to  take  an  oath ;  my 
Catechism  taught  me  from  my  in- 
fancy when  it  is  lawful  to  swear; 
it  is  when  God's  honor,  our  own  or 
our  neighbor's  good  require  it. 
When  man  swears,  he  does  it  in 
justifying  his  neighbor  on  a  Prayer 
Book  or  obligation.  My  ability 
evades  while  I  am  speaking,  for  the 
spirit  ascends  to  my  head.  When 
I  swear,  I  appeal  to  the  Almighty ; 
it  is  perjury  the  breaking  a  lawful 
oath  or  taking  an  imlawful  one ;  he 
that  does  it  will  go  to  hell  for  all 
eternity." 

He  was  then  sworn  and  gave  a 
perfectly  connected  and  rational 
account  of  a  transaction  which  he 
reported  himself  to  have  witnessed. 
He  was  in  some  doubt  as  to  the  day 
of  the  week  on  which  it  took  place, 
and  on  cross-examination  said, 
"These  creatures  insist  upon  it  it 
was  Tuesday  night,  and  I  think  it 
was  Monday;"  whereupon  he  was 
asked,  "  Is  what  you  have  told  us 
what  the  spirits  told  j'ou,  or  what 
you  recollect  without  the  spirit?" 
and  he  said,  "No;  the  spirits  assist 
me  in  speaking  of  the  date ;  I 
thought  it  was  Monday,  and  they 
told  me  it  was  Christmas  Eve  — 
Tuesday  ;  but  T  was  an  eyewitness, 
an  ocular  witness  to  the  fall  to  the 
ground." 


1 !».-..    COLONEL   KING'S    CASE    (G.    O.   Waitt,    Three   Years  with 
Countrrfrltrrs,   Smugglers,   and  Boodle  Carriers.      1876.      p.    174.) 


The  following  exciting  incidents 
took  place  late  in  the  year  1S(;9,  and 
were  the  o<-casi(tn  of  very  serious 
alarm  ;  |>romisitig  for  a  few  days  to 
ilevclop  one  of  the  most  important 
and  re\»»lting  conspiracies  ever 
plotted  on  this  side  of  the  .Atlantic, 
and  causing  the  most  intense  excite- 
ment in  certain  circles,  for  the  nonce. 
The  plot  had  apparently  f«)r  its 
object  (thn»ugh  the  elforts  of  leading 
restless    si)irits    .se(T<'tly    a.s.sociated 


together)  the  absolute  repudiation 
of  the  National  debt,  and  the  utter 
overthrow  of  the  Republican  Gov- 
cnuncnt I  .   .   . 

An  ex-Confederate  officer,  who  had 
.served  with  creditable  valor  in  the 
late  rebellion  —  on  the  wrong  side, 
however  —  by  name  and  title 
"Colonel  Hauston  King,  of  the 
Kentucky  Artillery,"  appeared  one 
day  in  December,  1<S()9,  in  the  city 
of  Washington,  before  U.  S.  Cornmis- 


No.  195. 


I.       GENERIC    TRAITS.       D.    MENTAL   DISEASE 


361 


sioner  James  Blackburn,  and  con- 
fidentially made  oath  to  the  follow- 
ing extraordinary  and  astounding 
declarations,  to  wit :  "  I,  Hauston 
King,  being  duly  sworn,  do  depose 
and  say  that  I  am  a  resident  of 
Elliot  County,  Kentucky,  and  by 
occupation  Clerk  of  the  Circuit 
Court  of  said  County.  I  was 
Colonel  of  Artillery  in  the  Confeder- 
ate Army,  and  in  the  month  of 
December,  1865,  went  from  New 
Orleans  to  New  York,  by  steamer, 
and  upon  this  passage,  met  with 
Harlow  J.  Phelps,  merchant  of  New 
Orleans.  Phelps  represented  that 
he  was  bound  to  New  York,  to  be 
present  at  the  secret  organization  of 
a  repudiating  party,  looking  to  the 
repudiation  of  the  national  debt. 
Upon  arri^•ing  in  New  York,  Phelps 
and  myself  met  some  two  hundred 
men  from  all  sections  of  the  country, 
south  and  north  ;  and  this  party  was 
organized,  and  commenced  opera- 
tions. H.  J.  Sneed,  of  St.  Louis, 
was  chosen  President,  and  A.  H. 
Sinclair,  of  New  York,  Secretary. 
The  initiation  fee  was  SI 50,  and  the 
total  capital  to  be  raised  w^as 
$500,000 ;  and  this  amount  was 
raised  in  four  daN's.  This  money 
was  to  be  used  to  obtain  the  genuine 
U.  S.  Government  plates  for  printing 
legal  tender  notes.  The  plates  were 
so  obtained,  and  ^60,000,000  were 
represented  to  me  as  having  been 
printed  from  these  plates.  I  have 
received  $500  of  this  issue  already, 
myself,  and  about  $20,000,000  of 
this  sum  has  been  put  upon  the 
country.  With  this  fund,  the  genu- 
ine plates  have  been  secured,  for 
making  legal  tender  notes,  bonds, 
and  national  bank  notes.  Of  these 
we  issued  the  full  amount  of  the  na- 
tional debt  of  the  country.  Only 
about  four  millions  have  as  yet  been 
put  in  circulation.  The  plates  are 
partly  in  Canada,  Montreal,  and 
part  are  in  New  York.  There  was 
a  reorganization  of  this  party  on 
the  1st  and  2d  of  November,  in 
1869,  in  New  York  City,  at  which  I 
was  present,  when  Frank  P.  Blair, 


of  Missouri,  was  chosen  President, 
with  power  to  appoint  a  Secretary. 
The  original  stockholders  numbered 
four  hundred.  The  number,  now, 
greatly  exceeds  this.  I  am  the  Agent 
for  the  9th  Congressional  District 
of  Kentucky.  I  have  perfected 
branch  organizations  in  every 
County  in  said  District.  ...  I 
give  this  information  vohmtarily ,  and 
solely  for  the  benefit  of  the  Gov- 
ernment. (Signed)  Hauston  King." 
This  affidavit  was  duly  subscribed 
and  sworn  to  before  Judge  Black- 
burn, and  attested  by  three  wit- 
nesses in  his  presence,  according  to 
law.  This  precise  and  curiously 
explicit  document  had  found  its 
way  into  the  hands  of  a  Western 
Revenue  Detective  by  the  name  of 
Hogeland,  and  he  deemed  it  of 
sufficient  consequence  to  go  about 
the  unraveling  of  the  mystery 
which  seemed  to  surround  the  strange 
proceedings,  with  the  most  earnest 
application,  as  in  duty  bound.  .  .  . 
Colonel  King's  excellent  military 
reputation  in  Kentucky  was  as- 
sured by  authority,  and  he  had 
actually  been  recommended  for  pro- 
motion by  such  Confederate  notables 
as  Generals  Robt.  E.  Lee  and 
Stonewall  Jackson ;  the  evidences 
of  which  he  produced  in  the  hand- 
writing of  those  distinguished  secesh 
officials.  He  was  backed  by  a  very 
able  and  consistent  lawyer,  too, 
who  came  all  the  way  from  Greenup 
Co.,  Kentucky,  personally  to  in- 
dorse the  Colonel,  in  the  strongest 
terms  that  language  could  frame. 
Some  time  previously,  the  Govern- 
ment at  Washington  had  had  an 
intimation  that  certain  legal  tender 
and  bond  plates  had  been  taken 
from  the  Department,  surrepti- 
tiously, and  $1000  counterfeit  7.30 
notes  had  found  their  way  back 
into  the  Treasury  —  where  they 
were  promptly  condemned.  This 
fact,  taken  in  connection  with  the 
seemingly  frank  and  well-supported 
statements  of  the  repentant  and 
gallant  Colonel,  gave  color  alike  to 
the   genuineness   of   his   good   faith 


302 


PART    II.       TESTIMONIAL    K\  IDEXCE 


No.  195. 


and  the  accuracy  of  his  accounts 
rehiting  to  this  con.spiracy.  The 
CJreenupsburjj  lawyer,  Mr.  L.  J. 
Filston.  who  accompanied  Colonel 
Kinj;.  was  cjuite  as  earnest  (perhaps 
more  so)  as  was  the  Colonel  himself  ; 
anil  he  did  not  fail,  not  only  in  the 
most  an.xious  terms  to  indorse  him, 
hut  to  express  his  own  personal 
alarm  at  the  threatening  prospect, 
repeatedly,  to  the  authorities.  .  .  . 
The  \Ve<;tern  Detective  (Home- 
land) who  unilertook  to  "work  up" 
this  ca.se,  was  confident  that  he  had 
"a  l)ig  thing"  on  hand,  and  he  threw 
himself  with  unwonte«l  energy  and 
seriousness  into  this  job.  .  .  .  But 
first  it  was  necessary  to  lay  the 
outrageous  particulars  of  the  con- 
ception of  this  destructive  scheme 
before  the  Washington  authorities. 
And  so  the  three  earnest  men  re- 
paired direct  to  the  Treasury  De- 
partment, to  unbo.som  themselves, 
as  we  have  already  stated.  Judge 
\Vm.  A.  Richardson,  of  Massa- 
chu.setts,  chanced  to  be  Acting 
Secretary  of  the  Treasury  at  this 
hour.  This  gentleman  is  a  shrewd, 
intelligent,  sound-minded,  level- 
headed lawyer,  whose  long  experi- 
ence on  the  judicial  bench  has  af- 
forded him  ample  opportunity  to 
become  a  rare  good  judge  of  human 
nature,  in  a  great  variety  of  phases ; 
and  he  is  not  easily  moved  or  thrown 
out  of  bias  by  ordinary  tales  of 
wonder.  He  patiently  listened  to 
the  mysterious  tale  of  horrors  which 
his  three  earnest  visitors  had  to 
communicate,  and  then  civilly  but 
promptly  referred  the  gentlemen 
(whose  eyes  stuck  out  of  their  heads 
irj  won<lerat  the  Judge's  coolness  aufl 
indilfercnce)  to  Solicitor  Hanfield, 
of  the  Tn-asury  Department.  Here 
the  three  men  "told  o'er  iju-ir 
wondrous  story"  once  again;  and 
the  j)olit«'  but  incredulous  .Attorney 
for  this  Di-partmcnt  of  (lovernment 
closed  an  eye,  looked  cautiously  at 
th«*  c-ountenaiH  cs  of  his  excited 
visitors,  and  intimating  that  he  did 
not  si-e  any  r)ecasion  for  hurrying 
in  this  liusine-s     -  (|ui<'tly  turned  the 


trio  over  to  the  Chief  of  the  Secret 
Service,  Col.  Whitley,  at  New  York 
City.  ...  [ 

Chief  \Miitley  is  not  readily 
excited,  and  very  rarely  goes  off 
into  tantrums.  .  .  .  "There  are 
two  hundred  men  in  buckram,  you 
say,  concerned  in  this  foul  scheme, 
Colonel?"  asked  the  Chief.  "Oh, 
more  than  that  —  quite  twice  that 
number,  sir,"  said  King.  "And 
these  two  hundred  men  and  more, 
have  kept  this  infernal  plot  a  pro- 
found secret  for  so  many  months, 
too?"  added  the  Chief,  doubtingly. 
"  Ah,  Colonel,  remember  the  terrible 
series  of  shocking  oaths  they  took 
never  to  divulge  the  secret  of  the 
clan.  .  .  .  You  see,  Chief,"  con- 
tinued King,  "  I'm  a  doomed  man,  if 
I  am  suspected  by  these  wretches. 
A  thousand  daggers  would  be  aimed 
at  my  heart,  within  the  hour  of  the 
discovery  that  I  had  '  peached '  upon 
them.  For  God's  sake,  move  cau- 
tiou.sly.  ...  1  now  intend  at  once 
to  call  upon  half  a  hundred  of  the 
leading  wretches  in  this  city ;  and 
will  report  to  you,  to-morrow,  the 
exact  status  of  afl'airs,  to  enable  you 
to  act  promptly,  and  add  to  your 
already  well-earned  crown  of  pro- 
fessional laurels  the  brightest  leaf 
that  will  ever  find  a  place  in  the 
wreath  !"  .  .  . 

Colonel  Whitley  felt  it  incumbent 
on  him  to  insist  upon  his  accepting 
the  use  of  a  carriage,  at  the  Chief's 
expense,  in  which  to  make  these 
numerous  calls  he  now  contem- 
plated. This  offer  of  Col.  Whitley 
was  thankfully  accepted  ;  and  half 
an  hour  afterwards,  Colonel  King 
was  driven  away  in  a  nice  hack,  to 
wait  upon  the  half  a  hundred  lead- 
ing consi)irators  (more  or  less)  who 
resided  in  an  around  Xew  York.  .  .  . 
The  Chief  took  the  trifling  jirecau- 
tion  (in  this  last  arrangement)  to 
place  ujjon  the  carriage  box  one  of 
his  own  trusty  Detectives,  Mr. 
\\m.  W.  Applegate,  in  the  capac- 
ity of  driver  of  the  vehicle.  This 
operative  was  appropriately  dis- 
guised for  the  occasion,  and  a  more 


No.  195. 


I.       GENERIC    TRAITS.       E.    MORAL   CHARACTER 


363 


accomplished  whip  never  drew  rein 
over  a  spunky  pair  o'  cattle. 

At  evening,  the  Detective  re- 
turned to  report,  and  recounted  to 
his  Chief  the  fact  that  he  had  driven 
Colonel  King  all  over  Gotham,  from 
City  Hall  to  the  Croton  Aqueduct, 
and  thence  to  Greenwood  Cemetery 
and  back ;  but  ne'er  a  call  had  he 
made  upon  any  one  (not  to  speak  of 
"half  a  hundred")  of  the  conspira- 
tors he  had  prated  so  loudly  about 
in  the  morning  !  "  I  am  not  sur- 
prised," said  the  Chief,  quietly. 
"  I  never  took  any  stock  in  this  tale 
of  horror."  "It  is  a  very  singular 
affair,  nevertheless,"  suggested  his 
Assistant,  respectfully.  "This  man 
is  backed  by  almost  incontrovertible 
proof  of  his  sincerity.  The  lawyer, 
the  ^Yestern  Treasury  Agent,  the 
documents,  the  by-laws  of  the  clan, 
the  reputation  of  Colonel  King  him- 
self," etc.  "I  see  it  all.  And  this 
is  my  judgment,"  concluded  Colo- 
nel Whitley,  "formed  at  my  first 
interview  with  these  three  men, 
and  still  unchanged.  This  King 
is  either  the  cursedest  liar  that  ever 
drew  breath,  or  he  is  the  craziest 
devil  out  of  Bedlam  I"  .  .  . 

Shortly  afterwards  Colonel  King 
himself  came  in,  to  inform  the  Chief, 
in  answer  to  his  query  as  to  whether 
he  had  found  his  associates  of  the 
"Circle,"  that  "he  had  seen  about 
a  hundred  of  them,  during  his  ride 
that  day.  And  not  one  of  them 
dreamed  that  he  had  sold  them  out 
to  the  U.  S.  Government."  King 
then  sat  down  and  deliberately 
wrote  a  score  of  letters  to  friends 
in  Kentucky  (imaginary  friends, 
perhaps)  informing  them  of  the 
course  he  "had  seen  fit  to  take,  for 
his  country's  good,"  concluding 
these  epistles  with  the  assurance 
that  he  had  been  rewarded  by  the 
Government  with  a  gift  of  a  million 
of  dollars  for  the  disclosures  he  had 
made,  and  that  he  would  divide  this 
plunder  with  them,  on  his  return 
home,  which  would  occur  very 
shortly,  etc.  By  means  of  this 
performance,     Col.     Whitley,     who 


watched  him,  obtained  a  knowledge  of 
the  style  of  King's  handwriting.  .  .  . 
"This  thing  will  keep,"  said  Whitley 
to  his  aids.  "  Have  an  eye  on  this 
man.  He'll  shortly  reach  the  end 
of  his  tether." 

Within  two  days,  the  ever  atten- 
tive and  anxious  attorney,  Filtson, 
rushed  suddenly  into  the  Chief's 
presence,  in  a  frenzied  state  of 
excitement.  "Just  as  I  feared. 
Colonel!"  he  said,  spasmodically. 
"  Poor  fellow.  King's  gone  up ! 
A  martyr  to  his  loyalty.  It's  just 
like  him.  The  'Knights'  are  after 
him  !  Our  affair  is  exploded,  and 
poor  King  is  doomed.  They'll  clean 
him  out,  sure,  and  his  well-inten- 
tioned and  loyal  efforts  to  serve  his 
country  will  send  him  up  the  spout, 
alas  !  See,  Colonel  !  They've  been 
thrusting  these  threatening  letters 
under  the  door  of  his  hotel  room  all 
day  long.  He  dare  not  quit  his 
apartment.  He  is  a  goner,  sure!" 
In  the  adjoining  room  at  Col. 
W^hitley's  headquarters,  sat  the 
Chief's  Assistant,  the  jolly,  portly 
Nettleship,  who  was  quietly  smok- 
ing his  Habana,  and  looking  over 
some  of  the  "important"  documents 
connected  with  this  singular  case, 
when  Whitley  summoned  him. 
They  started  off  directly  for  King's 
hotel,  and  soon  afterwards  discov- 
ered that  gentleman,  in  a  frightful 
mental  condition,  within  his  own 
apartment.  "What's  the  trouble 
with  you,  now  ? "  inquired  the 
Chief,  as  he  entered,  flanked  by  the 
facetious  Nettleship.  "Gone  up," 
screamed  King.  "  It's  all  over ! 
The  thing  is  out  —  the  Knights  have 
discovered  my  attempt  to  tell  their 
story  —  and  I'm  a  dead  man,  ere 
the  sun  shines  on  this  blessed  earth 
again.  I  can't  escape  them.  They're 
here,  there,  everywhere.  And  I'm 
a  goner !  Look,"  he  continued. 
"  Read  these  letters,  shoved  be- 
neath my  door,  here,  by  the  score. 
Read,  Colonel!"  and  the  terribly 
excited  man  exhibited  a  handful  of 
missives  emblazoned  with  daggers, 
crossbones,     death's-heads,     coffins, 


364 


PAKT    II.       TESTIMONIAL    EVIDEN'CE 


No.  195. 


chains,  ami  other  mystic  signs  of 
ihi'  horriil  Order  of  the  "K.  G.  C." 
which  reallx  looked  (at  first  sight) 
as  if  the  eiiiire  "  Tnion  Greenback 
Brotherhood  of  Repudiators  and 
Sealliwags"  hail  simultaneously 
started  for  him.  without  a  compunc- 
tion ;  that  he  would  very  shortly  "  be 
slaughtered  an«l  (juartered,  and  that 
his  poor  ([uivering.  lifeless  remains 
w«)uld  then  be  scattereil  to  the 
winds."  in  «lue  accortlance  with  the 
terms  of  the  penalty  prescribed  in 
one  of  the  gentlest  of  the  Society's 
secret  oaths  I 

The  Chief  glanced  at  the  letters, 
at  once  recognized  the  handwriting 
of  the  missives,  and  then  approached 
Colonel  King,  calmly,  and  placed 
his  hand  upon  the  e.x-Confederate 
Colonel's  forehead;  where  he  just 
then  discovered  a  long  red  scar, 
running  from  the  upper  edge  of  the 
frontal  towards  tlie  parietal  bone 
(.f  the  -skull.  "What's  this,  Colo- 
nel?" intiuired  the  Chief,  placing 
his  finger  upon  the  spot.  "  How'd 
you  come  by  that  scar?"  "That's 
where  a  bullet  from  one  of  your 
Yank's  rifles  grazed  my  cranium, 
during  the  war,"  responded  King, 
placing  his  own  forefinger  dubiously 
upon  his  head,  and  turning  back  the 
hair,  carefully.  "  I  see,"  said  Whit- 
ley, "  He's  a  lunatic.  I  said  from 
the  first,  that  he  was  either  an  infer- 
nal liar,  or  as  mad  as  a  March  hare. 
It's  so."  "I  reckon  you're  right. 
Colonel,"  replied  his  Assistant,  gaz- 
ing into  King's  troul)led  face. 
"Now,"  continued  the  Chief, 
sharply  to  the  Confc'lerate  Colonel, 
"  what  do  you  mean  by  all  this  bosh  ? 
These  letters  here  are  every  one 
of-lhem  in  your  own  handwriting! 


I  know  it.  Do  you  take  us  all  for 
idiots  ?  You're  crazy.  And  the 
sooner  you're  taken  due  care  of, 
the  better  for  yourself  and  jour 
friends." 

The  Confederate  lunatic  —  for 
such  he  really  was  —  immediately 
"came  down,"  and  admitted  the 
soft  impeachment  regarding  the 
w-riting  of  the  letters.  He  argued 
the  matter  of  the  existing  plot, 
however,  right  sturdily,  and  was 
again  backed  by  the  eloquent 
Greenup  lawyer.  But  it  was  too 
late,  now,  to  push  this  thing  further 
with  Colonel  Whitley.  The  Chief 
directly  summoned  Dr.  Hammond, 
of  Bellevue  Hospital.  The  wild 
man  from  the  West  was  duly  exam- 
ined, professionally,  and  the  doctor 
unhesitatingly  pronounced  him  in- 
sane —  which  proved  to  be  the  fact, 
although  the  lawyer  and  the  Western 
Detective  Hogeland  had  been  so 
thoroughly  blinded,  through  all  his 
erratic  course  of  conduct  —  from 
the  very  start  —  and  had  never  once 
imagined  that  they  had  been  toting 
round  the  country,  and  zealously 
sustaining  an  actual  madman, 
amidst  this  singular  but  plausible 
freak  of  distorted  fancy.  King 
remained  in  New  York  some  time 
under  medical  treatment.  Lawyer 
Filtson  put  away,  in  deep  chagrin, 
for  his  "old  Kentucky  home," 
content  with  having  expended  sev- 
eral hundred  good  rouml  dollars  of 
his  own,  in  the  attempt  to  gain  a  few 
thousand  more,  probably  for  his 
"  disinterested  services  "  in  the  enter- 
prise he  so  foolishly  embarked  in, 
and  so  credulously  followed  up  to 
the  point  of  its  explosion  by  the 
Chief  of  the  Secret  Service. 


No.  196.  I.       GENERIC    TRAITS.       E.    MORAL    CHARACTER  365 

SUB-TITLE   E:    MORAL    CHARACTER 

196.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^  In 
determining  the  credit  to  be  given  to  a  witness,  one  question  is,  What  kind 
of  moral  character  bears  most  strongly  on  his  trustworthiness  ?  His  verac- 
ity, or,  as  more  commonly  and  more  loosely  put,  his  character  for  truth,  must 
be,  and  is  universally  conceded  to  be,  the  immediate  basis  of  inference. 
The  chief  topic  of  controversy  here  has  been  whether  bad  moral  character  in 
general,  or  some  other  specific  bad  quality  in  particular,  is  admissible. 

The  argument  that  bad  moral  character  discredits  a  witness  is,  in  brief, 
that  it  necessarily  involves  an  impairment  of  the  truthtelling  capacity ; 
that  to  show  general  moral  degeneration  is  to  show  an  inevitable  degenera- 
tion in  veracity ;  and  that  the  former  is  often  more  easily  betrayed  to  ob- 
servation than  is  the  latter.  The  following  passages  illustrate  the  various 
phrasings  of  the  argument :. 

BushneWs  Trial.  (1656.  5  How.  St.  Tr.  6.3.3,  701)  :  BushneU,  arguing  against  a  wit- 
ness whose  many  infamies  he  had  related  :  "But  may  some  say  'that  all  this,  however 
true,  makes  him  no  more  than  a  thief  or  a  robber  of  both  God  and  man,  or  a  plunderer, 
or  a  parricide,  a  profaner,  or  a  drunkard,  or  the  like ;  but  now  this  doth  not  wholly 
disenable  his  testimony ;  but  could  I  make  it  appear  that  he  had  formerly  foresworn 
himself,  then  I  had  something  to  the  purpose.'  To  this  I  shall  answer  .  .  .  that  we 
cannot  prove  it  that  those  who  bore  false  witness  against  Naboth  did  ever  bear  false 
witness  against  any  before,  but  this  it  was  that  rendered  them  suspicious  (and  with 
just  judges  shoiikl  have  been  cause  enough  to  abhor  them),  because  they  were  sons 
of  Belial,  wicked,  mischievous  lawless  men,  men  of  so  much  known  infamy  that  they 
would  not  stick  at  anything  which  was  put  upon  them,  be  it  either  to  speak  or  to  do, 
but  in  the  general  were  ready  for  any  wicked  employment." 

Marcy,  Sen.,  in  Bakeman  v.  Rose.  (1837.  18  Wend.  146,  151) :  "That  the  cred- 
ibility of  a  witness  should  be  sought  through  his  general  moral  character  I  have  no 
doubt.  ...  If  the  inquiry  be  confined  to  the  general  reputation  of  the  witness  in 
point  of  truth  among  his  neighbors,  it  will  happen  in  some  cases  that  a  witness  whose 
general  moral  character  is  deservedly  infamous  is  allowed  to  impress  his  testimony  on 
the  jury  with  unqualified  weight,  simplj'  because  mendacity  may  have  been  rela- 
tively too  insignificant  an  item,  in  the  catalogue  of  his  vices,  to  have  attracted  the 
attention  or  elicited  the  remark  of  his  acquaintance.  Or  it  may  happen  that,  though 
generally  of  so  depraved  or  corrupt  a  life  that  no  one  would  doubt  the  facility  with 
which  he  might  be  suborned  to  swear  falsely,  yet  from  caution  or  calculation  he  may 
have  observed  that  general  veracity  in  his  common  intercourse,  or  from  natural 
taciturnity  a  'willful  stillness  entertained,'  which  would  render  his  reputation  impreg- 
nable to  this  form  of  inquiry.  .  .  .  One  of  the  great  benefits  of  jury  trial  was  sup- 
posed to  exist  in  the  circumstance  that  the  jury,  being  from  the  vicinage  of  the  parties 
and  the  witnesses,  were  better  able  to  judge  of  their  relative  honesty  and  credibility. 
It  would  seem,  therefore,  in  accordance  with  this  principle,  that  under  the  modern 
forms  of  impanehng  juries,  which  do  not  in  many  cases  afford  to  jurors  the  means  of 
judging,  from  personal  knowledge  of  the  character  of  witnesses,  the  measure  of  credit 
to  be  given  to  them,  that  as  liberal  a  course  for  supplying  this  deficiency  of  knowledge 
should  be  allowed  as  would  be  compatible  with  the  rights  of  the  witnesses." 

The  arguments  made  in  answer  to  this  are  chiefly  two  :  (1)  that,  as  a  matter 
of  human  nature,  a  bad  general  disposition  does  not  necessarily  or  commonly 
involve  a  lack  of  veracity,  and  that  therefore  the  former  is  of  little  or  no 
help  probatively ;    (2)  that  the  estimate  of  an  ordinary  witness  as  to  an- 

'  [Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     §  922.)] 


366  PAKT    II.       TESTIMONIAL    EVIDENCE  No.  190 

Other's  V)a(i  general  character  Ls  apt  to  be  formed  loosely  from  uncertain 
data  and  to  rest  in  larj:e  part  on  personal  prejudice  and  on  mere  differences 
of  opinion  on  points  of  belief  or  conduct.  —  a  chance  of  error  which  is  rela- 
tively small  in  the  specific  inquiry  as  to  the  other's  notorious  untruthfulness. 
The  following  passages  represent  the  various  aspects  of  the  argument : 

BoYi.K.  C.  J.,  in  Xocl  V.  Dicheif.  (1814.  3  Bibb  269) :"  It  is  an  observation  not  less 
true  than  tritf.  that  no  one  is  entirely  virtuous  or  entirely  vicious.  Such,  indeed, 
is  in  general  the  preponderance  of  the  virtue  or  vice  of  individuals  as  to  entitle  them 
to  the  general  character  of  gocnl  or  of  bad  ;  but  we  cannot,  merely  from  knowing  what 
the  general  character  is.  say  with  certainty  what  vice  or  virtue  enters  into  its  composi- 
tion. If.  therefore,  we  would  form  a  correct  judgment  of  a  man  with  regard  to  any 
particular  vice  or  virtue,  it  is  necessary  we  should  he  informed  of  his  character  in  that 
particular  resixHt.  ...  A  person,  therefore,  whose  general  character  is  bad,  may 
notwithstanding  possess  such  a  degree  of  veracity  as  to  entitle  him  to  credit  upon  oath  ; 
and  wlu-tiuT  he  cloes  so  or  not  can  only  be  ascertained  by  inquiry  into  his  character 
for  truth." 

Gkkk.nk,  .1.,  in  ('(irtrr  v.  ('(iirnaug/i.  (1S4S.  1  Greene  la.  173)  :  "Tlie  method  of 
questioning  as  to  general  character  alone  appears  to  us  not  only  ^'ague.  but  subject 
to  great  abuse  and  injustice.  C'laimish  witnesses,  whose  intercourse  and  business 
are  always  limited  to  a  particular  class  of  kindred  spirits,  who  maj^  constitute  a  ma- 
jority of  the  neighborhood,  often  entertain  peculiar  and  contracted  views  of  general 
character,  when  appliefl  to  those  who  may  not  agree  with  them  in  social,  religious,  or 
political  tenets.  And  thus,  by  a  decided  majority  of  one  neighborhood,  a  man  might 
l)e  represented  as  j)o.s.sessing  an  excellent  general  cliaracter;  while  in  an  adjoining 
neighborhocMl,  where  he  is  e(|ually  well  known,  he  might  be  described  as  a  man  of  great 
moral  turpitude.  .  .  .  The  reciuisites  of  a  good  character,  and  the  components  of 
a  bad  one.  are  so  variously  viewed  l)y  different  and  even  adjacent  comnumities  that 
they  never  can  become  a  safe  and  uniform  test  of  veracity,  without  confining  the 
incpiiry  particularly  to  eharacter  for  truth.  In  some  communities  an  ultra-Mason, 
in  others  a  |)ros<Ti()tive  anti-Mason,  in  this  neighborhood  an  abolitionist,  in  the  adjoin- 
ing one  an  anti-abolitionist,  would  be  regarded  and  styled  a  bad  character;  and  thus, 
in  many  communities,  he  who  plays  cards,  or  engages  in  horse  racing,  or  frequents 
grexH?ries,  or  works  on  the  Sabbath  day,  is  looked  upon  and  called  a  bad  character; 
and  yet  such  men  —  either  the  advocates  of  unpojiular  sentiments,  or  those  addicted 
to  objectionable  habits  —  may  have  a  most  commendable  regard  for  veracity.  .  .  . 
Thus,  by  oj)eninK  this  boundless  field  of  incjuiiy  as  to  'bad  character,'  in  its  multi- 
tudinous phases,  the  most  truth-abiding  man  might  often  be  impeached." 

The  question  also  arises  whether  some  other  specific  vice  or  group  of  vices 
is  as  significant  as  bad  general  character  in  indicathig  a  degeneration  of  the 
truth-telling  caijacity.  The  opinion  usually  reached,  is  that  no  specific 
quality  other  than  that  of  veracity  should  he  considered  : 

TitAcv.  Sen.,  in  linkmmn  v.  Roue.  (1837.  IS  Wend.  146)  :  "It  has  been  pressed 
ujvjn  us  with  earnestness  and  eloquence  that  the  condition  of  a  public  prostitute, 
iM-ing  the  most  debased  and  demoralized  state  of  human  being  that  can  be  imagined, 
nefvssarily  presupi>oses  the  absence  of  all  moral  principle,  and  especially  that  of  re- 
gard f«.r  truth;  and  it  is  therefore  contended  that  a  common  reputation  of  i)ubiic 
prostitution  nen-ssarily  includes  a  conunon  reputation  for  falsehood.  ...  If 
CourLs  hat!  the  i)ower  (t..  change  rules  r,f  evidence],  it  might  not  be  a  very  discreet 
exercis<-  of  it  to  atten)pt  to  >;auKe  crimes  and  graduate  a  standard  of  vices  and  im- 
mt.rahtiev  I^,aths„tn.-.  deplorable,  and  even  detestable  as  is  a  condition  of  public 
pr..stituti.»n.  it  is  not  the  only  vice  of  a  great  kindred;  theft,  forgery,  swindling, 
drunkenness.  gHinblinj;.  a.lultery.  are  also  well  allie.l ;  and  if  we  undertake  to  deter- 
mine that  the  reputati.,n  of  one  vice  necessarily  includes  the  reputation  of  another, 


No.  197.  I.       GENERIC    TRAITS.       E.    MORAL    CHARACTER  367 

it  would  be  difficult  to  say  wlien  or  where  we  could  stop.  But .  .  .  [after  noting  the 
rule  of  the  Roman  and  other  laws]  the  common  law  in  this  respect  certainly  is 
founded  on  juster  notions  of  human  nature ;  for  while  it  so  far  recognizes  the  affinity 
of  vice  as  not  to  regard  the  testimony  of  a  witness  of  bad  moral  character  as  above 
all  exception,  it  rejects  the  conclusion  that  a  person  guilty  of  one  immoral  habit  is 
necessarily  disposed  to  practice  all  others.  And  seeing  that  the  absolute  exclusion 
of  an  immoral  witness  may  operate  more  to  the  prejudice  than  to  the  advancement 
of  justice,  it  recognizes  that  dictate  of  common  sense  which  no  theory  can  refute, 
that  the  natural  love  of  truth,  when  combined  with  the  fear  of  temporal  punishment, 
is  some  restraint,  even  upon  the  most  depraved,  against  the  commission  of  a  gratui- 
tous falsehood." 

197.  Charles  C.  Moore.  A  Treatise  on  Facts,  or  the  Weight  and  Value  of 
Evidence.  (1908.  Vol.  II,  §  1026.)  To  enable  the  trier  of  facts  to  compre- 
hend just  what  sort  of  a  person  he  is  called  upon  to  believe,  much  latitude  of 
inquiry  into  the  personal  history  of  witnesses  is  allowed  upon  cross-examina- 
tion. The  credibility  of  a  witness  must  be  greatly  distrusted  when  he  re- 
fuses to  divulge  his  business  or  his  whereabouts  during  several  ^^ears  of  his 
life,  or  where  the  history  which  he  gives  of  his  residences,  employments, 
movements,  acquaintances,  etc.,  makes  it  impossible  to  know  anything 
about  him ;  especially  if,  the  witness's  antecedents  being  seriously  ques- 
tioned on  cross-examination,  no  attempt  is  made  to  rehabilitate  him  on 
redirect  examination. 

Particular  Defects  in  Moral  Character.  On  the  one  hand,  we  have  a  judi- 
cial statement  that  "  vicious  habits,  of  whatever  kind,  sear  the  conscience 
and  prepare  those  who. practice  them  for  the  easy  utterance  of  falsehood"  ; 
and  that,  for  example,  "a  continued  habit  of  intemperance  has  this  effect." 
On  the  other  hand,  we  have  the  following :  "  All  experience  shows  that  the 
general  characters  of  many  men  are  bad,  in  the  common  acceptation  of  the 
word,  w^hile  their  veracity  is  unimpeachable.  Indeed,  most  men  term  that 
man's  general  character  bad  who  has  some  one  cardinal  vice,  although  in 
other  respects  he  may  be  irreproachable."  Chief  Justice  Nelson  of  New 
York  said  it  requires  but  a  casual  observation  of  human  nature  in  its  various 
phases  to  be  sensible  of  the  truth  that  particular  vicCs  and  weaknesses  may 
cast  a  cloud  over  the  moral  character  of  a  man  whose  veracity  could  be 
vindicated  by  the  concurrent  testimony  of  all  his  neighbors  and  acquaintances. 
A  witness  not  "fit  to  be  tolerated  in  any  decent  community,"  or  with  "such 
a  hardened  callousness  of  moral  perception  as  almost  justifies  the  belief  of 
aberration  of  mind  "  ;  a  man  having  no  local  habitation  and  often  found  in 
the  city  jail,  or  one  who  "  seems  not  to  have  been  a  steady  worker  at  any- 
thing, other  than  frequenting  saloons  and  passing  his  time  in  such  pursuits 
as  are  usually  followed  there,"  would  probably  be  regarded  as  tainted  in 
credibility.  .  .  . 

Unchastity  and  Veracity.  In  estimating  the  relative  value  of  the  oath 
of  a  man  somewhat  addicted  to  unchastity,  and  on  the  other  side  that  of  a 
woman  likewise  frail,  although  not  a  prostitute.  Judge  Deady  remarked 
that  "as  the  world  goes  and  is,  the  sin  of  incontinence  in  a  man  is  com- 
patible with  the  virtue  of  veracity,  while  in  the  case  of  a  woman,  common 
opinion  is  otherwise,"  and  he  declared  it  to  be  a  "fact  founded  on  common 
experience  that  incontinence  in  a  man  does  not  usually  imply  the  moral 
degradation  and  insensibility  that  it  does  in  a  woman.  '     But,  in  a  case  in 


3^  PART    II.       TESTIMONIAL    EVIDENCE  No.  198. 

Micliigan,  the  court  thouglit  tliat  tlie  testimony  of  a  woman  against 
a  lawyer  with  whom  she  had  had  ilhcit  relations  was  "no  more  open  to 
criticism  on  this  account  than  the  man's,  who  was  in  the  same  moral  com- 
plications, and  etiually  interested  in  the  result." 

I'ruf!tituf,,s.  The  experience  of  courts  warns  them  to  scan  with  caution 
and  view  with  suspicion  the  testimony  of  an  abandoned  woman.  We  must 
hear  in  mind  that  persons  of  her  low  life  and  character  are  moved  by  causes 
that  would  not  atiect  people  of  good  morals  and  tender  sensibilities.  The 
conduct  of  i)eople  of  this  class  is  often  incomprehensible  when  tested  l)y 
the  standard  applied  to  the  generality  of  mankind.  Causes  that  we  would . 
regard  as  tritiing  and  insufficient  are  l\v  the  low  and  brutal  regarded  as  most 
weighty  ;  and  their  notions  of  just  retribution  are  often,  to  the  ordinary 
ju<lgment.  the  most  fantastic,  distorted,  and  extreme.  It  is  improbable 
that  she  will  tell  the  exact  truth  where  there  is  the  slightest  motive  for  testify- 
ing falsely.  Dr.  Lushington  said  that  prostitutes  "would  probably  be 
as  willing  to  l)ring  their  evidence  to  market  as  they  were  ready  to  offer  their 
pt-rsons  to  sale."  Judges  themselves  uniformly  refuse  to  act  upon  their 
uncorroliorated  testimony. 

19s.  \V.\i.  ('.  Robinson.  Forensic  Oratory;  a  Manual  for  Advocates.  (1893. 
p.  2 1 1 .)  Bad  Character.  The  credibility  of  a  witness  is  scarcely  less  affected 
by  the  opinion  which  the  jury  may  entertain  concerning  his  personal  char- 
acter, than  by  their  knowledge  of  the  accuracy  of  his  intellectual  operations 
or  his  truthfulness.  In  e\ery  connnunity  there  are  many  individuals  whose 
statements  upon  any  sul)ject  are  accepted  and  believed,  without  an  inquiry 
a.s  to  their  powers  of  expression,  memory,  or  perception,  simply  on  the  faith 
engendered  by  their  known  integrity  and  wisdom  ;  and  few  are  the  commu- 
nities in  which  there  arc  not  some  whom' nobody  believes,  except  when  they 
confess  themselves  most  mi.serable  sinners.  This  natural  tendency  to 
regard  the  word  of  the  industrious,  law-abiding  citizen  as  true,  and  to  doubt 
the  veracity  of  the  idle,  dissolute,  and  shiftless,  affects  the  jury  in  the  court 
room  e(jually  with  persons  in  ordinary  life ;  and  hence  to  expose  the  adverse 
witness  t«)  them  as  a  man  of  evil  inclinations,  immoral  haliits,  and  disrep- 
utal)le  associations  is  to  arouse  against  him  suspicions  of  unreliability 
which  diminish,  and  sometimes  remove,  whatever  good  impressions  his 
testiiiiniiy  may  have  made.  The  law  of  evidence  indeed  places  limitations 
to  this  species  of  investigation,  in  order  to  j)revent  the  raising  of  side  issues, 
arid  to  protect  a  witness  of  present  U])rigiit  character  from  an  unnecessary 
pul)lication  of  his  ancient  faults.   .   .   . 

The  real  point  of  intpiiry,  however,  is  the  reliability  of  the  witness  as  he 
now  stands  in  court  giving  his  testimony,  not  whether  he  could  have  been 
relied  on  years  ago  if  he  had  then  been  offered  as  a  witness  ;  for  it  is  as  certain 
that  the  liar  may  become  a  truthful  man  as  that  the  truthful  man  may  be- 
come a  liar,  although  the  latter  process  is  more  easy  than  the  former,  and 
what  the  witness  was  is  thus  of  slight  significance  upon  the  question  as  to 
what  he  is.  If  the  cross-examiner  confines  himself  to  this  point,  he  will 
find  material  suflicient  for  all  legitimate  uses  in  the  present  employments, 
pleasures,  and  companionships  of  the  witness;  and  these  can  be  exhil)ited 
to  the  jury,  if  not  by  direct  iiujuiries,  by  general  interrogatories  into  whose 
aiisuir-  ili.-r  f:i(  I  -  uill  I..'  interwoven  bv  the  witness. 


No.  200.  I.       GENERIC    TRAITS.       E.    MORAL    CHARACTER  3by 

199.  Richard  Harris.  Hints  on  Advocacy.  (Amer.  ed.  1892.  p.  112.) 
It  is  by  no  means  unnecessary  to  say  that  if  a  convict  comes  into  the  wit- 
ness box,  it  is  idle  to  attack  his  credit  through  his  character.  Every  young 
advocate  thinks  there  is  such  an  opening  here,  and  the  temptation  is  doubt- 
less great.  But  you  do  not  need  to  attack  when  the  fortress  has  surrendered. 
The  man  stands  before  you  confessedly  as  bad  as  bad  can  be ;  and  to  carry 
him  through  all  the  scenes  of  his  profligacy  and  crimes  would  be  but  gratui- 
tous cruelty,  and  would  have  no  effect  with  the  jury  except  in  creating 
some  amount  of  sympathy  on  his  behalf.  They  know  well  enough  how  to 
discount  the  evidence  of  so  abandoned  a  man  ;  but  they  know,  too  (and  that 
is  the  point  for  you  to  remember),  that  the  most  detestable  villain  is  yet 
capable  of  telling  the  truth.  I  have  known  a  convict  defeat  a  cross-examin- 
ing counsel  to  such  an  extent,  that  he  aroused  sympathy  for  himself,  and 
prejudice  against  the  learned  gentleman. 

It  is  the  weakest  remnant  of  a  very  old  style  of  advocacy  to  ask  the  jury, 
"Would  you  believe  such  a  villain  on  his  oath  ?"  The  answer  is,  of  course 
they  would,  as  against  another  villain,  not  upon  his  oath,  and  against  whom 
he  is  circumstantially  testifying,  unless  you  can  break  down  his  evidence; 
you  will  not  do  that  by  hammering  away  at  his  character. 

The  jury  may  not  like  the  man  any  more  than  you  do,  but  they  may  like 
your  client  less ;  and  between  two  villains,  the  one  in  the  witness  box,  and 
the  other  in  the  dock,  as  a  rule  they  will  lean  towards  the  former  —  he  at 
all  events  is  for  the  Crown  —  at  present.  .  .  . 

There  cannot  be  a  greater  mistake  than  to  suppose  that  a  man  who  is 
suffering  punishment  for  a  crime,  and  who  comes  into  the  box  to  give  evi- 
dence, will  not  be  believed  because  of  his  character.  You  will  generally 
find  that  he  is  regarded  with  sympathy  to  begin  with.  The  jury  will  weigh 
his  evidence  scrupulously ;  and  their  attention  will  be  naturally  drawn 
towards  the  probabilities  of  his  story.  If  you  cannot  touch  these,  you  will 
make  little  effect  by  constantly  referring  to  his  misdeeds. 

It  is  when  his  motives  lead  him  to  the  falsification  of  facts,  and  the  falsi- 
fication is  apparent  or  highly  probable,  that  you  can  dispose  of  his  testimony. 
Then  will  you  be  able  to  take  character,  motive,  false  or  exaggerated  state- 
ments, contradictions,  and  probabilities,  and  throw  them  into  the  scale 
against  the  apparently  truthful  portions  of  his  testimony.  Or  if  you  even 
go  so  far  as  to  show  improbabilities  in  his  story,  he  will  need  much  corrobora- 
tion to  make  it  acceptable  to  the  jury.  They  will  treat  him  as  they  would 
a  knave  in  the  market  whom  they  should  detect  with  one  or  two  bad  coins 
among  a  handful  of  apparently  good  ones.  They  would  have  no  dealings 
with  him,  not  because  there  were  no  good  pieces,  but  because  suspicion 
attached  to  all. 

I  repeat,  It  is  testimony,  and  not  character,  you  must  deal  with  in  this 
witness. 

200.  DAY  y.  DAY.    (G.L.Craik.   EnglishCausesCelebres.   1844.  p.  198.) 
Ejectment    for    title    to  estates ;      from  one  Ann   Stokes,   through  an 

Huntingdon,    1797.     Thomas  Day,  agent.      Ann  Stokes  testified  to  the 

the  possessor,  was  said  not  to  be  the  sale  of  her  bastard  infant  to  this 

real  son  and  heir  of  his  father,  but  agent.     She  was  cross-examined  as 

a  foundling  bought  by  the  mother  to  her  character  as  follows  : 


370 


PAHT    II.      TESTIMONIAL    EVIDENCE 


No.  200. 


Mr.  Garrow.  ...  Q-  Ho  you 
know  a  person  of  tin-  uaiiu'  of  W  h'nv- 
house':'     -I.  Ves. 

Q.  What  wa.-^  the  nature  of  your 
aequaintanee  with  him?  .1.  I  hail 
no  acquaintanee  with  him  at  all ; 
when  his  wife  died  I  washed  for 
him. 

Q.  That  mijiht  or  not  lead  to  a 
considerahle  degree  of  intimacy  'f  .  .  . 
Did  the  eireumstanee  of  your  wash- 
ing for  the  widower  lead  to  any 
partieiilar  intimacy?     .1.   It  might. 

(^.  I  don't  ask  how  much  you  did 
for  pay  or  gratis.  Did  it  lead  to 
any  particular  intimacy  ?  .1.  I  will 
not  swear  anything  at  all  about 
it. 

Q.  Vou  have  sworn  it  once,  and 
my  learned  friend  has  taken  it 
down,  tiiat  you  had  no  particular 
intimacy  with  Whitehou.se.  Upon 
your  oath  do  you  mean  to  swear  that 
again?  .1.  What  I  did  for  him  he 
always  paid  me  for. 

Q.  Ipon  your  oath,  do  you  mean 
to  swear  that  again  ?  .  .  .  A. 
What  I  did  for  him  he  always  paid 
me  fiir. 

(^.  rpon  your  oath,  had  you  any 
particular  intimacy  with  White- 
house?  .1.  I  told  you  what  I  did 
lie  paid  me  for. 

().  Then  yoii  were  not  more  inti- 
mate with  him  than  with  all  other 
men  in  Hirmingliam  ;  do  you  mean 
to  swear  that  ?  .1.  Xo,  Sir,  I  don't 
mean  to  swear  that. 

Q.  Were  you  then  particularly  in- 
timate ?  A.  We  are  not  intimate. . . . 

Q.  Having  took  a  little  breathing 
time,  we  will  come  back  again  tf)  our 
old  ac(nniintance,  Mr.  Whitehou.se. 
Will  you  be  so  good  as  to  inform  us, 
what  the  nature  of  your  connection 
with  him  was?  .1.  What  I  <lid  for 
him  he  paid  me  for;  that  was  all 
that  passed. 

Q.  That  vou  swear  positivelv  ? 
A.  Yes. 

Q.  Was  that  all  that  pa.sseiT? 
A.  Yes;  that  was  sufficient. 

(^.   \)(i  you    mean    Kj   swear   that 


you  liad  no  other  connection  with 
him  than  that  of  a  washerwoman? 
A.  No,  Sir;  I  won't  swear  that;  I 
did  not  come  to  swear  that. 

Mr.  Kt\skinc.  —  I  certainly  think 
this  is  not  proper. 

Mr.  Garroiv.  —  I  cannot  go  more 
regular ;  it  is  the  constant  practice 
of  my  learned  friend;  it  is  the  con- 
stant answ^er  given  and  received ; 
as  it  goes  to  a  verdict.  If  she  had 
been  living  in  one  instance  in  a  state 
of  adultery,  and  the  other  in  a  state 
of  fornication,  I  admit  the  witness 
would  say,  she  is  not  bound  to  ac- 
cuse herself.  But  we  are  upon  the 
credit  due  to  this  woman,  upon  a 
most  important  story,  and  I  would 
borrow  what  my  learned  friend  very 
often  states  to  juries  —  if  you  find 
a  witness  falsified  in  part,  how  can 
you  tell  where  the  falsehood  ends 
and  truth  begins  ?  She  has  now 
made  it  necessary,  for  the  purpose  of 
trying  her  credit,  that  I  ask  those 
questions,  because  she  has  said,  over 
and  o^•er  again,  that  there  has  been 
no  other  intercourse  between  her  and 
that  man  of  whom  I  have  been  speak- 
ing, than  that  of  washing  for  him. 
In  the  name  of  God  I  would  ask, 
what  would  become  of  the  security 
of  public  justice,  if,  when  I  come  pre- 
pared to  i)rove  the  contrary,  perhaps, 
upon  her  own  oath  —  I  would  ask, 
what  would  become  of  the  security 
of  public  justice,  if  she  may  be  now 
secured,  or  if  she  be  permitted  to 
secure  her  credit  and  conscience,  by 
avoiding  giving  such  evidence,  and 
denies  it  in  the  manner  she  has  ? 
No  man  alive,  who  has  experience  — 
no  man  alive,  with  the  intellects 
of  a  l)aboon  (to  make  use  of  an 
expression  of  my  learned  friend), 
would  doubt  but  she  cuts  up  her 
credit  root  and  branch;  she  may 
give  it  any  way  she  pleases,  and  it  is 
matter  of  indifference  to  me;  but 
the  ends  of  justice  must  be  satisfied. 

Courf.  —  This  is  to  answer  a 
(riminal  charge,  which  I  don't 
think  is  proper  evidence. 


No.  201. 


GENERIC   TRAITS.       E.    MORAL   CHARACTER 


371 


201.    THOMAS  HARDY'S  CASE.     (1794.     Howell's  State  Trials. 


XXIV,  710). 

[Indictment  for  Treason  by  a 
conspiracy  to  subvert  the  govern- 
ment by  force :  the  witness  here 
examined  was  supposed  by  the  de- 
fense to  be  a  paid  informer  who 
joined  the  society  to  obtain  proof 
of  its  criminal  conduct.] 

Edward  Gosling  sworn.  Examined 
by  Mr.  Garrow. 

Have  you  been  for  any  time  a 
member  of  the  London  Correspond- 
ing Society  ?  —  I  became  a  member 
on  the  15th  of  xVpril. 

What  April  do  you  speak  of  ?  — 
April,  1794. 

Did  you  become  a  member  in 
consequence  of  any  communication 
between  you  and  any  magistrate  of 
the  country  ?  —  I  had  not  been 
directed  to  become  a  member,  in 
consequence  of  the  recommendation 
of  any  magistrate ;  I  had  been  un- 
expectedly proposed  by  Whittam, 
and  a  magistrate  had  told  me,  if 
another  person  had  proposed  me,  I 
should  become  a  member.  .  .  . 

Who  was  the  person  that  first 
introduced  you  to  the  society  ?  — 
John  Hillier. 

Did  you  make  application  to  him 
first,  or  he  to  you  ?  —  I  first  went 
to  Hillier,  to  make  some  inquiries 
respecting  a  person  who  was  a 
member  of  that  society. 

What  led  you  to  go  to  Hillier 
to  make  that  inquiry  ?  —  From 
seeing  publications  of  that  nature, 
and  I  was  informed  that  the  person 
respecting  whom  I  was  directed  to 
make  the  inquiry  was  a  member  of 
the  Corresponding  Society. 

Publications  of  what  nature  ?  — 
From  seeing  publications  in  Hillier's 
shop  window,  which  appeared  to  me 
to  be  of  a  seditious  nature. 

What  business  did  Hillier  carry 
on  ?  —  He  sold  pamphlets. 

From  that  you  thought  it  likely 
he  was  a  member  of  the  society, 
likely  to  give  you  information, 
there  being  some  man  you  wanted 
to  inquire  about  ?  —  Yes. 


When  did  you  first  make  your 
application  to  Hillier  ?  —  I  believe 
towards  the  end  of  March,  or  the 
beginning  of  April. 

For  what  purpose  did  you  become 
a  member  of  the  Corresponding 
Society  ?  —  On  the  14th  of  April 
when  I  first  became  a  member,  I  was 
unexpectedly  proposed ;  on  the  day 
following  I  informed  Mr.  Wickham 
that  I  had  done  so. 

What  passed  between  you  and  the 
magistrate  is  not  evidence,  but  in 
consequence  of  what  passed  be- 
tween you  and  him,  why  did  you 
attend  the  meeting  ?  —  To  discover 
whether  they  had  any  serious  in- 
tentions of  arming. 

You  have  stated  that  you  com- 
municated something  upon  the  sub- 
ject, to  Mr.  Wickham  ?  —  Yes. 

W^as  it  with  his  approbation  that 
you  attended  the  meeting  for  the  pur- 
pose you  have  now  stated  ?  —  It  was. 

Did  you  from  time  to  time  com- 
municate to  Mr.  Wickham  such 
facts  as  came  to  your  knowledge  ?  — 
I  did. 

And  went  there  for  the  express 
purpose  of  procuring  information, 
and  giving  it  ?  —  I  did.  .  .  . 

Edward  Gosling,  cross-examined  by 
Mr.  Erskine. 

W' hat  is  your  Christian  name  ?  — 
Edward. 

Edward  Gosling  ?  —  Yes. 

Are  your  father  and  mother  liv- 
ing ?  —  Yes. 

What  are  you  by  employment  or 
trade  ?  —  At  present  I  am  employed 
by  Mr.  Wickham.  ...  I  was  em- 
ployed before  this  business  by  Mr. 
Colquhoun,  in  writing. 

What  sort  of  writing  ?  —  Both  in 
his  private  business  and  on  his 
public  business. 

Mr.  Colquhoun  is  an  attorney, 
is  he  ?  —  No,  a  magistrate  in  Wor- 
ship-street. 

When  did  you  begin  writing  for 
him  ?  —  About  September  last,  but 
that  was  only  occasionally. 


.372 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  201. 


What  way  of  life  had  you  been  in 
l)efore  ihat?  —  Before  that  I  kept 
a  Itroker's  shop. 

Were  you  a  liealer  in  naval  stores  ; 
I  am  not  asking  any  (piestion  you 
can  object  to,  were  you  a  dealer  in 
naval  stores  ?  —  I  never  in  my  life, 
upon  my  oath,  to  my  knowledj^e, 
l»ougiit  a  store  that  ever  was  the 
property  of  his  majesty,  if  that  is 
what  you  mean. 

I  should  havi-  no  rii^ht  to  ask  that 
question.  —  1  know  the  reason  for 
which  it  was  put ;  and  it  is  a  ques- 
tion which,  if  I  was  not  conscious 
of  my  innocence,  I  had  no  rijjht  to 
answer,  hut  as  I  knew  I  could  safely 
do  it,  I  thoufiht  it  proper  to  answer. 

Then,  perhaps,  you  have  never 
said  to  anybody  the  direct  contrary 
of  what  you  are  saying  now  to  me  ? 
—  I  difl  say  the  direct  contrary ;  I 
was  asked  by  Mr.  Worship,  when 
I  went  to  buy  a  print,  what  I  was  ? 
and  what  my  address  was  ?  As  I 
conceived  he  would  not  let  me  have 
the  j)rint  if  I  told  him  I  was  with  a 
magistrate,  I  told  him  1  dealt  in 
naval  stores. 

Did  you  ever  say  to  anybody 
that  you  dealt  in  naval  stores,  and 
that  you  should  think  no  more  of 
cheating  the  king  tlian  of  guillotining 
him?  —  Never  to  my  knowledge;  I 
will  swear  positively,  I  never  men- 
tioned the  word  guillotining  the 
king. 

Did  you  never  say  to  anybody, 
upon  your  oath,  that  you  lived  by 
smuggling,  and  cheating  the  king 
in  his  stores  ?  —  Never  upon  my 
oath. 

Have  yuu  always  gone  by  the 
nam«'  of  (Josling?  —  I  have  not  .  .  . 
and  am  willing  to  explain  why  I  went 
by  another  name;  as  I  find  every 
advantage  is  wishe<l  to  be  taken  of 
iiH'.  I  trust  th<-  mercy  of  the  Court 
will  not  sulfer  any  improper  cjues- 
tioti  to  be  put  to  nu'. 

I/ord  (  hief  Justice  Eyke. —  As  to 
any  (jU«*slion  which  tends  to  accuse 
you  of  any  crime,  not  immediately 
connected  with  this  matter,  I  will 
protect  y<»u  ;   but    at    the  same   time 


keep  your  temper,  attend  to  the 
question,  and  give  a  direct  answer. 

Mr.  Kr.slcitu'.  —  1  have  treated  you 
with  civility,  I  am  sure.  Did  you 
ever  go  bv  the  name  of  Douglas  ?  — 
1  did. 

When  did  you  first  assume  the 
name  of  Douglas? — I  believe  as 
much  as  ten  years  since. 

How  long  did  you  continue  the 
name  of  Douglas? — I  would  wish 
to  relate  the  circumstances  under 
which  I  took  that  name. 

Lord  Chief  Justice  Eyre.  —  You 
had  better  answer  the  question.  — 
I  carried  on  the  business  of  a  hair- 
dresser in  that  name,  for  I  believe 
pretty  near  seven  years.  .  .  . 

Had  you  any  particular  reason 
for  changing  your  name  ?  —  I  will 
state  my  reason ;  my  father  had  a 
shop  of  business  in  the  city;  his 
business  was  chiefly  in  the  wag  and 
sha\ing  w^ay ;  for  improvement  I 
wished  to  go  to  the  west  end  of  the 
town.  I  went  and  worked  with  a 
man,  whose  name  was  Penton,  in 
Bloomsbury,  for  iiuprovement ;  it 
was,  perhaps,  from  false  pride  I  did 
not  choose  it  to  be  known  that  I 
was  w'orking  as  a  journeyman,  when 
my  father  kept  four  or  five  men ; 
and  as  for  taking  the  name  of 
Douglas,  I  took  it  from  a  play 
bill. 

I  have  no  objection  to  a  decent 
pride ;  you  took  a  very  good  name. 
It  struck  you  in  a  moment  to  take 
the  name  of  Douglas  from  a  play- 
bill ?  —  That  was  the  reason  that 
struck  me  at  that  time,  and  I  had 
no  thought  of  continuing  under  that 
name. 

Pray  how  long  did  you  play  this 
part  of  Douglas  ?  —  I  continued  near 
seven  years  in  that  name.  .  .  . 

Let  me  ask  an  explanation  of  some- 
thing, which  1  confess  I  did  not  un- 
derstand ;  how  came  you  to  say 
to  Mr.  Worship  that  you  dealt  in 
naval  stores  ?  —  Because  I  thought 
that  would  preclude  all  inquiry; 
Ix'cause  I  did  not  choose  to  give  him 
my  address ;  because  I  thought  if 
In-  found    I  was  with  Mr.  Wickham, 


No.  201. 


GENERIC    TRAITS.       E.    MORAL   CHARACTER 


373 


he  would  refuse  then  to  let  me  have 
what  I  wanted. 

Mr.  Attorney-General.  —  Do  you 
mean  Worship,  the  engraver  ?  — 
Yes ;  I  saw  he  suspected  I  was  not 
friendly  to  their  cause. 

Mr.  Erskine.  —  Who  is  Mr.  Wor- 
ship ?  —  A  secretary  of  a  division  of 
the  Corresponding  Society. 

Did  you  never  make  use  of  the 
expressions  that  I  asked  you  to  be- 
fore, that  you  cared  no  more  for 
cheating  the  king  than  the  expression 
I  stated  before  ?  —  Never  in  mv 
life.  ... 

Do  you  know  a  Mrs.  Coleman  ?  — 
I  do  not. 

Look  across  to  the  jury.  —  I  do 
not  know  a  Mrs.  Coleman,  now. 

Did  you  ever  know  a  Mrs.  Cole- 
man ?  —  I  did. 

Had  you  any  dealings  of  any  sort 
with  her  ?  —  Certainly,  she  rented 
a  shop  of  me. 

Had  you  no  dealings  of  any  other 
sort  ?  I  am  not  putting  a  question 
of  any  immoral  nature  ?  —  Certainly, 
I  had  business ;  she  rented  a  shop 
of  me. 

Is  that  all  ?  —  She  died  at  my 
house,  and  I  buried  her. 

Did  she  leave  any  will  ?  —  Yes. 

Whom  did  she  leave  her  property 
to  ?  —  Her  property  was  partly  left 
to  one  Burroughs,  and  partly  to 
one  James  Leech. 

Who  made  the  will  ?  —  I  wrote  it. 

Do  you  know  Mrs.  Biffin  ?  —  I 
do  not. 

You  were  very  ill  used  about  that 
business,  in  which  you  had  done 
nothing  but  that  which  was  right  ?  — 

Gosling.  —  How  ill  used  ? 

I  mean  you  got  into  some  dispute 
and  trouble  about  it  ?  —  None  at  all, 
I  was  in  no  trouble  about  it. 

There  was  no  complaint  made 
against  j'ou  of  any  sort  ?  —  There 
was  no  just  cause  of  complaint. 

I  do  not  ask  whether  there  was  any 
just  cause  of  complaint,  but  was 
there  any  complaint  made  against 
you  by  anybody  upon  the  subject  ?  — 

Gosling.  —  I  cannot  say  I  recol- 
lect   the    particular    circumstances 


that  might  pass  ;  there  was  a  brother 
by  a  former  husband  who  came  up 
out  of  the  country. 

Do  not  understand  me  to  be 
doing  so  improper  a  thing  as  to  be 
imputing  any  crime  to  you,  and  to 
ask  you  to  reveal  it ;  far  from  it.  I 
only  ask  whether  anybody  was 
wicked  enough  to  make  any  com- 
plaint of  your  conduct  in  that  case  ? 
—  I  do  not  know  that  there  was 
any  complaint. 

Will  you  swear  there  was  none  — 
upon  your  oath,  was  there  no  com- 
plaint made  against  you  upon  the 
subject  of  this  will  ?  —  I  cannot 
tell  what  complaint  may  have  been 
made. 

Lpon  your  oath,  was  there  not  a 
complaint  made  against  you,  to 
your  knowledge,  for  fabricating  this 
will  ?  —  Never,  that  I  know  of. 

Will  you  swear  that  ?  —  I  will 
swear  I  never  heard  any  such  thing. 

Who  was  that  James  Leech 
to  whom  this  woman  left  this 
money  ?  —  A  son  of  my  wife's. 

Who  was  Burroughs,  who  was  that 
other  person  ?  —  A  cousin  of  hers, 
or  some  such  thing. 

AYhat  connection  had  you  with  the 
woman  ?  —  I  had  no  connection, 
any  farther  than  rendering  her  every 
service  in  my  power,  during  a  long 
illness,  in  which  I  was  at  consider- 
able expense. 

How  long  had  she  lodged  at  your 
house  ?  —  I     cannot     tell     exactly. 

A  year  ?  —  I  cannot  tell. 

Will  you  swear  that  she  lived  six 
months  with  you  ?  —  I  do  not  know 
the  time. 

Was  it  two  months  ?  —  It  was 
longer  than  that. 

Three  months  ?  —  Longer  than 
that. 

Four  months  ?  —  I  cannot  state 
to  a  month. 

Was  the  will  made  bv  an  attor- 


nev 


It  was  not. 


By  yourself  ?  —  Yes. 

Am  I  to  take  you  that  you  mean 
to  swear  now,  that  no  complaint 
was    made    against    you    as    having 


374 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  201. 


forpetl  that  will  ?  —  I  swear,  that 
to  the  best  of  my  knowledge  or  rec- 
ollec-tion,  I  ne\er  heard  such  a 
thini:. 

Will  you  swear  positively,  you 
never  have  been  chargeil  with 
it ;  a  man  that  is  charged  with  a 
capital  felony  cannot  forget  it  ?  — 
I  tlo  not  recollect  that  ever  I  was. 

CJood  Cioil  1  Do  you  mean  to 
swear  that  you  tio  not  remember 
whether  you  were  charged  with  a 
capital  felony  or  not  ?  —  I  do  not 
know  that  I  ever  was. 

Will  you  swear  positively  that  no 
such  charge  was  brought  against 
you  ?  —  I  can  swear  no  fartiier  than 
that  to  the  best  of  my  knowledge,  it 
never  was. 

I^ml  Chief  Justice  Eyke.  —  A 
charge  brought  when  and  where?  — 
it  may  be  a  fact  within  his  knowl- 
edge, or  it  may  not. 

Mr.  Erskinr.  —  I  am  asking  you 
whether  there  was  not  a  complaint 
maile,  that  y()U  were  charged  in  your 
own  presence,  with  having  done  it  ? 

—  Never,  to  my  knowledge. 

Am  I  to  understand  that  there  was 
not  a  complaint  made  in  your  pres- 
ence against  you,  for  having  forged 
that  will ''.  —  1  <lo  not  recollect  that 
any  person  ever  did. 

Will  not  you  go  to  the  length  of 
swearing  that   nobody  ever  did  so? 

—  I  can  only  speak  to  the  best  of 
my  recollection  and  knowledge. 

Mr.  (Jarrow.  —  I  submit  to  your 
lordship  that  is  the  only  answer  a 
witness  can  make  to  such  a  (pjestion. 

lyord  Chief  Justice  Eyre.  —  There 
is  no  occasion  for  your  interrupting 
the  examination  ;  i)robal)ly  it  is  an 
answer;  but  he  may  be  pressed  to 
.see  whether  he  can  answer  f:irtli(  r 
or  not. 

Mr.  Ernkhir.  —  Whether  anybody 
ever  chargc<l  you  with  it  in  your 
presence?  —  I  never  recollect  that 
any  person  ever  did. 

Do  you  know  a  Mr.  Cox?  —  Yes; 
I  know  Mr.  Cox,  a  cheesemonger. 

How  long  have  you  known  jiiin  '! 

—  I  cannot  exactly  statr  how  long 
I  have  dealt  with  him. 


Dealt  with  him  in  what  ?  —  In 
cheesemongery  and  butter,  and 
things  of  that  kind,  and  some  hams. 

For  the  use  of  your  famil;^-  ?  — 
Yes  ;  and  to  sell. 

1  thought  you  were  a  hair- 
dresser ;  what  I  do  you  deal  in 
hams  ?  —  My  wife  kept  a  shop  of 
that  sort,  and  I  dressed  hair. 

Have  you  never  had  any  other 
sort  of  dealings  with  Mr.  Cox,  than 
that  which  any  man  has  with  a  fair 
tradesman  that  bought  hams  of 
him  in  the  ordinary  course  of  busi- 
ness ?  —  No. 

x^nd  you  swear  that,  positively  ? 
—  I  do  not  remember  anything  else  ; 
if  you  name  any  particular  charge, 
if  it  comes  within  my  knowledge,  I 
will  own  it. 

Mr.  Erskine.  —  I  do  not  stand 
here  to  make  charges. 

Goftling.  —  I  purchased  hams  of 
him,  and  in  some  there  were  great 
holes  filled  up  with  mortar  and 
stones. 

Then  the  hams  w^ere  of  a  bad 
quality,  filled  up  with  mortar  and 
stones  ?  —  Some  of  them  were. 

Then  Mr.  Cox,  the  cheesemonger, 
seems  to  have  cheated  you  ?  —  Cer- 
tainly ;  he  did  not  use  me  well  when 
I  was  ignorant  in  the  business.  .  .  . 

Am  I  to  understand  you  to  say, 
that  you  never  dealt  at  all  in  stores  ; 
I  do  not  mean  to  say  dishonestly  or 
improperly  ? 

Gosling.  —  What  kind  of  stores  ? 

Mr.  Erskine.  —  Naval  stores  — 
ship  stores  ?  —  I  have  purchased 
old  cordage,  bad  sacking,  and  such 
kind  of  things ;  but  those  I  do  not 
consider  to  come  under  the  denomi- 
nation of  naval  stores. 

\\'hat  were  the  articles  that  you 
purchased  ?  —  W' hat  is  commonly 
called  hand  stuffing,  used  for  the 
making  of  paper. 

Did  you  never  say,  (I  do  not  ask 
you  whether  you  did  it,  because  I 
have  no  right  to  do  that,)  but  you 
never  said  that  you  were  a  dealer  in 
raw  materials ;  that  the  person  you 
s[)oke  to,  asked  you  to  explain  it ;  and 
wlu'tlicr  in  answer  to  that  you  said 


No.  201. 


I.       GENERIC    TRAITS.       E.    MORAL    CHARACTER 


375 


that  you  attended  the  sale  of  his  maj- 
esty's stores  at  the  dockyards,  at 
Sheerness,  and  so  on ;  that  you 
were  well  acquainted  with  the  store- 
keepers, and  that  you  generally 
bought  them  at  a  fifth  of  their 
value,  by  feeing  ihe  storekeepers 
to  condemn  them  ?  —  I  never  said 
that ;  I  will  relate  to  you  one  cir- 
cumstance upon  which  that  is 
taken :  I  wished  to  get  informa- 
tion respecting  them,  and  Mr. 
Colquhoun  would  give  me  credit 
for  that ;  it  was  upon  that  very 
business  I  was  taken  into  his  em- 
ployment to  give  intelligence  re- 
specting that ;  I  understood  from 
Hillier  that  he  had  a  relation  who 
was  a  ciuartermaster  there,  and  I 
wished,  through  his  means,  to  ob- 
tain information  for  the  service  of 
government. 

Why,  you  had  a  great  deal  upon 
your  hands  —  you  say  you  told  him 
the  same  as  Mr.,  Worship ;  you  did 
not  tell  Mr.  Worship  that  ?  —  I  told 
him  I  was  a  dealer  in  naval  stores. 

But  did  you  tell  Mr.  Worship  that 
the  way  you  dealt  was  by  feeing  the 
storekeepers  to  condemn  them  ?  — 
No,  I  did  not  tell  him  that. 

When  you  were  reproved  for  that, 
did  you  not  justify  your  conduct, 
and  say  that  you  had  followed  the 
practice  for  years,  and  thought  it  no 
crime  to  cheat  the  king  ?  —  Never. 

Was  it  in  the  service  of  Mr. 
Colquhoun,  that  you  bought  that 
paper  stuff  and  things  ?  ■ —  I  never 
bought  any  paper  stuff  belonging 
to  his  majesty  in  my  life,  upon  my 
oath. 

But  I  ask  you,  were  you  both  a 
dealer  in  stores  yourself  honestly ; 
and  were  you  employed  as  an  in- 
former to  prevent  other  people  being 
dishonest  ?  —  I  never  had,  to  my 
knowledge,  any  charge  brought 
against  me  for  dishonesty  for  it ; 
I  obtained  every  information  I 
could  to  prevent  children  and  other 
persons,  that  might  be  tempted  to 
purloin  things ;  the  information 
'vas  not  given  against  any  person, 
but  merely  hints  to  prevent  pilfering; 


no  person  was  accused  upon  that 
information  nor  did  I  receive  any 
reward  for  it. 

I  do  not  comprehend  you  ;  explain 
to  me  what  was  the  reason  why 
you  told  Hillier  you  had  been  in  the 
constant  course  of  cheating  govern- 
ment in  that  fashion  ?  —  I  did  not 
tell  Hillier  I  had  been  in  a  constant 
course  of  cheating  the  king ;  he 
mentioned  to  me  his  having  a  rela- 
tion a  quartermaster  at  the  yards, 
and  to  whom  he  talked  of  sending 
some  of  the  resolutions ;  I  thought 
that  from  him,  as  it  is  the  quarter- 
master that  puts  up  the  stores,  that 
I  might  obtain  some  information 
relative  to  those  stores. 

Is  that  an  answer  to  my  question  ? 
I  asked  ^ou  why  you  told  Mr. 
Hillier  you  were  in  the  course  of 
doing  that  which  you  have  been 
now  stating.  —  I  did  not  tell  him 
I  had  been  in  the  course  of  cheating 
the  king  at  all. 

Nor  anything  to  that  effect  ?  — 
I  only  told  him  that  I  was  a  dealer 
in  naval  stores,  nothing  farther. 

Did  you  ever  tell  him  that  there 
were  great  quantities  of  copper 
conveyed  out  of  the  docks,  and  the 
manner  in  which  it  is  conveyed  out  ? 
—  Never,  the  manner  in  which  it  is 
conveyed  out. 

Whether  you  did  not  tell  him  the 
copper  was  conveyed  out  of  the  dock- 
yards in  butter  firkins  ?  —  No  ;  I 
have  given  information  to  Mr. 
Colquhoun  that  copper  has  been 
sent  away,  but  that  was  not  from 
the  king's  stores  ;  but  supposed  to  be 
copper  fraudulently  conveyed  away. 

I  am  asking  you,  whether  you  did 
not  tell  him  you  had  been  employed 
yourself  in  conveying  away  this  cop- 
per ?  —  I  never  told  him  that  I  was 
employed  ;  I  wished  to  gain  what  in- 
formation I  could  from  him,  and 
that  was  the  sole  purpose. 

Did  you  ever  tell  him  that  you 
were  acquainted  with  a  woman  who 
lived  somewhere  about  Tooley- 
street,  and  that  there  were  twelve 
hundred  weight  foinid  upon  her 
premises  ?  —  I  told  him  I  had  heard 


370 


I'AKT    II.      TESTIMONIAL    EVIDENCE 


No.  20L 


.><uc'h  a  seizure  had  heen  made,  but 
I  never  saw  the  woman  in  my  Hfe ; 
I  had  heard  of  it,  and  merely  re- 
hiied  tliat  1  had  heard  that  such  a 
thiiij;  was  the  fact.  .   .   . 

Edward  Gosling  reexamined  by 
Mr.  Ciarroir. 

....  You  have  Ijeen  asked  a 
vast  number  of  questions,  respecting 
Mrs.  CoUMiian's  will ;  was  there  any 
suit  instituted  to  dispute  the  legal- 
ity of  that  will?  —  None. 

Was  there  any  prosecution  for  that 
which  is  calletl  the  forgery  of  it  ? 
—  None. 

\\  a^  there  ever,  to  your  knowl- 
edge, any  complaint  made  against 
you,  that  there  was  anything  foul 
in  the  tran.saction  ?  —  Not  that  I 
know  of ;  the  brother  came  to 
town,  and  appearetl  perfectly  satis- 
fied. Was  it,  upon  your  oath,  a 
fair,  honest  transaction,  as  far  as 
you  had  anything  to  do  with  it ; 
aye  or  no  ?  —  It  was.  .  .  . 

lyord  ("hief  Justice  Eyre  (in  sum- 
ming up  the  evidence  for  the  jury)  : 

On  his  cro.s.s-examination,  Gosling 
is  aske<i  what  situation  he  was  in; 
he  said  he  kept  a  broker's  shop; 
he  is  asked  if  he  did  not  deal  in 
king's  stores  ;  he  said  he  did  say  to  a 
num  to  whom  he  was  unwilling  to 
give  liis  name,  that  he  dealt  in  naval 
stores,  thinking  that  would  put  the 
man  off  from  any  further  inquiry  — 
he  says  that  he  is  employed  by  a 
magistrate,  in  Worship-street,  which 
f>ccasion('<l  him  to  say  that.  He 
denies  that  he  lived  by  smuggling, 
and  cheating  the  king  in  his  stores. 
Hr  was  asked  if  he  ever  went  by 
the  name  of  Douglas;  lie  says  he 
did  for  six  years,  while  he  carried 
on  the  business  of  a  hairdresser, 
which  is  ten  years  since,  in  Petty 
France,  at  No.  3.  He  says  his  father 
had  a  shop  of  business  in  the  city, 
that  he  wished  to  go  out  for  improve- 
ment, and  did  not  like  to  appear  as 


a  journeyman,  when  his  father  kept 
four  or  five  men  in  his  own  house ; 
that  his  taking  the  name  of  Douglas 
was  a  mere  accidental  circumstance. 
....  He  is  then  asked  as  to  a 
^Irs.  Coleman,  who  had  lived  with 
him,  and  tlied  in  his  house ;  he  says 
he  made  her  will,  and  that  no  part 
of  her  property  was  left  to  her  re- 
lations —  he  is  asked  if  a  brother  of 
a  former  husband  had  not  made 
some  charge  against  him  —  he  says 
he  never  heard  any  complaint,  or  any 
charge  against  his  conduct  respecting 
the  will,  but  that  a  brother  had  come 
up  to  make  a  claim.  He  is  asked  if 
he  knows  one  Cox,  cheesemonger  — 
he  says  he  has  dealt  with  him,  and 
he  did  not  use  him  very  well,  but 
nothing  turns  upon  that,  for  he  is 
not  called.  .  .  . 

Gentlemen,  I  stated  to  you  be- 
fore, that  this  witness  has  given 
very  important  evidence,  tending 
to  show  the  determined  purpose  of 
this  Convention  to  use  force  against 
the  king,  his  family,  and  the  govern- 
ment. If  this  man's  evidence  can  be 
depended  upon,  he  certainly  states 
Baxter  to  use  very  strong  language, 
so  indiscreet,  that  one  could  hardly 
have  thought  that  a  man  would  have 
ventured  to  use  —  and  on  the  other 
hand;  the  observation  made  upon 
this  is  certainly  founded,  that  this 
man  is  not  contradicted  with  regard 
to  the  testimony  that  he  gi\es,  and 
that  all  they  rely  upon  to  shake  his 
credit  is  what  turns  out  upon  his 
cross-examination  —  the  account  he 
gives  of  himself,  of  his  having  told  a 
man  that  he  dealt  in  naval  stores, 
for  a  vile  purpose  —  having  borne 
the  name  of  Douglas  —  having  acted 
about  in  that  sort  of  way,  and  going 
there  for  the  purpo.se  of  giving  in- 
formation to  government.  Gentle- 
men, it  is  your  province  to  judge 
what  degree  of  credit  you  think  fit  to 
give  to  this  man's  evidence. 


No.  202.  I.       GENERIC   TRAITS.       E.    MORAL   CHARACTER  377 

202.  G.  L.  DuPRAT.  Lc  Mcnsongc:  etude  de  psychosociologie.  (1909.  2d 
ed.  pp.  34,  132, 181,  187.)  Psychophysiology  of  Mendacious  Invention.  Men- 
dacious invention  rests  on  a  well-known  physiological  process.  We  do  not 
mean  to  invoke  here  the  supposed  laws  of  mental  association,  as  established 
by  English  psychologists  from  Locke  and  Hume  to  Stuart  Mill,  Bain,  and 
Spencer.  To  say  that  syntheses  of  representations  are  formed  by  con- 
tiguity, resemblance,  or  contrast,  is  merely  to  describe  certain  facts,  not 
to  explain  them.  Every  imaginative  synthesis  must  be  preceded  by  a 
dissociation  of  the  elements  which  already  formed  other  empiric  syntheses ; 
for  the  imagination  does  not  create  its  materials,  it  only  gives  them  a  new 
form  and  new  relations,  not  usually  pushing  the  analysis  very  far.  This 
dissociation  is  scarcely  ever  intentional.,  It  is  due  to  the  mutual  inter- 
ference of  different  syntheses  having  common  elements,  but  in  such  a  way 
that  the  common  elements  are  associated  here  with  some  and  there  with 
other  assumptions.  Thus  the  associations  are  less  firm.  A  synthesis  is 
indeed  difficult  to  dissolve  in  proportion  as  its  components  have  less  "  affin- 
ity"  with  other  elements  than  with  each  other ;  and  this  "affinity"  of  the 
representations  or  their  parts  with  each  other  depends  on  the  person's 
habit  of  associating  them  or  not. 

Hence  a  prime  condition  for  mendacious  invention  is  an  experience  such 
as  has  already  produced  interferences  of  association  which  favor  dissocia- 
tion. This  is  why  a  denial,  pure  and  simple,  in  which  lying  invention  is  at 
its  minimum,  is  much  more  at  the  command  of  children  and  less  experi- 
enced or  less  gifted  adults  than  a  deceptive  affirmation ;  for  the  latter  is 
the  product  of  a  somewhat  fertile  imagination. 

This  process  of  mental  dissociation  is  based  on  a  breakdown  of  nerve 
habits  (what  Ribot  has  termed  the  "dynamic  associations"  of  nerve  cells). 
Yet,  once  these  habits  are  broken  down,  how  are  we  to  explain  the  estab- 
lishment of  new  relations  between  the  different  nerve  elements  (neurones, 
or  fibers)  and  between  the  separate  cortical  regions  ?  Doubtless  the  oldest 
habits  can  be  promptly  restored,  and  sometimes  this  suffices  to  give  rise 
to  mental  syntheses  different  from  those  which  would  represent  a  true 
assertion.  But  it  still  remains  to  explain  what  that  stimulus  is  (varying 
from  real  experience)  which  can  produce  either  the  return  of  the  original 
nerve  habit  or  the  process  which  ends  in  making  a  new  habit. 

It  is  useless  to  invoke  (as  Bain  does)  the  "  affinities  "  ;  we  have  just  noted 
that  the  elements  of  our  representations  have  no  other  "affinities"  than 
those  proceeding  from  our  habits.  Nor  can  we  have  recourse  to  those 
"nervous  explosions"  along  the  line  of  least  resistance,  of  which  William 
James  speaks;  these  explosions  might  in  all  probability  not  produce  the 
mental  formation  required  by  the  interests  to  be  served  by  a  lie.  Is  an 
adequate  reason  to  be  found  in  Paulhan's  law  of  systematic  association  and 
systematic  inhibition  ?  This,  indeed,  shows  plainly  enough  that  the  psychic 
elements  associate  when  they  can  form  a  systematic  whole,  when  they  can 
coexist  in  one  and  the  same  synthesis,  from  which  are  expelled  the  ele- 
ments incompatible  with  those  admitted ;  these  incompatible  elements 
thus  being  inhibited,  i.e.  deprived  for  a  greater  or  less  period  of  the  maxi- 
mum of  conscious  clearness.  But  this  law  does  not  sufficiently  explain  the 
whole  case ;  for  a  system  presupposes  some  principle  or  general  end ;  .  .  . 
in  a  given  obiect  we  perceive  only  that  which  interests  us,  i.e.  responds  to 


37S  PART    II.      TESTIMONIAL   EVIDENCE  No.  202. 

a  dominant  tendency  ;  and  so  too  what  we  conceive  is  what  interests  us ; 
in  short,  our  inrntal  tti/ntluars,  including  our  mendacious  inventions,  are  dcter- 
mintd  by  our  .settled  de{(ire,s  or  repulsions. 

Thus  the  foUowinj,'  principle  may  be  offered  as  emerging  from  the  fore- 
g«iing  analysis:  l-Arri/  mendacious  invention  is  determined  by  a  tendency. 
This  principle  Rihot  has  demonstrated  for  the  creative  imagination;  and 
since,  as  alune  shown,  the  liar's  imagination  may  include  all  modes  of 
creative  imagination,  what  is  true  of  the  one  is  true  of  the  other.  "All 
forms  «)f  the  creative  imagination."  says  Rihot,  "  imply  affective  (emotional) 
elements."  '  This  fundamental  physiological  relation  between  the  cerebral 
regions  serving  the  emotional  life  (desire),  and  those  serving  ideation  and 
imagination,  is  what  must  serve  as  the  basis  for  explaining  the  process  of 
mendacious  invention.  This  physiological  relation  matches  the  psychologi- 
cal one  between  the  trait-tendencies  of  a  per.wn  and  his  production  of  images 
enabling  him  to  tell  a  lie.  A  person  of  a  specific  trait  or  temperament  will 
be  led  into  certain  kinds  of  lies  in  proportion  as  that  trait  or  temperament 
is  more  favorable  to  excitation  or  depression.  A  mendacious  denial  is  easy 
to  pet>ple  of  calm,  apathetic,  or  melancholy  disposition,  given  to  slow 
movements.  A  mentlacious  affirnuition  is  easy  to  persons  inclined  to  rapid 
movements,  —  to  an  activity,  if  not  disorderly,  at  least  multifold  and  varied. 
Literature  has  often  drawn  the  contrast  between  these  two  opposed  tem- 
pi-raments.  —  the  calm,  cold  one,  and  the  lively,  daring  one;  and  almost 
always  the  latter  has  been  taken  as  the  type  of  the  liar,  e.g.  Daudet's 
"  Xuma  Roumestan,"  the  temperament  of  the  South.  But  alongside  of 
this  temperament  we  must  also  point  out  its  opposite,  the  smooth-tongued, 
.soft-speaking  personality,  a  radical  enemy  of  truth,  the  type  of  hypocrites 
of  all  degrees. 

Tims  the  diversity  of  human  traits  and  tendencies  produces  a  diversity 
of  liars.  .\nfl  the  lie  is  the  more  important,  as  psychological  phenomenon, 
in  proportion  as  it  reveals  the  basis  of  the  Ego  beneath  it.  For  then  the 
derogation  from  the  truth  is  not  a  mere  casual  incident  in  the  life  of  an 
unstalde  imagination,  but  is  a  direct  consequence  of  the  person's  rooted 
disposition  to  evil. 

Kinds  of  Mendacious  Character.  [The  mendacious  tendency  is  found 
alike  in  persons  psychologically  normal  and  abnormal.  Among  abnormal 
classes  may  be  noted  the  habitual  criminal,  the  hysterical,  the  degenerate. 
The  normal  j)crsonality  will  here  be  considered.] 

.\ll  men  (says  Ingeg.iicros)  are  simulators  in  a  greater  or  less  degree; 
but  the  tendency  to  simulate  is  the  dominant  note  of  the  trait  in  those 
who  form  the  type  of  simulator,  —  the  most  comprehensive  type  of  those 
who  fit  the  conunon  term  "liar."  And  no  type  is  more  frequently  met 
with  in  persons  of  all  ranks  and  ()ccui)ations. 

Ingegnieros  has  classified  sinmlators  as  follows:-  (1)  the  crafty,  (2)  the 
.servile,  Ci)  the  practical  jokers,  (4)  the  "dissidents,"  (5)  the  neuropathic, 
(<i)  the  suggested.  (I)  The  crafty  simulator  is  always  ready  to  sinuilate ; 
he  has  educaH-d  his  emotional  reactions  so  that  they  never  betray  tliem- 

'  A  flPKirf  or  H  rcpulHion  i«,  an  w.'  know,  an  incipient  niovonicnt,  or  nlso  :i  vivid  image 
of  a  movement.  uniK-d  to  a  more  or  I.-hs  dear  representation  of  an  end  to  which  the  move- 
ineitt  t4?nd8. 

'  ".'^imuladAn  de  la  locura"  ;    "  Siniuhifi6n  en  la  huha  por  la  vida." 


No.  202.  I.      GENERIC    TRAITS.       E.    MORAL   CHARACTER  379 

selves  in  his  countenance.  He  is  a  dissimulator  to  the  roots  of  his  being. 
But  he  employs  the  most  varied  means  for  succeeding.  Women  show  them- 
selves particularly  apt  in  a  thousand  methods  of  sly  dissimulation.  (2)  The 
servile  simulator  is  a  variety  of  the  crafty  one,  with  the  peculiarity  that  his 
tendency  is  to  subordinate  his  attitude,  facial  expression,  and  words  to 
the  requirements  or  desires  or  unspoken  wishes  of  those  who  are  his  masters 
and  whose  good  will  or  indulgence  he  hopes  for.  He  may  be  either  ambitious 
or  shrewd,  or  lazy,  apathetic,  timid,  or  weak.  (3)  The  practical  joker  turns 
simulation  into  an  amusement.  He  enjoys  mystifying  his  fellows  without 
personal  profit  to  himself.  .  .  .  This  class  may  also  be  made  to  include 
the  simulator  who  feigns  the  possession  of  exceptional  talents  or  virtues 
and  takes  pleasure  in  duping  the  public  at  large  or  a  select  circle  with  his 
deceptive  assertions  and  inventions.  ...  (4)  The  "dissidents"  are  those 
who  feign  sentiments  which  they  do  not  possess,  in  order  to  produce  a  re- 
action against  current  tendencies  which  they  deplore  and  wish  to  improve. 
...  (5)  The  neuropathic  simulator  is  well  known.  These  border  on  the 
hysterical,  the  alcoholist,  and  the  degenerate.  ...  (6)  The  simulator  by 
suggestion  is  rather  a  victim  than  a  culprit.  But  here  must  be  included 
those  persons  who  receive  suggestion  from  the  environment,  i.e.  are  sub- 
jected to  a  vague  influence  which  gives  vent  to  their  morbid  tendency  to 
deceptions  and  more  or  less  skillful  lies. 

Ingegnieros'  classification  may  seem  not  systematic  enough.  It  rests  on 
the  distinction  between  normal  and  pathologic  persons,  and  utilitarian 
and  disinterested  ends.  It  would  seem  that  there  may  well  be  as  many 
secondary  types  of  simulators  as  there  are  distinct  human  traits,  viz.  :  (1) 
amorphous,  and  polymorphous  or  unstable  ;  (2)  unbalanced,  and  balanced  ; 
(3)  impulsive,  and  obsessed  ;  (4)  emotional,  and  apathetic  ;  (5)  intuitive,  or 
imaginative,  and  ratiocinative ;  (6)  strong-willed  and  weak-willed.  Thus 
they  fall  into  groups  (of  contrasted  traits),  each  presenting  different  aspects 
of  simulation. 

(1)  The  amorphous  are  susceptible  of  simulation  under  the  influence  of 
all  sorts  of  suggestions.  They  have  no  more  a  fixed  trait  in  their  simula- 
tion than  in  the  rest  of  their  mental  and  social  activity.  They  may  exhibit 
trickery  in  any  fashion  required  by  their  interests  or  desires  or  caprices, 
as  circumstances  vary.  They  are  usually  weak  of  will,  and  may  thus 
yield  to  the  exigencies  of  their  environment,  becoming,  if  need  be,  servile  in 
their  lies.  —  The  poh/morphous  are  often  degenerates  or  hystericals,  —  liars 
and  simulators  to  the  degree  that  they  change  easily  in  personality.  They 
do  not  long  persist  in  any  one  species  of  simulation ;  e.g.  they  may  in  suc- 
cession simulate  piety  and  atheism,  simple-mindedness  and  skepticism, 
cautiousness  and  imprudence,  timidity  and  courage,  —  lying  according  to 
the  role  they  are  playing,  often  without  interest  to  serve,  and  sometimes 
unconsciously.  (2)  The  unbalanced  are  simulators  only  intermittently ; 
they  have  accesses  of  candor  which  make  them  abandon  for  a  period  their 
system  of  feints  and  lies.  They  mislead  by  the  uncertainty  which  they 
thus  produce  in  the  mind  of  the  observer.  (3)  Next  to  them  may  be  classed 
the  imptdsives.  These  yield,  but  only  intermittently,  to  their  need  for  lying 
and  for  simulating  the  sentiments  calculated  to  induce  confidence  in  their 
veracity.  This  need  is  most  often  explainable  by  sudden  cravings  or  repul- 
sions, unforeseeable  even  by  the  subjects  themselves.       Such  a   person. 


3S0  PART    II.      TESTIMDMAL   EVIDEXCE  No.  202. 

without  knowing  why,  will  siuldenly  experience  an  irre.gistible  desire  to 
deceive  in  some  way  his  wife  or  his  friend,  and  will  therefore  simulate  anger 
or  grief  or  astonishment.  —  The  obsessed  are  dominated  by  a  fixed  idea,  an 
exclusive  aim,  an  emotion,  and  .sometimes  are  driven  to  simulation  by  the 
exigencies  of  a  purposeful  mind  ;  success  in  their  enterpri.ses  (sometimes  such 
as  do  not  merit  approval)  depends  often  on  their  aptness  in  feigning,  in 
the  expression  of  ideas  which  they  know  to  be  false.  The  pretenders  who 
obtain  a  pul)lic  following  are  of  this  type  at  bottom.  (4)  The  emotionals 
have  little  aptne.ss  for  simulation  ;  they  are  not  able  to  control  themselves 
well  enough.  The  (ipaihdics  will  not  take  the  trouble  to  do  so.  Never- 
theless, some  emotionals  do  become  simulators,  usually  through  fear,  love, 
hatred,  pride,  or  vanity  ;  e.g.  they  will  feign  altruistic  sentiments,  for  fear 
of  seeing  their  egoism  unmasked  ;  or  affect  a  deep  sensitiveness  in  matters 
of  R'sthetics.  religion,  or  morality ;  or  carry  on  a  mendacious  discourse 
(often  lacking  coherence)  while  under  the  emotion's  influence.  The  apa- 
thetics  (or  inilitferent),  being  little  inclined  to  altruism,  simulate  mostly  a 
sympathy  or  a  pity  or  even  a  burst  of  feeling,  when  circumstances  and  the 
environment  constrain  them ;  their  discourse  is  then  particularly  decep- 
tive, (o)  The  rafiociuatiirs  are  those  who  use  dialectics  (sometimes  keen), 
captious  argument,  long  series  of  propositions,  so  as  to  simulate  depth  of 
thought.  How  many  such  disputers  —  metaphysicians,  theologians,  and 
others  —  have  abused  the  confidence  of  their  hearers  or  readers  by  a  sterile 
logomachy,  of  which  they  themselves  have  not  always  been  the  dupes  ! 
Must  we  not  admit  that  there  are  many  men,  clever,  educated,  masters  of 
thought  and  language,  who  are  so  devoted  to  empty  disputatiousness  that 
they  overstep  (in  one  or  another  way)  the  boundary  between  honesty  and 
simulation  ?  Starting  with  little  real  earnestness,  they  do  not  hesitate  to 
make  assertions  of  whose  slender  objective  soundness  they  are  well  aware ; 
but  their  logic  draws  them  on ;  they  must  be  consistent  with  themselves 
and  their  earlier  professions  of  good  faith;  they  are  driven  to  simulate 
l)eliefs  which  they  no  longer  entertain,  and  to  defend  dogmas  and  prin- 
ciples which  they  ha\e  ceased  sincerely  to  approve.  The  fear  of  being  a 
renegade  or  a  heretic  makes  them  persevere  in  their  attitude,  and  lies  and 
simulation  ff)rm  a  larger  and  larger  part  of  it. — The  hituitipes,  while  less  the 
slaves  of  a  purposeful  mind,  are  often  lacking  in  that  check  which  logic 
puts  upon  excessi\e  licen.se  in  one's  interpretations  of  experience ;  they  are 
too  ready  to  think  that  they  can  depart,  without  harmful  consequences, 
from  a  strict  veracity.  —  In  contrast  with  persons  of  scientific  mind,  who  are 
scrupulous  in  tlu-  observation  of  facts  and  the  verification  of  hypotheses, 
are  the  imwjinniias.  ( "ontradiction  does  not  in  the  least  alarm  them; 
whether  through  dilettantism  or  through  self-interest,  they  put  forth  at 
every  ttirn  their  romances  (.sometimes  very  ingenious).  These  are  the 
typical  sinuilators,  especially  when  their  imagination  is  at  the  service  of  a 
will  strong  enough  to  perseven-  in  important  .schemes.  In  this  class  belong 
notably  those  who  simulate  illness  to  obtain  help,  reward,  or  favor,  or 
exoru-ratif)n  from  military  service,  taxes,  or  other  social  burden. 

All  the  above  described  temperaments  lend  themselves  more  or  less  to 
effectuate  sttiru-  form  of  simulation.  Some  persons  .seem  to  be  innately 
disposed  to  this  mode  of  lif.-.  Certain  children  at  an  early  age  exhibit  as 
their  peculiar  trait  a  mendacity  accompanied  by  simulation;    experience 


No.  202.  I.       GENERIC    TRAITS.       F.    EMOTION,    BIAS  381 

and  habit,  necessary  for  its  development,  increasingly  betray  it  as  they 
become  older ;  and  one  may  meet  with  adults  and  old  persons  whose  every 
attitude,  gesture,  and  discourse  is  directed  to  the  deception  of  others. 
Success  has  made  them  persevere  in  this  marked  aptitude.  One  is  almost 
tempted  to  believe  that  (in  primitive  as  well  as  in  civilized  communities) 
supremacy  is  assured,  in  the  struggle  for  existence,  not  to  those  who  employ 
honest  methods  and  conscientious  assertions,  but  to  the  astute  and  shrewd 
simulators  who  employ  their  skill,  when  needed,  to  the  detriment  of  the 
simple,  —  ending  in  the  discomfiture  or  the  elimination  of  the  latter.   .   .   . 

Conclusion.  The  foregoing  study  has  now  shown  us  that  the  lie  is  a 
phenomenon  common  to  all  civilizations,  all  classes  of  society,  all  ages, 
and  both  sexes.  ...  It  is  at  one  and  the  same  time  a  psycho-physiologic 
and  a  psycho-sociologic  phenomenon.  ...  It  originates  spontaneously,  — 
apart  from  imitation  or  faulty  education,  and  merely  by  the  combined 
operation  of  imagination  and  the  personal  tendencies  or  aims  unsatisfied 
by  the  natural  course  of  events.  Nevertheless,  education,  imitation, 
fashion,  manners  and  morals,  all  strengthen  the  mendacious  tendency ; 
while  weakness,  illness,  mental  and  physiological  incapacity,  lack  of  the 
higher  sentiments  (united  sometimes  with  arrest  of  intellectual  develop- 
ment), degeneracy,  all  favor  the  hatching  of  the  lie-tendency ;  and,  finally, 
social  causes, — such  as  war,  persecution,  popular  emotions,  mob  frenzy, — • 
repression  by  violence  or  coercion,  combine  to  make  mendacity  almost 
inevitable. 

We  have  thus  shunned  (it  will  be  noted)  all  those  shallow  explanations 
of  mendacity  which  merely  use  a  form  of  words,  —  such  epithets,  for  ex- 
ample, as  "innateness,"  "the  inventive  faculty,"  etc.,  and  such  supposed 
laws  as  that  "  the  lie  tends  to  develop  in  a  social  medium  in  proportion  as 
that  medium  becomes  complex,"  and  the  like.  .  .  . 

And  in  showing  that  the  lie  is  due  to  specific  tendencies  which  are  them- 
selves closely  bound  up  with  individual  character,  temperament,  physio- 
logical constitution,  and  neuro-muscular  activity,  we  have  also  shown  the 
emptiness  of  the  unconscionable  claims  of  those  moralists  and  pedagogues 
for  whom  our  warfare  against  the  lie  has  its  basis  in  a  commandment  in- 
scribed in  golden  letters  for  centuries  past  on  the  walls  of  churches  and 
schools.  In  sober  fact,  the  warfare  is  against  rooted  human  desires  or  antip- 
athies, often  concealed  from  our  view,  and  no  less  difficult  to  overcome 
than  they  are  to  discover.  And  our  means  of  overcoming  is  to  awaken 
contrary  tendencies,  —  not  artificial  ones,  but  those  tendencies  and  desires 
which  are  normally  implanted  in  human  nature  and  go  to  make  up  the 
noblest  traits  that  mark  humankind. 

And  so  the  warfare  against  the  lie  is  simply  a  part  of  the  great  struggle 
for  the  moral  life  as  a  whole. 


3S2  PAKT    II.      TESTIMONIAL    EVIDENCE  No.  203. 


SUBTITLE   F:    FEELING.    EMOTION,    BIAS 

203.  G.  F.  Arnold.  Pfiycholog;/  applied  to  Legal  FAndencc.  (1906.  pp. 
23G,  2(30. )  .  .  .  The  effect  of  dettire  on  belief  cannot  be  omitted  from  consid- 
eration in  such  cases  if  we  are  to  come  to  a  correct  conclusion.  "  If  a  certain 
ohjective  combination."  says  Professor  Stout,  "presents  itself  as  the  only 
condition,  or  tiie  most  favorable  conchtion,  of  obtaining  a  certain  end,  the 
active  tendency  towards  this  end  is  of  itself  a  tendency  to  believe  in  the 
ol)jective  combination."  As  to  the  way  in  which  Desire  acts,  the  following 
is  the  same  writer's  account :  "  This  influence  of  Desire  on  Belief  often 
operates  by  simply  chverting  the  attention  from  counter  evidence.  .  .  . 
The  mind  is  so  absohitely  preoccupied  by  certain  tendencies,  that  what- 
ever crosses  them  either  never  comes  before  consciousness  at  all,  or,  if  it 
does,  is  immediately  dismissed.  ...  It  also  directly  intensifies  the  re- 
sistance offered  by  a  mental  combination  to  conditions  which  might  other- 
wise dissolve  it.  .  .  .  But  the  more  often  they  {i.e.  such  beliefs)  are  acted 
upon,  the  more  completely  they  become  incorporated  with  the  original 
conation  so  as  to  become  an  integral  part  of  it ;  hence  the  support  they 
receive  from  it  is  increased."  With  this  may  be  compared  the  manner  in 
which  Feeling  in  general  influences  Belief:  "This  action  of  feeling  on  belief 
is  in  every  case  mediate ;  that  is  to  say,  it  works  by  modifying  the  processes 
of  ideation  themselves.  It  is  by  giving  preternatural  vividness  and  sta- 
bility to  certain  members  of  the  ideational  train  called  up  at  the  time,  e.g. 
ideas  of  occurrences  which  we  intensely  long  for,  or  especially  dread,  and 
by  determining  the  order  of  ideation  to  follow,  not  that  of  experience,  but 
that  which  answers  to  and  tends  to  sustain  and  prolong  the  feeling,  that 
its  force  serves  to  warp  belief,  causing  it  to  deviate  from  the  intellectual  or 
rea.sonable  type." 

Feeling,  then,  acts  in  part  by  warping  the  intellectual  element  in  Belief. 

Emotion  is  a  great  source  of  illusion,  because  it  disturbs  intellectual 
operations.  It  gives  a  preternatural  vividness  and  persistence  to  the  ideas 
answering  to  it,  i.r.  the  ideas  which  are  its  excitants  or  which  are  other- 
wise associated  with  it  ;  hence  when  the  mind  is  under  the  temporary  sway 
of  any  feelings  as.  i.g.  fear,  there  will  be  a  readiness  to  interpret  objects  by 
help  of  images  congruent  with  the  emotion.  A  man  under  the  control  of 
fear  will  l»e  apt  to  see  any  kind  of  fear-inspiring  object  whenever  there  is 
any  re.-,eml)lance  to  such  in  the  things  actually  present  to  his  vision.  .  .  . 
The  state  of  emotion  (apart  from  its  promotion  of  the  flow  of  ideas  if  it 
be  not  too  strong)  is  antagonistic  to  thinking,  which  implies  at  the  moment 
a  certain  sul)sidenee  of  the  feelings  and  a  consi(leral)le  suppression  of  out- 
ward action  or  movement,  but  to  paralyze  the  intellectual  activity  it  must 
be  very  strong.  .  .  .  Professor  James  explains  our  tendency  to  believe 
in  emotionally-<'xeiting  objects  (objects  of  fear,  desire,  etc.),  as  due  to  the 
bfMJily  sensations  which  emotions  involve,  for  the  more  a  conceived  object 
excites  us,  the  more  reality  it  has;  and  he  considers  the  greatest  proof  that 
a  man  is  sui  compos  to  be  his  ability  to  suspend  belief  in  presence  of  an 
emotionally-exciting  idea.  Now,  this  power  is  the  result  of  educatipn, 
and  does  not  exi.st  in  untutored  minds,  for  which  every  exciting  thought 
carries  credence.  .  .  . 


No.  204.  I.       GENERIC    TRAITS.       F.    EMOTION,    BIAS  383 

If  imagination  is  the  most  important  quality  [for  correct  thinking],  preju- 
dice is  perhaps  the  worst  impechment.  Psychologically  speaking,  it  is  a 
case  of  mental  preadaptation  which  may  be  voluntary  or  involuntary,  and 
is  a  source  of  active  illusions.  .  .  .  For  good  oliservation  what  is  chiefly 
needed  is  self-restraint,  in  order  to  limit  the  attention  to  what  is  actually 
presented  and  exclude  all  irrelevant  imaginative  activity.  The  common 
faults  of  the  bad  observer  are  the  impulse  to  go  beyond  the  facts  observed 
and  stray  into  inference  and  to  look  out  beforehand  for  a  particular  thing 
and  so  create  a  prepossession.  The  undisciplined  mind  is  apt  to  see  what  it 
expects,  wishes,  or,  may  be,  fears  to  see,  and  to  overlook  that  which  it  is 
disinclined  to  believe.  It  often  happens  in  consequence  that  a  witness 
states  things  which  appear  to  the  more  educated  mind  of  the  magistrate  to 
be  manifestly  false  or  absurd  and  who  is  therefore  inclined  to  reject  the 
whole.  But  such  an  attitude  is  more  frequently  than  not  a  wrong  one. 
An  effort  should  be  made  to  arrive  at  what  the  witness  actually  saw, 
apart  from  the  explanations  he  gives  of  them,  for  it  is  usually  the  tacit 
explanations  which  are  wrong. 

204.  Hans  Gross.  Criminal  Psychology,  (transl.  Kallen,  1907,  §  83,  p. 
375) ;  and  Criminal  Investigation,  (transl.  Adam,  1907,  p.  78.)  Intellectual 
Attitude  as  affecting  Testimony.  It  would  be  foolish  to  assert  that  we  have 
the  right  to  demand  only  facts  from  witnesses.  Setting  aside  the  presence 
of  inferences  in  most  sense  perceptions,  every  exposition  contains,  without 
exception,  the  judgment  of  its  subject  matter,  though  only,  perhaps,  in  a 
few  dry  words.  It  may  lie  in  some  choice  expression,  in  the  tone,  in  the 
gesture,  but  it  is  there,  open  to  careful  observation.  Consider  any  simple 
event,  e.g.  two  drunkards  quarreling  in  the  street.  And  suppose  we  in- 
struct any  one  of  many  witnesses  to  tell  us  only  the  facts.  He  will  do  so, 
but  with  the  introductory  words,  "It  was  a  very  ordinary  event,"  "alto- 
gether a  joke,"  "completely  harmless,"  "quite  disgusting,"  "very  funny," 
"a  disgusting  piece  of  the  history  of  morals,"  "too  sad,"  "unworthy  of 
humanity,"  "frightfully  dangerous,"  "very  interesting,"  "a  real  study  for 
hell,"  "just  a  picture  of  the  future,"  etc.  Now,  is  it  possible  to  think  that 
people  who  have  so  variously  characterized  the  same  event  will  give  an  iden- 
tical description  of  the  mere  fact  ?  They  have  seen  the  event  in  accordance 
with  their  attitude  toward  life.  One  has  seen  nothing  ;  another  this  ;  an- 
other that ;  and,  although  the  thing  might  have  lasted  only  a  very  short 
time,  it  made  such  an  impression  that  each  has  in  mind  a  completely  dif- 
ferent picture  which  he  now  reproduces.  .  .  .  Voltaire  says,  "If  you  ask 
the  devil  what  beauty  is,  he  will  tell  yOu  that  beauty  is  a  pair  of  horns, 
four  hoofs,  and  a  tail."  Yet,  when  we  ask  a  witness  what  is  beautiful,  we 
think  that  we  are  asking  for  a  brute  fact,  and  expect  as  reliable  an  answer 
as  from  a  mathematician.  We  might  as  well  ask  for  cleanliness  from  a 
person  who  thinks  he  has  set  his  house  in  order  by  having  swept  the  dirt 
from  one  corner  to  another. 

To  compare  the  varieties  of  intellectual  attitude  among  men  generally, 
we  must  start  with  sense  perception,  which,  combined  with  mental  per- 
ception, makes  a  not  insignificant  difference  in  each  individual.  Astrono- 
mers first  discovered  the  existence  of  this  difference,  in  that  they  showed 
that  various  observers  of  contemporaneous  events  do  not  observe  at  the 


3S1  PART    II.      TESTIMONIAL    EVIDENCE  No  204. 

saiiK-  time.  This  fact  is  calleil  "  tlie  personal  equation."  Whether  the 
.litferenee  in  rate  of  sense  perception,  or  the  difference  of  intellectual  ap- 
{)rflu-nsion.  or  of  l)oth  together,  are  here  responsible,  is  not  known,  but  the 
proveti  distinction  (even  to  a  second)  is  so  much  the  more  important, 
since  events  which  succeed  each  other  very  rapidly  may  cause  individual 
observers  to  have  quite  ditlerent  images.  And  we  know  as  little  whether 
the  slower  or  the  (juicker  observer  sees  more  correctly,  as  we  little 
know  what  people  perceive  more  (piickly  or  more  slowly.  Now,  inas- 
much as  we  are  unable  to  test  intlividual  differences  with  special  instru- 
ments, we  must  satisfy  ourselves  with  the  fact  that  there  are  different 
varieties  of  conception,  and  that  these  may  be  of  especial  importance  in 
doul)tful  cases,  such  as  brawls,  sudden  attacks,  cheating  at  cards,  pocket- 
picking,  etc. 

The  ne.\t  degree  of  difference  is  in  the  difference  of  observation.  Schiel 
says  that  the  observer  is  not  he  who  sees  the  thing,  but  who  sees  of  what 
parts  it  is  made.  The  talent  for  such  vision  is  rare.  One  man  over- 
looks half  because  he  is  inattentive  or  is  looking  at  the  wrong  place; 
another  substitutes  his  own  inferences  for  objects,  while  another  tends 
to  observe  the  quality  of  objects,  and  neglects  their  quantity;  and  still 
another  divides  what  is  to  be  united,  and  unites  what  is  to  be  separated. 
If  we  keep  in  mind  what  profound  differences  may  result  in  this  way, 
we  must  recognize  the  source  of  the  conflicting  assertions  by  wit- 
nesses. And  we  shall  have  to  grant  that  these  differences  would  become 
incomparably  greater  and  more  important  if  the  witnesses  were  not  re- 
quired to  talk  of  the  event  immediately,  or  later  on,  thus  approximat- 
ing their  different  conceptions  to  some  average.  Hence  w^e  often  dis- 
cf)ver  that  when  the  witnesses  really  have  had  no  chance  to  discuss  the 
matter  and  have  heard  no  account  of  it  from  a  third  person,  or  have 
not  seen  the  consequences  of  the  deed,  their  discussions  of  it  showed 
distinct  and  essential  differences  merely  through  the  lack  of  an  opportu- 
nity or  a  standard  of  correction.  And  we  then  suppose  that  a  part  of 
what  the  witnesses  have  said  is  untrue,  or  assume  that  they  were  inatten- 
tive or  blin<l. 

Personal  views  are  of  similar  importance.  Fiesto  exclaims  :  "  It  is  scanda- 
lous to  emj)ty  a  full  purse,  it  is  impertinent  to  misappropriate  a  million,  but 
it  is  unnamably  great  to  steal  a  crown.  The  shame  decreases  with  the  in- 
crease of  the  sin."  Exner  holds  that  the  ancients  conceived  Oedipus  not 
as  we  do;    they  found  his  misfortune  horrible;    we  find  it  unpleasant. 

These  are  poetical  criminal  cases  presented  to  us  from  different  points  of 
view ;  and  we  nowadays  understand  the  same  action  still  more  differently, 
and  not  only  in  poetry,  but  in  the  daily  life.  Try,  for  example,  to  get 
various  in«li\  iduals  to  judge  the  same  formation  of  clouds.  You  may  hear 
the  clouds  calh-d  flower  stalks  with  spiritual  Ijlossoms,  impoverished  stu- 
dents, stormy  seji,  camel,  monkey,  battling  giants,  swarm  of  flies,  prophet 
with  a  flowing  beard,  dunderhead,  etc.  We  fiave  coming  to  light,  in  this 
accidental  inferpn-tation  of  fact,  the  speaker's  view  of  life,  his  intimacies, 
etc-.  This  emergence  is  as  observable  in  the  interpretation  also  of  the  ordi- 
nary events  (»f  the  daily  life.  There,  even  if  the  judgments  do  not  vary 
very  much,  they  are  still  dilVereiit  enough  to  indicate  quite  distinct  points 
of  view.     The  meinr.ry  «if  the  curious  judgment  of  one  cloud  formation  has 


No.  204.  I.       GENERIC    TRAITS.       F.    EMOTION,    BIAS  385 

helped  me  many  a  time  to  explain  testimonies  that  seemed  to  have  no 
possible  connection. 

Attitude  or  feeling.  —  This  indefinable  factor  exercises  a  great  influence  on 
conception  and  interpretation.  It  is  much  more  wonderful  than  even  the 
march  of  events,  or  of  fate  itself.  Everybody  knows  what  attitude  (Stim- 
mung)  is.  Everybody  has  suffered  from  it,  everj'body  has  made  some  use 
of  it,  but  nobody  can  altogether  define  it.  According  to  Fischer,  attitude 
consists  in  the  compounded  feelings  of  all  the  inner  conditions  and  changes 
of  the  organism,  expressed  in  consciousness.  This  would  make  attitude  a 
sort  of  vital  feeling,  the  resultant  of  the  now  favorable,  now  unfavorable^ 
functioning  of  our  organs.  .  .  . 

The  attitude  we  call  indifference  is  of  particular  import.  It  appears^ 
especially,  when  the  ego,  because  of  powerful  impressions,  is  concerned 
with  itself ;  pain,  sadness,  important  work,  reflection,  disease,  etc.  In 
this  condition  we  depreciate  or  undervalue  the  significance  of  everything 
that  occurs  about  us.  Everything  is  brought  into  relation  to  our  personal, 
immediate  condition,  and  is,  from  the  point  of  view  of  our  egoism,  more 
or  less  indifferent.  It  does  not  matter  whether  this  attitude  of  indiffer- 
ence occurs  at  the  time  of  perception  or  at  the  time  of  restatement  dur- 
ing the  examination.  In  either  case,  the  fact  is  robbed  of  its  hardness, 
its  significance,  and  its  importance ;  what  was  white  or  black,  is  described 
as  gra;^^ 

Strong  Feeling  as  a  Cause  of  Inaccuracy  of  Observation.  If  men  perceive 
the  most  insignificant  facts  in  the  most  diverse  manner,  even  when  it  is 
impossible  that  these  facts  should  produce  on  the  observer  any  emotion 
preventing  him  from  observing  with  absolute  calm,  how  much  more  will 
their  impressions  be  diversified  under  circumstances  calculated  to  produce 
in  the  onlookers  excitement,  fear,  or  terror.  The  fact  is  that  in  such  a 
state  they  are  absolutely  incapable  of  observing  accurately.  .  .  . 

Recently  the  author  had  the  opportunity  of  verifying  this  by  an  analo- 
gous circumstance.  He  was  present  at  an  execution  at  which  for  some 
reason  or  other  the  executioner  wore  gloves.  After  the  execution  he  asked 
four  officials  who  were  present  v^^hat  was  the  color  of  the  executioner's 
gloves.  Three  replied,  respectively,  black,  gray,  white ;  while  the  fourth 
stoutly  maintained  that  the  executioner  wore  no  gloves  at  all.  Yet  all  four 
were  in  close  proximity  to  the  scaffold ;  each  replied  without  hesitation, 
and  all  four  are  still  perfectly  confident  that  they  made  no  mistake.  — 
Again,  a  man  of  reserved  and  calm  temperament,  an  old  soldier,  reported 
the  day  after  a  railway  accident  which  he  had  witnessed,  that  there  were 
at  least  one  hundred  dead,  that  he  had  himself  on  extricating  himself  from 
the  smashed  carriage  seen  many  human  heads,  cut  off  by  the  wheels  of  the 
vehicles,  rolling  along  the  track.  As  a  matter  of  fact,  one  man  was  killed 
and  five  persons  wounded ;  all  the  rest  was  due  to  the  imagination  of  a 
man  ordinarily  most  composed,  but  at  the  moment  suffering  under  strong 
excitement  due  to  fear.  —  Another  railway  accident  furnishes  an  example 
of  what  a  man  in  a  state  of  terror  can  see  and  hear.  A  brewer,  a  veritable 
Hercules,  in  the  prime  of  life  and  in  no  way  nervous,  having  jumped  from 
the  smashed  carriage,  took  to  running  across  the  fields  to  the  neighboring 
town,  three  quarters  of  an  hour's  distance,  in  the  full  belief  that  he  saw 
and  heard  the  locomotive  of  the  train  puffing  and  blowing  after  him.     This 


3S6  PART    II.       TKSTI.MONIAL    EVIDENCE  No/205. 

man.  the  prey  to  his  imagination,  had  run  so  hard  that  he  caught  an  in- 
flamination  of  the  chest,  from  which  he  died  some  months  afterwards.  The 
fact  that  he  thus  ran  with  such  excess  of  vigor  proves  conclusively  that  in 
his  imagination  lie  had  really  seen  and  heard  the  pursuing  locomotive.  .  .  . 
It  is  interesting  to  note  that  in  the  murder  of  President  Carnot  by  the 
Italian  I'aserio  not  a  single  person  saw  the  l)low  struck,  though  the  mur- 
derer hail  jumped  upon  the  footre.st  of  the  carriage,  pushed  aside  Carnot's 
arm,  and  thrust  the  dagger  into  his  abdomen.  In  the  carriage  three  gentle- 
men were  seated,  two  grooms  were  standing  behind,  mounted  officers  were 
accompanying  on  either  side,  and  yet  no  one  saw  the  President  stabbed  ; 
and  tlie  munlerer  would  have  easily  escaped  if  he  had  refrained  from  call- 
ing out  in  a  loud  voice  while  running  away:     "Vive  I'anarchie."  .  .  . 

If  the  statement  of  the  witness  appears  improbable,  and  if  at  the  time 
of  the  occurrence  he  was  in  a  state  of  excitement,  his  story  must  be  crit'.cised 
with  the  most  minute  and  scrujiulous  care.  If  the  improbability  of  the 
statement  is  glaring,  there  is  no  ditHculty,  because  we  are  at  once  put 
upon  our  guard.  The  danger  arises  when  the  observation  of  the  witness 
has  been  at  fault,  when  he  tells  in  perfect  good  faith  a  most  likely  story, 
an«l  thus  creates  great  confusion.  A  long  investigation  ensues  and  only 
at  the  end  of  it,  if  at  all,  is  the  mistake  discovered. 

205.  Fr.\N("Is  L.  Wki.lman.  Thr  Art  of  Cross-examination.  (1908.  p. 
149.)  .  .  .  Perhaps  the  most  subtle  and  prolific  of  all  of  the  "fallacies  of 
testimony"  ari.ses  out  of  uncon.scious  partisanship.  It  is  rare  that  one 
comes  across  a  witness  in  court  who  is  so  candid  and  fair  that  he  will  testify 
as  fully  and  favorably  for  the  one  side  as  the  other.  .  .  .  What  is  it  in 
the  human  make-up  which  invariably  leads  men  to  take  sides  when  they 
come  into  court  ? 

In  the  first  place,  witnesses  usually  feel  more  or  less  complimented  by 
the  confidence  that  is  placed  in  them  by  the  party  calling  them  to  prove  a 
certain  state  of  facts,  and  it  is  human  nature  to  try  to  prove  worthy  of 
this  confidence.  This  feeling  is  unconscious  on  the  part  of  the  witness, 
and  usually  is  not  a  strong  enough  motive  to  lead  to  actual  perjury  in  its 
full  extent ;  but  it  serves  as  a  suflicient  reason  why  the  witness  will  almost 
unc«)nsciously  dilute  or  color  the  evidence  to  suit  a  particular  purpose,  and 
perhaps  ad<l  only  a  bit  here,  or  suppress  one  there,  but  this  bit  will  make 
all  the  difference  in  the  meaning.  Many  men  in  the  witness  box  feel  and 
enjoy  a  .sense  of  power  to  direct  the  verdict  towards  the  one  side  or  the 
other,  and  camiot  resist  the  temptation  to  indulge  it  and  to  be  thought  a 
"fine  witness"  for  their  side.  I  say  "their"  side;  the  side  for  which  they 
testify  always  becomes  their  side  the  moment  they  take  the  witness  chair, 
and  they  instinctively  <lesire  to  see  that  side  win,  although  they  may  be 
entirely  devoid  of  any  other  iiiterest  in  the  case  whatsoever.  It  is  a  char- 
acteri.stic  of  the  human  ra<c  to  be  intensely  interested  in  the  success  of  .some 
one  party  to  a  contest,  whether  it  be  a  war,  a  boat  race,  a  ball  game,  or  a 
lawsuit.  This  desire  to  ivin  .seldom  fails  to  color  the  testimony  of  a  witness 
and  to  create  fallacies  ami  inferences  dictated  by  the  witness's  feelings, 
rather  than  by  his  iuirUert  or  the  dispassionate  powers  of  ol)servation. 
Many  witrn-ssi's  take  the  stand  with  no  well-defined  motive  of  what  thty 
arc  gf)ing  to  testify  to,  but   upon  (Hscovering  that  they  are  being  led  into 


No.  207.  I.       GENERIC   TRAITS.      F.    EMOTION,    BIAS  387 

statements  unfavorable  to  the  side  on  which  they  are  called,  experience  a 
sudden  dread  of  being  considered  disloyal,  or  "going  back  on"  the  party 
who  selected  them,  and  immediately  become  unconscious  partisans  and  allow 
this  feeling  to  color  or  warp  their  testimony. 

There  is  still  another  class  of  persons  who  would  not  become  witnesses 
for  either  side  unless  they  felt  that  some  wrong  or  injustice  had  been  dore 
to  one  of  the  parties,  and  thus  to  become  a  witness  for  the  injured  party 
seems  to  them  to  be  a  vindication  of  the  right.  Such  witnesses  allow  their 
feelings  to  become  enlisted  in  what  they  believe  to  be  a  cause  of  righteous- 
ness, and  this  in  turn  enlists  their  sympathy  and  feelings  and  prompts  them 
to  color  their  testimony,  as  in  the  case  of  those  influenced  by  the  other 
motives  already  spoken  of.  One  sees,  perhaps,  the  most  marked  instances 
of  partisanship  in  admiralty  cases  which  arise  out  of  a  collision  betweea 
two  ships.  Almost  invariably  all  the  crew  on  one  ship  will  testify  in  unison 
against  the  opposing  crew,  and,  what  is  more  significant,  such  passengers 
as  happen  to  be  on  either  ship  will  almost  invariably  be  found  corroborat- 
ing the  stories  of  their  respective  crews.  It  is  the  same,  in  a  lesser  degree, 
in  an  ordinary  personal  injury  case  against  a  surface  railway.  Upon  the 
happening  of  an  accident  the  casual  passengers  on  board  a  street  car  are 
very  apt  to  side  with  the  employees  in  charge  of  the  car,  whereas  the  in- 
jured plaintiff  and  whatever  friends  or  relatives  happen  to  be  with  him  at 
the  time,  will  invariably  be  found  upon  the  witness  stand  testifying  against 
the  railway  company. 

20G.  Richard  Whately.  Elements  of  Rhetoric ;  comprising  an  Analysis 
of  the  Laws  of  Moral  Evidence,  (ed.  1893.  p.  83.)  ...  A  man  strongly 
influenced  by  prejudice,  to  which  the  weakest  men  are  ever  the  most  liable, 
may-  even  fancy  he  sees  what  he  does  not.  And  some  degree  of  suspicion 
may  thence  attach  to  the  testimony  of  prejudiced,  though  honest,  men, 
when  their  prejudices  are  on  the  same  side  with  their  testimony.  Otherwise, 
their  testimony  may  even  be  the  stronger.  E.g.  the  early  disciples  of  Jesus 
were,  mostly,  ignorant,  credulous,  and  prejudiced  men ;  but  all  their  ex- 
pectations —  all  their  early  prejudices  —  ran  counter  to  almost  everything 
that  they  attested.  They  were,  in  that  particular  case,  harder  to  be  con- 
vinced than  more  intelligent  and  enlightened  men  would  have  been.  It  is 
most  important,  therefore,  to  remember  —  what  is  often  forgotten  — 
that  Credulity  and  Incredulity  are  the  same  habit  considered  in  reference 
to  different  things.  The  more  easy  of  belief  any  one  is  in  respect  of  what 
falls  in  with  his  wishes  or  preconceived  notions,  the  harder  of  belief  he  will 
be  of  anything  that  opposes  these. 

207.  ROBERT  HAWKINS'  CASE.  (G.  L.  Craik.  English  Causes 
Celebres.     1844.     p.  141.) 

[The  defendant,  a  clergyman,  was  robbery.     Lord    Hale    presided    at 

charged  with  robbing  one  Larimore  the    trial    at    Aylesbury    in    1668. 

of    money    and    jewelry.     The    de-  The  defendant,  to  prove  Larimore's 

fendant  maintained  that,  owing  to  bias,  called  the  village  cobbler.] 

a  dispute  over  church  tithes,  Lari-  John  Chilton.  —  My  Lord,  I  can 

more  and  others,  including  certain  say  nothing,  but  that  I  am  paid  for 

local  magnates  of  an  opposing  fac-  my  boots, 

tion,  had  concocted  this  charge  of  L.  C.  B. — What  boots?    Chil. — 


0>> 


PAHT    II.      TESTIMONIAL    EVlDt:.-.CF 


No.  207. 


My  LorcT.  I  am  paid  for  my 
hoots. 

L.  C.  B.  — Our  busines.s  is  not  now 
about  l)oot.s;  but,  however,  come 
anil  tell  me  what  thou  meanest  by 
them.  Chil.  —  'Sl.y  Lt)rd,  Mr.  Haw- 
kins brou^jht  me  a  pair  of  tops,  to 
put  new  lej:s  to  them,  which  I  did, 
and  he.  coming'  by  my  shop,  told 
n!e  he  wanted  his  boots ;  I  replied, 
they  were  done;  but  I,  being  then 
about  to  go  out,  tlid  promise  Mr.  Haw- 
kins to  lay  them,  in  my  window,  so 
that  he  might  take  them  as  he  went 
home,  which,  accordingly,  he  did; 
ami  when  I  came  home  I  went  to 
Mr.  Hawkins,  who  at  that  time  was 
at  Sir  John  Croke's  house,  where  he 
contented  me  for  my  work  before 
we  parted  ;  and  this  is  all  that  I  can 
say,  my  Lord. 

L.  C.  fi.— What  is  this  to  the 
j)urj)ose?  Can  you  say  any  more, 
(  hilton  ?     If  you  can,  go  on.     Chil. 

—  My  lyord,  Mr.  Hawkins  paid  me 
honestly  for  the  boots ;  but  as  soon 
as  he  began  to  demand  the  tithes 
of  (the  parish  of)  Chilton,  and  did 
sue  for  them,  then  they  lay  at  me 
night  and  day  to  have  me  charge 
Mr.  Hawkins  with  flat  felony  for 
stealing  the  said  l)oots  out  of  my 
shoj) ;  but  1  told  them  that  I  laid 
tlu'in  in  my  .shop  window  for  him, 
and  did  iiid  him  take  them  as  he 
came  back  ;  and  he  paid  me  for  my 
work,  and,  therefore,  I  cannot  say 
that   he  stole  them. 

L.  C.  li.  Who  were  they  that 
desired  you  to  cliargc  Mr.  Hawkins 
with  stealing  of  your  boots?     Chil. 

—  This  Larimore,  Mr.  Dodsworth 
Croki-.  Kichard  Mayne  the  Con- 
stable. Miles,  and  John  Sanders 
(who  is  since  dead,  my  Lord).   .   .   . 

L.  C.  li.  —  Did  this  Larimore  de- 
sire you  to  charge  this  Mr.  Hawkins 
with  felony  ?  And  when  did  h(> 
desire  you  to  tlo  so?  Chil.  —  My 
I/)rd,  Larimore  and  the  rest  that  1 
have  named  desired  me  to  charge 
Mr.  Hawkins  with  flat  felony,  for 
stealing  the  saitl  boots,  as  soon  as  he 
demandel  the  tithes  of  Chilton; 
and  the\    would  have  forced  me  ((j 


fetch  a  warrant  from  a,  justice  of 
peace  to  search  for  them,  and  did 
further  threaten  me,  in  case  I  would 
not  do  it,  that  Sir  John  Croke  would 
indict  me  to  the  assizes,  as  one  ac- 
cessory to  the  stealing  of  my  own 
goods. 

L.  C.  B. — Was  Larimore  one  of 
them  ?  Chil.  —  Yes,  my  Lord,  and 
he  said  that  he  would  make  me  swear 
that  Mr.  Hawkins  had  stolen  my 
boots,  and  for  that  end  did  serve  me 
with  a  subpcpna  to  be  here. 

Here  Ijirimorr  the  second  time 
interruptetl  Chilton,  and  said.  My 
Lord,  this  fellow  (pointing  at  John 
Chilton)  is  hired  by  Mr.  Hawkins 
to  swear  this.  Chilton  replied,  No, 
my  Lord,  I  am  not  hired  by  Mr. 
Hawkins  to  swear,  but  I  might  have 
been  hired  or  borne  out,  if  I  would 
but  swear  that  Mr.  Hawkins  stole 
my  boots,  by  one  Croxstone. 

L.  C.  B.—  How  !  what  is  that ! 
hired  or  borne  out  to  swear  ?  By 
whom,  and  how  ?  Tell  me  the  story. 
Chilton.  —  My  Lord,  Thos.  Crox- 
stone, of  W^eston-on-the-Green,  in 
the  county  of  Oxon,  told  me  upon 
Monday  hvst,  it  being  the  Stli  <^f 
March,  KitJS,  that  if  I  would  but 
swear  what  he  would  have  me 
against  Mr.  Hawkins  (viz.  that  he 
stole  my  boots)  he  would  bear  me 
harmless ;  but  I  replied  that  it  went 
against  my  conscience  to  do  it  .  .  .  : 
to  which  Croxstone  replied,  that  if  I 
would  swear  it  he  would  bear  me 
out  against  the  said  Mr.  Hawkins 
as  far  as  an  hundred  pound  would 
go,  and  if  that  would  not  do,  as  far 
as  five  hundred  pound  would  go. 

L.  C.  B.  —  I  do  not  believ^e  it  to 
be  true.  Chilton.  —  As  I  live  and 
breathe,  my  Lord,  Croxstone  did 
say,  if  I  would  swear  that  Mr. 
Hawkins  stole  my  boots,  he  would 
b(>ar  me  out,  as  I  said  before,  and 
if  1  made  any  doubt  of  it,  he  would 
give  me  bond  to  make  good  his 
promise. 

L.  C.  B.  — This  is  strange.  Cro.r- 
Htonc.  —  My  Lord,  I  said  I  would 
bear  him  out  in  speaking  the  truth, 
arul  no  otherwise. 


No.  207. 


I.       GENERIC   TRAITS.      F.    EMOTION,    BIAS 


389 


Hawk.  —  My  Lord,  may  I  be 
heard  ?  L.  C.  B.  —  Yes,  you  may 
go  on. 

Hawk.  —  I  thank  your  honor. 
]My  Lord,  pray  let  me  ask  Mr. 
Croxstone  two  or  three  questions. 
L.  C.  B.  —So  you  may ;   go  on. 

Hawk.  —  Mr.  Croxstone,  do  you 
confess  that  you  did  promise  to  bear 
out  Chilton  (as  you  said  before)  in 
swearing  the  truth  ?  Croxstone.  — 
Yes,  Sir,  I  did,  and  no  otherwise. 

Hawk.  —  Was  it  not  about  the 
boots  ?  Cro.vstone.  —  Yes,  Sir,  it 
was  so. 

Hawk.  —  Did  not  you  desire  Chil- 
ton to  swear  that  I  had  stolen  his 
boots,  after  that  he  had  told  you  I 
had  paid  him  for  them,  and  there- 
upon promise  to  bear  him  out 
against  me,  in  £100  or  £500. 
Cro.vstone.  —  I  think  you  cannot 
prove  it   against   me. 

Hawk.  —  I  pray,  my  Lord,  ...  I 
have  two  witnesses  more  to  prove 
the  same  against  Mr.  Croxstone, 
and  I  pray  that  they  may  be 
heard. 

L.  C.  B.  —  What,  more  boots 
still!  .  .  . 

L.  C.  B.  Hale  then  addressing  the 
prisoner  said  :  Sir,  you  have  heard 
the  indictment  against  you,  and  the 
evidence  to  prove  it ;  you  have 
heard  the  charge  —  now  say  what 
you  can  for  your  own  defense,  and 
you  shall  be  heard.  .  .  . 

Hawkins. — Larimore  is  generally 
known  to  be  a  notorious  Anabap- 
tist, and  an  enemy  to  the  church  of 
England,  and  a  hater  of  the  ministry 
in  general ;  but  more  particularly, 
he  is  more  envious  and  malicious 
against  myself,  because  I  sued  him 
for  tithes,  and  caused  him  to  be 
indicted  for  not  coming  to  church, 
or  baptizing  his  children ;  for  which 
reason  his  malice  against  me  hath 
appeared  notorious  several  ways ; 
as  amongst  others  — 

L  By  dissuading  all  that  owed 
me  any  money,  not  to  pay  me. 

2.  By  his  inducing  those  to  whom 
I  owed  money  to  arrest  and  trouble 
me. 


3.  By  dissuading  those  that  I 
sued  for  tithes  not  to  agree  with  me ; 
he  promising  that  Sir  John  Croke 
and  himself  would  force  me  to  run 
the  country  ere  long. 

4.  By  his  continuing  tormenting 
and  vexing  me  with  his  false  arrests, 
and  illegal  indictments. 

5.  By  his  constant  endeavor  to 
dissuade  my  friends  from  anyways 
relieving  me  or  mine  in  my  greatest 
wants  and  necessities  —  advising 
them  to  starve  us. 

[After  several  witnesses  called  by 
Hawkins  to  prove  the  conspiracy 
to  drive  him  from  the  parish  and 
ruin  him,  the  following  scene  en- 
sued.] .  .  .  Hawk.  —  I  have  one 
witness  more  that  I  desire  may  be 
called,   viz.  Mr.   Samuel  Brown. 

L.  C.  B.  Hale.  —  Yes,  yes,  call 
him  ;  come,  Mr.  Brown,  what  can 
you  say  ?  Mr.  Brown.  —  My  Lord, 
I  can  say  something,  but  I  dare  not 
speak. 

L.  C.  B. — Why  dare  you  not? 
Come,  speak  the  truth  and  spare 
not,  and  say  no  more.  Mr.  Brown. 
—  I  dare  not  speak,  for  Sir  John 
Croke  and  this  Larimore  have 
threatened  me,  that  if  I  came  down 
to  this  assize  to  testify  what  I 
heard  about  this  plot.  Sir  John  Croke 
said  he  would  fling  me  in  the  jail, 
and  load  with  me  action  upon  action 
of  £1000,  and  ruin  me  and  my 
family. 

When  the  judge  and  the  justices 
heard  Mr.  Brown  relate  this,  every 
eye  began  to  be  fixed  upon  Sir  John 
Croke.  .  .  . 

Lord  Chief  Baron.  —  Come,  Mr. 
Brown,  let  us  now  hear  what  you 
say    to    this    business. 

Mr.  Brown.  —  If  it  please  your 
Honor,  my  Lord,  upon  Wednesday, 
the  16th  of  September  last  past, 
early  in  the  morning,  as  I  lay  in  my 
bed  at  Sir  John  Croke's  house  in 
Chilton  ...  I  heard  this  Lari- 
more tell  Sir  John  Croke  that  he  had 
undone  him,  by  causing  him  to 
contend  with  the  parson.  .  .  .  Sir 
John  replied.  If  thou  wilt  but  act, 
I     will     hatch     enough     to     hang 


390 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  208. 


Hawkins.  Larimore replied.  lUit  how 
shall  we  brin^'  this  to  pass '!  Sir 
John  Croke  made  answer,  Canst 
not  thou  convey  some  gold  or  silver 
into  Mr.  Hawkins's  house,  and  have 
u  warrant  ready  to  search  his  house. 
an«l  then  our  work  is  done?  Lari- 
more replied,  Sir.  if  we  could  hut 
Itring  this  to  pass,  it  might  do  well, 
hut  I  know  not  how.  Sir  John 
Croke  said  to  Larimore  .  .  .  Take 
Dick  Mayne.  the  constable,  who  is 
one  of  us,  and  will  do  whatever  we 
desire  him,  and  go  and  search  Mr. 
Hawkins's  house,  and  there  you  will 
fintl  these  things;  and  then  charge 
him  with  flat  felony,  and  force  him 
before  me,  and  no  other  justice, 
and  V\\  send  him  to  jail  without 
bail ;  anil  we  will  hang  him  at  the 
ne.xt   a.ssizes.  .  .  . 

L.  C.  B. — Gentlemen,  where  is 
this  Sir  John  Croke?  They  re- 
plied. He  is  gone. 

L.  C.  B.  —  Is  Sir  John  Croke  gone  ? 
Gentlemen,  I  must  not  forget  to 
acquaint  you  (for  I  thought  that 
Sir  John  Croke  had  been  here  still) 
that  this  Sir  John  Croke  sent  me 
this  morning  two  sugar  loaves  for  a 
pre.sent,   praying  me  to  excuse  his 


absence  yesterday.  I  did  not  then 
know,  so  well  as  now,  what  he  meant 
by  them  ;  but  to  save  his  credit,  I 
sent  his  sugar  loaves  back  again. 
Mr.  Harvey,  did  you  not  send  Sir 
John  his  sugar  loaves  back  again  ? 

Clerk  of  the  Assize.  —  Yes,  my 
Lord,  they  were  sent  back  again. 

L.  C.  B.  —  I  cannot  think  that  Sir 
John  Croke  belie\es  that  the  king's 
justices  come  into  the  country  to 
take  bribes.  I  rather  think  that 
some  other  person  (having  a  design 
to  put  a  trick  upon  him)  sent  them 
in  his  name.  And  so  taking  the 
letter  out  of  his  bosom,  showing  it 
to  the  justices,  he  said,  Gentlemen, 
do  you  know  this  hand  ?  To  which 
some  of  them  replied,  they  believed 
it  might  be  Sir  John  Croke's  own 
hand  ;  which  letter  being  compared 
with  his  mittimus  (for  he  had  no 
clerk)  and  some  other  of  his  writings 
there,  it  plainly  appeared  to  be  his 
own  hand.  So  my  Lord  Chief 
Baron  seeing  that  (putting  up  the 
letter  into  his  bosom)  said,  he  in- 
tended to  carry  that  to  London ; 
and  he  added  further,  that  he  would 
relate  the  foulness  of  the  business 
as  he  found  occasions  for  it. 


20S.    MARY   BLANDY'S  TRIAL 
XVI H,  11  .'hi.  11(>4.) 

|Mary  Blandy  was  tried  for  mur- 
dering her  father  by  poison.  Her 
defen.se  was  that  she  luul  given  him 
a  love  philtre,  at  her  lover's  instance, 
to  remove  her  father's  objections 
to  her  marriage  with  the  lover.  A 
hou.se  servant,  Elizabeth  Binfield. 
was  a  strong  witness  to  prove  that 
the  accused  had  knowingly  given 
poison  to  her  father.  Then  Bitifield 
was  sought  lo  be  (hscreditcil  by  her 
bias  against  tin-  accused].  .   .   . 

Elizahrtli  Binfirld  sworn.  Bln- 
firld.  —  I  wjLs  a  .servant  to  Mr. 
Francis  Blandy  at  Henley,  and 
had   been   almost    three   years. 

diiuusrl.  —  Did  yon  ever  hear 
Miss  Blandy  talk  of  something  in 
the  hf)use,  which  she  said  jircsagcd 
his    death,    or    somithing    like    it? 


(1752.     Howell's  State  Trials. 

A.  I  have  often  heard  her  talk  of 
walkings  and  music  in  the  house  that 
she  had  heard  ;  she  said,  she  thought 
it  to  be  her  mother;  saying,  the 
music   foretold   her   father's   death. 

Q.  Do  you  remember  any  expres- 
sion she  made  use  of  about  her 
father?  .1 .  I  heard  her  say,  "Who 
would  grudge  to  send  an  old  father 
to  hell  for  £  10,000."  Exactly 
tliciii  words. 

Q.  When  was  this  ?  .4.  It  was 
about  a  month  before  his  death,  or  it 
may  be  more,  I  cannot  justly  tell. 

Q.  How  was  this  conversation 
introduced?  A.  She  was  speaking 
of  young  girls  being  kept  out  of  their 
fortunes. 

Q.  Who  was  with  you  at  this  time  ? 
A.    It  was  to  me  and  nobody  else> 


No.  20S. 


I.       GENERIC    TRAITS.       F.    EMOTION,    BIAS 


391 


Q.  Have  you  heard  her  use  him 
with  bad  language?  A.  I  have 
heard  her  curse  him,  call  him  rascal 
and  villain.  .  .  . 

Ann  James  sworn,  for  the  prisoiTer. 
James.  —  I  Ha'c  at  Henley,  and  had 
use  to  wash  for  Mr.  Blandy ;  I 
remember  the  time  Mr.  Blandy  grew 
ill ;  before  he  was  ill,  there  was  a 
difference  between  Elizabeth  Bin- 
field  and  Miss  Blandy,  and  Binfield 
was  to  go  away. 

Counsel.  —  How  long  before  Mr. 
Blandy 's  death  ?  A.  It  might  have 
been  pretty  near  a  quarter  of  a  year 
before  ;  I  have  heard  her  curse  Miss 
Blandy,  and  damn  her  for  a  bitch ; 
and  said  she  would  not  stay.  Since 
this  affair  happened,  I  heard  her 
say,  "Damn  her  for  a  black  bitch, 
I  shall  be  glad  to  see  her  go  up  the 
ladder,  and  swing." 

Q.  How  long  after?  A.  It  was 
after  Miss  was    sent    away  to  jail. 

(Cross-examined.)  King's  Coun- 
sel. —  What  was  this  quarrel 
about?  A.  I  do  not  know.  I 
heard  her  say  she  had  a  quarrel, 
and  was  to  go  away,  several  times. 

Q.  Who  was  by  at  this  time  ? 
A.  Mary  Banks  was  by,  and  nurse 
Edwards,  and  Mary  Seymour;  and 
I  am  not  sure  whether  Robert 
Harman  was  there,  or  not.  .  .  . 

Elizabeth  Binfield  was  called  up 
again.  King's  Counsel  —  Did  you, 
Elizabeth  Binfield,  ever  make 
use  of  such  an  expression  as  this 
witness  has  mentioned  ?  A.  I 
never  said   such  words. 

Q.  Did  you  ever  tell  this  witness 
Miss  and  you  had  quarreled?  A. 
To  the  best  of  my  knowledge,  I 
never  told  her  about  a  quarrel. 

Q.  Have  you  ever  had  a  quarrel  ? 
A.  We  had  a  little  quarrel  some 
time  before. 

Q.  Did  you  ever  declare  you  were 
to  go  away?     A.    I  did. 

Mary  Banks  sworn.  Banks.  I 
remember  being  in  Mr.  Blandy's 
kitchen  in  company  with  Ann  James. 

Counsel.  —  Who  was  in  com- 
pany ?     ^.    I   do  not   remember. 

Q.    Do  you  remember  a  conver- 


sation between  Elizabeth  Binfield 
and  Ann  James?  A.  I  do  not 
remember   anything  of   it. 

Q.  Do  you  remember  her  aspers- 
ing Miss  Blandy's  character  ?  A. 
I  do  not  recollect. 

Q.  Did  you  hear  her  say,  "She 
should  he  glad  to  see  the  black  bitch 
go  up  the  ladder  to  be  hanged"? 
A.  She  did  say,  "  she  should  be  glad 
to  see  the  black  bitch  go  up  the 
ladder  to   be  hanged." 

Q.  When  was  this?  A.  It  was 
the  night  Mr.  Blandy  was  opened. 

Q.  Are  you  sure  it  was  that  day  ? 
A.    I  am  sure  it  was. 

Q.  Where  was  Miss  Blandy  then  ? 
A.    She  was  then  in  the  house.  .  .  , 

The  Honorable  Mr.  Bathurst's  Ar- 
gument in  Reply  for  the  Prosecution. 
Your  lordships  will,  I  hope,  indulge 
me  in  a  very  few  words  by  way  of 
reply.  ...  I  will  only  make  one 
other  observation,  which  is  that  of 
all  our  witnesses  she  has  attempted 
to  discredit  only  one.  She  called 
two  persons  to  contradict  Elizabeth 
Binfield  in  regard  to  a  scandalous 
expression  (which  she  was  charged 
with,  but  which  she  positively 
denied  ever  to  have  made  use  of)  in 
saying,  "She  should  be  glad  to  see 
the  prisoner  go  up  the  ladder,  and 
swing."  They  first  called  Ann 
James  ;  she  swore  to  the  expression, 
and  said.  It  was  after  Miss  Blandy 
was  sent  to  Oxford  jail.  The  next 
witness,  Mary  Banks,  who,  at  first, 
did  not  remember  the  conversation, 
and,  at  last,  did  not  remember  who 
were  present,  said  (upon  being  asked 
about  the  time)  that  she  was  sure 
the  conversation  happened  upon  the 
Thursday  night  on  which  Mr.  Blandy 
was  opened,  and  during  the  time 
that  Miss  Blandy  was  in  the  house. 
These  two  witnesses,  therefore, 
grossly  contradict  one  another  ;  con- 
sequently ought  not  to  take  away  the 
credit  of  Elizabeth  Binfield.  And  let 
me  observe,  that  Elizabeth  Binfield 
proved  nothing  (besides  some  few 
expressions  used  by  Miss  Blandy), 
but  what  was  confirmed  by  the  other 
maid  servant,  Susan  Gunnell. 


392  PAUT    11.      TESTIMONIAL   EVIDENCE  No.  203. 

209.  Charles  (\  Moore.  .1  Treatise  on  Facts,  or  the  Weight  and  Value 
ofKridence.  (190S.  Vol.  II.  §§  1037,  1041,  1113,  1115,  1121).  Proclivities 
uf  Biased  Witnesses.  Exaggfrtition  is  the  most  common  vice  of  biased  wit^ 
nesses.  They  "make  mountains  of  molehills,"  said  Lord  Stowell.  "Al- 
though they  may  l)e  honest  in  their  purpose,"  said  another  judge,  "  they  can- 
not, while  human  nature  remains  unchanged,  overcome  the  tendency  to 
distort,  magnify,  or  minimize  the  incidents  which  they  relate  as  their  in- 
terest persuades."  "A  feature  often  attendant  on  the  trial  of  collision 
cases"  is  '*  a  tendency  on  the  part  of  the  witnesses  for  both  sides  to  exaggerate 
in  respect  to  points  supposed  to  be  vital  and  controlling."  ...  If  a  biased 
witness  testifying  in  impeachment  of  testamentary  capacity  had  seen  the 
testator  a  few  times  guilty  of  indecencies  in  the  streets,  he  would  club  them 
together  in  his  mind  and  would  describe  the  conduct  as  a  constant  and  per- 
petual habit.  He  will  give  the  impression  that  single  acts  of  eccentricity 
occurring,  perhaps,  at  long  intervals  dur  ng  many  years,  represented  the 
testator's  general  conduct.  Contestants  of  a  will  on  the  ground  of  testa- 
mentary incapacity  due  to  intemperate  habits  would  be  likely  to  exaggerate 
them  greatly  ;  if  the  testator  w  as  occasionally  or  frequently  intoxicated, 
they  will  say  he  was  never  sober.  ...  "  Nothing  is  more  deceitful  than  half 
the  truth,"  and  biased  witnesses  are  much  addicted  to  half  truths  and  false 
coloring  of  facts.  Thus,  a  biased  witness  seeking  to  establish  testamentary- 
capacity  of  a  dying  testator  may  testify  that  the  latter  w^as  able  to  sit  up, 
and  sat  up  for  several  minutes  before  he  died,  while  it  was  a  fact,  knowm  to 
the  witness,  that  the  testator  could  not  lie  down,  but  for  two  or  three  days 
had  been  artificially  bolstered  up,  both  before  and  behind.  A  witness  testi- 
fied that  a  testator,  on  returning  home  at  night,  instead  of  ringing  the  bell, 
would  throw  stones  at  the  house ;  the  fact  being  that  on  one  occasion,  w^hen 
he  was  locked  out,  he  threw  a  stone  to  attract  attention  that  he  might  be 
let  in.  In  a  collision  case  the  mate  of  a  vessel  testified  that  he  "called  the 
captain"  ;  which,  for  a  moment,  w'as  taken  in  its  common  sense,  like  calling 
a  man  to  take  his  turn  on  deck,  but  by  an  accidental  further  question  it 
turned  out  to  mean,  called  him  but  could  not  make  him  hear;  the  fact 
being  he  could  not  wake  him.  Biased  witnesses  may  speak  what  is  not  true, 
by  an  indifference  to  exactness  in  what  they  do  say.  Thus,  a  party  may 
swear  on  his  motion  for  a  new  trial  that  he  did  not  know  he  could  prove 
certain  facts  by  a  witness  napied  until  a  specified  date ;  whereas  his  con- 
.science  in  thus  swearing  is  satisfied  by  the  mental  reservation  that  he  did 
not  know  until  that  date  that  the  witness  would  recollect  the  transaction. 

The  unconscionable  impositions  that  biased  witnesses  will  perpetrate, 
without  subjecting  themselves  to  punishment  for  perjury  —  impositions 
that  can  l)e  detected  only  by  extraordinary  sagacity  of  counsel  if  it  happens 
that  the  witness  alon<-  knows  the  truth  —  are  well  illustrated  in  the  case  of 
a  contested  will  in  Penn.sylvania.  It  was  contended  that  the  testatrix  had 
conceived  an  insane  hatred  of  her  child,  originating  in  cau.ses  which  preceded 
its  birth.  .\s  evidence  of  this  uncontr()llal)le  liatred,  a  witness  testified  that 
the  boy  was  shut  up  in  a  dark  room  with  a  shade  over  his  eyes,  which,  the 
witness  hinted,  was  intended  to  make  his  appearance  eccentric.  Yet  it 
was  a  fact,  known  to  the  witness  but  not  disclosed  by  him,  that  the  boy 
was  often  tormented  with  weak  eyes,  and  w^as  even  sent  to  the  country 
to  strengthen  them,  and  that  his  confinement  in  a  dark  room  was  an  effort 


No.  209.  I.       GENERIC    TRAITS.       F.    EMOTION,    BIAS  393 

to  relieve  his  sufferings,  which  was  distorted  l)y  the  witness  into  an  act  of 
barbarity.  Surely,  to  such  a  witness  the  maxim  "falsus  in  uno,  falsus  in 
omnibus,"  should  be  applied  as  unhestitatingly  as  to  a  witness  who  has 
corruptly  testified  to  something  entirely  destitute  of  truth.  Such  a  witness 
is  more  dangerous  than  one  who  commits  a  gross  perjury,  which  is  frequently 
more  easily  detected  and  exposed. 

And  the  parson  made  it  his  text  that  week,  and  he  said  likewise 
That  a  lie  which  is  half  a  truth  is  ever  the  blackest  of  lies ; 
That  a  lie  which  is  all  a  lie  may  be  met  and  fought  with  outright. 
But  a  lie  which  is  part  a  truth  is  a  harder  matter  to  fight. 

—  Tennyson,  "The  Grandmother,"  VIII. 

Sources  of  Bias.  N^car  relationships  between  a  witness  and  the  party  for 
whom  he  testifies  is  an  influence  which,  common  experience  teaches  us, 
tends  to  bias  consciously  or  unconsciously  the  testimony  of  witnesses.  "  The 
difference  between  a  direct  pecuniary  mterest  in  the  witness,  and  the  interest 
of  love  and  affection  growing  out  of  the  closest  family  ties  between  the  witness 
and  the  party  pecuniarily  interested,  while  theoretically  wide,  is  not,  in 
the  majority  of  cases,  of  real  importance."  Husbands  and  wives  testifying  in 
behalf  of  each  other,  especially  in  criminal  cases,  "  would  be  unnatural  and 
unworthy  if  they  did  not  feel  a  very  strong  bias  in  favor  of  their  consorts." 
But  relationship  alone  is  not  a  sufficient  ground  for  imputing  perjury.  .  .  . 
A  desire  to  wreak  out  feelings  of  personal  vengeance  and  anger  is  often  a 
stronger  incentive  than  any  pecuniary  interest  could  be,  and  the  trier  of 
facts  should  "watch  narrowly  and  receive  cautiously"  the  testimony  of 
a  witness  who  is  at  enmity  with  the  party  against  whom  he  testifies.  .  .  . 
The  trier  of  facts  should  carefully  scrutinize  the  story  of  a  witness  with  a 
grievance ;  for  example,  the  testimony  of  one  who  claims  that  the  party 
has  ill-used  him,  or  the  testimony  of  a  discharged  servant  or  employee. 

Queen  Katherine.   If  I  know  you  well. 

You  were  the  Duke's  surveyor,  and  lost  your  office 
On  the  complaint  o'  th'  tenants  :  take  good  heed 
You  charge  not  in  your  spleen  a  noble  person. 
And  spoil  your  nobler  soul. 

"  King  Henry  VIII,"  Act  I,  Sc.  2. 

A  New  York  judge  said  that  whoever  has  witnessed  in  our  courts  the 
operation  of  the  law  by  which  parties  and  those  directly  and  most  strongly 
interested  in  suits  are  permitted  to  testify  therein,  must  have  been  con- 
vinced that  it  has  opened  a  wide  door  for  the  perversion  of  the  truth,  and 
placed  before  litigants  a  temptation  to  falsehood  and  perjury  most  difficult 
to  resist.  It  is  far  more  probable  that  an  interested  party  has  committed 
perjury  than  that  half  a  dozen  or  more  witnesses  on  the  other  side  have  con- 
cocted a  wicked  falsehood.  Where  the  plaintiff  in  an  action  on  a  fire  in- 
surance policy  was  charged  with  arson  and  testified  in  his  own  behalf, 
the  court  reminded  the  jury  that  "  his  moral,  social,  and  business  standing 
for  his  future  life  is  involved  in  your  finding,  and  you  could  hardly  expect, 
from  your  knowledge  of  human  nature,  that  a  man  in  such  straits  would  tell 
the  truth  if  the  truth  would  injure  his  case."  But  the  fact  that  witnesses 
are  parties  to  a  suit  or  have  a  large  pecuniary  interest  therein  does  not 
necessarily  discredit  their  testimony,  although  it  furnishes  a  reason  why  it 


394  PART    II.      TESTIMONIAL    EVIDENXE  No.  210. 

should  be  carefully  considered  and  scrutinized.  Satisfactory  demeanor, 
intrinsic  probability  of  their  statements,  and  the  absence  of  any  direct  con- 
tradiction, should  imtiuestionably  entitle  them  to  belief.  Testimony  is  not 
to  be  disbelieved  merely  bec-ause  the  witnesses  are  servants  of  the  party  for 
whom  they  testif.v  ;  for  example,  employees  of  a  defendant  railroad  com- 
pany in  an  action  to  recover  damages  for  personal  injuries.  "The  personal 
interest  which  such  a  relation  might  possibly  create  is  not  to  be  overlooked 
in  weighing  their  evidence,  but  that  their  statements  are  to  be  utterly  dis- 
credited or  disregarded  liecau.se  of  that  fact  is  a  conclusion  which  jurors  are 
nmch  too  ready  to  adopt,  and  which  neither  reason  nor  experience  warrants." 
Testimony  of  a  servant  attempting  to  exonerate  himself  from  a  charge  of 
negligence  should  not  be  disbelieved  upon  a  mere  assumption  that  he  is 
committing  perjury.  But  if  a  court  concluded  there  was  perjury  some- 
where, it  would  rather  impute  the  offense  to  a  servant  making  an  improbable 
statement  in  exoneration  of  himself  from  heavy  responsibility  for  negli- 
gence, than  charge  with  intentional  falsehood  a  considerable  number  of 
opposing  witnesses  not  obsessed  by  so  strong  an  influence.  In  a  collision 
case  between  vessels  Mr.  Justice  Grier  said  :  "  It  is  vain  to  expect  the  truth 
from  the  steersman  or  pilot  of  the  colliding  boat.  He  will  not  admit  that 
he  was  ilrunk  or  asleep,  or  paying  no  attention,  and  not  keeping  a  proper 
lookout."  ...  In  a  case  in  ^'ermont  against  a  railroad  company  where 
it  was  a  (juestion  whether  the' bell  on  the  defendant's  locomotive  was  rung 
just  l»efore  the  plaintifl'  was  injured,  servants  of  the  defendant  testified  that 
it  was  rung,  and  tiie  jilaintiflf's  counsel  (now  a  member  of  the  United  States 
Commerce  Conunission)  made  the  following  sarcastic  comments  in  his 
argument  to  the  jury  :  "  I  don't  know  how  many  suits  in  which  railroad  com- 
panies were  invohed  you  may  have  heard  tried,  but  it  is  a  general  rule  that 
the  bell  alicai/s  rings.  There  is  no  case  on  record  in  which  the  bell  did  not 
ring.  .  .  .  One  of  the  stock  questions  which  a  railroad  manager  asks  an  ap- 
plicant for  employment  is, '  Does  the  bell  ring  ? '". . ,  The  fact  that  a  witness 
is  a  defendant  in  a  criminal  case  does  not  condemn  him  unworthy  of  belief, 
but  at  the  same  time  it  creates  an  interest  greater  than  that  of  any  other 
witness,  and  to  that  extent  affects  the  question  of  credibility.  If  the 
punishment  jirescribed  for  the  offense  or  the  disgrace  of  guilt  is  severe,  the 
defendant  would  lie  under  the  strongest  possible  temptation  to  give  evi- 
dence favorable  to  himself.  The  jury  properly  consider  his  manner  of 
testifying,  the  inherent  probabilities  of  his  story,  the  amount  and  character 
of  the  contradictory  testimony,  the  nature  and  extent  of  his  interest  in  the 
result  of  the  trial,  and  the  impeaching  evidence,  in  determining  the  measure 
of  credence  to  wliifli  he  is  entitled. 

■JIO.  .J..ii.\  C.  Kekd.  Conduct  of  Lawsuits.  (1912.  2d.  ed.  §  50.)  .  .  . 
We  now  a<ld  a  fjuotation  from  Quintilian,  which  is  more  detailed  in  its  direc- 
tions, and  wlpch  reads  as  if  it  were  written  by  an  experienced  counsel  of  our 
time:  "\a'1  us  allow  plenty  of  time  .  .  .  and  a  place  of  interview  free  from 
internijition  to  the  clients  who  shall  have  occasion  to  consult  us.  .  .  .  Nor 
.should  the  counsel  be  content  with  hearing  only  once:  the  client  should 
he  rwjuired  to  repeat  the  same  things  again  and  again  ;  not  only  because  some 
things  niight  have  (>scaped  his  memory  at  the  first  recital,  especially  if  he 
be,  as  is  «.fteii  the  case,  an  illiterate  person  :  but  also  that  we  may  see  whether 


No.  211.  I.       GENERIC    TRAITS.       F.    EMOTION,    BIAS  395 

he  tells  exactly  the  same  story  ;  for  many  state  what  is  false,  and,  as  if  they 
were  not  stating  their  case,  but  pleading  it,  address  themselves  not  as  to  an 
advocate,  but  as  to  a  judge.  We  must  never,  therefore,  place  too  much 
reliance  on  a  client ;  but  he  must  be  sifted  and  cross-examined,  and  obliged 
to  tell  the  truth ;  for  as  by  physicians,  not  only  apparent  ailments  are  to 
be  cured,  but  even  such  as  are  latent  are  to  be  discovered,  even  though  the 
persons  who  require  to  be  healed  conceal  them,  so  an  advocate  must  look 
for  more  than  is  laid  before  him.  ...  A  client  is  often  ready  to  promise 
everything,  offering  a  cloud  of  witnesses  and  sealed  documents  quite  ready,  and 
averring  that  the  adversary  himself  will  not  even  offer  opposition  on  certain 
points.  If  it  is  therefore  necessary  to  examine  all  the  writings  relating  to 
the  case,  it  is  not  sufficient  to  inspect  them ;  they  must  be  read  through  ; 
for  very  frequently  they  are  either  not  at  all  such  as  they  were  asserted  to 
be,  or  they  contain  less  than  was  stated,  or  they  are  mixed  with  matters 
that  may  injure  the  client's  cause,  or  they  say  too  much  and  lose  all  credit 
from  appearing  to  be  exaggerated." 

This  passage,  both  in  its  exhortation  to  look  with  a  skeptical  spirit  into 
every  part  of  the  case  and  its  warnings  against  the  biased  representations 
of  the  party,  deserves  the  meditation  of  every  lawyer.  If  the  advice  of  the 
celebrated  author  was  wise  in  his  day,  it  is  more  valuable  now. 

211.  Amos  C.  Miller.  Examination  of  Wit7iesses.  (Illinois  Law 
Review.  1907.  Vol.  II,  p.  244.)  .  .  .  How  to  find  out  who  are  available 
witnesses  to  siqxport  your  Client.  To  successfully  accomplish  this  involves,, 
in  the  start,  what  is  to  my  mind  the  most  important  part  of  a  proper  prep- 
aration of  any  case  for  trial,  and  that  is  to  ascertain  the  exact  truth  and 
the  whole  truth  regarding  the  case  and  the  strongest  features  on  your  side  of 
the  controversy.  To  the  novice  in  the  trial  of  cases,  this  task  seems  very 
easy.  All  he  has  to  do  is  to  listen  to  his  client's  tale,  swallow  it  whole,  and 
tell  him  to  bring  as  many  witnesses  as  he  can  to  swear  to  the  same  thing. 
He  then  goes  into  the  trial  confident  and  happy.  But  before  the  trial  has 
progressed  very  far,  he  learns  to  his  dismay  that  there  is  another  story. 
He  is  surprised,  chagrined,  and  angered  to  find  that  witnesses,  apparently 
disinterested,  are  willing  to  come  into  court  and  boldly  commit  perjury.  He 
cross-examines  angrily,  and  to  no  purpose,  except  to  gain  the  ill-will  of  the 
court  and  jury  and  to  bring  out  corroborative  circumstances  against  him 
which  opposing  counsel  had  failed  to  elicit.  His  own  apparent  discomfiture 
adds  to  his  heavy  burden,  and  he  is  defeated.  He  goes  home  reflecting  on 
the  degeneracy  of  mankind,  the  ignorance  of  the  court  and  the  evils  of  our 
jury  system.  But  when  time  has  cooled  his  ardor  —  and  especially  after 
he  has  had  one  or  two  more  such  experiences  —  he  begins  to  wonder  if  his 
client  did  really  tell  the  truth.  That  doubt,  upon  further  reflection, 
gradually  ripens  into  a  conviction  that  his  client  did  not  tell  him  the  truth ; 
and  his  pessimistic  state  of  mind  as  to  courts,  jury,  human  nature,  and 
things  in  general  is  thereby  relieved. 

After  a  few  such  experiences  the  young  practitioner  finds  that  getting  at 
the  truth,  and  all  of  the  truth,  far  from  being  an  easy  matter,  is  a  most 
difficult  one ;  and  especially  is  this  so  in  cases  involving  complicated  facts, 
or  where  the  matters  in  dispute  have  occurred  some  years  before  (as  is  quite 
commonly  the  case  here  in  this  county  when  cases   are  reached  for  trial). 


30(i  PAKT    II.      TESTIMONIAL    EVIDENCE  No.  212. 

In  all  men  the  memory  is  more  or  less  subject  to  the  will  and  to  the  wish. 
The  farther  away  the  events,  the  more  active  and  potent  are  these  influences. 
Manx-  persons  deliberately  conceal  from  their  lawyers  unfavorable  facts 
and  deliberately  misrepresent  others.  We  should  expect  to  find  this  dis- 
position only  amonj;  the  ifjnorant ;  but  the  fact  is  we  frequently  find  it 
among  successful  business  men  accustomed  to  deal  with  matters  of  impor- 
tance. Sometimes  so  strong  is  this  disposition  of  clients,  to  cover  up  pit- 
falls even  when  talking  to  their  own  counsel,  and  to  color  the  facts,  if  not 
to  misrepresent,  that  often  it  will  be  found  necessary  to  tell  the  client  that 
if  he  concealed  anything  or  misrepresented  or  colored  anything,  his  lawyer 
cannot  be  of  the  slightest  help  to  iiim  ;  whereas,  if  he  would  be  careful  to 
state  all  of  the  facts,  especially  all  the  unfavorable  facts,  he  might  still  dis- 
close a  good  case  and  a  winning  case. 

Not  only  must  the  trial  lawyer  be  careful  in  talking  to  his  client,  but  also 
in  talking  to  his  client's  witnesses,  even  those  who  are  wholly  disinterested. 
When  a  disinterested  person  is  enlisted  as  a  witness  on  one  side  of  the  case, 
his  sympathies  and  desires  naturally  become  involved  with  the  person  call- 
ing him  ;  and  when  he  discovers  what  things  the  litigant  desires  to  prove, 
a  witness,  especially  if  the  events  are  distant  in  time,  is  apt  to  imconsciously 
give  a  strong  coloring  to  the  facts  and  sometimes  to  remember  things  he  did 
not  see ;  and  more  often  to  innocently  misrepresent  things  he  did  see.  It 
is  no  uncommon  thing  at  all  for  a  lawyer  to  discover  that  a  witness,  who, 
while  waiting  for  the  trial,  has  been  fraternizing  with  other  witnesses  in  the 
same  case,  finally  remembers  that  he  saw  things  which  the  other  witnesses 
saw,  but  which  he  did  not  and  could  not  have  seen,  and  did  not  claim  to 
have  seen  when  first  talked  to.  That  fact  arises,  not  from  an  intention  to 
deliberately  falsify,  but  from  the  desire  to  be  mi  important  element  in  the  case. 
This  fact,  I  have  no  doubt,  accounts  for  a  large  part  of  the  false  testimony 
that  we  find  in  our  courts  in  so  many  of  the  important  cases  that  are  tried, 
and  especially  in  the  personal  injury  cases. 

212.  Kkhakd  Hakkis.  Hints  on  Advocacy.  (Amer.  ed.  1892.  p.  45.) 
Besides  determining  whether  the  witness  be  false  or  true,  or  an  artful  twister 
of  facts,  you  will  also  ascertain  whether  he  has  a  strong  bias  in  one  direction, 
or  a  prejudice  in  the  other.  If  he  have  a  strong  leaning  to  the  side  of  your 
opponent,  you  will  have  the  less  difficulty  in  disposing  of  him,  because  it  will 
be  easy  to  lead  him  on  until  his  l)ias  becomes  so  manifest  and  overpowering 
that  the  jury  will  discount  his  evidence,  and  to  such  an  extent  that,  if  the 
cast*  dei)end  upon  him.  they  will  throw  it  over  altogether.  A  strong  interest 
weakens  the  side  on  which  it  lies.  It  will  therefore  be  clear  that  in  cross- 
e.xamining  a  witness  of  this  kind  it  will  be  proper  to  elicit  this  at  the  earliest 
opportunity.  If  it  comes  last,  it  will  l)e  far  weaker,  because  it  will  not  alto- 
gether und(.  the  eirect  which  his  evidence  may  have  made  upon  the  minds 
of  the  jury.  The  iiitrrrsf  n  iriftirss  has  in  a  case  should  therefore  be  shown 
rnrh,  in  thr  rmss-r.rainination,  if  it  has  not  been  made  manifest  before. 

Hut  it  may  i)c  the  witness  lias  no  interest.  He  may  nevertheless  be  a 
partisan:  and  partisanship  is  often  stronger  than  self-interest,  although 
the  latter  has  s(.mewhat  erroneously,  as  it  seems  to  me,  been  described  as 
the  most  powerful  principle  inducncing  human  actions.  In  a  great  number 
of  cases  there  is  something  of  partisanship,  and  you  may  take  it  as  a  rule 


No.  212.  I.       GENERIC   TRAITS.       F.    EMOTION,    BIAS  397 

that  an  absolutely  unbiased  witness  is  rare.  The  strong  partisan,  however, 
is  only  produced  by  public  matters,  parochial  disputes,  boundary  questions, 
quasi-political  inquiries,  medical  cases,  rating  matters,  running-down  causes, 
and  other  investigations,  where  the  witnesses  seem  naturally  to  take  sides. 
You  should  remember  that  though  a  man  may  go  into  the  witness-box  under 
compulsion,  he  never  gives  his  evidence  without  a  motive.  It  may  be  a 
strong  or  a  weak  one,  but  it  exists ;  find  that  out,  and  you  will  be  able  to 
do  so  if  you  watch  and  listen  attentively.  The  man  whose  motive  is  simply 
to  speak  what  he  knows,  manifests  it  in  every  tone,  look,  and  word.  You 
will  not  have  much  difiiculty  in  dealing  with  him.  If  you  believe  in  your 
own  case,  you  may  believe  in  this  witness  not  to  injure  it  if  you  are  discreet 
in  examining  him  ;  that  is,  if  you  examine  in  such  a  manner  that  his  answers 
cannot  be  misunderstood.  But  what  are  you  to  ask  him  ?  Listen  to  his 
evidence:  if  it  agrees  with  your  case,  nothing;  if  not,  note  the  points  that 
are  against  you.  And  in  dealing  with  the  modes  of  cross-examining  the 
different  kinds  of  witnesses  further  on,  I  will  endeavor  to  point  out  the  man- 
ner of  dealing  with  a  witness  who  has  a  pure  motive,  but  whose  evidence 
conflicts  with  your  case. 

But  suppose  the  witness  has  some  other  motive  in  giving  his  evidence. 
You  will  endeavor  to  ascertain  what  it  is.  If  you  watch  carefully,  you  will 
find  a  difference  in  tone  and  manner  when  he  is  speaking  more  directly 
from  the  particular  motive.  Suppose  it's  revenge  ?  An}'  point  which  seems 
more  particularly  to  damage  his  adversary  will  be  laid  stress  upon.  Any 
answer  that  he  makes  which  he  thinks  will  damage  him  will  be  uttered  in 
a  more  ready  tone  and  with  evident  satisfaction.  It  will  manifest  itself  in 
his  voice,  in  his  look,  and  his  whole  demeanor.  That,  therefore,  must  be 
stamped  upon  the  mind  of  the  jury  by  your  cross-examination.  .  .  . 

The  truthful  witness  has  been  said  to  be  the  most  difficult  of  all  to  cross- 
examine.  I  cannot  help  differing  so  much  from  that  opinion  as  to  say  that 
I  have  always  regarded  him  as  the  easiest  of  any.  Whem  I  say  truthful, 
I  do  not  intend  to  imply  that  his  evidence  is  necessarily  true.  If  it  were  so, 
it  would  be  idle  to  cross-examine  at  all.  What  I  mean  by  a  truthful  witness 
is  one  who  believes  and  intends  his  evidence  to  be  true.  He  is  the  easiest 
to  deal  with,  because  he  does  not  equivocate  or  prevaricate.  He  has  no 
secret  meaning,  and  gives  his  answers  readily  and  without  mental  reserve. 
He  desires  to  tell  you  all  he  knows,  and  his  credibility,  I  will  assume,  is 
unimpeachable. 

The  first  thing  to  ascertain  in  cross-examining  a  witness  of  this  class,  is 
whether  he  has  any  strong  bias  or  prejudice  in  the  matter  under  inquiry. 
One  or  two  carefully  worded  questions  will  discover  this,  if  you  have  not 
already  learnt  it  from  his  answers-in-chief.  Suppose,  for  example,  he  is 
a  clergyman,  and  the  question  is  as  to  a  certain  place  of  entertainment 
being  a  nuisance  either  as  being  badly  conducted  or  conducing  to  immorality. 
He  tells  you  truthfully  enough  what  he  has  seen,  and  speaks  with  indignant 
or  pathetic  tones  of  the  vicious  example  to  the  inhabitants  of  the  neighbor- 
hood. ...  If  he  has  not  referred  to  particular  instances,  you  may  safely 
proceed  to  lead  him  to  condemn  all  places  of  public  amusement  of  a  similar 
kind.  If  you  lead  him  gently,  he  will  follow  with  remarkable  docility.  I 
have  seen  this  course  pursued  by  eminent  leaders  with  great  success.  A 
man  who  condemns  all  alike  is  not  the  witness  to  impress  a  jury  with  the 


39S 


PART    II.      TESTIMONIAL    EVIDENCE  No.  213. 


value  of  liis  evidence  in  the  particular  instance,  especially  where  it  is  far 
more  a  matter  of  opinion  than  fact.  Even  fact  itself  may  be  represented 
as  so  shocking  bv  a  witness  of  this  kind  as  to  create  laughter  instead  of  in- 
dignation. I  once  heard  ...  a  clergyman  describe  the  conduct  of  two  indi- 
vi.hials  as  (irbiuv'd  and  disgusting;  when  questioned  as  to  what  they  were 
doing,  he  said,  with  great  solemnity,  "he  saw  the  man  kiss  the  girl  and  hold 
luT  haiui."  On  l)eing  asked  if  he  had  never  been  guilty  of  similar  conduct 
in  his  earlier  days,  he  declined  to  answer,  and  amid  an  outburst  of  laughter 
said.  "But  the  girl  was  a  Sunday  school  teacher."  This  not  being  enough 
to  proiiuce  tlie  effect  he  innocently  anticipated,  he  threw  into  the  scale,  as 
a  final  circumstance  of  depravity,  the  fact  that,  at  the  time,  he  believed  the 
young  man  was  paying  his  addresses  to  another  young  woman. 

213.  A.  G.  W.  Carter.  The  Old  Court  House  [in  Cincimiati],  (1880. 
p.  412.)  It  is  a  solemn  truth  — regret  it  as  we  may  —  that  preachers  make 
i)ad,  very  bad,  witnesses  in  court.  It  would  seem  that  in  the  efforts  of  their 
life,  they  deal  with  so  much  of  uncontradicted  fancy,  instead  of  fact,  that 
they  cannot  tell  how  a  fact  transpired  when  they  are  called  upon  the  witness 
stand.  I  remember  more  than  one  case  in  the  old  court  and  courthouse, 
where  preachers  were  called  to  testify,  and  they  invariably  spoiled  the  broth. 
On  one  occasion  in  a  murder  trial,  which  created  in  the  community  the  most 
intense  interest,  and  the  greatest  excitement,  a  certain  distinguished  Meth- 
odist preacher  was  called  upon  to  testify  for  the  State,  and  he  did  do  so 
"with  a  whereas."  He  in  his  testimony,  as  was  very  plainly  to  be  seen, 
was  for  hanging  the  poor  prisoner,  and  upon  this  point  (he  by  no  means 
wished  to  hang  the  jury),  therefore,  he  was  most  absolute  and  positive  in 
his  declarations,  and  became  so  dogmatic,  that  the  Court  upon  the  call  of 
the  attorney  for  the  defense  stopped  the  witness  arid  finally  made  him  take 
his  .seat  in  the  witness  box.  Now  this  witness  colored  everything  he  said 
with  the  fancies  of  his  profession.  .  .  .  At  one  time  he  said,  "  the  deceased 
trusted  the  defendant,  and  had  all  confidence  in  him,  but  the  prisoner  was 
a  Judas  to  him,  and  stabbed  him  to  the  heart,  and  set  his  house  on  fire," 
and  this  was  said  as  the  truth  and  the  fact  by  the  preacher  witness,  and  yet 
he  did  not  see  it,  or  know  it.  He  only  knew  of  some  surrounding  circum- 
stances, and  lie  testified  to  these  so  lamely  and  unfashionably,  that  the  dogs 
would  have  barked  at  him  if  they  could  have  understood  how  he  was  giving 
in  his  testimony.  In  the  same  case  another  preacher  testified,  as  he  hap- 
pened to  know  some  important  items,  and  he  being  the  preacher  of  my  own 
church,  I  expected  s«)mething  better  than  he  gave.  He,  too,  could  not 
testify  to  the  plain  facts  wliich  he  saw  before  him,  however,  but  he  con- 
tinually colored  them  with  his  peculiar  and  particular  views  as  a  preacher 
over  a  congregation.  .  .  .  Avoid  preachers,  then,  as  witnesses,  we  some- 
what serio-comically  say  to  lawyers  —  they  are  not  good  witnesses  —  they 
are  bad,  very  bad,  witnesses  —  almost  as  bail,  good  brethren,  as  doctors, 
uimI  lawyers,  and  we  all  well  know  that  they,  the  doctors  and  the  lawyers, 
make  till-  very  worst  of  witne.s.ses  in  any  case  in  any  court. 


211.  S.W.^wu.y.x.  Crimiiud  Appeal  and  Emdence.  (1908.  p.  202.)  .  . 
ne  very  remarkable  feature  of  Courvoisier's  trial  [ante,  No.  144]  is  the  dis 
edit  that  attached  to  the  police.     From  the  moment  th?y  were  called  L 


No.  215.  I.       GENERIC    TRAITS.       F.    EMOTION,    BIAS  399 

they  directly  charged  Courvoisier  with  the  crime.  There  is  thus  consider- 
able ground  for  concluding  that  he  was  both  terrorized  and  entrapped  into 
a  confession,  and  this  before  the  reward  was  offered.  He  was  told  he  had 
made  a  terrible  mess  of  it,  that  an  inmate  of  the  house  must  have  committed 
the  crime,  and  that  there  was  no  doubt  he  would  be  brought  to  justice. 
Phillips,  for  the  defense,  directly  insinuated  that  Courvoisier  was  the 
victim  of  a  conspiracy  among  the  policemen,  anxious  to. divide  the  reward 
of  £450  over  his  coffin.  The  summing  up  of  Tindal,  C.  J.,  renders  it  im- 
possible to  entirely  reject  this  view.  The  Chief  Justice  directed  the  jury 
that  the  evidence  of  the  policeman  Baldwin  was  unworthy  of  credit  ;  this 
witness  originally  adopted  the  view  that  a  burglary  had  been  committed, 
and  the  cross-examination  of  Phillips  was  directed  to  proving  that  he  changed 
his  view  when  the  fact  that  a  large  reward  had  been  offered  came  to  his 
knowledge.  It  was  dangerous,  Tindal,  C.  J.,  declared,  in  such  a  serious 
inquiry  to  give  any  weight  to  this  man's  evidence.  .  .   . 

Nearly  a  quarter  of  a  century  before  this  trial,  that  great  reformer  of  the 
criminal  law.  Sir  Samuel  Romilly,  animadverted,  in  the  House  of  Commons, 
on  the  mischiefs  arising  from  rewards  given  upon  convictions.  In  1692 
an  Act  for  encouraging  the  apprehension  of  highwaymen  was  passed,  and 
by  Sec.  2  a  reward  of  £40  was  offered  "  to  him  that  shall  take  an  highway- 
man." This  Act  was  repealed  in  1828.  In  1756,  MacDaniel,  Berry,  and 
Jones  were  indicted  for  the  willful  murder  of  Joshua  Kidden,  by  maliciously 
causing  him  to  be  unjustly  apprehended,  falsely  accused,  tried,  and  con- 
victed for  highway  robbery,  well  knowing  him  to  be  innocent  of  the  fact 
laid  to  his  charge,  with  an  intent  to  share  to  themselves  the  reward.  The 
fact  was  plainly  proved  against  them  upon  this  indictment,  and  the  special 
matter  being  set  forth  in  the  indictment,  the  Court  suffered  them  to  be  con- 
victed and  sentenced  to  death.  .  .  .  The  baleful  influence  that  the  very 
large  reward  offered  for  the  conviction  of  the  murderer  of  Lord  Wi'liam 
Russell  exercised  over  the  whole  of  the  police  evidence  at  the  trial  of  Cour- 
voisier is  doubtless  the  implicit  historical  explanation  of  the  following 
passage  in  Best  on  "  Evidence  "  :  "The  English  Government  has  for  many 
years  discontinued  the  offering  rewards  for  the  detection  of  crimes,  on  the 
ground  that  persons  committed  crimes  for  the  purpose  of  obtaining  the 
rewards  by  false  accusations  of  the  innocent ;  and  the  Home  Office,  though 
urgently  requested  to  offer  a  reward  for  the  discovery  of  a  series  of  murders 
of  women  in  Whitechapel  in  1888,  steadily  refused  to  revive  the  practice 
on  this  ground." 

215.  Richard  Harris.  Hints  on  Advocacy.  (1892.  Amer.  ed.  pp.  91, 
114.)  The  Police.  As  to  the  police  in  the  witness  box,  I  shall  commence  by 
saying,  to  counsel  for  an  accused,  As  far  as  possible  leave  them  alone.  They 
are  dangerous  persons.  They  are  professional  loitnesses,  and  in  a  sense  that 
no  other  class  of  witnesses  can  be  said  to  be.  Their  answers  generally  may 
be  said  to  be  stereotyped.  All  the  ordinary  questions  have  been  answered 
scores  of  times  by  the  well-disciplined,  "active,  and  intelligent  officer." 
Don't  imagine,  my  young  friend,  that  you  are  going  to  trip  him  up  upon  the 
path  where  his  beat  has  been  for  many  a  year.  He  will  perceive  you  coming 
while  you  are  a  long  way  off,  and  in  all  probability  go  out  and  meet  you. 
Perhaps  before  you  were  born  he  answered  the  question  you  have  just  put.  .  .  . 


400  PART    II.      TKSTI.MO.SIAL    EVIDENCE  No.  215. 

But  try  him  with  .something  ju.st  a  Httle  out  of  the  common  hne  by  way 
of  experiment.  Vou  see  he  looks  at  you  as  though  he  had  got  the  sun  in  his 
eyes.  He  cannot  quite  see  what  you  are  about.  And  you  must  keep  him 
\\itli  the  sun  in  his  eyes  if  you  desire  to  make  anything  of  him.  Without 
accusing  him  even  by  imphcation  of  having  no  reverence  for  the  sanctity 
of  an  oath.  I  must  say  that  if  he  sees  the  drift  of  your  questions,  the  chances 
are  against  your  getting  the  answers  you  want,  or  in  the  form  in  which  you 
would  like  them.  He  thinks  it  his  duty  to  baffle  you,  and  if  you  do  not  get 
an  answer  you  don't  want,  it  will  probably  be  because  the  policeman  is  as 
young  and  inexperienced  as  you  are. 

To  be  effective  with  the  policeman  your  questions  must  be  rapidly  put. 
Although  he  has  a  trained  mind  for  the  witness  box,  it  is  trained  in  a  very 
narrow  groove;  it  moves  as  he  himself  moves,  slowly  and  ponderously 
along  its  particular  l)eat ;  it  travels  slowly  because  of  its  discipline,  and  is 
by  no  means  al)le  to  keep  pace  with  yours,  or  ought  not  to  be.  You  should 
not  permit  him  to  trace  the  connection  between  one  question  and  another 
when  you  desire  that  he  should  not  do  so.  If  you  ask  him  whether  it  was 
a  very  dark  night,  and  the  darkness  has  nothing  whatever  to  do  with  the 
issue,  he  will  commence  a  process  of  reasoning  (invented  at  Scotland  Yard) 
as  to  your  motive,  and  what  might  possibly  be  the  effect  of  his  answer. 
While  this  mental  exertion  is  going  on,  interrupt  him  suddenly  with  a 
a  question  you  have  good  reason  for  putting,  and  in  all  probability  you  will 
get  something  near  the  answer  you  require. 

Policemen  have  a  great  deal  of  knowledge  about  the  case,  and  a  great 
deal  of  hiliif.  The  former  you  will  find  bad  enough  to  deal  with ;  but  you 
must  be  careful  not  to  elicit  a  large  quantity  of  the  latter :  if  you  do,  you 
may  rest  assured  it  will  look  so  like  fact  that  it  will  pass  with  the  jury  as 
such.  You  will  be  fortunate  if  it  do  not  condense  itself  into  fact  by  the  time 
you  get  it. 

Another  matter  there  is  to  be  on  one's  guard  against,  and  that  is,  being 
overdone  l)y  police  testimony.  Very  few  policemen  are  really  untruthful, 
I  believe ;  and  very  few  would  unnecessarily  "pile  on  the  evidence"  against 
a  man.  But  all  are  zealous,  and  zeal  is  a  force,  as  we  all  know,  that  will 
.sometimes  impel  us  beyond  the  boundary  line  of  discretion.  They  require 
to  l)e  kept  in  with  a  steady  and  firm  hand  ;  for  much  zeal  on  their  part, 
like  too  much  anxiety  on  yours,  is  sure  to  operate  against  what  the  prosecu- 
tion invariably  calls  "  the  interests  of  public  justice." 

Thf  Priratc  Drti'divr.  When  the  private  inquiry  man  tells  you  that  he 
made  his  inr|uirics  by  means  of  a  gimlet  and  his  eye,  or  that  he  saw  behind 
the  door  through  the  keyhole;  or  distinguished  voices  that  spoke  whispers 
through  brick  walls,  as  if  the  object  of  the  secret  ones  in  this  seclusion  were 
to  whisper  expressly  for  the  benefit  of  the  inquiry  man  ;  he  will  have  shown 
you  enough  tf)  prove  that  he  may  be  an  anxious  inquirer  after  truth,  but  not 
rmuh  of  an  artist  in  de])icting  it. 

I  always  admire  the  won«ieriul  boldness  of  these  witnesses  and  their 
faith  in  human  credulity.  They  seem  to  think  they  can  make  you  believe 
that  special  miracles  have  been  wrought  for  the  purpose* of  carrying  out  their 
investigations. 

The  absolute  positiveness  witii  which  this  witness  gives  his  evidence  is 
a  point  in  your  favor;    the  impossibility  of  his  having  been  mistaken  is 


No.  216.  I.       GENERIC    TRAITS.       G.    EXPERIENCE  401 

another :  simply  because  the  jury  will  not  believe  in  the  infallibility  of 
a  human  being  in  carnal  matters.  And  if  the  witness  might  have  been  mis- 
taken, they  will  not  believe  him  either.  So  that  the  circumstances  under 
which  the  detective  has  made  his  discovery  are  matters  worthy  of  your  skill. 

With  him  suspicion  is  almost  guilt,  and  almost  every  circumstance  from 
his  point  of  view  is  suspicious. 

In  a  charge  of  arson  against  a  shoemaker  who  had  a  small  workshop 
in  a  village,  this  mode  of  proceeding  by  suspicion  was  demonstrated  in  a 
remarkable  manner.  The  man's  shop  consisted  of  one  room  separated  from 
other  buildings.  He  worked  there  in  the  day,  and  left  it  locked  up  at  night. 
His  stock  was  worth  about  £50,  and  he  had  insured  it  for  £70.  A  fire  broke 
out  at  night  after  he  had  left,  and  burnt  some  of  his  stock,  about  £12  worth. 
Police  came,  but  no  suspicion  rested  upon  him.  He  said  he  could  not  ac- 
count for  the  fire ;  no  one  could  have  got  in,  as  he  had  the  key.  A  police- 
man, eager  to  convict  somebody,  finds  this  evidence : 

1st.    A  policy  of  insurance,  obtained  on  the  day  of  the  fire. 

2d.    A  smell  of  paraffin  all  over  the  shop. 

3d.    Removal  of  a  box  to  the  prisoner's  mother's  on  the  day  of  the  fire. 

4th.  Deaf  man,  who  heard  prisoner  say,  "  I'm  sorry  you  saw  me  move  that 
box,  as  the  police  are  making  a  fuss." 

The  explanation  of  these  suspicious  circumstances  was  this  :  The  premium 
for  insurance  had  been  paid  months  before.  The  prisoner  being  at  the  in- 
surance office  on  the  day  of  the  fire  on  other  business,  the  manager  said, 
"  You  may  as  well  have  your  policy." 

The  paraffin  was  burnt  in  lamps  in  the  shop,  and  was  used  to  clean  the 
furniture :  had  been  used  on  that  day  for  the  purpose.  The  rag  so  used  was 
lying  on  the  drawers,  hence  the  smell  of  paraffin. 

There  had  been  a  fire  in  the  grate  on  that  day. 

The  box  taken  to  the  mother,  belonged  to  her ;  she  had  asked  for  it,  and 
it  was  proved  to  have  been  empty  when  taken. 

The  deaf  man  broke  down  in  cross-examination,  although  he  had  come 
up  to  the  mark  in  his  examination  by  the  clever  policeman ;  and  had  been 
somewhat  intimidated  by  the  language  of  that  functionary. 

Mr.  Justice  Stephen  in  summing  up  made  these  observations : 

"  If  you  assume  that  this  man  committed  the  crime,  then  there  are  a  good 
many  circumstances  that  look  suspicious  ;  but  if  you  do  not  assume  that  he 
is  guilty,  then  the  circumstances  are  not  suspicious,  as  they  are  easily  ac- 
counted for." 

This  appears  to  me  to  be  the  exact  point  with  regard  to  many  of  the  facts 
that  are  discovered  by  the  private  inquiry  man,  as  well  as  by  your  official 
detective.  Once  assume  a  person's  guilt,  and  the  most  innocent  circum- 
stance will  become  invested  with  suspicion  ;  many  facts  will  be  unconsciously 
exaggerated,  first  in  the  mind  of  the  witness,  and  then  in  his  evidence. 

216.  A.  C.  Plowden,  Grain  or  Chaff;  The  Autobiography  of  a  Police 
Magistrate.  (1903.  p.  334.)  One  of  the  most  difficult  duties  of  a  Magis- 
trate is  to  judge  fairly  between  conflicting  statements  —  not  to  incline  too 
much  to  the  constable  merely  because  he  is  a  constable,  and  not  to  be 
opposed  to  the  prisoner  merely  because  he  is  a  prisoner.   .   .  . 

A  marked  feature  in  a  police  constable  —  I  might  call  it  a  useful  defect  — 


402  PART    II.      TESTIMONIAL   EVIDENCE  No.  220. 

is  his  lack  of  ima«rinati<)n.  The  ahsence  of  this  quahty  tends  to  keep  down 
exaggeration,  and  has  a  particuhir  value  in  the  witness  box.  Truth  cannot 
be  expressed  too  simply.  It  is  dangerous  to  attempt  to  ehibellish  it.  More 
than  «)nee  I  have  known  a  prisoner  to  be  "run  in"  who  on  his  way  to  the 
station  has  anxiously  inquired  the  name  of  the  Magistrate  before  whom  he 
will  appear  on  the  niorrow,  and  then  on  l)eing  informed  he  will  express  his 
satisfaction  or  his  contempt  for  "Old  Plowden,"  with  a  free  indulgence  in 
the  vernacular.  The  constable  will  repeat  it  all  in  the  witness  box  with  an 
ai>solutely  mnnoved  countenance,  without  the  trace  of  a  smile  or  the  ex- 
hil)ition  of  the  slightest  feeling.  It  is  his  duty  to  report  faithfully  what  a 
pri-oner  may  say.  This  is  all  that  is  present  to  his  mind  —  his  duty. 
What  the  prisoner  may  have  said  from  any  other  point  of  view,  or  how  he 
may  have  said  it,  concerns  him  not  at  all,  and  has  no  effect  whatever  on  his 
imagination. 

It  follows  that  as  a  rule  police  constables  make  very  reliable  witnesses. 
Their  memory,  too,,  is  generally  excellent,  and  it  is  very  seldom  they  give 
any  sign  of  undue  feeling  or  prejudice.  I  feel  under  endless  obligations  to 
them  not  only  for  their  assistance  as  truthful  and  intelligent  witnesses, 
but  generally  for  their  never  failing  courtesy  and  the  alacrity  which  they 
bring  to  the  discharge  of  any  duty  that  may  be  required  of  them. 


SUBTITLE   G:    EXPERIENCE 

220.  JosiAH  RoYCE.  Outlinvsof  Psiicholociy.  (1903.  p.  221.)  We  have 
only  to  consider  the  origin  of  our  perceptions  in  order  to  become  convinced 
that  what  at  present  our  sense  organs  show  us  with  regard  to  the  object,  not 
only  constitutes  but  a*  small  portion  of  what  we  know  or  may  know  about 
the  object,  l>ut  also  has  accjuired  its  whole  present  meaning  for  us  through 
processes  that,  in  the  past,  have  been  as  complex  as  those  of  the  grasping 
child,  or  perhaps  much  more  complex  than  his  have  yet  become.  Our  pres- 
ent conscious  perception  of  any  object  which  impresses  our  sense  organs  is  a 
sort  of  brief  abstract  and  epitome  of  our  previous  experience  in  connection 
with  such  objects.  .  .  .  The  total  result  of  all  such  experiences  is  epitomized 
in  the  present  instantaneous  perception  of  this  object.  .  .  .  What  we  mean 
by  tlie  perception  of  an  object  is  a  cerebral  process  involving  features  of  the 
foregoing  kinds.  The  substance  of  the  matter  is  that  the  present  sense  dis- 
turbance is  at  once  associaterl  with  a  consciousness  due  to  already  estab- 
lished motor  hal)its,  which  have  been  trained  in  the  presence  of  objects 
similar  to  the  one  now  present.  These  habits  may  be  of  the  most  various 
kinds,  and  the  consciousness  e.xcited  by  the  object  may  have  the  most 
various  relations  to  the  habits  themselves.  They  were  slowly  acquired, 
by  means  of  acts  that  took  a  considerable  time,  and  that  were  associated 
with  the  varied  and  comj)lex  consciousness.  The  perception  is  relatively 
instantaiieon^.     It  is  a  case  of  simultaneous  association.  .  ,  . 

The  practical  ajjplication  of  all  this  is  obvious.  If  you  are  to  train  the 
pf)wers  of  percei)tion,  you  must  train  the  conduct  of  the  person  who  is  to 
learn  how  to  perceive.  Nobody  sees  more  than  his  activities  have  prepared 
him  toseein  the  world.    We  can  observe  nothing  to  which  we  have  not  already 


No.  221.  I.      GENERIC    TRAITS.       G.    EXPERIENCE  403 

learned  to  respond.  The  training  of  perception  is  as  much  a  practical  train- 
ing as  is  the  learning  of  a  trade.  And  it  is  this  principle  upon  which  the 
value  of  all  arts,  such  as  those  of  drawing,  of  experimenting,  and  of  work- 
manship, depends,  in  so  far  as  such  arts  are  used,  as  in  all  modern  training 
is  constantly  done  for  the  sake  of  developing  the  power  to  perceive.  It  is 
because  he  has  played  music  that  the  musician  so  well  perceives  music. 
It  is  because  of  his  habits  of  workmanship  that  the  skilled  artisan  or  en- 
gineer can  so  well  observe  the  things  connected  with  his  trade.  It  is  because 
they  do  not  know  what  to  do  that  the  untrained  travelers  in  a  foreign  land 
often  see  so  little,  and  find  what  they  had  hoped  to  be  a  wealth  of  new  ex- 
perience a  dreary  and  profitless  series  of  perplexities. 

221.  Hans  Gross.  Criminal  Investigation  (transl.  Adam,  1907,  p.  149) ; 
and  Criminal  Psychology,  (transl.  Kallen,  1911,  pp.  229,  239,  388). 
A.  The  Value  of  Experts.  Experts  are  the  most  important  auxiliaries  of  an 
Investigating  Officer ;  in  some  way  or  other  they  nearly  always  are  the  main 
factor  in  deciding  a  case.  .  .  .  But  everything  depends  upon  knowing  how 
to  make  use  of  them.  Indeed  it  is  often  less  important  to  know  icho  is  to 
be  questioned  than  to  know  how,  upon  what,  and  when  questions  must  be  put. 
But  it  is  also  an  important  thing  for  the  Investigating  Officer  to  know  just 
whom  he  ought  to  apply  to,  i.e.  what  kind  of  expert  he  ought  to  select ; 
moreover,  he  must  know  what  the  expert  is  capable  of  telling  him  in  each 
case,  that  is  to  say,  where  his  knowledge  begins  and  what  are  the  natural 
limits  to  it ;  and  finally  he  must  seize  the  proper  moment  for  putting  his 
question,  i.e.  the  moment  when  he  is  in  possession  of  sufficient  material  to 
render  any  further  research  superfluous.   .   .   . 

As  regards  the  limits  of  the  expert's  knowledge,  the  Investigating  Officer 
must  be  particularly  careful  not  to  ask  too  much,  for  if  he  were  to  do  so  he 
might  look  ridiculous  ;  on  the  other  hand,  if  he  does  not  ask  enough,  he  may 
deprive  himself  of  information  of  great  value.  A  case  is  recalled  in  which 
the  Investigating  Officer  sought  to  know  whether  the  blood  stain  on  a  piece 
of  cloth  was  that  of  a  boy  or  of  a  girl ;  another  Investigating  Officer  took 
a  stove  to  pieces  and  sent  it  carefully  packed  to  the  chemical  examiner  with 
a  request  to  know  whether  bank  notes  had  been  burned  in  it  or  not ;  and 
a  colleague  of  the  author  recently  met  with  a  case  in  which  it  was  asked 
whether  the  arsenic  found  in  the  corpse  could  be  identified  with  that  found 
in  a  sausage.  On  the  other  hand,  every  Investigating  Officer  knows  of  cases 
in  which  the  solution  of  problems,  seeming  to  outsiders  almost  insoluble,  has 
been  obtained ;  in  this  way  experts  in  physics  will  discover,  by  a  magnetic 
process,  traces  of  iron,  where  chemical  experts  have  found  nothing ;  botanists 
once  furnished  the  author  with  certain  proof  that  some  branches  of  hops 
had  been  cut  with  a  particular  knife.  What  can  be  performed  with  the  as- 
sistance of  electricity,  the  refinements  of  photography,  radioactive  rays. 
Roentgen  rays  and  other  acquisitions,  is  simply  illimitable.  .  .  . 

It  must  not  be  forgotten  that  to-day,  in  spite  of,  and  perhaps  because  of, 
the  great  progress  of  science,  people  make  statements  with  much  less  assur- 
ance than  formerly.  One  has  only  to  compare  books  on  medical  juris- 
prudence written  thirty  years  ago  with  those  of  to-day  to  see  that  the  writers 
of  those  days,  acting  upon  a  small  number  of  cases  at  their  disposal,  did  not 
hesitate  to  state  general  principles,  the  correctness  of  which  are  now  much 


404  PART    II.      TESTIMONIAL    EVIDENCE  No.  221. 

shaken ;  "  for  experimental  science,  now  much  more  extensive,  has  found 
out  so  manv  exceptions  that  in  the  long  run  they  sometimes  become  more 
numerous  than  the  so-called  rules.  This  principle  must  be  applied  to  other 
domains,  and  we  nuist  not  boast  of  our  own  knowledge,  which  is  always  more 
or  less  incomplete;  if  we  do  not  know  the  exceptions  ourselves,  we  have 
but  to  ilemand  them  of  specialists.  By  conforming  to  this  rule  we  will 
obtain  astonisiiing  results.  The  specialist  will  refute  a  well-established 
conviction,  leading  us  to  say,  "  I  believe  it  is  always  thus,"  with  a  series  of 
exceptions  in  which  it  is  not  always  thus.  In  a  recent  case,  medical  experts 
who.  on  examination  in  the  witness  box  affirmed  positively  that  it  was  im- 
possible for  a  cavity  to  form  in  lobar  pneumonia,  when  confronted  with 
authorities  in  cross-examination,  admitted  that  such  a  thing  was  quite 
possible.  If,  therefore,  experts  themselves  may  be  mistaken,  how  much 
more  shouKl  the  Investigating  Officer  be  unashamed  to  question  others 
upon  things  which  seem  beyond  all  doubt. 

Moreover,  the  circle  of  experts  must  be  enlarged  as  much  as  possible. 
Some  Investigating  OfHcers  in  many  years  have  never  made  use  of  any 
other  experts  than  doctors,  analysts,  and  gunsmiths ;  it  has  never  crossed 
their  minds  to  consult  workmen  and  artisans  of  all  kinds.  They  have  not 
thought  that  they  might  be  able  to  obtain  most  precious  information  from 
such  sources.  The  author  must  confess  that  he  has  often  had  business 
with  experts  without  knowing  at  the  outset  what  they  might  be  able  to 
tell  him.  He  once  sent  for  a  cutler  and  gave  him  a  knife  found  in  the 
wound  of  a  murdered  person  and  asked  him  w^hether  he  could  give  any  in- 
formation al)()Ut  it ;  the  cutler  replied  that  such  knives  were  only  manu- 
factured in  the  north  of  Bohemia.  And  this  information  brought  about 
the  discovery  of  the  criminal.  A  turner  pointed  out  that  an  article  the 
criminal  had  left  behind  must  have  been  turned  by  a  left-handed  person  ; 
the  person  arrested  (who  denied  the  crime)  came  from  a  distant  town ; 
s€'arch  was  made  in  that  place  for  a  left-handed  turner,  who,  when  found, 
identified  the  accused  as  the  person  who  had  bought  the  article  from  him. 
Linguists  have  indicated  the  nationality  of  the  writer  of  a  letter ;  a  school- 
master has  guessed  the  age  of  a  bank-note  forger,  then  unknown,  from  the 
mistakes  in  writing  which  he  made;  and  astronomers  have  given  the  day 
in  spring  wiiich,  as  regards  the  evening  light,  corresponded  with  a  certain 
day  in  autumn.  In  the  last  case  the  Investigating  Officer  was  able  to 
visit  a  locality  in  spring  in  order  to  find  out  if  the  criminal  would  be  able 
to  see,  and  must  have  seen,  such  and  such  a  thing  at  a  certain  hour  on  a 
certain  day  in  the  autumn.  .   .   . 

Often  (juite  a  series  of  workmen,  etc.,  will  have  to  be  consulted  when  it 
is  believed  that  some  peculiarity  is  due  to  a  certain  kind  of  skill  connected 
with  .some  particular  trade.  One  day,  for  an  example,  an  important  theft, 
extremely  skillfully  carried  out,  was  committed  in  the  following  manner.  A 
thief,  a  former  servant  of  a  banker  who  lived  alone,  had  slipped  during  the 
daytime  into  the  room  next  to  the  bedroom  of  his  old  master.  The  thief 
was  aware  that  the  banker  was  in  the  habit,  before  going  to  bed,  of  locking 
the  door  l)etween  his  bedroom  and  the  room  where  the  former  was  hidden. 
He  therefore  resolved  to  wait  until  the  old  gentleman  was  asleep,  then  slip 
into  the  b<'dnK)in.  take  tln"  key  of  the  safe  from  the  bed  table,  open  the 
safe  and  cfjinplete  the  theft ;    which  indeed  he  did.     But,  so  as  not  to  be 


No.  221.  I.       GENERIC    TRAITS.       G.    EXPERIENCE  405 

shut  out  in  the  room  where  he  was  hiding,  it  was  necessary  to  make  the 
banker  beUeve  that  he  had  already  locked  the  door  of  communication.  The 
thief  therefore  shaped  a  small  piece  of  wood  to  cork  up  the  slot,  or  square 
opening,  into  which  the  bolt  of  the  lock  penetrates.  When  the  banker 
went  to  lock  the  door  before  getting  into  bed,  the  bolt  was  unable  to  enter 
the  hole  in  the  doorpost,  thus  producing  the  same  effect  as  if  the  door  had 
been  already  locked  ;  and  indeed,  the  banker  declared  afterwards  his  belief 
that  he  had  already  locked  the  door  without  remembering  ha\'ing  done  so. 
The  door  therefore  remained  unlocked  and  the  thief  was  able  to  carry  out 
his  project ;  but  he  had  left  the  little  piece  of  wood,  which  was  prismatic 
in  shape,  in  the  slot,  and  it  was  shown  to  various  experts.  The  first  was  a 
locksmith,  who  very  sensibly  remarked  "the  person  who  made  this  works 
more  minutely  than  we  do ;  it  was  not  necessary  to  cork  the  hole  with  so 
much  care ;  quite  an  ordinary  little  piece  of  wood  would  have  done  well 
enough,  provided  that  it  was  of  the  proper  length."  A  turner  was  then 
questioned,  who  on  seeing  the  piece  of  wood  was  of  opinion  that  its  work- 
manship indicated  a  man  who  knew  how  to  carve.  .A  turner  turns,  but 
does  not  carve,  and  so  it  could  not  have  been  a  turner  was  concerned  in  the 
theft.  A  wood  carver  was  next  questioned,  and  he  was  able  by  chance  to 
indicate  an  instrument  used  exclusively  by  makers  of  boot  and  shoe  trees. 
This  instrument  was  procured,  and  the  Investigating  Officer  was  easily  con- 
vinced of  the  accuracy  of  the  wood  carver's  statements  ;  and,  on  the  result 
being  communicated  to  the  victim  of  the  theft,  the  thief  was  easily  found  ; 
in  fact,  the  last  servant  whom  the  banker  had  dismissed  had  formerly  been 
a  tree  maker,  and  indeed  went  back  to  that  trade  whenever  he  was  out  of  a 
place.  .  •.  . 

But,  if  experts  are  capable  of  informing  the  Investigating  Officer  on  many 
points,  care  must  at  the  same  time  be  taken  not  to  ask  them  (and  especially 
medical  ones)  for  too  many  or  for  too  precise  explanations.  .  .  .  Only 
those  who  have  had  long  experience  of  them  can  know  what  qualities  a 
good  medical  jurisprudent  should  have ;  he  ought  certainly  to  be  a  specialist 
in  all  branches  of  medical  knowledge,  ought  to  know  all  the  difficulties  to 
be  met  with,  and  have  special  experience  of  criminals.  It  would  not  be 
fair  to  the  medical  jurisprudent,  who  represents  all  branches  of  medical 
science,  to  pretend  that  any  country  doctor,  even  the  very  best,  can  be  a 
medical  jurisprudent  absolutely  worthy  of  confidence.  It  is  for  this  reason 
that  the  Investigating  Officer  should  take  care  not  to  ask  the  medical  man 
for  too  much.  It  is  natural  for  a  man  to  prefer  to  say  "the  thing  is  so" 
rather  than  "  I  do  not  know  ;"  and,  sometimes,  the  doctor  will  make  precise 
replies  when  pressed  by  an  Investigating  Officer,  replies  which  will  not 
bear  the  examination  of  science.  It  has  been  necessary  for  the  best-known 
professors  in  medical  jurisprudence  to  boldly  avow,  "We  do  not  know 
this,  not  yet  that,  and  man}^  other  things  besides "  —  and  yet  the  scientists 
of  former  times  used  to  make  the  most  categorical  statements.  Take  but  a 
few  examples.  W'ith  what  certainty  did  they  not  use  to  distinguish  ante 
mortem  from  post  mortem  wounds  ?  And  yet  every  medical  jurisprudent  of 
to-day  points  out  most  convincingly  that  the  so-called  distinctive  signs  are 
not  always  infallible.  Again  medical  jurisprudents  used  to  determine  very 
accurately  the  beginning  and  the  end  of  a  gash  or  cut,  a  point  perhaps 
very  important  in  a  case  of  murder  or  suicide;     modern  medical   men 


-ilMi 


PART    11.      TESTIMONIAL   EVIDENCE  No.  221. 


dare  lu.t  in  most  instances  form  an  opinion  from  the  mere  sight  of  the 

wounil. 

We  now  proceed  to  point  out  some  of  the  fields  in  which  expert  knowledge 
can  add  data  impossible  for  the  layman. 

(I)  The  Micmscupht.  However  perfect  the  construction  of  the  micro- 
scope may  be.  however  great  the  services  rendered  by  this  admirable  instru- 
ment, it  is  not  yet  much  employed  by  the  Investigating  Officer.  To  ex- 
amine blood,  establish  the  existence  of  sperms,  to  compare  hair,  is  about 
all  the  use  at  present  made  of  the  microscope  observer  by  the  Investigating 
OIHcer;  other  examinations  are  the  exception.  Yet  there  are  innumerable 
cases  where  the  microscope  expert  might  be  able  to  give  the  most  interest- 
ing information  anil  even  clear  up  more  than  one  dark  mystery.  And  the 
explanation  of  this  is  that  the  Investigating  Officer  does  not  know  what 
the  observer  at  the  microscope  is  capal)le  of  telling  him,  and  that  the  latter 
is  unaware  that  tlie  Investigating  Officer  requires  the  help  or  in  what  way 
he  requires  it.  The  result  is  that  they  remain  strangers  to  one  another 
where  they  should,  in  many  a  case,  walk  hand  in  hand  together.  This 
ignorance  of  one  another  goes  so  far  that  in  the  numerous  works  upon 
micro.scopes  and  their  employment,  all  the  services  they  are  capable  of 
rendering  are  mentioned,  with  the  exception  of  those  they  are  capable  of 
in  the  domain  of  criminal  law.  If  we  consider  the  benefits  we  owe  to  the 
microscopist  in  the  domain  of  hygiene,  we  are  almost  forced  to  say  that 
the  microscope  alone  has  rendered  this  science  practicable.  Bacteriology, 
examination  of  water,  air,  soil,  or  food,  the  determining  of  the  nature  of  a 
large  numbt-r  of  illnesses,  and  many  other  important  branches  of  the  science 
of  hygiene,  would  have  absolutely  no  existence  unless  it  were  for  the  mi- 
croscope. And  the  reason  is  simply  that  the  hygienist  knew  the  services 
the  microscope  was  able  to  render  him ;  he  asked  for  those  services  and 
received  them,  just  as  the  Investigating  Officer  would  have  obtained  them 
if  he  had  thought  of  ciuestioning  the  microscope  expert.   .  .  . 

Hiiir.  It  happens  fairly  often  that  a  criminal  while  taking  flight  or  in 
the  course  of  the  struggle  loses  his  head  covering  and  that  the  latter  is 
handed  to  the  Investigating  Officer,  but  how  often  is  this  head  covering 
examined  to  see  whether  or  not  hairs  may  be  found  there,  and  how  many 
times  when  hairs  have  been  fountl  are  they  sent  to  a  skilled  microscopist? 
Kxamination  of  hair  is  also  necessary  when  we  may  establish  thereby  the 
id<-ntity  of  a  corpse  or  the  age,  constitution,  etc.,  of  a  dead  person,  which 
information,  owing  to  advanced  decomposition,  would  not  otherwise  be 
obtainaiile.  If  there  b«'  the  least  suspicion  of  crime,  a  little  of  the  hair  of 
the  (•or|)se  should  always  be  taken  and  handed  to  a  microscopist  in  order 
that  anything  which  can  be  established  may  be  established.  If  the  ques- 
tion l)e  a,ske«l  what  in  a  general  way  the  observer  at  the  microscope  can 
teach  us  concerning  the  distinctive  characters  of  hair,  the  answer  will  be 
that  he  is  above  all  and  with  absolute  certainty  able  to  distinguish  between 
the  fibers  of  plants  and  betwr.-n  the  hair  of  animals  and  the  human  hair. 
He  also  knows  how  to  distinguish  between  the  hair  which  grows  on  various 
part.s  of  the  human  body.  .  .  .  All  these  difl'erent  kinds  of  hair  have  their 
ihstinctive  characteristics  which  i)revent  any  error  being  made  in  dift'eren- 
fiafing  between  them;  the  expert  may  therefore  be  asked  if  necessary 
upon  what  i)art  of  the  body  the  hair  in  question  has  grown  and,  further, 


No.  221.  I.      GENERIC   TRAITS.      G.    EXPERIENCE  407 

whether  the  said  body  is  that  of  a  man  or  a  woman.  The  expert  is  also 
able,  within  certain  limits  no  doubt,  to  determine  the  age  of  a  person  by 
examining  some  of  that  person's  hair;  it  is  especially  easy  for  him  to  do 
so  if  the  hair  be  given  to  liim  with  its  root,  for  the  root  of  a  hair  dissolves 
in  a  solution  of  caustic  potash,  and  the  younger  the  owner  of  the  hair,  the 
more  easily  does  it  do  so ;  the  hair  of  children  will  dissolve  immediately, 
but  that  of  old  people  will  resist  the  action  of  the  solution  of  caustic  potash 
for  hours ;  with  several  hairs  of  the  same  person  various  experiments  may 
be  made  and  the  average  time  necessary  for  the  dissolution  of  their  roots 
be  established  ;  it  may  then  be  determined  what  are  the  persons  of  a  known 
age  whose  hair  will  dissolve  in  the  same  space  of  time,  and  the  approximate 
age  of  the  person  whose  hair  is  the  subject  of  examination  may  be  thus 
determined.  .  .  .  Moreover,  as  we  have  seen,  a  medical  jurisprudent  can 
at  least  in  certain  cases  indicate  with  more  or  less  accuracy  the  characteris- 
tics of  a  person  from  an  examination  of  hair;  sometimes  indeed  he  will 
be  able  to  say  in  what  manner  the  hair  has  been  looked  after  (use  of  various 
pomades,  dyes,  etc.)  from  which  many  an  important  clew  may  originate ; 
even  the  exterior  aspect  is  able  to  teach  us  whether  it  has  been  drawn  out, 
cut,  chopped,  and  this  in  some  cases  is  of  the  greatest  importance.  For 
instance,  an  examination  of  hair  cut  at  the  place  where  a  wound  has  been 
made  on  the  head,  often  teaches  us  more  concerning  the  weapon  employed 
than  an  examination  of  the  wound  itself.  The  Investigating  Officer  should 
therefore  never  neglect  to  hand  over  the  hair  to  a  medico-legal  expert  for 
microscopic  examination  when  a  wound  on  the  head  is  in  question  and  the 
weapon  employed  is  unknown.  .  .  . 

DiLst.  According  to  Liebig,  dirt  is  matter  in  the  wrong  place ;  so  we 
may  say  dust  is  our  environment  or  surroundings  in  miniature.  .  .  .  The 
dust  of  the  desert  will  contain  little  besides  pulverized  earth,  sand,  and 
small  particles  of  plants ;  the  dust  of  a  ballroom,  crowded  with  people, 
will  in  great  measure  proceed  from  the  fibers  from  which  the  clothes  of  the 
dancers  are  woven ;  the  dust  of  a  smith's  shop  will  be  for  the  most  part 
composed  of  pulverized  metal ;  and  that  upon  the  books  of  a  study  noth- 
ing but  the  reunion  of  the  particles  of  earth  carried  in  on  the  boots  of  the 
master  of  the  house  and  the  servants  with  very  tiny  particles  of  paper. 
Examining  more  closely,  we  find  that  the  coat  of  a  locksmith  contains  a 
different  kind  of  dust  to  that  on  the  coat  of  a  miller ;  that  accumulated  in 
the  pocket  of  a  schoolboy  is  essentially  different  from  that  in  the  pocket 
of  a  chemist ;  while  in  the  groove  of  the  pocket  knife  of  a  dandy  a  different 
kind  of  dust  will  be  found  to  that  in  the  pocket  knife  of  a  tramp.  All 
these  examples  are  drawn  from  the  author's  own  practice  and  in  all  of  them 
neither  a  determinate  body  nor  a  particular  particle  of  a  determinate  body 
was  being  searched  for ;  but  the  dust  was  collected  for  microscopic  examina- 
tion and  in  each  case  new  clews  were  found  therefrom  enabling  the  inquiry 
to  proceed.  One  day,  for  instance,  there  was  found  upon  the  scene  of  a 
crime  a  garment  from  which  no  information  could  be  obtained  as  to  its 
owner.  The  coat  w^as  placed  in  a  strong  and  well-gummed  paper  bag 
which  was  beaten  with  sticks  as  vigorously  and  for  as  long  a  time  as  could 
be  done  without  the  paper  tearing ;  the  packet  was  left  alone  for  a  short 
time  and  then  opened,  the  dust  being  carefully  collected  and  submitted  to  a 
chemical  examiner.     Examination  proved  that  the  dust  was  entirely  com- 


40S  PART    II.      TESTIMONIAL    EVIDENCE  No.  221. 

posetl  of  woody  fibrous  matter  finely  pulverized  ;  the  deduction  drawn  was 
that  the  coat  belonged  to  a  carpenter,  joiner,  or  sawyer,  etc.  But  among 
the  dust  mucii  jjelatine  and  powdered  glue  was  found;  this  not  being  used 
by  carpenters  or  sawyers  tiie  further  ileduction  was  drawn  that  the  gar- 
ment belonged  to  a  joiner,  —  which  turned  out  to  be  in  fact  the  case.  .  .  . 

(2)  Thv  Chrmicnl  Anah/st.  Here  we  may  be  brief;  in  effect,  the  chemist 
will  be  employed  in  all  cases  in  which  the  microscopist  may  be  called  in. 
In  many  cases  both  are  necessary,  for  there  are  few  cases  of  a  purely  chemi- 
cal category  ;  the  analyst  has  frequent  recourse  to  the  magnifying  glass  or 
microscope  before  or  after  his  chemical  work,  for  the  purpose  of  completing 
or  checking  it.  Conversely,  the  microscopist  can  hardly  do  analyst's 
work,  and  so  we  can  only  attain  satisfactory  results  from  the  combined 
action  of  the  microscopist  and  chemical  analyst.  Speaking  generally  we 
may  say  that  the  Investigating  OflBcer  does  not  employ  the  analyst  or 
chemical  examiner  frequently  enough,  and  that  many  cases  which  have 
remained  in  a  state  of  obscurity  would  have  taken  another  turn  if  the 
expert  had  been  consulted.  .  .   . 

(3)  The  Exptrt  in  Pfn/sics.  If  the  medical  jurisprudent  cannot  enlighten 
us.  if  the  microscopist  and  chemical  analyst  are  incapable  of  elucidating  the 
matter,  recourse  must  be  had  to  the  expert  in  physics.  The  cases  in  which 
one  can  and  ought  to  approach  him  are  legion ;  no  one  would  be  able  to 
completely  enumerate  them.  .  .  .  Speaking  generally,  it  may  be  stated  : 
the  physicist  must  always  be  called  in  when  it  is  important  to  determine 
the  effect  of  the  natural  forces  which  have  exercised  any  influence  upon  a 
matter  within  the  purview  of  the  Penal  Code.  It  goes  without  saying  that 
every  man  is  capable  of  determining  this  effect ;  but  the  scientist  can 
better  observe  it  and  with  more  accuracy  and  justice,  especially  in  cases 
requiring  .special  knowledge,  such  as  those  involving  calculations  and  the 
use  of  scientific  aj)pliances.  .  .  .  The  same  may  be  said  of  a  large  series 
of  optical  (juestions,  when,  e.g.,  it  is  desired  to  know  how  a  .light  effect  has 
been  produced,  what  has  been  its  action,  what  amount  of  light  has  been 
necessary  for  the  perpetration  of  determinate  acts,  how  a  certain  shadow 
ha.s  been  produced,  how  far  it  has  stretched,  what  ol)ject  has  caused  it,  at 
what  moment  of  the  day  the  sun  has  produced  such  and  such  an  effect,  or 
at  what  hour  in  the  night  the  moon  has  shown  in  a  particular  manner,  and 
a  thou.sand  other  questions.  In  a  recent -case  in  the  Cuddapah  District  a 
man  who  was  attacked  in  the  night  was  said  to  have  been  lying  on  his  left 
side  on  a  cot  facing  the  northern  and  open  side  of  a  chavadi  or  shed,  the 
foot  (»f  his  cot  l)cing  a  few  feet  from  its  eastern  wall.  It  was  alleged  the 
stalibing  took  place  about  midnight  and  just  as  the  moon  was  rising,  the 
itjjured  man  stating  in  the  witness  box  that  he  was  lying  awake  and  "watch- 
ing the  mc»on  rise"  when  his  assailants  came  up  and  attacked  him,  and  there- 
f«»n-  he  recognized  them.  No  <me  in  ( "ourt  was  al)le  positively  to  say  whether 
at  that  time  of  the  year  he  could  po.ssibly  have  seen  the  moon  which,  if 
his  story  was  tnie,  must  have  l)een  a  very  northerly  one.  Had  this 
witness's  story  not  »)een  completely  broken  down  and  found  to  be  false 
in  other  <lirections.  it  is  probable  that  he  would  have  been  believed  when 
he  a.s,serte<l  that  he  saw  the  nuum  rising.  It  would  have  been  itnpo.ssible 
to  have  adjourned  the  case,  which  was  a  sessions  one,  to  a  date  upon  which 
the  moon  would  have  been  in  ;,ti  equivalent  position,  and  it  is  very  doubtful 


No.  221.  I.       GENERIC   TRAITS.       G.    EXPERIENCE  409 

whether  any  physicist  could  have  been  summoned  for  that  trial.  But  had 
the  Investigating  Officer  taken  the  precaution  of  verifying  beforehand  the 
man's  story  by  communicating  with  an  expert  in  natural  philosophy,  there 
would  have  been  no  such  difficulty  as  was  raised  in  this  trial  upon  this 
point.  .  .  . 

(4)  Experts  in  Mineralogy,  Zoology,  and  Botany.  Experts  in  Mineralogy 
and  Zoology  are  but  little  consulted  by  the  Investigating  Officer.  .  .  .  We 
must  repeat  that  nowhere  is  there  greater  danger  than  when  we  neglect 
to  call  in  the  expert  and  ourselves  dabble  in  the  matter.  No  doubt  the 
layman  who  observes  closely  will  discover  something  and  form  correct 
conclusions,  but  the  true  working  insight  is  only  to  be  obtained  and  judged 
by  the  expert.  The  zoologist  finds  important  employment  when  the  ques- 
tion arises  of  how  long  a  man  lying  in  the  open  has  been  dead,  under  what 
conditions  animal  life  of  various  sorts  (especially  insects)  appear  at  different 
times  upon  every  corpse.  If  the  death  does  not  take  place  in  the  cold  part 
of  the  year,  certain  flies  at  once  appear,  somewhat  later  certain  beetles,  etc., 
are  found,  imtil  at  last,  sometimes  after  many  months,  certain  animals 
bring  about  the  final  work  of  destruction  of  the  non-osseous  parts.  In 
such  circumstances  the  zoologist  can  often  afford  important  and  reliable 
information.  ...  It  is  for  the  botanist  to  play  the  greatest  role ;  he  can 
indicate  poisonous  or  abortive  plants,  discovering  the  smallest  pieces ;  he 
can  determine  the  nature  of  powdered  substances  composed  of  plants,  seeds, 
and  fruits ;  he  can  study  the  juices  of  these  plants  and  the  preparations 
made  therefrom.  These  indications  are  often  important,  especially  when 
such  vegetable  matter  is  discovered  in  a  house  search  or  upon  the  person, 
or  in  the  stomach  and  intestines  of  deceased  persons,  or  the  matter  vomited 
or  passed  by  them.  It  must  not  be  forgotten  that  the  smallest  atom  of 
leaf,  the  most  minute  piece  of  bark  or  fiber,  suffices  for  the  botanist  to 
recognize  the  entire  plant.  ... 

(5)  Expert  in  Firearms.  As  indicated  above,  the  examination  of  fire- 
arms requires,  more  than  anything  else,  the  assistance  of  a  whole  series  of 
different  experts  ;  as  a  rule  only  a  gunsmith  is  called  in,  but  this  the  author 
considers  a  mistake.  Nowadays  local  gunsmiths  no  longer  exist  as  in 
former  times ;  they  are  as  rare  as  the  local  clockmakers  of  old ;  for  both 
the  local  gunsmith  and  clockmaker  sell  instruments  they  have  received 
ready-made  from  the  factory ;  at  the  most  they  have  only  placed  the  vari- 
ous parts  of  the  instrument  together  and  know  how  to  do  certain  repairs. 
The  firearm  and  the  watch  are  made  only  in  the  factory,  and  the  merchant 
or  shopkeeper  cannot  be  expected  to  understand  in  a  special  manner  their 
interior  mechanism.  Even  when  dealing  with  a  gunsmith  who  knows  his 
trade,  we  find  his  knowledge  restricted  in  most  cases  to  being  able  to 
indicate  the  origin  and  the  price  of  the  weapon,  the  names  of  its  different 
parts,  and  other  mechanical  details ;  which,  it  must  be  confessed,  will  have 
in  most  cases  a  certain  value.  But  he  will  not  be  able  to  say  much  regard- 
ing the  use  to  which  the  instrument  may  be  put,  the  effects  which  it  is 
capable  of  producing,  the  connection  existing  between  the  arm  itself  and 
the  bullet  employed,  besides  numerous  other  questions  of  capital  impor- 
tance. Recourse  must  therefore  be  had  to  the  experienced  sportsman,  the 
medical  man,  the  inspector  of  musketry,  the  physicist,  the  chemist,  and 
the  microscopist.     In  many  other  cases,  moreover,  where  the  question  is  to 


410  PART    II.       TESTIMONIAL   EVIDENCE  No    221. 

determine  the  effect  of  a  bullet  on  different  substances,  yet  other  experts 
who  are  conversant  with  the.se  substances  must  be  questioned;  in  many 
cases  experts  consulted  by  the  author  have  been  unable  to  give  a  satis- 
factory reply,  when  an  ordinary  workman  has  answered  without  hesitation. 
The  tiresser  of  stone  can  tell  us  the  resistance  of  the  various  kinds  of  stone, 
the  locksmitii  can  explain  to  us  how  a  certain  effect  has  been  produced 
upon  iron,  an<l  the  botanist  can  indicate  with  accuracy  the  time  and  the 
season  at  which  a  bullet  has  struck  a  living  tree  and  lodged  in  the  wood. 

B.  The  Dnngrrs  of  Expert  Testimonij.  .  .  .  The  first  question  that  arises 
when  we  are  dealing  with  an  important  w^itness  who  has  made  observa- 
tions and  inferences,  is  this  :  "  How  intelligent  is  he  ?  and  what  use  does  he 
make  of  his  intelligence  ?  That  is,  what  are  his  processes  of  reasoning  ?  "  .  .  . 
We  start,  therefore,  with  some  simple  fact  which  has  ari.sen  in  the  case  and 
try  to  discover  what  the  witness  will  do  with  it.  It  is  not  difficult;  you 
may  know  a  thing  l)adly  in  a  hundred  ways,  but  you  know  it  well  in  only 
one  way.  If  the  witness  handles  the  fact  properly,  we  may  trust  him. 
We  learn,  moreover,  from  this  handling  how  far  the  man  may  be  objective. 
His  perception  as  witness  means  to  him  only  an  experience,  and  the  human 
mind  may  not  collect  experiences  without,  at  the  same  time,  weaving  its 
speculations  into  them.  But  though  every  one  does  this,  he  does  it  accord- 
ing to  his  nature  and  nurture.  There  is  little  that  is  as  significant  as  the 
nuuiner,  the  intensity,  and  the  direction  in  and  with  which  a  witness  intro- 
duces his  speculation  into  the  story  of  his  experience.  Whole  sweeps  of 
human  character  may  show  themselves  up  with  one  such  little  explanation. 
...  It  is  Hume,  again,  I  think,  who  so  excellently  describes  what  happens 
when  some  inconceivable  story  is  told  to  uncritical  auditors.  Their  credu- 
lity increa.ses  the  narrator's  shamelessness ;  his  shamelessness  convinces 
their  credulity.  Thinking  for  yourself  is  a  rare  thing,  and  the  more  one 
Ls  involved  with  other  people  in  matters  of  importance,  the  more  one  is 
convinced  of  the  rarity.  .  .  . 

Now,  how  are  we  to  meet  people  of  this  kind  when  they  are  on  the  wit- 
ness stand  y  They  offer  no  difficulty  when  they  tell  us  that  they  know 
nothing  about  the  subject  in  question.  If,  however,  he  is  not  honest 
enough  immediately  to  confess  his  ignorance,  nothing  else  will  do  except 
to  make  him  .see  his  position  by  means  of  questions,  and  even  then  to 
proceed  carefully.  It  would  be  conscienceless  to  try  to  spare  this  man  while 
another  is  shown  up. 

This  is  important  wiicn  the  witnesses  examined  are  experts  in  the  matter 
in  which  they  are  examined.  I  am  convinced  that  the  belief  that  such 
ix'ople  nujst  be  the  best  witne.s.ses,  is  false,  at  least  as  a  generalization. 
Henneke  has  also  nunle  similar  observations.  "The  chemist  who  perceives 
u  cluMnical  process,  the  connoisseur  a  picture,  the  musician  a  symphony, 
IxTceive  them  with  more  vigorous  attention  than  the  layman,  but  the  actual 
Httenti(.n  may  be  greater  with  the  latter."  For  our  own  affair,  it  is  enough 
to  know  that  the  judgment  of  the  expert  will  naturally  be  better  than 
that  of  the  layman;  his  apprehension,  however,  is  as  a  rule  one-sided,  not 
so  far-reaching  and  less  uncolorrd.  It  is  natural  that  every  expert,  especially 
when  he  takes  his  work  .seriously,  should  find  most  interest  in  that  side  of 
an  event  with  which  his  profession  deals.  Oversight  of  legally  important 
matters  is,  then-fore,  almost  inevitable.     I  remember  how  an  eager  young 


No.  222.  I.       GENERIC   TRAITS.       G.    EXPERIENCE  411 

doctor  was  once  witness  of  an  assault  with  intent  to  kill.  He  had  seen 
how  in  an  inn  the  criminal  had  for  some  time  threatened  his  victim  with  a 
heavy  porcelain  match  tray.  "The  os  parietale  may  here  be  broken," 
the  doctor  thought,  and  while  he  was  thinking  of  the  surgical  consecjuences 
of  such  a  blow,  the  thing  was  done  and  the  doctor  had  not  seen  how  the 
blow  was  delivered,  whether  a  knife  had  been  drawn  by  the  victim,  etc. 
Similarly,  during  an  examination  concerning  breaking  open  the  drawer  of 
a  table,  the  worst  witness  was  the  cabinetmaker.  The  latter  was  so  much 
interested  in  the  foreign  manner  in  which  the  portions  of  the  drawer  had 
been  cemented  and  in  the  curious  wood,  that  he  had  nothing  to  say  about 
the  legally  important  question  of  how  the  break  was  made,  what  the  im- 
pression of  the  damaging  tool  was,  etc.  Most  of  us  have  had  such  experi- 
ences with  expert  witnesses,  and  most  of  us  have  also  observed  that  they 
often  give  false  evidence  because  they  treat  the  event  in  terms  of  their 
own  interest  and  are  convinced  that  things  must  happen  according  to  the 
principles  of  their  trades.  However  the  event  shapes  itself,  they  model  it 
and  alter  it  so  much  that  it  finally  implies  their  own  apprehension. 

As  regards  the  practical  method  of  procedure  in  examining  experts,  care 
must  be  taken  not  to  allow  different  experts  to  make  their  experiments  at 
the  same  time  and  give  their  advice  together.  The  Investigating  Officer 
who  is  directing  the  inquiry  easily  loses  a  concise  view  of  the  case  when  one 
expert  draws  conclusions  from  one  side  and  another  from  the  other  side ; 
it  is  difficult  to  understand  the  work  of  each,  and  it  is  impossible  to  recon- 
cile the  different  statements  and  the  conclusions  given  upon  the  whole.  .  .  . 
Once  the  experiments  are  made  and  the  reports  sent  in,  the  Investigating 
Officer  will  be  able,  following  the  case  and  the  results  of  the  reports,  to 
bring  the  experts  together,  either  all  at  once  or  in  several  groups ;  in  this 
way  he  will  perhaps  find  the  agreement  or  the  explanation  of  doubtful 
question  or  questions  resolved  in  different  ways ;  when  the  experts  are 
already  au  courant  with  the  matter  and  know  what  they  have  to  reply  they 
will  agree  together  much  more  readily  than  if  they  have  been  allowed  to 
work  together  from  the  outset. 

222.  Richard  Whately.  Elements  of  Rhetoric ;  comprising  an  Analysis 
of  the  Laws  of  Moral  Evidence,  (ed.  1893.  p.  259.)  ...  In  no  way,  per- 
haps, are  men,  not  bigoted  to  party,  more  likely  to  be  misled  by  their  favor- 
able or  unfavorable  judgment  of  their  advisers,  than  in  what  relates  to  the 
authority  derived  from  Experience.  Not  that  Experience  ought  not  to  be 
allowed  to  have  great  weight ;  but  that  men  are  apt  not  to  consider  with 
sufficient  attention  what  it  is  that  constitutes  Experience  in  each  point; 
so  that  frequently  one  man  shall  have  credit  for  much  experience,  in  what 
relates  to  the  matter  in  hand,  and  another,  who,  perhaps,  possesses  as 
much,  or  more,  shall  be  underrated  as  wanting  it. 

The  vulgar,  of  all  ranks,  need  to  be  warned,  First,  —  that  time  alone  does 
not  constitute  Experience ;  so  that  many  years  may  have  passed  over  a 
man's  head,  without  his  even  having  had  the  same  opportunities  of  ac- 
quiring it,  as  another,  much  younger ;  Secondly,  —  that  the  longest  prac- 
tice in  conducting  any  business  in  one  way,  does  not  necessarily  confer  any 
experience  in  conducting  it  in  a  different  way ;  e.g. ;  an  experienced  Hus- 
bandman, or  Minister  of  State,  in  Persia,  would  be  much  at  a  loss  in  Eu- 


41J  PART    II.      TESTIMONIAL   EVIDENCE  No.  222. 

rope;  and  if  tlu-y  had  .-^une  things  less  to  learn  than  an  entire  novice,  on 
tlu'  other  hand  tliey  woulil  luive  much  to  unlearn ;  and,  Thirdly,  —  that 
iiii-rely  being  conversant  about  a  certain  class  of  subjects,  does  not  confer 
Experience  in  a  case  where  the  operations  and  the  end  proposed  are  dif- 
ferent. It  is  said  that  there  was  an  Amsterdam  merchant,  who  had  dealt 
largely  in  corn  all  his  life,  who  had  never  seen  a  field  of  wheat  growing; 
this  man  had  doul)tless  acquired,  l)y  Experience,  an  accurate  judgment  of 
the  tpialities  of  each  descTiption  of  corn,  — of  the  best  methods  of  storing 
it,  —  of  the  arts  of  buying  and  selling  it  at  proper  times,  etc. ;  but  he  would 
have  been  greatly  at  a  loss  in  its  cultivation  ;  though  he  had  been,  in  a  cer- 
tain way.  long  conversant  about  corn.  Nearly  similar  is  the  Experience  of 
a  practiced  Lawyer  (supposing  him  to  be  nothing  more)  in  a  case  of  Legis- 
lation. Because  he  has  been  long  conversant  about  Law,  the  unreflecting 
attrii)ute  great  weight  to  his  legislative  judgment ;  whereas  his  constant 
hal)its  of  fixing  his  thoughts  on  what  the  law  is,  and  withdrawing  it  from  the 
irrelevant  question  of  what  the  law  ought  to  be ;  —  his  careful  observance 
of  a  multitude  of  rules  (which  afford  the  more  scope  for  the  display  of  his 
skill,  in  proportion  as  they  are  arbitrary  and  unaccountable)  with  a  studied 
indifference  as  to  that  which  is  foreign  from  his  business,  the  convenience  or 
inconvenience  of  those  Rules  —  may  be  expected  to  operate  unfavorably 
on  his  judgment  in  questions  of  Legislation ;  and  are  likely  to  counter- 
lialance  the  advantages  of  his  superior  knowledge,  even  in  such  points  as 
do  bear  on  the  cpiestion.  Again,  a  person  who  is  more  properly  to  be  re- 
gartleil  as  an  Antiquarian  than  anything  else,  will  sometimes  be  regarded 
as  high  authority  in  some  subject  respecting  which  he  has  perhaps  little 
or  no  real  knowledge  or  capacity,  if  he  have  collected  a  multitiule  of  facts 
relative  to  it.  Suppose,  for  instance,  a  man  of  much  reading,  and  of  reten- 
tive memory,  but  of  unphilo.sophical  mind,  to  have  amassed  a  great  collec- 
tion of  particulars  respecting  the  writers  on  some  science,  the  times  when 
they  flourished,  the  numbers  of  their  followers,  the  editions  of  their  works, 
etc.,  it  is  not  unlikely  he  may  lead  both  others  and  himself  into  the  belief 
that  he  is  a  great  authority  in  that  Science ;  when  perhaps  he  may  in 
reality  know  —  though  a  great  deal  about  it  —  nothing  of  it  (see  "Logic," 
Introd.,  §  I,  p.  3).  Such  a  man's  mind,  compared  with  that  of  one  really 
versed  in  the  subject,  is  like  an  antiquarian  armory,  full  of  curious  old 
weapons,  —  many  of  them  the  more  precious  from  having  been  long  since 
sup«'r>ed«'d,  —  as  compared  with  a  well-stocked  arsenal,  containing  all  the 
most  approved  warlike  implements  fit  for  actual  service.  In  matters  con- 
nected with  Political  Economy,  the  experience  of  practical  men  is  often 
appealed  to  in  opposition  to  those  who  are  called  Theorists ;  even  though 
the  latter  p«Thai)s  are  deducing  conclusions  from  a  wide  induction  of 
facts,  while  the  exix-ricncr  of  the  others  will  often  be  found  only  to  amount 
to  their  having  been  long  conversant  with  the  details  of  office,  and  having 
all  that  time  gone  on  in  certain  beaten  tracks,  from  which  they  never  tried, 
f)r  witnessefl.  or  even  imagined  a  deviation.  So  also  the  authority  derived 
from  experi«-iice  of  a  j>ractical  Miner,  —  i.e.  one  who  has  wrought  all  his 
life  m  (»nr  mine,  -  will  .sometimes  delude  a  speculator  into  a  vain  search 
for  m«'tal  or  coal,  against  the  opinion  perhaps  of  Theorists,  i.e.  persons  of 
extensive  geol()gical  ob.servation.  It  may  l)e  added,  that  there  is  a  prover- 
bial maxim  which  bears  witness  to  the  advantage  sometimes  possessed  by  an 


No.  224.  I.       GENERIC    TRAITS.       G.    EXPERIENCE  413 

observant  bystander  over  those  actually  engaged  in  any  transaction  :  "  The 
looker-on  often  sees  more  of  the  game  than  the  players."  Now  the 
looker-on  (in  Greek,  ^cwpew)  is  precisely  the  Theorist. 

223.  Samuel  S.  Page.  Personal  Injury  Actions.  (Illinois  Law  Review, 
1906.  Vol.  I,  p.  35.)  .  .  .  There  is  a  great  field  in  the  cross-examining  of 
medical  experts.  Doctors  who  make  a  specialty  of  testifying  for  plaintiffs 
are  very  frequently  both  ignorant  and  vicious.  They  testify  for  contingent 
fees,  and  their  evidence  is  frequently  affected  by  their  interest  in  the  result. 
...  It  is  sometimes  easy  to  show  the  ignorance  of  some  so-called  "  experts." 
Not  long  ago,  in  one  of  my  cases,  a  doctor  testified  that  he  was  a  graduate 
of  a  medical  college ;  was  attending  surgeon  at  a  hospital  and  had  been  on 
its  advisory  board  for  some  years ;  was  professor  of  surgery  in  a  clinical 
school,  and  had  examined  and  treated  plaintiff,  and  in  addition  to  his  physi- 
cal injury,  plaintiff's  mind  was  affected.  A  man  who  makes  a  specialty 
of  mental  diseases  or  testifies  as  an  expert  in  regard  thereto  is  called  an 
"  alienist,"  a  term  common  and  well  known  amongst  physicians.  Suspecting 
that  the  doctor  was  not  an  intelligent  and  well-informed  one,  my  first  ques- 
tion was  :  Doctor,  are  you  an  alienist  ?  He  answered  with  vigor  :  I  am  an 
American  citizen.  Q.  Well,  are  you  an  alienist  ?  A.  (again,  emphatically) 
I  am  an  American  citizen.  Q.  I  didn't  ask  you  that ;  are  you  an  alienist  ? 
A.  I  am  an  American  citizen.  Q.  Well,  are  you  an  alienist  ?  A.  I  am 
an  American  citizen.  Q.  Well,  are  you  an  alienist  1  A.  1  am  an  American 
citizen.  Q.  Is  that  all  the  answer  you  will  make  ?  A.  Yes.  Q.  Do  you 
answer  that  way  because  you  think  I  am  inquiring  whether  you  are  a  citizen 
or  an  alien  ?  A.  I  told  you  I  am  an  American  citizen.  On  further  question- 
ing he  said:  I  heard  the  word  "alien"  but  could  not  define  it.  What  it 
means  I  could  not  say  at  present.  Q.  What  do  you  think  it  means  ?  A. 
I  don't  know. 

One  condition  of  the  eye  is  known  as  "  Argyle-Robertson  pupil."  When 
this  doctor  was  asked  if  he  knew  what  that  is,  he  said  :  "  I  can  give  you 
fifty-five  or  a  hundred  names.  Every  specialist  has  his  name  attached  to 
the  reflexes  and  the  eye  trouble."  When  asked  again  what  it  is,  he  answered  : 
"It  is  according  to  what  book  or  dictionary  you  read.  It  is  different  in 
different  books.  They  have  all  kinds  of  definitions.".  .  .  There  are  a 
great  many  reflexes,  as  they  are  called,  but  to  any  intelligent  physician  who 
has  made  a  slight  study  of  them,  they  are  not  at  all  difficult  to  know. 

In  a  certain  case  plaintiff's  expert  doctor  testified  as  to  certain  reflexes. 
On  cross-examination  he  was  asked  if  he  took  certain  reflexes,  and  said  that 
he  did,  and  certain  others  he  said  he  did  not  take  but  recognized  as 
being  standard  tests  in  that  kind  of  a  case.  Amongst  the  latter  was  the 
"Cerebro-Piper-Heidsieck."  It  is  needless  to  say  that  "Piper-Heidsieck" 
is  the  name  of  a  brand  of  champagne  and  there  is  no  such  reflex  as  "  Cerebro- 
Piper-Heidsieck." 

224.  Richard  Harris.  Hints  on  Advocacy.  (Amer.  ed.  1892.  pp.  84, 
97,  117.)  Another  class  of  witness  deserving  of  notice  is  that  of  the  senu- 
professional.  He  is  in  fact  semi-everything,  —  half  veracious  and  half  liar ; 
his  word  is  positive  and  his  respectability  comparative. 

I  have  in  my  mind  a  little,  lean  old  man,  with  a  high,  narrow  forehead 


414  PART    II.      TESTIMONIAL   EVIDENCE  No.  224. 

antl  a  much  underhanging  lip.  a  mouth  that  twitches  with  self-importance, 
and  an  impatience  of  contrachction.  He  wears  glasses  that  shut  up,  and 
waves  them  witli  an  air  of  consequence  when  he  answers  a  question,  putting 
them  on  and  taking  them  ott*  with  his  hand  in  front  of  his  face  when  he  wishes 
to  evade  your  cjuestion.  This  gentleman  always  seems  to  have  a  map  or 
plan  of  something  before  him,  for  he  calls  himself  a  surveyor,  although  his 
principal  business  is  that  of  an  undertaker.  He  is  a  great  authority  on  party 
walls,  boundary  fences,  old  drains,  and  the  locality  of  disused  cesspools. 
A  case  of  dilapidation  could  no  more  get  along  without  him  than  a  German 
band  could  proceed  harmoniou.sly  without  its  most  prominent  instrument, 
the  troml)one.  In  fact,  but  for  this  worthy  gentleman  there  would  probably 
have  been  no  action  at  all,  for  he  usually  combines  the  greed  of  a  petti- 
fogging lawyer  with  the  quarrelsome  faculty  of  the  parochial  meddler. 

Now  this  man  is  full  of  "purlines,"  "bressimers,"  "architraves,"  "but- 
tresses," and  other  architectural  expressions.  With  these  and  his  eyeglasses 
he  could  prove  any  ca.se  against  anybody,  if  you  did  not  cross-examine  him. 
He  combines  within  himself  all  the  qualities  which  make  up  a  deceptive 
witness  —  truthful,  false,  dogmatic,  opinionative,  clever,  cunning,  and  cour- 
teous. Vou  could  no  more  bully  this  man  into  telling  a  lie  than  you  could 
persuade  him  to  tell  tlie  truth.  You  can  no  more  demolish  his  respectability 
than  you  can  deprive  him  of  his  honest  intentions. 

How,  then,  will  you  cross-e.xamine  a  man  who  has  all  the  goodness  of  the 
canting  hypocrite  with  all  the  pretensions  of  the  scientific  witness  ? 

Tniacitif  of  opinion  is  his  weakness.  He  will  sacrifice  truth  itself  rather 
than  give  up  his  opinion.  Drive  him  into  that  net  and  you  have  him  a  safe 
captive.  ...  In  all  probability  any  one  could  do  what  Mr.  Scraper  is 
called  upon  to  perform,  namely,  tell  how  many  slates  are  off,  how  many 
windows  broken,  and  how  many  doors  require  hinges.  But  in  whatever 
circumstances  this  individual  may  appear,  if  you  wish  to  attack  his  knowl- 
edge, cross-examine  about /«d.s-,  and  you  will  soon  learn  whether  he  knows 
his  business  or  not.  If  you  yourself  know  nothing  of  what  you  are  cross- 
examining  to,  he  will  beat  you  unmercifully  at  every  point ;  if  you  do  know 
something  you  will  plumb  the  depth  of  his  scientific  ignorance  very  soon.  .  .  . 
St)  he  stands  with  his  glasses  in  one  hand  and  his  compasses  in  the  other, 
and  the  map  before  him,  defining  the  boundary  of  some  institution  whose 
wall  is  supi)osed  to  have  encroached  upon  the  plaintiff's  premises.  He  will 
tell  you  how  it  has  "  canted  over"  out  of  the  upright,  as  he  himself  very  often 
does,  and  how  the  fault  was  with  the  foundations,  which  could  never  have 
been  good,  and  how  that  recently  there  must  have  been  a  subsidence  and 
another  "canting  over,"  and  so  on. 

As  this  old  gentleman  peeps  over  the  ledge  of  the  witness  box,  and  main- 
tains hi.s  opinion  to  the  death  that  the  foundation  of  the  wall  was  not  good 
and  .sufficient,  you  will  elicit  that  he  cares  nothing  for  all  the  opinions  of 
all  the  .scientific  men  of  the  day  ;  it  does  not  matter  to  him  that  the  wall  has 
st.Kwl  f.,r  a  hnn.lred  y.-ars  at  least  in  exactly  the  same  state  as  now.  He 
will  mamtauj  that  the  superstructure  (be  sure  and  feed  him  with  long  words) 
nnist  have  been  sounti,  or  it  would  not  have  stood  so  long.  And  although 
he  agrees  with  others  that  there  is  not  a  crack  to  be  found  in  the  wall,  he 
will  tnauHam  his  opinion  with  greater  obstinacv  than  ever,  because  it  is 
nrcrssnni,  the  wall  having  lately,  according  to  his  theorv,  encroached  or 


No.  224.  I.       GENERIC    TR.MTS.       G.    EXPERIENCE  415 

canted  over  several  inches ;  and  when  he  is  forced  to  admit  that  it  bulges 
into  a  circle  without  a  crack,  he  would  rather  believe  in  the  capacity  of  the 
bricks  to  stretch  or  bend  than  in  the  possil)ility  of  his  own  evidence  inclining 
to  do  either  for  the  sake  of  his  client.  So  he  proves  either  that  the  wall 
was  originally  built  as  it  is,  or  that  every  brick  has  stretched  and  bent  in 
a  miraculous  manner.  Such  proof  was  given  not  long  ago  by  the  semi- 
professional  witness.  .  .  . 

The  3Iedical  Ultncss.  Medical  witnesses  should  be  carefully  watched  in 
these  respects.  They  are  witnesses  of  theory,  and  are  most  tenacious  of  their 
opinions.  They  take  opposite  sides,  and  arrive  at  opposite  and  adverse 
conclusions,  not  exactly  from  the  same  premises,  but  from  a  different  con- 
ception of  the  premises,  or  from  regarding  them  from  a  different  standpoint. 
It  will  be  acknowledged  that  it  makes  all  the  difference  in  the  world  whether 
these  witnesses  form  an  opinion  from  the  facts,  or  whether  they  start  with 
a  theory  and  then  endeavor  to  make  the  facts  square  with  it. 

A  great  deal  of  what  is  termed  medical  evidence  is  not  medical  evidence  in 
any  sense  of  the  term,  except  that  it  is  given  by  a  medical  practitioner  :  and 
in  the  same  sense  as  a  woman's  might  be  said  to  be  "female  evidence." 
Much  that  a  scientific  witness  gives  might  be  given  as  well  by  an  ordinary 
person  and  very  often  a  great  deal  better.  "  I  discovered  considerable 
ecchymosis  under  the  left  orbit,  caused  by  extravasation  of  blood  beneath 
the  cuticle,"  said  a  young  house  surgeon  in  a  case  of  assault.  Baron  Bram- 
WELL :  "  I  suppose  you  mean  the  man  had  a  black  eye  ?  "  Scientific  Wit- 
ness:  "Precisely,  my  lord."  Baron  Bramwell  :  "Perhaps  if  you  said  so 
in  plain  English,  those  gentleman  would  better  understand  you  ?  "  "  Pre- 
cisely, my  lord,"  answered  the  learned  surgeon,  evidently  delighted  that  the 
judge  understood  his  meaning,  and  accepting  the  rebuke  as  a  compliment. 

If  you  look  at  a  plain  fact  through  the  lens  of  scientific  language,  its  shape 
usually  becomes  distorted.  Giving  a  man  a  "black  eye"  may  be  consic'ered 
a  trifling  offense,  and  a  jury  might  acquit ;  but  impress  them  with  the  idea 
that  the  prisoner  caused  "extravasation  of  blood  under  the  left  orbit,"  and 
he  is  regarded  as  a  monster  of  cruelty  to  whom  no  mercy  can  be  shown. 

An  eminent  Queen's  counsel  told  me,  apropos  of  the  quickness  with  which 
medical  practitio^jers  sometimes  arrive  at  a  conclusion,  of  a  case  that  oc- 
curred some  years  ago.  A  woman  who  had  cohabited  with  a  tradesman  in 
a  country  village  suddenly  disappeared.  Her  paramour  gave  out  that  she 
had  gone  to  iVmerica.  Some  years  after  a  skeleton  was  found  in  the  garden 
of  the  house  where  she  had  lived.  On  examination  by  a  medical  man  he  at 
once  pronounced  it  to  be  that  of  the  missing  woman.  He  formed  this  opinion 
from  the  circumstance  that  one  of  the  teeth  was  gone,  and  that  he  had  ex- 
tracted the  corresponding  one  from  the  woman  some  years  before.  Upon 
this  the  prosecution  was  instituted,  and  the  man  was  committed  for  trial 
to  the  assizes.  Fortunately,  there  was  time  before  the  trial  came  on  for 
a  further  investigation  of  the  garden  where  the  skeleton  was  found,  and  on 
digging  near  the  spot  another  skeleton  was  discovered,  and  then  another,  and 
another ;  then  several  more.  This  threw  some  doubt  upon  the  identifica- 
tion of  the  bones  in  question,  and  on  further  inquiries  being  made  it  turned 
out  that  the  garden  had  once  been  a  gipsy  burial  ground.  It  need  scarcely 
be  added  that  the  prosecution,  which  had  been  vigorously  taken  up  by  the 
government,  was  at  once  vigorously  abandoned. 


416  PART    II.       TESTIMONIAL    EVIDENCE  No.  224. 

The  Surrcyor  (Mr.  Unilatcra}).  As  diversities  of  climes  and  soils  produce 
diversities  of  trees,  so  tlie  various  kinds  of  contentious  legal  business  give 
rise  to  a  vast  variety  of  witnesses. 

Here  is  a  specimen  you  shall  find  on  no  other  soil  than  a  Railway  Com- 
pany's, or  some  other  Public  Company's  or  Board's,  taken  under  the  powers 
of  tiieir  act.  Let  us  study  the  characteristics  of  that  important  and  re- 
spectable class  of  witnesses  known  as  Surveyors.  They  are  of  two  great 
divisions,  the  surveyors,  and  the  surveyors  who  survey  them;  or  they  may 
be  called  the  surveyors  and  their  contradictors.  One  swears  a  house  is 
worth  fifteen  hundred  pounds,  another  that  it  is  only  worth  one  hundred 
and  fifty;  both  conscientious  men,  swearing  to  the  best  of  their  ability; 
and  very  al)le  swearing  it  is  I  Both  conscientious,  and  nearly  standing 
on  the  same  spot  from  whence  they  take  their  survey,  but  standing  as  they 
do  back  to  back,  by  no  means  looking  at  things  from  the  same  point  of 
view. 

Now,  in  estimating  the  value  of  Land,  the  value  of  a  House,  a  Lease,  a 
Business,  or  an  Interest  of  any  other  kind,  there  is  really  no  difficulty  what- 
ever in  ascertaining  the  market  value.  If  two  men  were  to  appoint  to  meet 
in  London  at  a  given  time  and  place,  they  would  meet :  but  if  the  same  men 
started  off  to  find  one  another  without  having  mentioned  time  and  place, 
there  would  be  many  difficulties  in  their  way,  many  inquiries  w^ould  be  neces- 
sary, and  in  all  probability  some  third  person  would  have  to  bring  them  to- 
gether. It  is  so  in  the  life  of  surveyors ;  both  sides  start  off  in  opposite 
directions,  and  it  is  a  good  while  before  they  meet.  Take  a  case  where  on  the 
one  sifle  the  ofi'er  was  £250  and  the  claim  on  the  other  was  £3950  !  Is  it 
to  be  supi)osed  that  both  parties  were  not  well  aware  that  these  figures 
meant  nothing,  except,  perhaps,  that  juries  will  sometimes  add  the  two  sums 
together  and  divide  by  two  V 

In  this  case,  and  in  every  other  of  a  like  character,  you  will  find  the  con- 
scientious witnesses  ranging  themselves  on  either  side  in  preparation  for  the 
tussle,  every  one  of  them  primed  with  reasons,  prompt  with  measurements, 
and  precise  in  figures.  The  most  skillful  adjuster  of  the  minutest  of  apoth- 
ecary's scales  could  not  be  more  delicate  in  touch  or  exact  in  calculation 
than  these  conflicting  gentlemen. 

There  is  a  mode  in  which  calculations  are  sometimes  made  in  these  cases, 
which  maybe  told  in  the  words  of  a  hack  surveyor  who  was  of  ten  employed 
in  compensation  cases  of  a  minor  kind.  He  was  asked,  privately,  how  he 
so  readily  made  his  calculations,  seeing  that  he  came  into  court  without  any 
report.  "Oh,"  said  he,  "  it's  habit ;  after  you  have  been  at  it  some  time  it 
becomes  a  kin«l  of  second  nature.  It  used  to  take  me  a  long  time  to  go  over 
the  premises  and  make  all  sorts  of  calculations ;  but  now  I  let  other  people 
<lo  that  —  the  ittlur  .side;  I  listen  to  their  evidence,  take  their  figures,  which 
I  think  fair  to  tlirm,  and  then  cut  them  down  by  three-fourths,  which  I  think 
fair  tf)  us." 

I  once  heard  a  l.rickiiiakcr.  called  to  give  evidence  for  a  railway  company, 
which  had  taken  some  brickfields,  reduced  to  this  by  cross-examination; 
"I  have  come  to  speak  to  the  loss  sustained  by  the  Plaintiff  through  having 

his  brickmaking  business  taken  from  him  ;   I  come  from shire  :   I  make 

bricks  on  a  large  scale  there;    the  defendant  Railway  Company  is  a  great 
cuMomvr  uj  mine PlaintiH"s  bricks  are  the  worst  fever  saw.'  They  are 


No.  224.  I.       GENERIC   TRAITS.       G.    EXPERIENCE  417 

not  worth  anything.  There  is  no  profit  this  year  on  good  bricks  :  has  not 
been  any  profit  for  the  last  three  years ;  there  will  be  a  loss  this  year.  If 
Plaintiff  swears  he  made  a  profit  this  year,  and  proves  by  his  books  that  he  is 
making  a  profit,  I  would  not  believe  him ;  I  would  not  believe  him  or  his 
books,  or  anything  that  is  his.  I  do  not  believe  him  when  he  swears  he  has 
spent  money  in  preparing  his  land  for  making  bricks.  I  believe  that  taking 
the  land  and  business  of  the  Plaintiff  away  from  him  by  the  company  is  a  good 
thing  for  him,  and  will  put  money  into  his  pocket  without  any  compensation 
at  all."  This  brickmaking  witness  has  been  called  over  and  over  again 
by  a  railway  company  to  cut  down  claims,  although  no  tribunal  with  any 
self-respect  could  attach  importance  to  his  evidence. 

The  Expert  in  Handwriting  {Mr.  Grapho).  An  intelligent,  keen -eyed  man 
steps  lightly  into  the  box  in  a  case  of  murder.  There  is  a  confident  air  about 
him  which  impresses  you.  He  is  scientific  as  well  as  philosophic.  Can  he, 
I  wonder,  read  not  only  "sermons  in  stones,"  but  murder  in  love  letters, 
and  divorce  in  everything  ?  . .  .  "  How  long  have  I  been  studying  handwriting, 
sir?"  "Well,"  he  thinks,  "that  is  a  most  commonplace  question,  truly  the 
most  commonplace  —  I  have  answered  it  a  thousand  times."  Nevertheless, 
he  places  his  white  hands  on  the  book  before  him,  one  over  the  other,  and, 
looking  up  to  the  ceiling,  as  though  making  the  calculation  for  the  first 
time,  and  the  question  were  an  abstruse  one  —  "  Five-and-thirty  years,  sir." 
Now  he  takes  out  his  folding  glasses,  with  the  delicate  touch  of  a  man  ac- 
customed to  deal  with  delicate  matters  only.  He  holds  them  between  the 
tip  of  his  thumb  and  the  side  of  his  middle  finger,  the  forefinger  being  grace- 
fully posed  on  the  gold  rim.  These  glasses,  destined  to  play  so  important 
a  part  in  his  evidence,  he  shakes  scornfully,  scientifically,  and  almost  mathe- 
matically at  the  young  counsel.   .   .   . 

Yes,  the  charge  is  murder  ;  and  the  proof  handwriting.  Here  is  the  wit- 
ness to  prove  that  the  prisoner  is  guilty.  "  No,  no,"  says  the  expert  to  him- 
self, "  not  I.  You  have  given  me  specimens  of  handwriting  to  examine ; 
I  say  they  are  in  the  handwriting  of  the  prisoner.  You  say  if  he  wrote  them 
he  is  guilty,  and  so  will  say  the  jury."  Beautiful  distinction,  but  did  you 
happen  to  know  the  probable  effect  of  the  examination  before  you  made  it, 
Mr.  Grapho  f  . . .  But  what  you  still  want  to  know  is,  what  influence  was  at 
work  in  his  mind  which  may  have  led  him  to  a  particular  conclusion  with  ref- 
erence to  the  loop  of  a  G  or  the  twist  of  a  Y.  How  came  he  to  think  it  w^as 
like  the  prisoner's  ?  Did  he  know  that  a  murder  had  been  committed  ? 
"  Not  in  reference  to  this  case  ! " 

Mark  that  answer  and  repeat  the  question.  He  ivasn't  told  when  the  speci- 
mens were  sent,  of  course  :  and  he  wasn't  told  that  the  specimens  were  the 
prisoner's,  or  that  he  was  to  compare  the  fatal  paper  with  the  specimens. 
And  I  will  tell  you  why  he  wasn't  told,  as  it  is  a  point  to  be  remembered  on 
the  very  threshold  of  your  cross-examination.  It  is  so  easy  to  find  resem- 
blances in  almost  all  handwritings  of  the  same  class  of  persons ;  of  boys  or 
girls  in  the  same  school;  and  even  persons  in  the  same  employ,  that  you 
might  well  believe  two  or  more  persons'  writing  were  written  by  the  same 
hand.  Boys  copy  their  masters,  girls  their  mistresses ;  junior  clerks  copy 
older  clerks.  And  remember  further,  it  is  so-called  peculiarities  or  ec- 
centricities that  ivill  be  sure  to  be  copied. 

Mr.  Grapho  was  not  told  ;  but  if  he  had  read  of  the  murder  he  would  know 


41S  PART    II.      TESTIMONIAL   EVIDENCE  No.  224. 

two  facts  :  one  that  a  ilocuinent  was  left  by  the  murderer  stating  that  some 
one  else  had  committed  it ;  the  other  that  a  shopman  was  the  last  person 
seen  with  the  deceasei! ;  anil  he  would  know  a  third  fact  w^hen  the  books 
in  wliich  were  entries  made  by  the  .shopman  were  given  into  his  hands  to 
compare  with  the /«/(//  paper.  So  you  see  the  expert  would  have  no  vague 
or  in«iefinite  idea  of  what  he  was  about.  That  is  the  first  point  to  establish 
—  do  it  how  you  may  :   not  how  long  he  has  been  studying  his  profession. 

The  ne.xt  point  to  make  is  a.v  to  the  mode  of  examination  by  this  experienced 
expert.  And  here  you  will  be  amazed  at  the  elal)oration  of  the  system  for 
finding  out  nothing,  which  has  l)een  invented  by  science.  He  "first  of  all," 
he  says  —  takes  the  "  undoidAed  handwriting  of  the  prisoner's;"  this  is  one 
of  his  scientific  phrases  —  "the  undoubted  handwriting  of  the  prisoner's ;" 
and  he  "  examines  for  pecnliarities"  —  another. 

But  this  is  begging  the  question  at  once,  are  they  peculiarities  ?  He  calls 
them  so  and  stamps  them  with  guilt.  He  next  finds  "on  line  thirteen  of 
page  fourteen,  my  lord,"  nodding  at  my  lord  with  nervous  respect:  "line 
thirteen  of  page  fourteen "  — says  the  judge,  counting  vigorously  —  "yes, 
I  see ;  I've  got  it."  "  Your  lordship  will  find  "  —  here's  a  sly  look  at  counsel, 
as  much  as  to  say,  now  listen  to  this  revelation  —  "  the  down  stroke  of  the 
F  in  fool  is  at  a  very  remarkable  angle,  an  angle  of  fifty-four  and  a  half, 
my  lord.  Now,  this  angle  occurs  only  about  once  in  fifty-four  millions  of 
handwritings.  Then  I  find  in  looking  at  the  disputed  handwriting  at  page 
four  of  the  daybook,  line  twenty-two  the  F  in  the  word  "foot"  has  precisely 
the  .same  angle  and  the  peculiar  crook,  if  I  may  so  call  it"  —  pauses  as  though 
this  powerful  expression  must  elicit  silent  applause.  You  mark  this  scientific 
discovery  and  cross-examine  upon  it,  because  it  is  totally  inapplicable  and 
no  more  a  "crook"  or  a  peculiarity  than  you  will  find  in  the  handwTiting 
of  nine  persons  of  the  prisoner's  class  out  of  ten. 

"There  is  next,  my  lord,  at  page  five,  line  seventeen,  an  O  which  is  made 
like  a  srmibrrre." 

"  A  what  ?"  says  the  judge. 

"  Semibreve,  my  lord.  Perhaps  I  shall  be  clearer  if  I  say  it  is  an  O  recum- 
brnt.  Then,  my  lord,  there's  a  J  of  a  very  remarkal>le  and  pronounced  kind  ; 
your  lordship  will  observe  that  the  loop  or  convolution  is  elongated.  This  is 
at  page  six,  line  two,  my  lord  ;  and  it  occurs  twice  in  the  fatal  document, 
and  once  in  the  unrloubted  handwriting. 

"  The  next  letter  I  come  to,  my  lord,  is  a  W,  which  is  found  on  page  seven, 
line  eight  of  the  daybook,  and  occurs  three  times  in  the  fatal  document. 
Your  lordship  will  ob.sorve  that  it  is  serrated,  or  (turning  to  the  jury)  like  a 
saw,  gentlemen.  Serrated,  my  lord.  And  that  same  serrated  appearance 
is  observable  in  the  M's  of  the  vmdoubted  handwriting  of  the  prisoner,  my 
lord." 

And  thus,  through  the  alphabet.  Bias  has  hooks,  crooks,  crosses,  convolu- 
tions, semibreves,  humpbacks,  di.slocations,  and  deformities  of  all  sorts,  and 
letters  that  lof)k  like  murderers,  burglars,  and  other  disreputable  per.sons, 
with  the  common  hangman  amongst  them.  But  bring  common  sense  to 
bear  upon  it  in  cross-rxamination,  so  shall  you  reduce  these  exaggerated 
peculiarities  to  the  natural  tendency  of  persons  to  copy  one  another.  Once  show 
that  the  prisoner's  life  depends  upon  the  down  stroke  of  a  "d"  or  the  up- 
stroke of  a  "  c,"  the  crossing  of  a  "  t,"  or  the  dot  of  an  "  i,"  and  he  will  live. 


No.  229.  I,       GENERIC   TRAITS.       G.   EXPERIENCE  419 

There  are  such  things  as  forgeries,  and  forgers  imitate  peculiarities.  Hand- 
writing is  seldom  to  be  believed,  even  when  it  speaks  the  truth. 

There  are  other  witnesses,  doubtless,  slightly  varying  in  their  peculiarities 
of  disposition  and  temper,  but  these  the  reader  will  easily  note  from  his  own 
observation,  and  I  doubt  not  will  find,  on  examination,  that  most  of  them 
may  be  included  within  the  classes  enumerated. 

But  of  whatever  types  they  may  be,  and  however  much  they  may  differ 
from  one  another,  there  is  one  weakness  which  runs  through  them  all,  and 
that  is  vanity.  No  human  being  is  exempt  from  its  influence  ;  and  the  only 
difference  between  one  man  and  another  in  this  respect  is  as  to  the  object  of 
his  vanity  and  the  effect  of  it  upon  the  other  attributes  of  his  nature.  One 
man's  vanity  may  impel  him  to  aspire  to  a  coronet,  another's  only  to  wear 
his  hat  a  little  on  one  side  and  to  put  his  thumbs  in  the  armholes  of  his 
waistcoat. 

225.  DONELLAN'S  CASE.     [Printed  post,  as  No.  379.] 

226.  LUETGERT'S  CASE.     [Printed  post,  as  No.  387.] 

227.  HILLMON  v.  INSURANCE  CO.     [Printed  post,  as  No.  389.] 

228.  THROCKMORTON  v.  HOLT.      [Printed  post,  as  No.  390.] 

229.  Frank  S.  Rice.  The  Medical  Expert  as  a  Witness.  (Green  Bag.  1898. 
Vol.  X,  464.)  Of  all  the  cant  that's  canted  in  this  canting  world,  expert 
medical  cant  is  the  most  pernicious ;  and  of  all  species  of  evidence  offered 
in  a  court  of  justice,  none  is  so  thatched  with  suspicion  or  further  removed 
from  every  suggestion  of  usefulness  as  is  the  evidence  of  a  medical  expert. 
Indeed  these  glib-tongued  pundits  have  so  effectually  discountenanced 
themselves  in  juridical  estimation  that  (to  adopt  the  vigorous  language  of 
Lord  Chancellor  Campbell  in  the  Tracy  Peerage  Case,  10  Clark  &  F.  154) : 
"They  come  with  such  a  bias  on  their  minds  to  support  the  cause  in  which 
they  are  embarked,  that  hardly  any  weight  should  be  given  to  their  evi- 
dence." .  .  .  Mr.  Wharton  pilloried  the  whole  guild  in  one  of  his  most 
admired  passages,  which  is  still  quoted  with  approbation  :  "  Few  special- 
ties are  so  small  as  not  to  be  torn  by  factions ;  and  often,  the  smaller  the 
specialty,  the  bitterer  and  more  inflaming  and  distorting  are  the  animosities 
by  which  these  factions  are  possessed.  Peculiarly  is  this  the  case  in  matters 
psychological,  in  which  there  is  no  hypothesis  so  monMroiis  that  an  expert 
cannot  he  found  to  swear  to  it  on  the  stand,  and  to  defend  it  with  vehemence 
when  off  the  stand.  'Nihil  tam  absurde  did  potest,  quod  non  dictatur  ab 
aliquo  philosophorum.'  In  the  second  place,  the  retaining  of  experts  by 
a  fee  proportioned  to  the  importance  of  their  testimony,  is  now,  in  cases  in 
which  they  are  required,  as  customary  as  in  the  retaining  of  lawyers.  No 
court  would  take  as  authority  the  sworn  statement  of  law  given  By  counsel 
retained  on  a  particular  side,  for  the  reason  that  the  most  high-minded  men 
are  so  swayed  by  an  employment  of  this  kind,  as  to  lose  the  power  of  im- 
partial judgment ;  and  so  intense  is  their  conviction  that  there  is  no  civilized 
community  in  which  the  reception  of  a  present  from  a  suitor  does  not  only 
disqualify  but  disgrace  a  judge.     Hence  it  is  that,  apart  from  the  partisan 


4J  )  PART    II.      TESTIMONIAL    EVIDENCE  No.  2:19 

temper  more  or  less  coininoii  to  experts,  their  utterances,  now  that  they  have 
as  a  class  become  the  retained  agents  of  parties,  have  lost  all  judicial  author- 
ity, and  are  entitled  only  to  the  weight  which  a  sound  and  cautious  criticism 
would  award  to  the  testimony  itself.  In  adjusting  this  criticism,  a  large 
allowance  nuist  he  maile  for  tJie  l)ias  necessarily  l)elonging  to  men  retained 
to  advocate  a  cause,  who  speak  not  as  to  fact,  but  as  to  opinion  ;  and  who 
are  selected  on  all  moot  questions,  either  from  the  prior  advocacy  of,  or 
from  their  readiness  to  adopt,  the  opinion  to  be  proved."  (Wharton, 
•'Criminal  Evidence,"  §  420).   ... 

Ix't  us  consider  briefly  the  usual  en\ironment  of  the  average  physician 
before  he  becomes  deified  as  an  expert.  From  the  time  he  leaves  college, 
his  life  is  spent  among  those  who  are  hopelessly  ignorant  of  materia  medica 
or  of  clinical  procedure.  Imperceptibly  there  fastens  upon  him,  by  insidi- 
ous and  subterraneous  approaches,  an  exalted  opinion  of  his  own  accom- 
plishments, and  a  corresponding  contempt  for  antagonistic  views.  He  is  a 
monomaniac  on  the  subject  of  his  own  importance.  The  lawyer  is  emanci- 
pated in  great  measure  from  the  effects  of  .such  an  existence,  as  his  postu- 
lates are  constantly  the  subject  of  criticism  and  demur,  his  position  and 
theories  are  controverted  and  denied,  and  by  constant  contact  and  attrition 
with  other  superior  minds,  he  is  admonished  to  place  salutary  limitations 
upon  his  own  conceits,  while  he  absorbs  a  wholesome  respect  for  the  opinion 
of  his  legal  fraters.  Not  so  with  the  physician.  At  rare  intervals,  usually 
at  the  instigation  of  an  admirer,  he  is  called  into  consultation  on  a  critical 
case.  There  is  no  occasion  in  such  an  event  for  controversy.  His  presence 
would  not  be  recjuestetl  if  there  were  the  least  danger  of  such  a  calamity. 
Professional  eticjuette  requires  him  to  sustain  his  colleague  or  copractitioner, 
and  they  meet  in  that  spirit  of  camaraderie  which  makes  disagreement  im- 
possible. .  .  .  The  consequence  of  this  training,  persisted  in  for  a  series 
of  years  without  the  least  deviation,  enal)les  the  serene  Olympian  to  mount 
the  witness  stand  with  the  perfect  composure  and  touch-me-not-ish-ness 
that  belongs  to  the  elect  Brahminical  caste.  He  answers  the  interrogatories 
with  a  chilling  and  glacial  hauteur  that  shows  the  impervious  nature  of  his 
conceit  and  the  braying  folly  of  any  attempt  to  remove  it.  Long  years  of 
hectoring  over  hypochondriacs,  valetudinarians,  and  hospital  nurses  has 
imparted  an  aspect  of  infallibility  to  his  "ipse  dixit,"  that  nothing  but  the 
most  dropsical  temerity  would  dispute.  He  is  looked  upon  as  the  Gog  and 
Magog  of  Hunnish  desolation  to  any  theorizing  that  contradicts  that  sacra- 
mental thing  known  a:>  his  "opinion."  ...  If  there  are  contending  fac- 
tions in  his  own  specialty,  our  M.l).  relapses  into  dogmatism,  and  we  are 
ai)t  tf)  find  a  touch  of  irony  now  and  then  —  when  he  refers  to  the  "advanced 
.scholarship  of  the  profession,"  and  the  "demonstrations  regarding  the  de- 
velopment of  the  microbe."  (  lotted  nonsense  of  this  type  can  never  become 
the  adjunct  of  intelligent  eximsition  —  it  only  leads  to  bewilder  and  dazzles 
tr»  betray. 

Thus  far  we  ha\«-  lingerc<l  in  our  expose  of  the  medical  expert  upon  mere 
deficiencies  in  good  taste  and  tho.se  debonair  attitudes  of  mind  that  make  man 
an  agreeable  companion  —  we  have  regarded  nothing  that  menaces  his 
integrity,  or  suggests  more  than  ordinary  caution  in  accepting  his  state- 
ments, rnfortunatcly,  how.-vcr.  there  is  a  distinctively  knavish  element 
in  his  testimcmy  that  assumes  tiiaiiy  disguises  if  plausibly  presented  and 


No.  230.  I.      GENERIC    TRAITS.       G.    EXPERIENCE  421 

adroitly  maintained.  ...  It  is  indisputable  that  the  principal  abuse 
ingrafted  upon  modern  expert  evidence  arises  directly  from  the  enormous 
fees,  so  called,  that  are  paid  to  these  pampered  witnesses.  The  ordinary  sub- 
poena is  sufficient  to  bring  into  any  court  the  multimillionaires  of  the 
country  —  the  very  Titans  of  our  industrial  enterprises,  the  men,  in  short, 
that  have  made  America.  But  to  secure  the  invaluable  testimony  of  the 
medical  "expert"  resort  is  had  to  methods  perilously  close  to  bribery. 
Where  is  the  distinction,  in  effect,  between  paying  a  witness  an  exorbitant 
sum  of  money  for  his  testimony,  under  the  flimsy  guise  of  a  "fee,'*  or  openly 
bribing  him  to  say  the  same  thing  ?  Is  it  not  morally  certain  that  all  his 
sympathies,  prejudices,  and  predilections  are  enlisted  upon  the  side  that 
solicits  his  patronage  and  pays  royally  for  it  ?  And  is  he  not  in  a  more  com- 
promised position,  if  possible,  when  that  fee  or  payment  is  contingent  upon 
the  success  of  the  party  calling  him  ?  (See  Pollak  v.  Gregory,  9  Bosw., 
N.  Y.,  116).  If  not  bribery,  it  has  everything  bad  about  it  except 
bribery.   .   .   . 

The  foregoing  views  have  been  in  part  suggested  by  the  monumental 
exhibit  of  expert  imbecility  known  as  the  Luetgert  case  [post,  No.  387].  Of 
all  the  ghastly  travesties  upon  common  justice  and  common  sense  that 
have  disgraced  these  closing  years  of  the  nineteenth  century,  that  trial  will 
probably  stand  as  "primus  inter  pares."  The  demoniacal  efforts  of  the 
experts  to  contradict  each  other  and  to  prove  some  rival  school  of  anatomy 
to  be  the  mere  nursing  mother  of  a  hoard  of  fakirs  resulted,  as  might  have  been 
expected,  in  the  total  eclipse  of  the  last  faint  struggling  ray  of  intelligence 
that  the  jury  may  be  supposed  to  have  possessed.  .  .  .  Luetgert  is  break- 
ing down  under  a  sentence  of  life  imprisonment  rendered  on  the  theory  that 
his  wife's  bones  were  found  in  a  sausage  vat,  and  yet  some  of  the  most 
eminent  osteologists  of  the  age  vehemently  insist  that  the  bones  in  question 
belonged  to  a  hog.  .  .  . 

230.  Albert  S.  Osborn.  Expert  Testimony  from  the  Standpoint  of  the 
Witness.  (Albany  Law  Journal.  1905.  Vol.  LXVII,  No.  11.)  It  is  quite 
natural  that  competent  expert  witnesses  who  are  able  to  testify  to  the  truth, 
and  only  the  truth,  should  feel  that  the  great  reform  needed  is  the  adoption 
or  the  perfecting  of  procedure  that  will  make  it  easier  for  honest  and  com- 
petent men  to  assist  in  showing  the  facts  in  a  court  of  law  and  more  difficult 
and  embarrassing  for  liars  and  incompetents  to  assist  in  concealing  and  dis- 
torting the  truth.  Some  reformers  attempt  to  bring  about  improvement, 
not  by  improving  the  method,  but  by  wholesale  denunciation  of  l)oth  classes 
of  witnesses,  good  and  bad.  Nothing  but  harm  comes  from  such  a 
practice.   .   .   . 

No  phase  of  expert  testimony  has  been  more  misunderstood,  misrepre- 
sented, and  abused  than  testimony  regarding  handwriting  and  the  numerous 
questions  arising  in  relation  to  di.sputed  documents.  .  .  .  The  usual  practice 
in  the  preparation  of  a  case  involving  a  questioned  writing  is  easily  described. 
In  a  large  majority  of  such  inquiries  the  facts  are  clearly  in  favor  of  one  of 
the  parties.  The  attorney  on  the  right  side  seeks  out  and  presents  his  case 
to  those  really  expert  specialists  who  are  known  to  be  competent  and  honest, 
and,  as  his  contention  is  in  harmony  with  the  facts,  such  witnesses  are 
secured.     Does  the  opposing  party  abandon  the  case  when  he  cannot  get 


4_>-2  PART    II.      TESTIMONIAL   EVIDENCE  No.  230. 

tilt-  best  witnesses  ?  Not  by  any  means,  but  promptly  proceeds  to  get  what 
he  can,  which  may  be  the  worst.  Those  witnesses  are  industriously  sought 
out  whose  opinions  are  favorable,  and  often  they  are  those  who  through 
incompetency  may  easily  be  mistaken,  or  those  witnesses  are  deliberately 
sought  for  whose  services  are  known  to  be  available  on  any  case,  and  then 
l)oth  sides  prepare  for  trial,  one  side  endeavoring  to  show  the  truth,  the  other 
attempting  to  distort  or  hide  the  fact  and  thus  defeat  the  ends  of  justice. 
The  case  is  taken  into  court  and  presented  to  a  jury,  and  if  the  expert  testi- 
mony, given  it  may  be  by  an  equal  numlicr  of  witnesses,  is  at  the  end  summed 
up  by  "counting  the  witnesses,"  as  unfortunately  is  sometimes  done,  such 
procedure  certainly  does  not  tend  to  promote  the  ends  of  justice. 

The  testimony  of  a  competent  handwriting  expert  witness  in  a  good 
case  —  which  is  simply  an  argument  under  oath ;  that  is,  an  opinion  with 
reasons  —  cannot  be  nullified  and  made  ineffective  by  liars  and  incom- 
petents if  the  matter  is  considered  and  presented  to  a  jury  in  the  clear, 
judicial  manner  shown  in  the  opinion  quoted  below.  Such  a  sane,  common- 
sense  discussion  of  this  important  question  should  form  a  part  of  an  im.portant 
decision  on  this  question  by  the  highest  court  of  every  State.  This  opinion 
says:  "Much  has  been  said  and  written  concerning  the  value  of  expert 
evidence,  and  there  is  a  disposition  to  belittle  the  utility  of  evidence  of  this 
character.  .  .  .  It  is  urged  that  Ave  find  as  many  experts  testifying  upon  one 
side  a.s  upon  the  other.  That  may  be  true,  and  it  is.  also  true  that  we  will 
find  as  many  lay  witnesses  upon  each  side  in  litigated  cases  giving  different 
versions  concerning  a  fact  or  circumstance.  But  this  does  not  signify 
that  the  evidence  of  those  witnesses  must  be  disregarded  because  they  dis- 
agree. Nor  is  it  important  specially  w^hich  side  has  the  greater  number 
of  expert  or  lay  witnesses  sworn  in  his  behalf.  It  is  the  nature  or  character 
of  the  testimony  given  by  the  witness  which  is  important.  In  the  case  of 
expert  witnesses  their  opinions  are  valuable  only  in  so  far  as  they  point  out 
satisfactory  reasons  for  the  ultimate  conclusion  of  the  witness.  If  the  witness 
simply  testifies  that  he  believes  the  signature  genuine  or  not  genuine,  as  the 
case  may  be,  and  gives  no  reason  for  reaching  his  conclusion,  his  opinion  is 
valueless  and  the  court  will  not  consider  it.  If  he  gives  reasons  for  his 
opinion,  then  it  is  the  duty  of  the  court  to  examine  into  and  analyze  those 
reasons  and  determine  the  correctness  or  incorrectness  of  the  opinion  and 
not  simply  consider  the  conclusion  of  the  witness  alone."  (Matter  of  Burtis, 
4;{  X.  Y.  Mi.sccl.  Reports.) 

\\hen  a  (juestion  of  this  character  is  considered  and  discussed  in  this 
sensible  manner  anfl  thus  presented  to  an  intelligent  jury,  and  the  party 
in  the  right  has  preparcfl  his  case  in  the  proper  manner,  justice  will  be  done 
in  a  very  large  majority  of  cases,  no  matter  how  many  mistaken  or  corrupt 
witnesses  lia\  <•  sworn  on  the  wrong  side.  As  is  said,  "  the  nature  or  character 
of  the  testimony  given"  is  the  important  thing.    .    . 

There  is  nnich  discu.ssion  of  the  "disagreement"  of  expert  witnesses  that 
does  not  .seem  to  consider  that  one  side  is  in  the  right.  ^Yhat  the  competent 
witness  wlio  attempts  to  tell  the  truth  objects  to  in  criticisms  of  experts  or 
exiMTt  testimony  is  generalizing  that  is  made  to  apply  to  a  specific  case 
when-  it  really  does  not  apply.  It  is  like  generalizing  on  any  question.  The 
man  who  agrees  with  the  much-criticized  Roycroft  sage  when  he  says  that 
lawyers  have  two  object.s  in  life,  grand  larceny  and  petty  larceny,  is  one  who 


No.  231.  I.       GENERIC   TRAITS.       G.    EXPERIENCE  423 

takes  it  for  granted  that  a  man  steals  when  he  has  an  opportunity  ;  and  the 
man  who  says  that  there  are  no  honest  witnesses  who  are  paid  to  investigate 
a  question,  prepare  proper  illustrations,  and  testify  in  court,  is  of  the  same 
pessimistic  class.  There  still  are  honest  lawyers  and  honest  specialists 
who  testify  in  court,  and  what  they  object  to,  lawyers  as  well  as  specialists, 
is  that  procedure,  that  prejudice,  and  that  lack  of  information  that  does  not 
attempt  to  discriminate,  but  puts  all  in  one  class.   .   .   . 

The  prime  requirement  in  any  reform  is  that  procedure  that  will  assist 
in  every  way  possible  in  separating  the  true  from  the  false,  the  competent 
from  the  incompetent.  It  is  impracticable  to  brand  liars  and  incompetents, 
or  keep  them  out  of  court  rooms  ;  but  it  would  be  possible  to  protect  com- 
petent men  and  recognize  in  an  official  way  those  witnesses  who  are  worthy 
and  qualified  to  be  heard  on  a  subject  requiring  expert  testimony,  those,  in 
short,  who  really  are  experts.  This  is  a  reform  that  is  practical,  constitu- 
tional, and  would  undoubtedly  be  effective,  and  could  be  put  into  immedi- 
ate use.  The  problem  has  been  solved  in  England  in  this  practical  manner 
by  the  selection  of  certain  men  or  a  certain  man  of  proved  efficiency  to  act 
for  the  state  in  all  such  inquiries.  This  practice  does  not  exclude  other 
witnesses,  and  the  "man  who  kept  the  cows"  may  still  come  forward  and 
swear  that  black  is  white,  and,  therefore,  this  procedure  would  not  take 
away  the  right  under  the  Constitution  that  an  accused  man  has  of  calling 
his  own  witnesses.  Such  an  official  designation  of  really  expert  witnesses 
would  at  once  correct  many  of  the  faults  and  abuses  of  this  phase  of  legal 
procedure  and  would  still  permit  the  fullest  cross-examination  on  the  ques- 
tion involved.  No  procedure  should  be  adopted  that  directly  or  indirectly 
limits  proper  cross-examination.  This  official  recognition  would  assist  in 
classifying  witnesses  as  to  their  competency,  it  would  at  least  in  a  measure 
relieve  witnesses  of  the  charge  of  improper  bias  and  partially  protect  them 
from  insult,  and  it  would  enable  lawyers  in  such  investigations  before  trial, 
to  get  at  once  the  best  advice  and  assistance  available. 

231.  William  L.  Foster.  Expert  Testimony.  (Harvard  Law  Review. 
1897.  XI,  169).  .  .  It  will  be  observed  that  the  most  frequent  and  most 
serious  complaint  concerning  expert  testimony  is  the  umnt  of  agreement 
upon  the  same  subject  and  in  the  same  case,  among  equally  learned  men, 
rendering  their  testimony  (it  is  said)  uncertain,  confusing,  and  bewildering 
to  the  extent  that  it  is  unreliable  and  of  little  value.  And  yet  I  doubt  if 
an  intelligent,  thoughtful,  and  candid  man  can  be  found,  who  will  not 
admit  that,  notwithstanding  all  its  faults  and  imperfections,  it  would  be 
impossible  to  get  along  without  it.  It  is  certainly  true  that  there  are  and 
always  will  be  differences  of  opinion  among  experts  of  the  highest  character, 
"rarely  in  regard  to  well-established  facts,  but  often  in  regard  to  probable 
inferences  from  facts ;  whilst  entire  agreement  in  matters  of  theory  and 
speculation  would  be  marvelous."  But  concerning  this  alleged  misfor- 
tune, it  seems  hardly  becoming  for  the  legal  profession  to  indulge  in  severe 
criticism,  since  there  is  no  profession  so  strongly  characterized  by  differ- 
ences of  opinion  on  every  subject,  —  lawyers  as  well  as  judges  constantly 
disagreeing,  and  the  latter  not  unfrequently  overruling  one  another's  deci- 
sions, —  unless  it  be  the  clerical  profession,  the  members  of  which,  it  may 
have  been  observed,  are  not  entirely  unanimous  in  their  interpretations  of 


424  PAKT    II.      TESTIMONIAL    EVIDENCE  No.  231 

the  Holy  Scriptures.  Yes,  it  is  a  visible  truth  that  doctors,  as  well  as 
lawyers  and  ministers  of  the  Gospel,  do  disagree.  It  would  be  marvelous 
and  deplorable  if  tliey  did  not.  If  there  were  no  disagreement,  investiga- 
tion anil  experiment  would  cease;  and  science,  literature,  and  art  would 
sink  to  a  dead  level  of  stupidity  and  laziness.  If  scholars  and  learned  men 
had  come  to  a  condition  of  unanimous  agreement  a  hundred  years  ago,  we 
should  have  had  none  of  tlie  marvelous  discoveries  and  inventions,  — 
none  of  the  magnificent  \  ictories  and  triumphs  in  medicine  and  surgery,  — 
that  have  distinguished  and  illuminated  the  closing  years  of  the  nineteenth 
century. 

It  will  be  observed  that  the  faults  and  imperfections  of  the  present 
system  and  methods  of  procedure  in  the  matter  of  scientific  testimony  are 
not  magnified  to  my  vision.  For  whatever  is  wrong  and  capable  of  redress, 
for  so  much  of  the  evil  of  the  present  system  as  is  not  imaginary,  what  and 
where  is  the  remedy  ?  Without  any  progress  toward  a  satisfactory  result, 
search  for  it  has  been  prosecuted  for  years  and  years. 

(1)  In  Germany,  and  perhaps  elsewhere  on  the  European  continent,  the 
following  method  has  been  established.  For  certain  matters  and  lines  of 
l)usiness  (I  have  not  ascertained  what  these  are)  permanent  experts  are 
appointed  by  the  State.  They  have  no  official  title  nor  regular  salary, 
and  their  payment  barely  compensates  them  for  loss  of  time.  But  in  most 
cases  the  expert  is  appointed  by  the  particular  judge  sitting  in  the  case.  .  .  . 
There  have  been  in  this  country  many  advocates  of  the  German  method.  .  .  . 
Professor  John  Ordronaux  is  one  of  many  who  are  in  favor  of  having  expert 
witnesses  appointed  by  the  court,  and  excluding  all  others.  He  thinks 
"the  expert  should  be  regarded  as  an  'amicus  curiie,'  whose  opinion  should 
be  a  conclusive  judgment."  That  condition  would  seem  to  destroy  his 
function  as  a  witness,  leaving  him  to  instruct  the  judge  as  to  what  is  the 
fact,  and  the  judge  to  instruct  the  jury  accordingly,  —  a  theory  and  prac- 
tice obnoxious  in  the  extreme,  and  subversive  of  the  rule  that  the  jury 
alone  shall  iletermine  all  cpicstions  of  fact.  .  .   . 

(2)  Judge  \Vashl)urn,  while  in  favor  of  continuing  the  present  method  of 
summoning  experts,  thought  the  presiding  judge  should  have  power  him- 
self, if  in  his  judgment  the  interests  of  justice  would  be  promoted  thereby, 
to  summon  experts  of  his  own  choice,  who  should  review  the  whole  testi- 
mony and  evidence  of  the  experts  called  by  the  litigants.  The  proposition 
strikes  me  favorably.  .  .  . 

(3)  It  has  been  proposed  that  "a  certain  number  of  scientific  men 
should,  in  certain  circumstances,  sit  upon  juries  and  hear  the 
evidence,  as  ordinary  juries  do  at  present."  .  .  .  \Yith  reference  to 
a  jury  or  other  tribunal  composed  wholly  or  in  part  of  experts,  one 
of  the  n)ost  eminent  of  English  jurists,  the  late  Sir  James  Fitz- 
james  Stephen,  discovered  .so  many  "difficulties  of  detail  and  practice" 
in  the  adoption  of  any  such  plan,  that  it  seemed,  in  his  judgment,  to  be 
most  injurious.  It  was  his  opinion  (in  which  I  fully  concur)  that,  "given 
uprightness,  patience,  and  such  intelligence  as  most  educated  members  of 
society  jjossess,  a  jury  constituted  as  our  juries  are  forms  the  very  best 
tribunal  which  could  be  devised  for  the  trial  of  complicated  questions  of 
fact,  <'vcn  if  those  questions  involve  delicate  scientific  considerations."  .  .  . 
Ordinary  men  are  (luite  capal>le  of  forming  a  trustworthv  conclusion.     I 


No.  231.  V.      GENERIC    TRAITS.      G.    EXPERIENCE  425 

say  trustworthy ;  for  that  is  all  that  can  be  expected  or  required.  Com- 
paratively few  subjects  of  expert  testimony  are  capable  of  absolute  demon- 
stration ;  and  the  judgment  of  a  jury  or  an  expert  is  ordinarily  no  more 
certain  than  that  the  conclusion,  in  a  civil  case,  is  prohahly  correct,  and,  in 
a  criminal  case,  that  the  accused  is  probably  innocent,  or  that  his  guilt  is 
established  beyond  a  reasonable  doubt. 

Finally,  my  belief  is,  that  the  supposed  evils  of  the  present  system  are 
much  exaggerated,  and  to  a  great  extent  imaginary ;  that  they  are  not  to 
be  cured  by  any  remedy  that  has  been  or  seems  likely  to  be  devised,  and 
that,  on  the  whole,  it  is  best  to  "let  well  enough  alone." 


■^. 


TITLE  II:  Tin:  ELEMEXTS  OF  THE  TESTIMONIAL 
I'UnrESS  ITSELF,  AS  AFFECTIXG  THE  TRUST- 
lHHiTlllXESS     OF     TESTIMONY 

SUBTITLE   A:     PERCEPTION    (OBSERVATION,   KNOWLEDGE) 

234.  John  H.  Wr;mohk.  Principles  of  Judicial  Proof.  (1913).^ 
1.  Perception,  Opportunity  to  Perceive,  ami  Knowledge;  their  Difference 
and  their  Practical  Sameness.  It  is  obviously  impossible  to  speak  with 
accuracy  of  a  witness's  "knowledge"  as  that  which  the  principles  of  testi- 
mony re(iuire.  If  the  law  received  as  absolute  knowledge  what  he  had  to 
offer,  then  only  one  witness  would  be  needed  on  any  one  matter ;  for  the 
fact  asserted  would  be  demonstrated.  When  a  thing  is  known  to  be,  it  is; 
and  that  would  be  the  end  of  inquiry.  A  witness  cannot  be  assumed 
beforehand,  by  the  law,  to  know  things ;  the  most  it  can  assume  is  that  he 
^thinks  he  knows.  The  law  assumes  that  the  matter  is  in  truth  of  some 
particular  complexion,  but  also  realizes  that  to  determine  what  its  real 
complexion  is  the  tribunal  may  have  to  listen  to  various  persons  ;  the  state- 
ments of  some  of  these  it  will  reject,  and  of  others  it  will  accept.  But  from 
the  persons  to  whom  the  tribunal  will  ILsten  the  law  will  attempt  to  re- 
quire some  qualification  which  will  rnake  them  worth  listening  to.  It  will 
not  presume  to  determine  beforehand  which  witness  is  correct,  i.e. 
which  one  really  hnows,  l)ut  it  will  ask  that  each  one  offered  shall  be  one 
prima  facie  likely  to  know,  —  in  short,  shall  have  had  an  opportunity  of 
jii  rci  iriiKj  (ir  olis,  rriiKj  what  was  or  what  happened  and  shall  have  directed 
'lis  atlnidon  or  observation  to  the  matter.  This  is  as  far  as  the  law  can  go. 
But  the  law  can  at  least  go  that  far.  .\midst  the  multitude  of  persons 
who  have  formed  impressions  and  tliink  that  they  "know"  something 
about  the  subject  in  hand,  practical  experience  shows  that  many  or  most 
have  formed  tlx-ir  beliefs  without  any  basis  of  perception  safe  enough  to 
be  worth  consi(l«-ring  in  a  court  of  justice.  A  belief-basis  adequate  enough 
for  the  casual  alVairs  of  life  may  be  too  slender  for  settling  the  facts  of  rights 
and  wrongs  in  court.  For  instance,  a  person  may  have  a  belief  that  the 
local  post  o(Iic<'  ojM-ns  at  7  A.M.  and  closes  at  G  P.M. ;  but  on  careful  self- 
scrutiny  liefore  acting  on  that  belief,  the  person  may  acknowledge  that  he 
has  no  tangible  Itasis  at  all  for  it.  Hence,  a  Court  may  well  insist  on  re- 
(piiring  som«-  minimitin  of  adequate  basis  for  belief;  or  at  least  may  insist 
(.11  ventilating  thoroughly  whatever  basis  there  is,  so  that  the  weight  of  it 
may  be  gauged. 

'  |Aclaptc«J  from  tin;  same  author's  Treatise  on  Evidence.      (1005.     Vol.  I,  §§  GoO-6J4.)l 

426 


No.  234.  II.      TESTIMONIAL   PROCESS.      A.    PERCEPTION  427 

We  are  here  concerned  only  with  the  latter    process,  i.e.  with  forcing 
into  the  open  the  data  of  witness's  opportunities  for  having  perceived  with 
his  own  senses  the  event  or  act  in  question,  and  the  extent  of  his  actual 
direction  of  attention  to  it.    A  witness  may  have  stated  glibly  that  he  "  knows  "A 
something  about  it,  and  that  he  has  been  so  placed  as  to  have  an  opportunity  / 
of  perceiving,  and  may  have  smoothly  stated  what  he  saw  or  heard ;    and  (    ^ 
yet,  on  closer  inquiry,  facts  may  be  disclosed  which  show  that  he  could  / 
not  well  have  seen  or  heard,  but  acquired  his  impressions  in  some  less  ade-    j 
quate  way.     Such  data  will  assist  much  in  valuing  his  supposed  percep-  / 
tions. 

This  process  of  evoking  into  the  open  the  witness's  basis  of  perception  is  4z. — 
one  of  the  commonest  in  trials.      It  puts  in  sharp  contrast  an  Impression, 
guess,  or  notion,  lacking  in  a  basis  of  sense  perception,  with  a  Knowledge,  or 
perception   based   on   direct  attention   of   the  senses.     The    psychologists 
begin  with  the  latter  stage,  assuming  without  question  that  it  exists,  and 
proceeding  to  point  out  the  elements  of  fallibility  that  still  inhere  in  it. 
But  in  the  practical  conduct  of  trials,  its  existence  cannot  be  assumed ;   for 
so  many  persons  lacking  it  thrust  themselves  (or  are  thrust)  forward  as 
witnesses  that  a  first  business  of  the  courts  must  be,  if  not  to  eliminate     - 
them,  at  least  to  ascertain  their  actual  qualifications,  so  as  to  value  their ^'    ' 
testimony  accordingly. 

Parnell  Commission's  Proceedings  (ISSS.  36th  day,  Times'  Rep.,  pt.  10,  p.  18). 
[The  Irish  Land  League  and  its  leaders  being  charged  with  complicity  in  certain 
crimes;  particularly  in  the  Phcenix  Park  assassination  of  18S2,  certain  of  the 
known  criminals  testified  that  their  body,  the  Invincibles,  had  received  assistance 
money  from  the  League ;  it  had  turned  out,  on  cross-examining  one  of  them,  that 
his  testimony  to  the  receipt  of  this  money  from  the  League  officers  was  not  based 
on  his  own  knowledge  at  all,  but  merely  on  what  he  had  heard  from  others; 
another  of  these  persons  was  now  asked  on  direct  examination  as  follows :] 

Sir  H.  James:  "Tell  me  of  your  own  knowledge  whether  you  know  of  his 
receiving  any  money  from  the  Land  League." 

Sir  C.  Russell:  "  My  Lords,  I  would  ask  my  learned  friend  to  be  particular  as 
to  that  question  '  of  his  own  knowledge  '  after  the  experience  we  had  of  Delaney's 
evidence.      '  Did  he  see  any  one  pay  him  ?  '  is  the  proper  form  of  question." 

Sir  H.  James:    "  I  think  not." 

Sir  C.  Russell:  "With  great  deference,  my  Lords,  it  is.  We  had  a  deliberate 
statement  the  other  day  in  answer  to  a  similar  question  put  to  a  witness,  '  Did 
you  know  this  ?  '  and  '  Did  you  know  that  ?  '  and,  afterwards  in  cross-examination, 
it  turned  out  that  he  did  not  know  it  of  his  own  knowledge,  but  it  was  what  had 
been  told  him.  I  want  to  guard  against  a  repetition  of  that.  The  proper  form 
of  question  as  I  submit  is,  '  Did  he  see  any  money  paid?  '  " 

Sir  H.  James  (to  the  witness):  "You  understand  what  I  mean  —  do  you 
know  this  of  your  own  knowledge  ?  " 

Sir  C.  Russell:    "  I  am  objecting  to  the  form  of  the  question." 

President  Hannen:    "  It  is  a  very  usual  form  of  question." 

Sir  C.  Russell :  "  I  respectfully  say,  in  view  of  the  reasons  I  have  given,  what 
the  proper  question  is,  '  Did  he  see  any  money  paid  ?  '  " 

President  Hannen:  "I  shall  not  interfere  with  the  discretion  of  counsel  in 
asking  a  question  in  a  manner  which  is  quite  usual." 

Sir  C.  Russell:  "I  have  pointed  out  the  danger — -the  great  danger  —  of  put- 
ting the  question  in  the  form  in  which  my  learned  friend  is  putting  it." 

President  Hannen:  "Precisely  so;  and  you  have  also  shown  where  the  safe- 
guard lies,  namely,  in  cross-examination." 


42S  TART    II.      TESTIMONIAL    EVIDENCE  ^'o-  234. 

0  2.  Dhtincfion  hrfurni  E.vprrinicc  ami  Knowledge. .  Observation  or 
Perception  of  the  matters  to  he  testified  to  is,  tlien,  an  essential  conception 
in  the  quaHHcations  of  every  witness  without  exception.  By  Observation 
is  meant  that  direction  of  attention  which  is  the  source  of  impressions. 
The  (hstinction  between  Kxperience  and  Observation  is  that  the  former 
concerns  the  mental  power  or  capacity  to  acquire  knowledge  on  the  subject 
of  testimony,  while  the  latter  concerns  the  actual  exercise  of  the  faculties 
upon  tlie  subject  of  testimony. 

It  is  true  that  the  distinction  between  Experience  and  Observation  is 
sometimes  lost  sight  of  in  the  practical  tests  applicable  to  certain  subjects 
of  testimony.  For  example,  when  a  Court  adopts  the  rule  of  thumb  that 
farmers  in  the  vicinity  of  a  certain  piece  of  land  may  testify  to  its  value,  it 
is  ruling  upon  both  these  subjects ;  it  is  ruling  that  farmers  are  persons  of 
sufficient  experiential  (pialifications,  and  it  is  also  ruling  that  persons  in 
the  vicinity  have  sulhcient  observation  or  knowledge  of  the  general  class 
of  values  in  question  and  of  the  piece  of  land  in  question.  Again,  when  a 
Court  rules  that  a  Ijank  cashier  who  has  handled  the  kind  of  notes  alleged 
to  be  counterfeit  may  testify  to  the  genuineness  of  the  one  in  question,  it 
is  ruling  that  bank  cashiers  are  experientially  qualified  to  form  an  opinion 
on  the  matter,  and  it  is  also  ruling  that  the  liandling  of  the  notes  sufficiently 
insures  observation  or  knowledge  of  the  general  type  of  note  in  question. 
In  these  instances,  as  well  as  in  others,  the  rule  of  thumb  does  not  distin- 
guish the  two  principles.  But  the  two  elements  must  always  exist,  how- 
ever obscured. 

3.  KuowUdcje  may  rest  upon  a  Hypothetical  Basis.  The  direction  of 
attention  which  constitutes  the  source  of  the  knowledge  will  usually  be 
made  upon  ^natters  as  they  present*themselves  to  the  senses  out  of  court. 
But  the  observation  may  also  be  directed  to  the  same  matter  hypothetically 
|)laced   before  the  witness  in  court.     Thus,  a  physician  may  examine  a 

'patient  at  his  home  and  observe  certain  symptoms,  whence  he  reaches  the 
conclusion  that  a  fever  exists ;  but  the  same  symptoms  may  be  stated  to 
him  l)y  counsel  in  court,  and  he  may  then  reach  the  same  conclusion,  and 
it  will  be  receivable,  except  that  it  will  rest  upon  the  hypothesis  that  the 
symptoms  stated  to  him  actually  existed.  Here  the  direction  of  attention 
to  the  .symptoms  is  that  observation  which  the  law  requires  before  receiv- 
ing his  conclusion  as  to  the  nature  of  the  disease ;  but  in  the  one  case  the 
alleged  symptoms  are  learned  by  his  own  senses  and  rest  on  his  own  testi- 
monial credit,  while  in  the  other  case  they  rest  on  the  hypothesis  that  other 
persons  will  testify  them  to  be  true. 

4.  Knowledge  often  a  Double  Element,  including  (1)  a  Class  of  Things, 
and  (2)  the  Thing  to  he  Classed.  In  certain  subjects  the  observation  must  be 
of  a  double  sort.  For  example,  a  witness  to  the  value  of  a  horse  should  be 
ac(piainte(l  with  the  value  standards  for  different  classes  of  horses,  and  must 
als«)  be  ac«|uaiiitcd  with  the  jjarticular  horse  to  be  valued.  A  witness  to  the 
gcmiincness  of  handwriting  should  be  accpiainted  with  the  type  or  standard 
of  ilic  handwriting  of  the  alleged  writer,  and  must  also  see  the  disputed 
writing  which  he  is  to  say  does  or  does  not  l)elong  to  that  type.  A  witness 
to  the  idrtitity  of  a  person,  ii^ voice,  or  anything  else,  ought  to  be  familiar 
with  the  person  or  voice  or  other  thing  as  to  which  the  identity  is  asserted, 
an<l  ought  also  to  sec  or  hear  or  otherwi.se  perceive  the  thing  to  be  identified 


No.  235.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  429 

with  it.     In  short,  wherever  the  subject  of  the  testimony  consists  in  classify-    / 
ing  or  identifying  or  testing  or  authenticating,  the  witness's  observation   V  ^^ 
necessarily  involves  two  elements,  (1)  an  observation  of  the  class,  type,  or     J 
standard,  and  (2)  an  observation  of  the  thing  to  be  classified  or  identified.  ^ 
Both  elements  must  be  supplied  in  his  testimony. 

It  may  be  noted  that  here  it  is  not  uncommon  to  supply  the  second  ele- 
ment by  hypothetical  presentation.  Thus,  in  valuing  the  cost  of  a  house's 
construction,  the  witness  may  have  actual  observation  of  only  the  value 
standards  of  different  sorts  of  houses,  and  then  the  features  of  the  particu- 
lar house  to  be  valued  may  be  placed  before  him  by  hypothetical  descrip- 
tion. So  a  witness  to  the  identity  of  a  murdered  person  with  one  J.  S.  may 
have  had  actual  observation  of  J.  S.  but  not  of  the  body  of  the  murdered 
man,  and  the  latter  element  may  be  supplied  by  showing  him  a  photograph 
assumed  to  be  that  of  the  deceased,  and  then  verifying  the  photograph  as 
that  of  the  deceased. 

235.  Hans  Gross.  Criminal  Psychology,  (transl.  Kallen.  1911.  §  35, 
p.  187.)  /.  Se7ise  Perceptions.  Our  conclusions  depend  upon  perceptions 
made  by  ourselves  and  others.  And  if  the  perceptions  are  good,  our  judg- 
ments may  be  good  ;  if  they  are  bad,  our  judgments  must  be  bad.  Hence, 
to  study  the  forms  of  sense  perception  is  to  study  the  fundamental  condi- 
tions of  the  administration  of  law,  and  the  greater  the  attention  thereto, 
the  more  certain  is  the  administration. 

1.  The  Senses,  (a)  General  Considerations.  The  criminalist  studies  the 
physiological  psychology  of  the  senses  and  their  functions,  in  order  to 
ascertain  their  nature,  their  influence  upon  images  and  concepts,  their 
trustworthiness,  their  reliability  and  its  conditions,  and  the  relation  of  per- 
ception to  the  object.  The  question  applies  equally  to  the  judge,  the  jury, 
the  witness,  and  the  accused.  Once  the  essence  of  the  function  and  relation 
of  sense  perception  is  understood,  its  application  in  individual  cases  becomes 
easy. 

There  has  always,  of  course,  been  a  quarrel  as  to  the  objectivity  and 
reliability  of  sense  perception.  That  the  senses  do  not  lie,  "not  because 
they  are  always  correct,  but  because  they  do  not  judge,"  is  a  frequently 
quoted  sentence  of  Kant's.  .  .  .  Descartes,  Locke,  and  Leibnitz  have 
suggested  that  no  image  may  be  called,  as  mere  change  of  feeling,  true  or 
false.  Sensationalism  in  the  work  of  Gassendi,  Condillac,  and  Helve  tins 
undertook  for  this  reason  the  defense  of  the  senses  against  the  reproach  of 
deceit,  and  as  a  rule  did  it  by  invoking  the  infallibility  of  the  sense  of  touch 
against  the  reproach  of  the  contradictions  in  the  other  senses. 

That  these  various  theories  can  be  adjusted  is  doubtful,  even  if,  from  a 
more  conservative  point  of  view,  the  subject  may  be  treated  quantitatively. 
The  modern  quantification  of  psychology  was  begun  by  Herbart,  who 
developed  a  mathematical  system  of  psychology  by  introducing  certain 
completely  unempirical  postulates  concerning  the  nature  of  representation 
and  by  applying  certain  simple  premises  in  all  deductions  concerning  numeri- 
cal extent.  Then  came  Fechner,  who  assumed  the  summation  of  stimuli. 
And  finally  these  views  w^ere  determined  and  fixed  by  the  much-discussed 
Weber's  Law,  according  to  which  the  intensity  of  the  stimulus  must  in- 
crease in  the  proportion  that  the  intensity  of  the  sensation  is  to  increase ; 


430  PART    II.      TESTIMONIAL    EVIDENCE  No.  235. 

i.e.  if  a  stimulus  of  20  units  requires  the  addition  of  3  before  it  can  be 
perceived,  a  stimulus  of  GO  units  would  require  the  addition  of  9.  This  law, 
which  is  of  immense  importance  to  criminalists  who  are  discussing  the 
sense  perceptions  of  witnesses,  has  been  thoroughly  and  conclusively  dealt 
with  by  A.  Meinong. 

Modern  p.sychology  takes  qualities  perceived  externally  to  be  in  them- 
selves subjective  but  capable  of  receiving  objectivity  through  our  relation 
to  the  outer  world.  .  .  .  The  qualitative  character  of  our  sensory  content 
produced  by  external  stimuli  depends  primarily  on  the  organization  of  our 
senses.  This  is  the  fundamental  law  of  perception,  of  modern  psychology, 
variously  expressed,  but  axiomatic  in  all  physiological  psychology.  .  .  . 
We  see  things  in  the  external  world  through  the  medium  of  light  which  they 
direct  upon  our  eyes.  The  light  strikes  the  retina,  and  causes  a  sensation. 
The  sensation  brought  to  the  brain  by  means  of  the  optic  nerve  becomes 
the  condition  of  the  representation  in  consciousness  of  certain  objects  dis- 
tributed in  space.  .  .  .  We  make  use  of  the  sensation  which  the  light  stimu- 
lates in  the  mechanism  of  the  optic  nerve  to  construct  representations  con- 
cerning the  existence,  form,  and  condition  of  external  objects.  Hence  we 
call  images  perceptions  of  sight.  .  .  .  Our  stmsatioiis  are  effects  caused  in 
our  organs,  externally,  and  the  manifestation  of  such  an  eflfect  depends 
essentially  upon  the  nature  of  the  apparatus  which  has  been  stimulated. 

There  are  certain  really  known  inferences,  e.g.  those  made  by  the  as- 
tronomer from  the  perspective  pictures  of  the  stars  to  their  positions  in 
space.  These  inferences  are  founded  upon  well-studied  knowledge  of  the 
principles  of  optics.  Such  knowledge  of  optics  is  lacking  in  the  ordinary 
function  of  .seeing;  nevertheless  it  is  permissible  to  conceive  the  psychical 
function  of  ortlinary  perception  as  unconscious  inferences,  inasmuch  a^  this 
name  will  completely  distinguish  them  from  the  commonly  so-called  con- 
scious inferences.  The  last-named  condition  is  of  especial  importance  to 
us.  We  need  investigation  to  determine  the  laws  of  the  influence  of  optical 
and  acoustical  knowledge  upon  perception.  That  these  laws  are  influential 
may  be  verified  easily.  ...  If  we  were  unaware  that  light  is  otherwise 
refracted  in  water  than  in  air,  we  could  say  that  a  stick  in  the  water  has 
been  bent  obtusely,  but  inasmuch  as  everybody  knows  this  fact  of  the 
relation  of  light  to  water,  he  will  declare  that  the  stick  appears  bent  but 
really  is  straight. 

From  these  simplest  of  sen.se  perceptions  to  the  most  complicated, 
known  only  to  half  a  dozen  foremost  physicists,  there  is  an  infinite  series 
of  laws  controlling  each  stage  of  perception,  and  for  each  stage  there  is  a 
grouj)  of  men  who  know  just  so  much  and  no  more.  We  have,  therefore, 
to  assume  that  their  perceptions  will  vary  with  the  number  and  manner  of 
their  acc(jmplishments,  and  we  may  almost  convince  ourselves  that  each 
witness  who  has  to  give  evidence  concerning  his  sense  perception  should 
literally  undergo  examination  to  make  clear  his  scholarly  status  and  thereby 
the  value  of  liis  testimony.  Of  course,  in  practice  this  is  not  required. 
First  of  all,  we  judge  approximately  a  man's  nature  and  nurture  and  accord- 
ing to  the  impression  he  makes  upon  us,  thence,  his  intellectual  status. 
This  causes  great  mistakes.  Hut,  on  the  other  hand,  the  testimony  is 
concerned  almost  always  with  one  or  several  physical  events,  so  that  a 
.simple  relational  interrogation  will  establish  certainly  whether  the  witness 


No.  235.  II.      TESTI'MONIAL   PROCESS.      A.    PERCEPTION  431 

knows  and  attends  to  the  physical  law  in  question  or  not.  But  anyway, 
too  little  is  done  to  determine  the  means  a  man  uses  to  reach  a  certain 
perception.  If  instantaneous  contradictions  appear,  there  is  little  damage, 
for  in  the  absence  of  anything  certain,  further  inferences  are  fortunately 
made  in  rare  cases  only.  But  when  the  observation  is  that  of  one  person 
alone,  or  even  when  more  testify  but  have  accidentally  the  same  amount 
of  knowledge  and  hence  have  made  the  same  mistake,  and  no  contradiction 
appears,  we  suppose  ourselves  to  possess  the  precise  truth,  confirmed  by 
several  witnesses,  and  we  argue  merrily  on  the  basis  of  it.  In  the  mean- 
time we  quite  forget  that  contradictions  are  our  salvation  from  the  trusting 
acceptance  of  untruth  —  and  that  the  absence  of  contradiction  means,  as 
a  rule,  the  absence  of  a  starting  point  for  further  examination.  For  this 
reason  and  others  modern  psychology  requires  us  to  be  cautious. 

Among  the  others  is  the  circumstance  that  perceptions  are  rarely  pure. 
Their  purity  consists  in  containing  nothing  else  than  perception ;  they  are 
mixed  when  they  are  connected  with  imaginations,  judgments,  efforts,  and 
volitions.  How  rarely  a  perception  is  pure  I  have  already  tried  to  show ; 
judgments  almost  always  accompany  it.  I  repeat,  too,  that  owing  to  this 
circumstance  and  our  ignorance  of  it,  countless  testimonies  are  interpreted 
altogether  falsely.  .  .  . 

The  individuality  of  the  particular  person  makes  the  perception  in  a 
still  greater  degree  individual,  and  makes  it  almost  the  creature  of  him 
who  perceives.  .  .  .  The  variety  is  still  further  increased  by  means  of 
the  comprehensive  activity  which  Fischer  presupposes.  "Visual  per- 
ception has  a  comprehensive  or  compounding  activity.  We  never  see 
any  absolute  simple  and  hence  do  not  perceive  the  elements  of  things.  We 
see  merely  a  spatial  continuum,  and  that  is  possible  only  through  compre- 
hensive activity  —  especially  in  the  case  of  movement  in  which  the  object 
of  movement  and  the  environment  must  both  be  perceived."  But  each 
individual  method  of  "comprehension"  is  different.  And  it  is  uncertain" 
whether  this  is  purely  physical,  whether  only  the  memory  assists  (so  that 
the  attention  is  biased  by  what  has  been  last  perceived),  whether  imagina- 
tion is  at  work  or  an  especial  psychical  activity  must  be  presupposed  in 
compounding  the  larger  elements.  The  fact  is  that  men  may  perceive  an 
enormous  variety  of  things  with  a  single  glance.  And  generally  the  per- 
ceptive power  will  vary  with  the  skill  of  the  individual.  The  narrowest, 
smallest,  most  particularizing  glance  is  that  of  the  most  foolish ;  and  the 
broadest,  most  comprehensive,  and  comparing  glance,  that  of  the  most 
wise.  This  is  particularly  noticeable  when  the  time  of  observation  is 
short.  The  one  has  perceived  little  and  generally  the  least  important ; 
the  other  has  in  the  same  time  seen  everything  from  top  to  bottom  and  has 
distinguished  between  the  important  and  the  unimportant,  has  observed 
the  former  rather  longer  than  the  latter,  and  is  able  to  give  a  better  descrip- 
tion of  what  he  has  seen.  And  then,  when  two  so  different  descriptions 
come  before  us,  we  wonder  at  them  and  say  that  one  of  them  is  untrue.  .  .  . 
In  the  variety  of  perception  lies  the  power  of  presentation  (in  our  sense  of 
the  term).  .  .  . 

In  this  connection  there  are  several  more  conditions  pertaining  to  general 
sense  perception.  First  of  all  there  is  that  so-called  vicariousness  of  the 
senses  which  substitutes  one  sense  for  another,   in  representation.     The 


432  PART    II.      TESTIMONIAL    EVIDENCE  No.  235. 

actual  substitution  of  one  sense  by  another  as  that  of  touch  and  sight, 
does  not  belong  to  the  present  discussion.  The  substitution  of  sound  and 
sight  is  only  apparent.  E.g.  when  I  have  several  times  heard  the  half- 
noticed  voice  of  some  person  without  seeing  him,  I  will  imagine  a  definite 
face  and  appearance  which  arc  pure  imagination.  So,  again,  if  I  hear  cries 
for  help  near  some  stream,  I  see  more  or  less  clearly  the  form  of  a  drowning 
person,  etc.  It  is  quite  different  in  touching  and  seeing ;  if  I  touch  a  ball, 
a  die.  a  cat,  a  cloth,  etc.,  with  my  eyes  closed,  then  I  may  so  clearly  see  the 
color  of  the  object  before  me  that  I  might  be  really  seeing  it.  But  in  this 
case  there  is  a  real  substitution  of  greater  or  lesser  degree.  .  .  . 

Tiie  vicariousnesses  of  visual  sensations  are  the  most  numerous  and  the 
most  important.  Anybody  who  has  been  pushed  or  beaten,  and  has  felt 
the  blows,  will,  if  other  circumstances  permit  and  the  impulse  is  strong 
enough,  be  convinced  that  he  has  seen  his  assaulter  and  the  manner  of  the 
assault.  Sometimes  people  who  are  shot  at  will  claim  to  have  seen  the 
flight  of  the  ball.  And  so  again  they  will  have  seen  in  a  dark  night  a  com- 
paratively distant  wagon,  although  they  have  only  heard  the  noise  it  made 
and  felt  the  vibration.  It  is  fortunate  that,  as  a  rule,  such  people  try  to 
be  just  in  answering  to  questions  which  concern  this  substitution  of  one 
sense  perception  for  another.  And  such  questions  ought  to  be  urgently 
put.  .  .  . 

Still  more  significant  is  that  characteristic  phenomenon,  to  us  of  con- 
siderable importance,  which  might  be  called  retrofipcctive  iUumination  of 
perception.  It  consists  in  the  appearance  of  a  sense  perception  under  con- 
ditions of  some  noticeable  interruption,  when  the  stimulus  does  not,  as  a 
rule,  give  rise  to  that  perception.  ...  In  a  case  in  court,  there  was  a 
shooting  in  some  house  and  an  old  peasant  woman,  who  was  busy  sewing 
in  the  room,  a.sserted  that  she  had  just  before  the  shooting  heard  a  few 
steps  in  the  direction  from  which  the  shot  must  have  come.  Nobody 
would  agree  that  there  was  any  reason  for  supposing  that  the  person  in 
question  should  have  made  his  final  steps  more  noisily  than  his  preceding 
ones.  Hut  I  am  convinced  that  the  witness  told  the  truth.  The  steps  of 
the  new  arrival  were  perceived  subconsciously  ;  tiie  further  disturbance  of 
the  perception  hindered  her  occupation  and  finally,  when  she  was  frightened 
by  the  shot,  the  upper  levels  of  consciousness  were  illuminated  and  the 
noises  which  hafl  already  reached  the  subconsciousness  passed  over  the 
threshoM  and  were  consciously  perceived. 

I  learned  from  an  esix'cially  significant  case,  how  the  same  thing  could 
happen  with  regard  to  vision.  A  child  was  run  over  and  killed  by  a  careless 
coachman.  A  pensioned  officer  saw  this  through  the  window.  His  de- 
.scription  was  quite  characteristic.  It  was  the  anniversary  of  a  certain 
l)attle.  The  old  gentleman,  who  stood  by  the  window  thinking  about  it 
and  about  his  long-<lead  comrades,  was  looking  l)lankly  out  into  the  street. 
The  horribh'  cry  of  the  nnliappy  child  woke  him  up  and  he  really  began  to 
see.  Then  he  observed  that  he  had  in  truth  seen  everything  that  had 
happened  before  the  child  was  knocked  over  —  i.e.  for  some  reason  the 
coachman  had  turned  around,  turning  the  horses  in  such  a  way  at  the 
same  time  that  the  latter  jumped  sidewise  upon  the  frightened  child,  and 
hence  the  accirh-nt.  The  general  expressed  himself  correctly  in  this  fashion  : 
"I  .saw  it  all.  but  I  did  not  perceive  and  know  that  I  saw  it  until  after  the 


No.  235.  II.      TESTIMONIAL   PROCESS.      A.    PERCEPTION  433 

scream  of  the  child."  .  .  .  His  story  was  confirmed  by  other  witnesses. 
This  psychological  process  is  of  significance  in  criminal  trials. 

(6)  Mistakes  of  the  Senses;  Illusions.  As  sensation  is  the  basis  of  knowl- 
edge, the  sensory  process  must  be  the  basis  of  the  correctness  of  legal  pro- 
cedure. The  information  we  get  from  our  senses  and  on  which  we  con- 
struct our  conclusion,  may  be  said,  all  in  all,  to  be  reliable,  so  that  we  are 
not  justified  in  approaching  things  we  assume  to  depend  on  sense  perception 
with  exaggerated  caution.  Nevertheless,  this  perception  is  not  always 
completely  correct,  and  the  knowledge  of  its  mistakes  must  help  us  and 
even  cause  us  to  wonder  that  we  make  no  greater  ones. 

Psychological  examination  of  sense  perception  has  been  going  on  since 
Heraclitus.  Most  of  the  mistakes  discovered  have  been  used  for  various 
purposes,  from  sport  to  science.  They  are  surprising  and  attract  and 
sustain  public  attention ;  they  have,  hence,  become  familiar,  but  their 
influence  upon  other  phenomena  and  their  consequences  in  the  daily  life 
have  rarely  been  studied.  For  two  reasons.  First,  because  such  illusions 
seem  to  be  small  and  their  far-reaching  effects  are  rarely  thought  of,  as 
when,  e.g.,  a  line  drawn  on  paper  seems  longer  or  more  inclined  than  it 
really  is.  Secondly,  it  is  supposed  that  the  influence  of  sensory  illusions 
cannot  easily  make  a  dift'erence  in  practical  life.  If  the  illus  on  is  observed, 
it  is  thereby  rendered  harmless  and  can  have  no  effect.  If  it  is  not  observed 
and  later  on  leads  to  serious  consequences,  their  cause  cannot  possibly  be 
sought  out,  because  it  cannot  be  recognized  as  such.  .  .  . 

Witnesses  do  not  of  course  know  that  they  have  suft'ered  from  illusions 
of  sense ;  we  rarely  hear  them  complain  of  it,  anyway.  And  it  is  for  this 
very  reason  that  the  criminalist  must  seek  it  out.  The  requirement  in- 
volves great  difficulties,  for  we  get  very  little  help  from  the  immense  litera- 
ture on  the  subject.  There  are  two  roads  to  its  fulfillment.  In  the  first 
place,  we  must  understand  the  phenomenon  as  it  occurs  in  our  work,  and 
by  tracing  it  back  determine  whether  and  which  illusion  of  the  sense  may 
have  caused  an  abnormal  or  otherwise  unclear  fact.  The  other  road  is  the 
theoretical  one,  which  must  be  called,  in  this  respect,  the  preparatory  road. 
It  requires  our  mastery  of  all  that  is  known  of  sense  illusion  and  particularly 
of  such  examples  of  its  hidden  nature  as  exist.  Much  of  the  material  of 
this  kind  is,  however,  irrelevant  to  our  purpose,  particularly'  all  that  deals 
with  disease  and  lies  in  the  field  of  medicine.  ...  It  is  indubitable  that 
we  make  many  observations  in  which  we  get  the  absolute  impression  that 
matters  of  sensory  illusion  which  do  not  seem  to  concern  us  lie  behind 
some  witnesses'  observations,  etc.,  although  we  cannot  accurately  indicate 
what  they  are.  The  only  thing  to  do  when  this  occurs  is  either  to  demon- 
strate the  possibility  of  their  presence  or  to  wait  for  some  later  opportunity 
to  test  the  witness  for  them. 

Classification  will  ease  our  task  a  great  deal.  The  apparently  most 
important  divisions  are  those  of  normal  and  abnormal.  But  as  the  bound- 
ary between  them  is  indefinite,  it  would  be  well  to  consider  that  there  is  a 
third  class  which  cannot  fall  under  either  heading.  This  is  a  class  where 
especially  a  group  of  somatic  conditions  either  favor  or  cause  illusory  sense 
perceptions,  e.g.  a  rather  over-loaded  stomach,  a  rush  of  blood  to  the  head, 
a  wakeful  night,  physical  or  mental  overexertion.  .  .  . 

Another  question  is  the  limit  at  which  illusions  of  sense  begin,  how,  in- 


43-i  PART    II.      TESTIMONIAL   EVIDENCE  No.  235. 

deed,  they  can  he  distin^aiished  from  correct  perceptions.  The  possibihty 
of  doing  so  depends  upon  the  typical  construction  of  the  sense  organs  in 
man.  By  one's  self  it  would  be  nipossil)le  to  determine  which  sensation  is 
intrinsically  correct  and  which  is  an  illusion.  There  are  a  great  many 
illusions  of  sense  which  all  men  sutler  from  under  similar  conditions,  so 
that  the  judgment  of  the  majority  cannot  be  normative.  Nor  can  the 
control  of  one  sense  by  another  serve  to  distinguish  illusory  from  correct 
perception.  In  many  cases  it  is  quite  possible  to  test  the  sense  of  sight  liy 
touch,  or  the  sense  of  hearing  by  sight,  but  that  is  not  always  so.  The 
simplest  thing  is  to  say  that  a  sense  impression  is  correct  and  implies 
reality  when  it  remains  iilentical  under  various  circumstances,  in  various 
conditions,  when  connected  with  other  senses,  and  observed  b\  different 
men,  with  ditterent  instruments.     It  is  illusory  when  it  is  not  so  constant. 

I  have  found  still  another  distinction  which  I  consider  important.  It 
consists  in  the  difterence  between  real  illtisions  and  those  false  conceptions 
in  which  the  mistake  originates  as  false  iufrrcncc.  In  the  former  the  sense 
organ  has  been  really  registering  wrongly,  as  when,  for  example,  the  pupil 
of  the  eye  is  pressed  laterally  and  everything  is  seen  double.  But  when  I 
see  a  landscape  through  a  piece  of  red  glass,  and  believe  the  landscape  to  be 
really  red,  the  mistake  is  one  of  inference  only,  since  I  have  not  included 
the  ert'ect  of  the  glass  in  my  concluding  conception.  So,  again,  when  in  a 
rain  I  believe  mountains  to  be  nearer  than  they  really  are,  or  when  I  believe 
the  stick  in  the  water  to  be  really  bent,  my  sensations  are  perfectly  correct, 
but  my  inferences  are  wrong.  In  the  last  instance,  even  a  photograph  will 
show  the  stick  in  water  as  bent. 

Tliis  ditierence  in  the  nature  of  illusion  is  particularly  evident  in  those 
phenomena  of  expectation  that  people  tend  to  miscall  "illusions  of  sense." 
If,  in  church,  anybody  hears  a  dull,  weak  tone,  he  will  believe  that  the 
organ  is  beginning  to  sound,  because  it  is  appropriate  to  assume  that.  In 
the  presence  of  a  train  of  steam  cars  which  shows  every  sign  of  being  ready 
to  start  you  may  easily  get  the  illusion  that  it  is  already  going.  Now,  how 
is  the  sense  to  ha\e  been  mistaken  in  such  cases  ?  The  ear  has  really  heard 
a  noise,  the  eye  has  really  seen  a  train,  and  both  have  registered  correctly, 
but  it  is  not  their  function  to  qualify  the  impression  they  register,  and  if 
the  imagination  then  elfects  a  false  inference,  that  cannot  be  called  an 
ilhjsion  of  .sensation.   .  .   . 

The  matter  is  different  when  we  do  not  properly  estimate  an  uncustomary 
sense  impression.  A  light  touch  in  an  unaccustomed  part  of  the  body  is 
felt  as  a  heavy  weiglit.  .\fter  the  loss  of  a  tooth  we  feel  an  enormous  cave 
in  the  mouth,  and  what  a  nonsensical  idea  we  have  of  what  is  happening 
when  the  dentist  is  drilling  a  hole  in  a  tooth  !  In  all  these  cases  the  senses 
have  recei\cd  a  new  impression  which  they  have  not  yet  succeeded  in  judg- 
ing properly,  and  hence,  make  a  false  announcement  of  the  object.  It  is 
to  this  fact  that  all  finidamentally  incorrect  judgments  of  new  impressions 
must  be  attributed,  —  for  example,  when  we  pass  from  darkness  into  bright 
liglit  and  find  it  very  sharp ;  when  we  find  a  cellar  warm  in  w^inter  that  we 
believe  to  be  ice-<-ol(l  in  sununer ;  when  we  suppose  ourselves  to  be  high 
up  in  the  air  the  first  time  we  arc  on  horseback,  etc.  Now,  the  actual 
presence  of  sensory  illusions  is  esijccially  important  to  us  because  we  must 
make  certain  tests  to  determine  whether  testimony  depends  on  them  or 


No.  235.  II.      TESTIMONIAL   PROCESS.      A.    PERCEPTION  435 

not,  and  it  is  of  great  moment  to  know  whether  the  illusions  depend  on  the 
individual's  mind  or  on  his  senses.  We  may  trust  a  man's  intellect  and  not 
his  senses,  and  conversely,  from  the  very  beginning. 

It  would  be  superfluous  to  insist  on  the  importance  of  sensory  illusion 
in  the  determination  of  a  verdict.  .  .  .  There  are  many  mistakes  of  judges 
based  entirely  on  ignorance  of  this  matter.  Once  a  man  who  claimed,  in 
spite  of  absolute  darkness,  to  have  recognized  an  opponent  who  punched 
him  in  the  eye,  was  altogether  believed,  simply  because  it  was  assumed 
that  the  punch  was  so  vigorous  that  the  wounded  man  saw  sparks  by  the 
light  of  which  he  could  recognize  the  other.  And  yet  already  Aristotle 
knew  that  such  sparks  are  only  subjective.  But  that  such  things  were 
believed  is  a  notable  warning. 

2.  The  Sense  of  Sight,  (a)  General  Considerations.  Just  as  the  sense  of 
sight  is  the  most  dignified  of  all  our  senses,  it  is  also  the  most  important  in 
the  criminal  court,  for  most  witnesses  testify  as  to  what  they  have  seen. 
If  we  compare  sight  with  the  hearing,  which  is  next  in  the  order  of  impor- 
tance, we  discover  the  well-known  fact  that  what  is  seen  is  much  more  cer- 
tain and  trustworthy  than  what  is  heard.  "It  is  better  to  see  once  than 
to  hear  ten  times,"  says  the  universally  valid  old  maxim.  No  exposition, 
no  description,  no  complication  which  the  data  of  other  senses  offer,  can 
present  half  as  much  as  even  a  fleeting  glance.  Hence,  too,  no  sense  can 
offer  us  such  surprises  as  the  sense  of  sight.  .  .  .  People  know  little  of 
optical  illusions  and  false  visual  perceptions,  though  they  are  aware  that 
incorrect  auditions  are  frequent  matters  of  fact.  Moreover,  to  the  heard 
object  a  large  number  of  more  or  less  certain  precautionary  judgments  are 
attached.  If  anybody,  e.g.,  has  heard  a  shot,  stealthy  footsteps,  crackling 
flames,  we  take  his  experience  always  to  be  approximate.  We  do  not  do  so 
when  he  assures  us  he  has  seen  these  things  or  their  causes.  Then  we  take 
them  —  barring  certain  mistakes  in  observation  —  to  be  indubitable  per- 
ceptions in  which  misunderstanding  is  impossible.  .  .  . 

The  visual  process  itself  consists,  according  to  Fischer,  "  of  a  compounded 
series  of  results  which  succeed  each  other  with  extraordinary  rapidity  and 
are  causally  related."  In  this  series  the  following  elements  may  principally 
be  distinguished  :  (1)  The  physicochemical  process.  (2)  The  physiologico- 
sensory.  (3)  The  psychological.  (4)  The  physiologicomotor.  (5)  The 
process  of  perception. 

It  is  not  our  task  to  examine  the  first  four  elements.  In  order  clearly 
to  understand  the  variety  of  perception,  we  have  to  deal  with  the  last 
only.  I  once  tried  to  explain  this  by  means  of  the  phenomenon  of  in- 
stantaneous photographs  (cinematographs).  If  we  examine  one  while  rep- 
resenting an  instant  in  some  quick  movement,  we  will  assert  that  we  never 
could  have  perceived  it  in  the  movement  itself.  This  indicates  that  our 
vision  is  slower  than  that  of  the  photographic  apparatus,  and  hence,  that 
we  do  not  apprehend  the  smallest  particular  conditions,  but  that  we  each 
time  unconsciously  compound  a  group  of  the  smallest  conditions  and  con- 
struct in  that  way  the  so-called  instantaneous  impressions.  If  we  are  to 
compound  a  great  series  of  instantaneous  impressions  in  one  galloping  step, 
we  must  have  condensed  and  compounded  a  number  of  them  in  order  to 
get  the  image  that  we  see  with  our  eyes  as  instantaneous.  We  may  there- 
fore say  that  the  least  instantaneous  image  we  ever  see  with  our  eyes  con- 


436  PART    II.      TESTIMONIAL   EVIDENCE  No.  235. 

tains  many  parts  which  only  the  photographic  apparatus  can  grasp.  Sup- 
pose we  call  these  particular  instances  a,  b,  c,  d,  e,  f,  g,  h,  i,  j,  k,  1,  m ;  it 
is  self-evitlent  that  the  manner  of  their  composition  must  vary  with  each 
inilividual.  One  man  may  compovmd  his  elements  in  groups  of  three : 
a,  b,  c,  —  d,  e,  f,  —  g,  h,  i,  etc. ;  anotlier  may  proceed  in  dyads  :  a,  b,  — 
c,  (\,  —  e,  f ,  —  g,  h,  —  etc. ;  a  third  may  have  seen  an  unobservable  instant 
later,  but  constructs  his  image  like  the  first  man:  b,  c,  d,  — 1,  m,  n,  etc.; 
a  fourth  works  slowly  anil  rather  inaccurately,  getting:  a,  c,  d, — f,  h,  i, 
—  etc.  Such  variations  multiply,  and  when  various  observers  of  the  same 
event  describe  it,  they  do  it  according  to  their  different  characteristics. 
And  the  differences  may  be  tremendous.  Substitute  numerals  for  letters 
and  the  thing  becomes  clear. 

The  ri'ldtitr  .sloicnc^s  of  our  apprehension  of  visual  elements  has  the  other 
consequence  that  we  interpolate  objects  in  the  lacunre  of  vision  according 
to  our  e.vpectations.  The  best  example  of  this  sort  of  thing  would  be  the 
perception  of  assault  and  battery.  When  ten  people  in  an  inn  see  how  A 
rai.ses  a  beer  glass  against  B's  head,  five  expect:  "Now  he'll  pound  him," 
and  five  others:  "Now  he'll  throw  it."  If  the  glass  has  reached  B's  head 
none  of  the  ten  obser\ers  ha\"e  seen  how  it  reached  there,  but  the  first  five 
take  their  oath  that  A  pounded  B  with  the  glass,  and  the  other  five  that  he 
threw  it  at  B's  head.  And  all  ten  have  really  seen  it,  so  firmly  are  they 
convinced  of  the  correctness  of  their  swift  judgment  of  expectation.  Now, 
before  we  treat  the  witness  to  some  reproach  like  untruth,  inattention, 
silliness,  or  something  e(|ually  nice,  we  had  better  consider  whether  his 
story  is  not  true,  and  whether  the  difficulty  might  not  really  lie  in  the 
imperfection  of  our  own  sensory  processes.  This  involves  partly  what 
Liebmann  has  called  "  anthropocentric  vision,"  i.e.  seeing  with  man  as  the 
center  of  things.  Liebmann  further  asserts,  "that  we  see  things  only  in 
perspective  sizes,  i.e.  only  from  an  angle  of  vision  varying  with  their  ap- 
l)roach,  withdrawal  and  change  of  position,  but  in  no  sense  as  definite 
cubical,  linear,  or  surface  sizes.  The  apparent  size  of  an  object  we  call  an 
angle  of  vision  at  a  certain  distance.  But,  what  indeed  is  the  different, 
true  size?     We  know  only  relations  of  magnitude." 

This  description  is  important  when  we  are  dealing  with  testimony  con- 
cerning size.  It  seems  obvious  that  each  witness  who  speaks  of  size  is  to 
be  asked  whence  he  had  ol)served  it,  but  at  the  same  time  a  great  many 
unexpected  errors  occur,  especially  when  what  is  involved  is  the  deter- 
mination of  the  size  of  an  object  in  the  .same  plane.  One  need  only  to  recall 
the  meeting  of  railway  tracks,  streets,  alleys,  etc.,  and  to  remember  how 
different  in  size,  according  to  the  point  of  view  of  the  witness,  various  objects 
in  such  places  must  appear.  Everybody  knows  that  distant  things  seem 
smaller  than  near  ones,  but  almost  nobody  knows  what  the  difference 
amounts  t(».   .   .   . 

Iti  ad<lition  we  often  think  that  the  clearness  of  an  object  represents  its 
tli.staiiee  and  suppose  that  the  first  alone  determines  the  latter.  But  the 
distinctness  of  objects,  i.e.  the  percej)tibility  of  a  light  impression,  depends 
also  upon  the  absolute  brightness  and  the  ditt'erences  in  l)riglitne.ss.  The 
latter  is  more  imjx.rtant  than  is  supposed.  Try  to  determine  how  far  away 
you  can  .see  a  keyhole  when  the  wall  containing  the  door  is  in  the  shadow, 
and  when  there  is  a  window  oi)i)osite  the  keyhole.     A  dark  object  of  the 


No.  235.  II.      TESTIMONIAL   PROCESS.      A,    PERCEPTION  437 

size  of  a  keyhole  will  not  be  visible  at  one  hundredth  of  the  distance  at 
which  the  keyhole  is  perceived.  Moreover,  the  difference  in  intensity  is 
not  alone  in  consideration ;  the  intensity  of  the  object  with  regard  to  its 
background  has  yet  to  be  considered.  Aubert  has  shown  that  mistakes 
often  occur,  so  that  a  man  dressed  in  dark  clothes  but  in  full  light  will  be 
described  as  wearing  lighter  clothes  than  one  who  wears  light  clothes  in 
the  shadow. 

Differences  of  illumination  reveal  a  number  of  phenomena  difficult  to  ex- 
plain. ...  If,  in  daylight,  we  look  into  a  basement  room  from  outside,  we 
can  perceive  nothing,  almost ;  everything  is  dark,  even  the  windows  appear 
black.  But  in  the  evening,  if  the  room  is  ever  so  slightly  illuminated,  and 
we  look  into  it  from  outside,  we  can  see  even  small  articles  distinctly.  Yet 
there  was  much  intenser  light  in  the  room  in  question  during  the  day  than  the 
single  illumination  of  the  night  could  have  provided.  ...  It  is  often  said 
that  a  witness  was  able  to  see  this  or  that  under  such  and  such  illumination, 
or  that  he  was  unable  to  see  it,  although  he  denies  his  ability  or  inability. 
The  only  solution  of  such  contradictions  is  an  experiment.  The  attempt 
must  be  made  either  by  the  judge  or  some  reliable  third  person,  to  discover 
whether,  under  the  same  conditions  of  illumination,  anything  could  be  seen 
at  the  place  in  question  or  not. 

As  to  ivhat  may  be  seen  in  the  distance,  experiment,  again,  is  the  best 
judge.  The  human  e^'e  is  so  very  different  in  each  man  that  even  the  acute 
examination  into  what  is  known  of  the  visual  image  of  the  Pleiades  shows 
that  the  average  visual  capacity  of  classic  periods  is  no  different  from  our 
own,  but  still  that  there  was  great  variety  in  visual  capacity.  What  enor- 
mous visual  power  is  attributed  to  half-civilized  and  barbarous  peoples, 
especially  Indians,  Eskimos,  etc.  !  Likewise  among  our  own  people  there 
are  hunters,  mountain  guides,  etc.,  who  can  see  so  clearly  in  the  distance 
that  mere  stories  about  it  might  be  fables.  In  the  Bosnian  campaign  of 
1878  we  had  a  soldier  who  in  numerous  cases  of  our  great  need  to  know  the 
enemy's  position  in  the  distance  could  distinguish  it  with  greater  accuracy 
than  we  with  our  good  field  glasses.  He  was  the  son  of  a  coal  miner  in  the 
Styrian  mountains,  and  rather  a  fool.  Incidentally  it  may  be  added  that 
he  had  an  incredible,  almost  animal  power  of  orientation. 

In  addition  to  the  natural  differences  of  sight  there  are  also  those  arti- 
ficially created.  How  much  we  may  help  ourselves  by  skillful  distinctions, 
we  can  recognize  in  the  well-known  and  frequently  mentioned  business  of 
reading  a  confused  handwriting.  We  aim  to  weaken  our  sense  perception 
in  favor  of  our  imagination,  i.e.  so  to  reduce  the  clearness  of  the  former  as 
to  be  able  to  test  upon  it  in  some  degree  a  larger  number  of  images.  We 
hold  the  Ms.  away  from  us,  look  at  it  askant,  with  contracted  eyebrows,  in 
different  lights,  and  finally  we  read  it.  Again,  the  converse  occurs.  If  v/e 
have  seen  something  with  a  magnifying  glass,  we  later  recognize  details 
without  its  help.  Definite  conditions  may  bring  to  light  very  great  dis- 
tinctions. A  body  close  to  the  face  or  in  the  middle  distance  looks  differ- 
ent according  as  one  eye  or  both  be  used  in  examining  it.  This  is  an  old 
story  and  explains  the  queer  descriptions  we  receive  of  such  objects  as 
weapons  and  the  like,  which  were  suddenly  held  before  the  face  of  the  de- 
ponent. In  cases  of  murderous  assault  it  is  certain  that  most  uncanny 
stories  are  told,  later  explained  by  fear  or  total  confusion  or  intentional  dis- 


43S  PART   II.      TESTIMONIAL   EVIDENCE  No.  235. 

honesty,  but  really  to  be  explained  by  nothing  more  than  actual  opticai 
processes.  .  .  . 

Concerning  color  vision  only  a  few  facts  will  be  mentioned.  ...  (3)  It 
is  well  known  that  in  the  diminution  of  brightnesses  red  disappears  before 
blue,  antl  that  at  night,  when  all  colors  ha\e  disappeared,  the  blue  of  heaven 
is  still  visil)le.  So  if  anybody  asserts  that  he  has  been  able  to  see  the  blue 
of  a  man's  coat  lujt  not  his  red-brown  trousers,  his  statement  is  possibly 
true,  while  the  converse  would  be  untrue.  ...  (7)  According  to  Aubert, 
sparkle  consists  of  the  fact  that  one  point  in  a  body  is  very  bright  while 
the  brightness  diminishes  almost  absolutely  from  that  point.  ...  It  is 
therefore  conceivable  that  at  a  great  distance,  under  conditions  of  sharp 
or  accidental  illuminations,  etc.,  we  are  likely  to  see  things  as  sparkling 
which  do  not  do  so  in  the  least.  .   .   . 

E\erybody  knows  what  the  blind  spot  is,  and  every  psychology  and  phys- 
iology textbook  talks  about  it.  .  .  .  According  to  Helmholtz  :  "The  effect 
of  the  blind  spot  is  very  significant.  If  we  make  a  little  cross  on  a  piece 
of  paper  and  then  a  spot  the  size  of  a  pea  two  inches  to  the  right,  and  if  we 
look  at  the  cross  with  the  left  eye  clo.se(l,  the  spot  disappears.  The  size  of 
the  blind  spot  is  large  enough  to  cover  in  the  heavens  a  plate  which  has 
twelve  times  the  diameter  of  the  moon.  It  may  cover  a  human  face  at  a 
distance  of  G',  but  we  do  not  observe  this  because  we  generally  fill  out  the 
void.  If  we  see  a  line  in  the  place  in  question,  we  see  it  unbroken,  because 
we  know  it  to  be  so,  and  therefore  supply  the  missing  part."  .  .  . 

I  have  not  met  with  a  practical  case  in  which  some  fact  or  testimony 
coukl  be  explained  only  by  the  blind  spot,  but  such  cases  are  conceivable. 

(h)  Illusions  of  Sight.  It  will  be  best  to  begin  the  study  of  optical  illu- 
sions with  the  consideration  of  those  conditions  which  cause  extraordinary, 
lunatic  images.  They  are  important  because  the  illusion  is  recognizable 
with  respect  to  the  possibility  of  varied  interpretations  by  any  observer, 
and  because  anybody  may  experiment  for  himself  with  a  bit  of  paper  on 
the  nature  of  false  optical  apprehension.  If  we  should  demonstrate  no 
more  tiian  that  the  simplest  conditions  often  involve  coarse  mistakes, 
much  will  have  been  accomplished  for  the  law,  since  the  "irrefutable  evi- 
dence" of  our  senses  would  then  show  itself  to  need  corroboration.  Noth- 
ing is  proved  with  "  I  have  seen  it  myself,"  for  a  mistake  in  one  point  shows 
the  equal  jKissibility  of  mistakes  in  all  other  points. 

Generally,  it  may  be  said  that  the  position  of  lines  is  not  without  in- 
fluence on  the  estimation  of  their  size.  Perpendicular  dimensions  are  taken 
to  be  somewhat  greater  than  they  are.  Of  two  crossed  lines,  the  vertical 
one  seems  longer,  although  it  is  really  equal  to  the  horizontal  one.  An 
oblong,  lying  on  its  .somewhat  longer  side,  is  taken  to  be  a  square ;  if  we 
set  it  on  the  shorter  side  it  seems  to  be  still  more  ol)long  than  it  really  is.  .  .  . 
It  will  liardly  be  l)elieved,  and  certainly  is  not  consciou.sly  known,  that  in 
the  letter  S  the  upper  curve  has  a  definitely  smaller  radius  than  the  lower 
one;  l)ut  thr  inverted  S  shows  this  at  once.  To  such  types  other  false 
estimations  belong  :  inclinations,  roofs,  etc.,  appear  so  .steep  in  the  distance 
that  it  is  said  to  be  impossible  to  move  on  them  without  especial  help. 
Hut  whoever  does  move  on  them  finds  the  inclination  not  at  all  so  great.  .  .  . 

Such  confusions  become  most  troublesome  when  other  estimations  are 
addid  to  them.     So  long  as  the  informant  knows  that  he  has  only  been 


No.  235.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  439 

estimating,  the  danger  is  not  too  great.  But  as  a  rule  the  informant  does 
not  regard  his  conception  as  an  estimate,  but  as  certain  knowledge.  He 
does  not  say,  "I  estimate  "  ;  he  says,  "It  is  so."  Aubert  tells  how  the  as- 
tronomer Forster  had  a  number  of  educated  men,  physicians,  etc.,  estimate 
the  diameter  of  the  moon.  The  estimation  varied  from  l"  to  8"  and  more. 
The  proper  diameter  is  1.5"  at  a  distance  of  12." 

It  is  well  known  that  an  unfurnished  room  seems  much  smaller  than  a 
furnished  one,  and  a  lawn  covered  with  snow,  smaller  than  a  thickly  grown 
one.  We  are  regularly  surprised  when  we  find  an  enormous  new  structure 
on  an  apparently  small  lot,  or  when  a  lot  is  parceled  out  into  smaller  build- 
ing lots.  When  they  are  planked  off  we  marvel  at  the  number  of  planks 
which  can  be  laid  on  the  surface.  The  illusions  are  still  greater  when  we 
look  forward.  We  are  less  accustomed  to  estimation  of  verticals  than  of 
horizontals.  An  object  on  the  gutter  of  a  roof  seems  much  smaller  than 
at  a  similar  distance  on  the  ground.  Aerial  perspective  has  a  great  in- 
fluence on  the  determination  of  these  phenomena,  particularly  such  as 
occur  in  the  open  and  at  great  distances.  .  .  .  The  condition  of  the  air, 
sometimes  foggy  and  not  pellucid,  at  another  time  particularly  clear,  makes 
an  enormous  difference,  and  statements  whether  about  distance,  size, 
colors,  etc.,  are  completely  unreliable.  A  witness  who  has  several  times 
observed  an  unknown  region  in  murky  weather  and  has  made  his  important 
observation  under  very  clear  skies,  is  not  to  be  trusted.  .  .  . 

To  all  these  illusions  may  be  added  those  which  are  connected  with 
movement  or  are  exposed  by  movement.  During  the  movement  of  certain 
bodies  we  can  distinguish  their  form  only  under  definite  conditions.  As 
their  movement  increases  they  seem  shorter  in  the  direction  of  movement 
and  as  it  decreases  they  seem  broader  than  normally.  An  express  train 
with  many  cars  seems  shorter  when  moving  directly  near  us,  and  rows  of 
marching  men  seem  longer.  ...  As  a  rule,  optical  illusions  occur  when  there 
is  an  interruption  in  the  communication  between  the  retina,  the  sense  of 
movement,  and  the  sense  of  touch,  or  when  we  are  prevented  from  reducing 
the  changes  of  the  retinal  image  to  the  movement  of  our  body  or  of  our 
eyes.  This  reduction  goes  on  so  unconsciously  that  we  see  the  idea  of  the 
object  and  its  condition  as  a  unit.  Again,  it  is  indubitable  that  the  move- 
ment of  the  body  seems  quicker  when  we  observe  it  with  a  fixed  glance 
than  when  we  follow  it  with  our  eyes.  The  difference  may  be  so  significant 
that  it  is  often  worth  while,  when  much  depends  on  determining  the  speed 
of  some  act  in  a  criminal  case,  to  ask  how  the  thing  was  looked  at. 

The  so-called  captivation  of  our  visual  capacity  plays  a  not  unimportant 
part  in  distinguishing  correct  from  illusory,  seeing.  In  order  to  see  cor- 
rectly we  must  look  straight  and  fully  at  the  object.  Looking  askance 
gives  only  an  approximate  image,  and  permits  the  imagination  free  play. 
Anybody  lost  in  a  brown  study  who  pictures  some  point  in  the  room  across 
the  way  with  his  eyes  can  easily  mistake  a  fly,  which  he  sees  confusedly 
askance,  for  a  great  big  bird.  .  . .  These  examples  indicate  how  indirect  vision 
may  be  corrected  by  later  correct  vision,  but  such  correction  occurs  rarely. 
We  see  something  indirectly ;  we  find  it  uninteresting,  and  do  not  look  at  it 
directly.  When  it  becomes  of  importance  later  on,  perhaps  enters  into  a 
criminal  case,  we  think  that  we  have  seen  the  thing  as  it  is,  and  often  swear 
that  "a  fly  is  a  big  bird." 


440  PART    II.      TESTIMONIAL   EVIDENCE  No.  23t. 

These  illusions  again,  I  must  repeat,  are  of  no  importance  if  they  are  at 
all  iloubted,  for  then  the  truth  is  ascertained.  When,  however,  they  are 
not  doubted  aiul  are  sworn  to,  they  cause  the  greatest  confusion  in  trials. 
A  barroom  ciuarrel.  a  swung  cane,  and  a  red  handkerchief  on  the  head,  are 
enough  to  make  people  testify  to  having  seen  a  great  brawl  with  bloody 
heads.  A  gnawing  rat,  a  window  accidentally  left  open  through  the  night, 
and  some  misplaced,  not  instantaneously  discovered  object,  are  the  in- 
gredients of  a  burglary.   .   .  . 

3.  Tin-  Snisc  of  Hearing.  («)  General  Considerations.  We  have  two 
problems  with  regard  to  sound  —  whether  the  witnesses  have  heard  cor- 
rectly, and  whether  we  hear  them  correctly.  Between  both  witnesses  and 
ourselves  there  are  again  other  factors.  Correct  comprehension,  faithful 
memory,  the  activity  of  the  imagination,  the  variety  of  influences,  the 
ilegree  of  jiorsonal  integrity ;  but  most  important  is  the  consideration, 
whether  the  witness  has  heard  correctly.  As  a  general  thing  we  must  deny 
in  most  cases  completely  accurate  reproduction  of  what  witnesses  have 
heard.  In  this  connection  dealing  with  questions  of  honor  is  instructive. 
If  the  question  is  the  recall  of  slander,  the  terms  of  it  will  be  as  various  as 
the  number  of  witnesses.  We  discover  that  the  sense,  the  tendency  of 
slander,  is  not  easily  mistaken.  At  least  if  it  is,  I  have  not  observed  it. 
The  witness,  e.g.  will  confuse  the  words  "scamp,"  "cheat,"  "swindler," 
etc.,  and  again  the  words:  "ox,"  "donkey,"  "numbskull,"  etc.  But  he 
will  not  say  that  he  has  heard  "scamp"  where  what  was  said  was  "donkey." 
He  simply  has  observed  that  A  has  insulted  B  with  an  epithet  of  moral 
turpitude  or  of  stupidity  and  under  examination  he  inserts  an  appropriate 
term.  Often  people  hear  only  according  to  meanings,  and  hence  the  diffi- 
culty of  getting  them  to  reproduce  verbally  and  directly  something  said 
by  a  third  person.  They  always  engage  upon  indirect  narration  because 
they  have  heard  only  the  meaning,  not  the  words.  Now  if  the  witnesses 
only  reproduced  the  actual  meaning  of  what  they  heard,  no  harm  would 
be  done,  but  they  tell  us  only  what  they  suppose  to  be  the  meaning,  and  hence 
we  get  a  good  many  mistakes.  It  does  seem  as  if  uneducated  and  half- 
educated  people  are  able  to  shut  their  ears  to  all  things  they  do  not  under- 
stand. Even  purely  sensory  perception  is  organized  according  to  intelli- 
gent capacity. 

The  determination  of  auditory  power  is,  however,  insufficient,  for  this 
power  varies  with  the  degree  any  individual  can  distinguish  a  single  definite 
tone  among  many,  hear  it  alone,  and  retain  it.  And  this  varies  not  only 
with  the  individual  but  also  with  the  time,  the  place,  the  voice,  etc.  .  .  . 

It  is  repeatedly  asserted,  e,g.  by  Tyndall,  that  a  comparatively  large 
number  of  people  do  not  hear  high  tones  like  the  chirping  of  crickets,  al- 
though the  normal  hearing  of  such  people  is  acute.  Others  again  easily 
.sense  deep  tones,  but  distinguish  them  with  difficulty  because  they  retain 
only  a  roll  or  roar,  but  do  not  hear  the  individual  tones.  And  generally, 
almost  all  peoj^K-  have  difficulty  in  making  a  correct  valuation  of  the  direc- 
tion of  sound.  Wundt  says  that  we  locate  powerful  sovnids  in  front  of  us 
ami  are  gen.Tally  better  able  to  judge  right  and  left  than  before  and  behind. 
These  data,  which  are  for  us  quite  important,  have  been  subjected  to  many 
tests.  Wundt's  statement  has  been  confirmed  by  various  experiments 
which  have  shown  that  sound  to  the  right  and  the  left  are  best  distinguished. 


No.  235.  II.      TESTIMONIAL   PROCESS.      A.    PERCEPTION  441 

and  sounds  in  front  and  below,  in  front  to  the  right  and  to  the  left,  and  below, 
to  the  right  and  to  the  left,  are  least  easily  distinguished.  Among  the  ex- 
perimenters were  Preyer,  Arnheim,  Kries,  Miinsterberg. 

All  these  experiments  indicate  certain  constant  tendencies  to  definite 
mistakes.  Sounds  in  front  are  often  mistaken  for  sounds  behind  and  felt  to 
be  higher  than  their  natural  head  level.  Again,  it  is  generally  asserted  that 
binaural  hearing  is  of  great  importance  for  the  recognition  of  the  direction  of 
sound.  With  one  ear  this  recognition  is  much  more  difficult.  This  may  be 
verified  by  the  fact  that  we  turn  our  heads  here  and  there  as  though  to  com- 
pare directions  whenever  we  want  to  make  sure  of  the  direction  of  sound. 
In  this  regard,  too,  a  number  of  effective  experiments  have  been  made. 

When  it  is  necessary  to  determine  whether  the  witness  deposes  correctly 
concerning  the  direction  of  sound,  it  is  best  to  get  the  official  physician  to 
find  out  whether  he  hears  with  both  ears,  and  whether  he  hears  equally  well 
with  both.  It  is  observed  that  persons  who  hear  excellently  with  both  ears 
are  unfortunate  in  judging  the  direction  of  sound.  Others  again  are  very 
skillful  in  this  matter,  and  may  possibly  get  their  skill  from  practice,  sense  of 
locality,  etc.  But  in  any  case,  certainty  can  be  obtained  only  by  experimen- 
tation. 

The  dift'erences  that  age  makes  in  hearing  are  of  importance.  Bezold  has 
examined  a  large  number  of  human  ears  of  different  ages  and  indicates  that 
after  the  fiftieth  year  there  is  not  only  a  successive  decrease  in  the  number  of 
the  approximately  normal  hearing,  but  there  is  a  successively  growing  in- 
crease in  the  degree  of  auditory  limitation  which  the  ear  experiences  with 
increasing  age.  The  results  are  more  surprising  than  is  supposed.  Not  one 
of  100  people  over  fifty  years  of  age  could  understand  conversational  speech 
at  a  distance  of  16  meters ;  10.5  per  cent  understood  it  at  a  distance  of  8 
to  16  meters.  Of  school  children  46.5  per  cent  (1918  of  them)  from  seven 
to  eighteen  understood  it  at  a  distance  of  20  meters  plus,  and  32.7  per 
cent  at  a  distance  of  from  16  to  8  meters.  The  percentage  then  is  10.5  for 
people  over  fifty  as  against  79.2  of  people  over  seven  and  under  eighteen. 
Old  women  can  hear  better  than  old  men.  At  a  distance  of  4  to  16  meters 
the  proportion  of  women  to  men  who  could  hear  was  34  to  17.  The  converse 
is  true  of  children,  for  at  a  distance  of  20  meters  and  more  the  percentage 
of  boys  was  49.9  and  girls  43.2.  The  reason  for  this  inversion  of  the  relation 
lies  in  the  harmful  influences  of  manual  labor  and  other  noisy  occupations 
of  men.  These  comparisons  may  be  of  importance  when  the  question  is 
raised  as  to  how  much  more  a  witness  may  have  heard  than  one  of  a  different 
age. 

(6)  Illusions  of  Hearing.  From  the  point  of  view  of  the  criminalist, 
auditory  illusions  are  hardly  less  significant  than  visual  illusions,  the  more  so, 
as  incorrect  hearing  is  much  more  frequent  than  incorrect  seeing.  This  is 
due  to  the  greater  similarity  of  tones  to  each  other,  and  this  similarity  is  due 
to  the  fact  that  sound  has  only  one  dimension,  while  vision  involves  not  only 
three,  but  also  color.  .  .  . 

The  study  of  auditory  illusions  is  rendered  especially  difficult  by  the 
rarity  of  their  repetition,  which  makes  it  impossible  reliably  to  exclude  ac- 
cidents and  mistakes  in  observation.  ...  I  made  an  observation  at  a 
bicycle  school.  As  is  known,  beginners  are  able  frequently  to  ride  by  them- 
selves, but  need  help  in  mounting  and  dismounting  their  machines.    To  do  so, 


442  PART   II.      TESTIMONIAL   EVIDENCE  No.  235. 

they  call  a  Teacher  hy  crying  ciiit :  " Herr  Maier."  At  a  certain  place  this 
sound  would  seem  distinctly  to  he  "  mamma."  I  was  at  first  much  surprised 
to  hear  people  of  advanced  age  cry  cheerfully,  "mamma."  Later  1  dis- 
covereilwhat  the  word  really  was,  and  acquaintances  whose  attention  1  called 
to  the  matter  confirmed  my  observation.  Such  things  are  not  indilierent ; 
they  show  that  really  very  different  sounds  may  be  mistaken  for  one  another, 
that  the  test  of  misunderstandings  may  often  lead  to  false  results,  since  only 
during  the  tc\st  of  an  illusion  are  both  auditor  and  speaker  accurately  in  the 
same  position  as  before.  Finally,  these  things  show  that  the  whole  business 
of  correcting  some  false  auditions  is  very  difficult.  .  .  . 

As  regards  the  general  treatment  of  auditory  illusions,  it  is  necessary, 
first  of  all,  to  consider  their  many  and  significant  differences.  In  the  first 
place,  there  are  the  variiiirs  of  good  hearing.  That  normal  and  abnormal 
hearers  vary  in  degree  of  power  is  well  known.  There  are  also  several 
special  conditions,  causing,  e.g.  the  so-called  hyperauditive,  who  hear  more 
acutely  than  normal  people.  Of  course,  such  assertions  as  those  which  cite 
people  who  can  hear  the  noise  of  sulphur  rubbed  on  the  poles  of  quartz 
crystals  and  so  on,  are  incorrect,  but  it  is  certain  that  a  little  attention  will 
reveal  a  surprising  number  of  people  whose  hearing  is  far  acuter  than  that 
of  normal  individuals.  Apart  from  children,  the  class  is  made  up  of  musi- 
cians, of  young  girls,  and  of  very  nervous,  excitable,  and  sickly  persons. 
The  musicians  in  fact  have  become  so  because  of  their  ears  ;  the  young  girls 
hear  well  largely  because  of  their  delicate  organization  and  the  very  fine 
construction  of  their  ears ;  and  the  nervous  people  because  of  their  sensibility 
to  the  pain  involved  in  loud  noises.  Many  differences  of  perception  among 
witnesses  are  to  be  explained  by  differences  of  audition,  and  the  reality  of 
apparent  impossibilities  in  hearing  must  not  be  denied,  Init  must  be  tested 
under  proper  conditions.  One  of  these  conditions  is  location.  The  differ- 
ence between  hearing  things  in  the  noisy  day  and  in  the  quiet  night,  in  the 
roar  of  the  city,  or  in  the  ciuiet  of  the  mountains,  is  familiar.   .   .   . 

The  illusions  of  hearing  which  completely  normal  people  are  subject  to 
are  the  most  difficult  of  all.  Their  number  and  frequency  is  variously 
estimated.  The  physician  has  nothing  to  do  with  them.  The  physicist, 
the  acoustician,  and  physiologist  do  not  care  about  the  criminalist's 
needs  in  this  matter,  and  we  ourselves  rarely  have  time  and  oppor- 
tunity to  deal  with  it.  As  a  result  our  information  is  very  small, 
and  no  one  can  say  how  much  is  still  undiscovered.  .  .  .  Certain 
dispositicms  make  some  difference  in  this  respect.  The  operating  phy- 
sician hears  the  low  groaning  of  the  patient  after  the  operation  with- 
out having  heard  his  loud  cries  during  the  operation.  During  the 
operation  the  jihysician  must  not  hear  anything  that  is  likely  to  disturb 
his  work,  but  the  low  groan  has  simply  borne  in  upon  him.  The  sleeping 
mother  often  is  deaf  to  considerable  noise,  but  wakes  up  immediately  when 
her  child  draws  a  deeper  breath  than  usual.  Millers  and  factory  hands, 
travelers,  etc.,  do  not  hear  the  pounding  of  their  various  habitiud  environ- 
mental noises,  but  they  j)erceive  the  slightest  call,  and  everybody  observes 
the  considerable  nnirnmr  of  the  world,  the  sum  of  all  distant  noises,  only 
in  the  silence  of  the  night  that  mi.sses  it. 

Illusions  of  direction  of  sound  are  very  common.  It  is  said  that  even 
iiniiiials  are  subject  to  tliciii  ;    ami  everybody  knows  how  few  human  beings 


No.  235.  II.      TESTIMONIAL   PROCESS.      A.    PERCEPTION  443 

can  distinguish  the  source  and  direction  of  street  music,  a  roUing  wagon,  or  a 
ringing  bell.  .  .  . 

All  these  enumerated  circumstances  must  show  how  very  uncertain  all 
acoustic  perceptions  are,  and  how  little  they  may  be  trusted  if  they  are  not 
carefully  tested  under  similar  conditions,  and  if  —  what  is  most  important  — 
they  are  not  isolated.  We  are  here  led  back  to  the  old  principle  that  every 
observation  is  not  proof,  but  means  of  proof,  and  that  it  may  be  trusted  only 
whenitis  confirmed  by  many  parallel  actions  which  are  really  consistent.  .  .  , 

4.  The,  Sense  of  Taste,  (a)  General  Considerations.  The  sense  of  taste  is 
rarely  of  legal  importance,  but  when  it  does  come  into  importance  it  is  reg- 
ularly very  significant  because  it  involves,  in  the  main,  problems  of  poison- 
ing. ...  At  the  same  time,  it  is  necessary,  when  tests  are  made,  to  depend 
upon  general,  and  rarely  constant  impressions,  since  very  few  people  mean 
the  same  thing  by,  stinging,  prickly,  metallic,  and  burning  tastes,  even 
though  the  ordinary  terms  sweet,  sour,  bitter,  and  salty,  may  be  accepted 
as  approximately  constant.  .  .  . 

Q))  Illusions  of  Taste.  Illusions  of  taste  are  of  importance  for  us  only  in 
cases  of  poisoning  in  which  we  want  the  assistance  of  the  victim,  or  desire  to 
taste  the  poison  in  question  in  order  to  determine  its  nature.  That  taste  and 
odor  are  particularly  difficult  to  get  any  unanimity  about  is  an  old  story, 
and  it  follows  that  it  is  still  more  difficult  clearly  to  understand  possible 
illusions  of  these  senses.  .  .  .  Intermittent  fevers  tend  to  cause,  when  there 
is  no  attack  and  the  patient  feels  comparativeh^  well,  a  large  number  of 
metallic,  particularly  coppery,  tastes.  If  this  is  true,  it  may  lead  to  unjusti- 
fied suspicions  of  poisoning,  inasmuch  as  the  phenomena  of  intermittent 
fever  are  so  various  that  they  cannot  all  be  identified. 

Imagination  makes  considerable  difference  here.  .  .  .  The  eye  has 
especial  influence,  and  the  story  cited  and  denied  a  hundred  times,  that 
in  the  dark,  red  wine  and  white  wine,  chicken  and  goose,  cannot  be  dis- 
tinguished, that  the  going  out  of  a  cigar  is  not  noted,  etc.,  is  true.  With 
your  eyes  closed  it  may  be  possible  to  eat  an  onion  instead  of  an  apple. 

Prior  tastes  may  cause  significant  gustatory  illusions.  Hence,  when 
assertions  are  made  about  tastes,  it  is  always  necessary  to  inquire  at  the 
outset  what  had  been  eaten  or  drunk  before.  .  .  .  x\ll  in  all,  it  must  not  be 
forgotten  that  the  reliability  of  the  sense  of  taste  cannot  be  estimated  too 
low.  The  illusions  are  greatest  especially  when  a  thing  has  been  tasted 
with  a  preconceived  notion  of  its  taste. 

5.  The  Sense  of  Smell.  (a)  General  Considerations.  The  sense  of  smell 
would  be  of  great  importance  for  legal  consideration  if  it  could  get  the  study 
it  deserves.  It  may  be  said  that  many  men  have  more  acute  olfactory  powers 
than  they  know,  and  that  they  may  learn  more  by  means  of  them  than  by 
means  of  the  other  senses.  The  sense  of  smell  has  little  especial  practical 
importance.  It  only  serves  to  supply  a  great  many  people  with  occasional 
disagreeable  impressions,  and  what  men  fail  to  find  especially  necessary 
they  do  not  easily  make  use  of.  The  utility  of  smell  would  be  great  because 
it  is  accurate,  and  hence  powerful  in  its  associative  quality.  But  it  is  rarely 
attended  to  ;  even  when  the  associations  are  awakened,  they  are  not  ascribed 
to  the  sense  of  smell,  but  are  said  to  be  accidental.  .  .  . 

(b)  Illusions  of  Smell.  Olfactory  illusions  are  very  rare  in  healthy  people 
and  are  hence  of  small  importance.     They  are  frequent  among  the  mentally 


444  PART    II.      TESTIMONIAL    EVIDENCE  No.  235. 

diseased.  .  .  .  The  largest  number  of  olfactory  illusions  are  due  to  imagina- 
tion. Carpenter's  frequently  citeil  case  of  the  officials  who  smelled  a  corpse 
while  a  coffin  was  being  dug  up,  until  finally  the  coffin  was  found  to  be  empty, 
has  many  fellows.  .  .  .  Statements  by  witnesses  concerning  perceptions 
of  odor  are  valueless  unless  otherwise  confirmed. 

0.  Tki  Snm-  of  Touch.  («)  General  Considerations.  I  combine,  for  the 
sake  of  simplicity,  the  sen.ses  of  location,  pressure,  temperature,  etc.,  under 
the  general  expression  :  sense  of  touch.  The  problem  this  sense  raises  is  no 
light  one  because  many  witnesses  tell  of  perceptions  made  in  the  dark  or 
when  they  were  otherwise  unable  to  see,  and  because  much  is  perceived  by 
means  of  this  sense  in  assaults,  wounds,  and  other  contacts.  In  most  cases 
such  witnesses  have  been  unable  to  regard  the  touched  parts  of  their  bodies, 
so  that  we  have  to  depend  upon  this  touch  sense  alone.  Full  certainty  is 
possible  only  when  sight  and  touch  have  worked  together  and  rectified  one 
another. 

The  deceptive  possibilities  in  touch  are  seen  in  the  well-known  mistakes 
to  which  one  is  subjected  in  blind  touching.  At  the  same  time  practice  leads 
to  considerable  accuracy  in  touch,  and  on  many  occasions  the  sense  is  trusted 
more  than  sight  —  e.g.  whenever  we  test  the  delicacy  of  an  object  with  our 
fingertips.  The  fineness  of  paper,  leather,  the  smoothness  of  a  surface,  the 
presence  of  points,  are  always  tested  with  the  fingers.  .  .  .  \Yhoever  has  to 
depend  much  on  the  sense  of  touch  increases  its  field  of  perception,  as  we 
know  from  the  delicacy  of  the  sense  in  blind  people.  The  statements  of  the 
blind  concerning  their  contact  sensations  may  be  believed  even  when  they 
seem  improljable ;  there  are  blind  persons  wlio  may  feel  the  very  color  of 
fabrics,  because  the  various  pigments  and  their  medium  give  a  different  sur- 
face quality  to  the  cloth  they  color.  In  another  direction,  again,  it  is  the 
deaf  who  have  especial  power.  So,  we  are  assured  by  Abercrombie  that  in 
his  medical  practice  he  had  frequently  observed  how  deaf  people  will  per- 
ceive the  roll  of  an  approaching  wagon,  or  the  approach  of  a  person,  long  be- 
fore people  with  good  hearing  do  so. 

It  is  important  to  know  what  a  wounded  mayi  and  his  enemy  feel  in  the 
first  instant  of  the  crime  and  in  what  degree  their  testimonies  are  reliable. 
First  of  all,  we  have  to  thank  the  excellent  observations  of  ^Yeber,  for  the 
knowledge  that  we  find  it  very  difficult  to  discover  with  closed  eyes  the 
angle  made  by  a  dagger  thrust  against  the  body.  It  is  equally  difficult  to 
determine  the  direction  from  which  a  push  or  blow  has  come.  On  the  other 
hand,  we  can  tell  very  accurately  in  what  direction  a  handful  of  hair  is  pulled. 
^Vith  regard  to  the  time  it  takes  to  feel  contact  and  ])ain,  it  is  asserted  that  a 
short  powerful  blow  on  a  corn  is  felt  immediately,  but  the  pain  of  it  one  to 
two  seconds  later.  It  may  be  that  corns  have  an  especial  constitution,  but 
otherwise  the  time  a.ssigned  before  feeling  pain  is  far  too  long.  .  .  .  We 
can  only  say  that  the  percejjtion  of  a  peri])lieral  pain  occurs  an  observable 
period  after  the  shock,  I.e.  about  a  third  of  a  second  later  than  its  cause. 

The  sensation  of  a  .iffdj  is  often  identified  as  contact  with  a  hot  object,  and 
it  is  further  asserted  that  the  wounded  person  feels  close  to  the  pain  which 
accompanies  the  push  or  the  cut, the  cold  of  the  blade, and  its  presence  in  the 
dejilhs  of  his  body.  So  far  as  I  have  been  able  to  learn  from  wounded  people, 
these  assertions  are  not  coiifirnu-d.  Setting  aside  individuals  who  exagger- 
ate intentionally  and  want  to  make  themselves  interesting  or  to  indicate 


No.  235.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  445 

considerable  damage,  all  answers  point  to  the  fact  that  stabs,  shots,  and 
blows  are  sensed  as  pushes.  In  addition,  the  rising  of  the  blood  is  felt 
almost  immediately,  but  nothing  else  ;  pain  comes  much  later.  .  .  . 

{b)  Illusions  of  Touch.  The  high  standing  of  the  sense  of  touch  which 
makes  it  in  certain  directions  even  the  organ  of  control  of  the  sense  of  sight, 
is  well  known,  and  Condillac's  historic  attempt  to  derive  all  the  senses  from 
this  one  is  still  plausible.  If  what  is  seen  is  to  be  seen  accurately,  there  is 
automatic  resort  to  the  confirmatory  aid  of  the  sense  of  touch,  which  appre- 
hends what  the  eye  has  missed.  .  .  . 

But  important  and  reliable  as  the  sense  of  touch  is,  it  is  nevertheless  not 
to  be  trusted  when  it  is  the  sole  instrument  of  perception.  We  must  never 
depend  on  the  testimony  of  a  witness  based  entirely  on  perceptions  by  touch, 
and  the  statements  of  a  wounded  person  concerning  the  time,  manner,  etc., 
of  his  wound  are  unreliable  unless  he  has  also  seen  what  he  has  felt.  We 
know  that  most  knife  and  bullet  wounds,  i.e.  the  most  dangerous  ones,  are 
felt,  in  the  first  instance,  as  not  very  powerful  blows.  Blows  on  the  extrem- 
ities are  not  felt  as  such,  but  rather  as  pain,  and  blows  on  the  head  are 
regularly  estimated  in  terms  of  pain,  and  falsely  with  regard  to  their  strength. 
If  they  were  powerful  enough  to  cause  unconsciousness,  they  are  said  to  have 
been  very  massive,  but  if  they  have  not  had  that  effect,  they  will  be  de- 
scribed by  the  most  honest  of  witnesses  as  much  more  powerful  than  they 
actually  were.  Concerning  the  location  of  a  wound  in  the  back,  in  the  side, 
even  in  the  upper  arm,  the  wounded  person  can  give  only  general  indications, 
and  if  he  correctly  indicates  the  seat  of  the  wound,  he  has  learned  it  later 
but  did  not  know  it  when  it  occurred.  According  to  Helmholtz,  practically 
all  abdominal  sensations  are  attributed  to  the  anterior  abdominal  wall. 
Now  such  matters  become  of  importance  when  an  individual  has  suffered 
several  wounds  in  a  brawl  or  an  assault  and  wants  to  say  certainly  that  he 
got  wound  A  when  X  appeared,  wound  B  when  Y  struck  at  him,  etc.  These 
assertions  are  almost  all  false  because  the  victim  is  likely  to  identify  the  pain 
of  the  moment  of  receiving  the  wound  with  its  later  painfulness.  If,  for 
example,  an  individual  has  received  a  rather  long  but  shallow  knife  wound 
and  a  deep  stab  in  the  back,  the  first  will  cause  him  a  very  considerable  burn- 
ing sensation,  the  latter  only  the  feeling  of  a  heavy  blow.  Later  on,  at  the 
examination,  the  cut  has  healed  and  is  no  longer  painful ;  the  dangerous 
stab  which  may  have  reached  the  lung,  causes  pain  and  great  difficulty  in 
breathing,  so  that  the  wounded  man  assigns  the  incidence  of  the  stab  to  the 
painful  sensation  of  the  cut,  and  conversely.  .  .  . 

There  are  many  examples  of  the  fact  that  uncontrolled  touch  leads  to  false 
perceptions.  Modern  psychophysics  has  pointed  to  a  large  group  of  false 
perceptions  due  to  illusions  of  pressure,  stabs,  or  other  contact  with  the 
skin.  The  best  known  and  criminalistically  most  important  experiments, 
are  those  with  open  compasses.  Pressed  on  the  less  sensitive  parts  of  the 
body,  the  back,  the  thigh,  etc.,  they  are  always  felt  as  one,  although  they 
are  quite  far  apart.  .  .  .  Similarly,  mere  touch  cannot  give  us  proper  con- 
trol over  the  organs  of  the  body.  .  .  .  This  shows  that  the  tactile  sense  is 
not  in  a  very  high  stage  of  development,  since  it  needs,  when  unhelped  by 
long  experience,  the  assistance  of  the  sense  of  sight.  Perceptions  through 
touch  alone,  therefore,  are  of  small  importance.  .  .  .  This  is  shown  by  a 
youthful  game  we  used  to  play.     It  consisted  of  stretching  certain  harmless 


446  PART   II.      TESTIMONIAL    EVIDENCE  No.  235. 

things  under  the  table  —  a  soft  piece  of  dough,  a  peeled,  damp  potato  stuck 
on  a  bit  of  wood,  a  wet  glove  filled  with  sand,  the  spirally  cut  rind  of  a  beet, 
etc.  Whoever  got  one  of  these  objects  without  seeing  it  thought  he  was  hold- 
ing some  disgusting  thing  and  threw  it  away.  His  sense  of  touch  could  pre- 
sent only  the  liampness,  the  coldness,  and  the  motion,  i.e.  the  coarsest 
traits  of  reptilian  life,  and  the  imagination  built  these  up  into  a  reptile 
and  caused  the  consequent  action.  Foolish  as  this  game  seems,  it  is  crimi- 
nalistically  instructive.  It  indicates  what  unbelievable  illusions  the  sense  of 
touch  is  capable  of  causing.  To  this  inadequacy  of  the  tactile  imagination 
may  be  added  a  sort  of  transferability  of  certain  touch  sensations.  For 
example,  if  ants  are  busy  near  my  seat,  I  immediately  feel  that  ants  are  run- 
ning about  under  my  clothes,  and  if  I  see  awound  or  hear  it  described,!  often 
feel  pain  in  the  analogous  place  on  my  own  body.  That  this  may  lead  to 
consitlerable  illusion  in  excitable  witnesses  is  obvious. 

II.  Perception  and  Conception.  What  lawyers  have  to  consider  in  the 
transition  from  purely  sensory  impressions  to  intellectual  conceptions  of 
these  impressions,  is  the  possibility  of  later  reproducing  any  observed  object 
or  event.  Many  so-called  scientific  distinctions  have,  under  the  impulse  of 
scientific  psychology,  lost  their  status.  Modern  psychology  does  not  see 
sharply  drawn  boundaries  between  perception  and  memory,  and  suggests 
that  the  proper  solution  of  the  problem  of  perception  is  the  solution  of  the 
problem  of  knowledge. 

With  regard  to  the  relation  of  consciousness  to  perception  we  will  make 
the  distinctions  made  by  Fischer.  There  are  two  spheres  or  regions  of  con- 
sciousness :  the  region  of  sensation,  and -of  external  perception.  The  former 
involves  the  inner  structure  of  the  organism ;  the  latter  passes  from  the 
organism  into  the  objective  world.  Consciousness  has  a  sphere  of  action 
in  which  it  deals  with  the  external  world  by  means  of  the  motor  nerves 
and  muscles,  and  a  sphere  of  perception  which  is  the  business  of  the  senses. 
External  perception  involves  three  principal  functions :  apprehension, 
differentiation,  and  combination.  Perception  in  this  narrower  sense  of  the 
term  is  the  simple  sensory  conscious  apprehension  of  some  present  object 
stimulating  our  eyes.  W'C  discover  by  means  of  it  what  the  object  is,  its 
relation  to  ourselves  and  other  things,  its  distance  from  us,  its  name,  etc. 

What  succeeds  this  apprehension  is  the  most  important  thing  for  us 
lawyers,  i.e.  recognition.  Recognition  indicates  only  that  an  object  has 
sufficiently  impressed  a  mind  to  keep  it  known  and  identifiable.  It  is 
indifferent  what  the  nature  of  the  recognized  object  is.  According  to 
Hume  the  object  may  be  an  enduring  thing  ("  noninterrupted  and  nonde- 
pendent  on  mind"),  or  it  may  be  identical  with  perception  itself.  In  the 
latter  ca.se  the  perception  is  considered  as  a  logical  judgment  like  the  judg- 
ment:  "It  is  raining,"  or  the  feeling  that  "it  is  raining,"  and  there  rec- 
ognition is  only  the  recognition  of  a  perception.  Now  judgments  of  this 
sort  are  what  we  get  from  witnesses,  and  what  we  have  to  examine  and 
evaluate.  .   .  . 

The  essential  mistakes  are  classified  by  Schiel  under  two  headings.  Mis- 
takes in  observation  are  positive  or  negative,  wrong  observation  or  over- 
sight. The  latter  occurs  largely  through  preconceived  opinions.  The 
opponents  of  Copernicus  concluded  that  the  earth  did  not  move  because 
otherwise  a  stone  dropped  from  the  top  of  a  tower  would  reach  the  ground  a 


No.  235.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  447 

little  to  the  west.  If  the  adherents  of  Copernicus  had  made  the  experiment, 
they  would  have  discovered  that  the  stone  does  fall  as  the  theory  requires. 
Similar  oversights  occur  in  the  lawyer's  work  hundreds  of  times.  We  are 
impressed  with  exceptions  that  are  made  by  others  or  by  ourselves,  and  give 
up  some  already  tried  approach  without  actually  testing  the  truth  of  the 
exception  which  challenges  it.  I  have  frequently,  while  at  work,  thought  of 
the  story  of  some  one  of  the  Georges,  who  did  not  like  scholars  and  set  the 
following  problem  to  a  number  of  philosophers  and  physicists :  "  When 
I  put  a  ten-pound  stone  into  a  hundred-pound  barrel  of  water  the  whole 
weighs  a  hundred  and  ten  pounds,  but  when  I  put  a  live  fish  of  ten  pounds 
into  the  barrel  the  whole  still  weighs  only  a  hundred  pounds  ?  "  Each  one 
of  the  scholars  had  his  own  convincing  explanation,  until  finally  the  king 
asked  one  of  the  footmen,  who  said  that  he  would  like  to  see  the  experiment 
tried  before  he  made  up  his  mind.  I  remember  a  case  in  which  a  peasant 
was  accused  of  having  committed  arson  for  the  sake  of  the  insurance.  He 
asserted  that  he  had  gone  into  a  room  with  a  candle  and  that  a  long  spider's 
web  which  was  hanging  down  had  caught  fire  from  it  accidentally  and  had 
inflamed  the  straw  which  hung  from  the  roof.  So  the  catastrophe  had 
occurred.  Only  in  the  second  examination  did  it  occur  to  anybody  to  ask 
whether  spider's  web  can  burn  at  all,  and  the  first  experiment  showed  that 
that  was  impossible.  Most  experiences  of  this  kind  indicate  that  in  rec- 
ognizing events  we  must  proceed  slowly,  without  leaping,  and  that  we  may 
construct  our  notions  only  on  the  basis  of  knowledge  we  already  possess. 
Saint  Thomas  says,  "Omnis  cognitio  fit  secundum  similitudinem  cogniti 
in  cognoscente." 

If  this"  bit  of  wisdom  were  kept  in  mind  in  the  examination  of  witnesses, 
it  would  be  an  easier  and  simpler  task  than  usual.  ...  It  naturally  is  not 
necessary  to  ask  whether  a  narrator  has  ever  seen  the  things  he  speaks  of, 
nor  to  convince  one's  self  in  examination  that  the  person  in  question  knows 
accurately  what  he  is  talking  about.  At  the  same  time,  the  examiner  ought 
to  be  clear  on  the  matter  and  know  what  attitude  to  take  if  he  is  going  to 
deal  intelligibly  with  the  other.  I  might  say  that  all  of  us,  educated  and 
uneducated,  have  apprehended  and  remember  definite  and  distinct  images 
of  all  things  we  have  seen,  heard,  or  learned  from  descriptions.  W'hen  we 
get  new  information  we  simply  attach  the  new  image  to  the  old,  or  extinguish 
a  part  of  the  old  and  put  the  new  in  its  place,  or  we  retain  only  a  more  or  less 
vigorous  breath  of  the  old  with  the  new. 

The  fact  that  a  good  deal  of  what  is  said  is  incorrect  and  yet  not  con- 
sciously untrue,  depends  upon  the  existence  of  these  images  and  their  as- 
sociation with  the  new  material.  The  speaker  and  the  auditor  have  differ- 
ent sets  of  images  ;  the  first  relates  the  new  material  differently  from  a 
second,  and  so  of  course  they  cannot  agree.  .  .  . 

The  great  trouble  consists  in  once  for  all  discovering  ivhat  memory  images 
were  present  before  the  witness  perceived  the  event  in  question.  The  former 
have  a  great  influence  upon  the  perception  of  the  latter.  .  .  . 

No  one  can  determine  the  boundary  where  the  sense  activity  ends  and  the 
intellectual  begins.  Somebody  has  noted  the  interesting  fact  that  not  one 
of  twenty  students  in  an  Egyptian  museum  knew  why  the  hands  of  the 
figures  of  Egyptian  wall  pictures  gave  the  impression  of  being  incorrect  — 
nobody  had  observed  the  fact  that  all  the  figures  had  two  right  hands.     I 


448  PAKT    II.      TESTIMONIAL   EVIDENCE  No,  235. 

once  paid  a  great  deal  of  attention  to  card-sharping  tricks,  and  as  I  acquired 
them,  either  of  ni\self  or  from  practiced  gamblers,  I  demonstrated  them 
to  the  young  criminalists.  For  a  long  time  I  refused  to  believe  what  an  old 
Greek  told  me :  "  The  more  foolish  and  obvious  a  trick  is,  the  more  certain 
it  is ;  people  never  see  anything."  The  man  was  right.  When  I  told  my 
pupils  expressly.  "  Now  I  am  cheating,"  I  was  able  to  make  with  safety  a 
false  coup,  a  false  deal,  etc.  Nobody  saw  it.  If  only  one  has  half  a  notion 
of  directing  the  eyes  to  some  other  thing,  a  card  may  be  laid  on  the  lap,  thrust 
into  the  sleeve,  taken  from  the  pocket,  and  God  knows  what  else.  Now 
who  can  say  in  such  a  case  whether  the  sensory  glance  or  the  intellectual 
apprehension  was  unskillful  or  unpracticed  ?  According  to  some  authorities 
the  chief  source  of  error  is  the  senses,  but  whether  something  must  not  be 
attributed  to  that  mysterious,  inexplicable  moment  in  which  sensory  per- 
ception becomes  intellectual  perception,  nobody  can  say. 

My  favorite  demonstration  of  how  surprisingly  little  people  perceive  is 
quite  simple.  I  set  a  tray  with  a  bottle  of  water  and  several  glasses  on  the 
table,  call  express  attention  to  what  is  about  to  occur,  and  pour  a  little  water 
from  the  bottle  into  the  glass.  Then  the  stuff  is  taken  away  and  the  as- 
tonishing question  asked  what  have  I  done?  All  the  spectators  reply 
innnediately  :  you  have  poured  water  into  a  glass.  Then  I  ask  further  with 
what  hand  did  I  do  it?  How  many  glasses  were  there?  Where  was  the 
glass  into  which  I  poured  the  water?  How  much  did  I  pour?  How 
much  water  was  there  in  the  glass  ?  Did  I  really  pour  or  just  pretend  to  ? 
How  full  was  the  bottle?  Was  it  certainly  water  and  not,  perhaps,  wine? 
Was  it  not  red  wine  ?  What  did  I  do  with  my  hand  after  pouring  tlie  water  ? 
How  did  I  look  when  I  did  it  ?  Did  you  not  really  see  that  I  shut  my  eyes  ? 
Did  you  not  really  see  that  I  stuck  my  tongue  out?  Was  I  pouring  the 
water  while  I  did  it  ?  Or  before,  or  after  ?  Did  I  wear  a  ring  on  my  hand  ? 
Was  my  cuff  visible  ?  What  was  the  position  of  my  fingers  while  I  held  the 
glass  ?  These  questions  may  be  multiplied.  And  it  is  as  astonishing  as 
aunising  to  see  how  little  correctness  there  is  in  the  answers,  and  how  people 
quarrel  about  the  answers,  and  what  extraordinary  things  they  say.  Yet 
what  do  we  recjuire  of  witnesses  who  have  to  describe  much  more  complicated 
matters  to  which  their  attention  had  not  been  previously  called,  and  who 
have  to  make  their  answers,  not  immediately,  but  much  later ;  and  who, 
moreover,  may,  in  the  presence  of  the  fact,  have  been  overcome  by  fear, 
astonishment,  terror,  etc.  ...  At  a  trial  a  circumstantial  and  accurate 
attempt  was  made  to  discover  whether  it  was  a  significant  alteration  to 
bite  a  man's  ear  ofl".  The  court,  the  physician,  the  witnesses,  etc.,  dealt 
with  the  (juestion  of  altering,  until  finally  the  wounded  man  himself  showed 
what  was  meant,  l)ecause  his  other  ear  had  been  bitten  off  many  years  be- 
fore,    -  l)ut  then  nobody  had  noticed  that  mutilated  ear. 

ill  (irdcr  to  know  what  another  person  has  seen  and  apprehended  we  nmst 
first  of  all  know  how  he  thinks,  and  that  is  impossible.  If  we  know,  at  least 
approximately,  the  kind  of  mental  process  of  a  person  who  is  as  close  as 
possible  to  us  in  sex,  age,  culture,  position,  experience,  etc.,  we  lose  this 
knowledge  with  every  step  that  leads  to  differences.  We  know  well  what 
great  influence  is  exercised  by  the  multiplicity  of  talents,  superpositions, 
knowledge,  and  ajjprehensions.  .  .  .  Exner  calls  attention  to  the  fact  that 
it  is  in  this  direction  especially,  that  the  "  tlark  perceptions"  play  a  great 


No.  235.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  449 

role.  "A  great  part  of  our  intelligence  depends  on  the  ability  of  these 
'dark  perceptions'  to  rise  without  requiring  further  attention,  into  the 
field  of  consciousness.  There  are  people,  e.g.,  who  recognize  birds  in  their 
flight  without  knowing  clearly  what  the  characteristic  flight  for  any  definite 
bird  may  be.  Others,  still  more  intelligent,  know  at  what  intervals  the 
flyers  beat  their  wings,  for  they  can  imitate  them  with  their  hands.  And 
when  the  intelligence  is  still  greater,  it  makes  possible  a  correct  description 
in  words."  Suppose  that  in  some  important  criminal  case  several  people, 
of  different  degrees  of  education  and  intelligence,  have  made  observations. 
We  suppose  that  they  all  want  to  tell  the  truth,  and  we  also  suppose  that  they 
have  observed  and  apprehended  their  objects  correctly.  Their  testimonies, 
nevertheless,  will  be  very  difl^erent.  With  the  degree  of  intelligence  rises 
the  degree  of  effect  of  the  "dark  subconscious  perceptions."  They  give 
more  definite  presentation  and  explanation  of  the  testimony ;  they  turn 
bare  assertions  into  well-ordered  perceptions  and  real  representations. 
But  we  generally  make  the  mistake  of  ascribing  the  variety  of  evidence  to 
varying  views,  or  to  dishonesty. 

III.  Imagination.  («)  General  Considerations.  The  things  witnesses  tell 
us  have  formerly  existed  in  their  imaginations,  and  the  hoiv  of  this  existence 
determines  in  a  large  degree  the  quale  of  what  they  oft'er  us.  Hence,  the 
nature  of  imagination  must  be  of  interest  to  us,  and  the  more  so,  as  we  need 
not  concern  ourselves  with  the  relation  between  being  and  imagination.  .  .  . 
When  we  speak  with  a  witness,  however,  we  rarely  know  the  conditions 
under  which  he  has  obtained  his  images,  and  we  learn  them  only  from  him. 
Now  it  happens  that  the  description  cffered  by  the  witness  adds  another 
image,  i.e.  our  own  image  of  the  matter,  and  this,  and  that  of  the  witness, 
have  to  be  placed  in  specific  relation  to  each  other.  Out  of  the  individual 
images  of  all  concerned  an  image  should  be  provided  which  implies  the  image 
of  the  represented  event.  Images  can  be  compared  only  with  images,  or 
images  are  only  pictures  of  images. 

The  difficulty  of  this  transmutation  lies  fundamentally  in  the  nature  of 
representation.  Representation  can  never  be  identical  with  its  object. 
Helmholtz  has  made  this  most  clear :  "  Our  visions  and  representations 
are  effects ;  objects  seen  and  represented  have  worked  on  our  nervous  sys- 
tem and  on  our  consciousness.  The  nature  of  each  effect  depends  necessa- 
rily upon  the  nature  of  its  cause,  and  the  nature  of  the  individual  upon  whom 
the  cause  was  at  work.  To  demand  an  image  which  should  absolutely  re- 
produce its  object  and  therefore  be  absolutely  true,  would  be  to  demand 
an  effect  which  should  be  absolutely  independent  of  the  nature  of  that 
object  on  which  the  effect  is  caused.  And  this  is  an  obvious  contradiction." 
What  the  difference  between  image  and  object  consists  of,  whether  it  is 
merely  formal  or  material,  how  much  it  matters,  has  not  yet  been  scien- 
tifically proved  and  may  never  be  so.  We  have  to  assume  only  that  the 
validity  of  this  distinction  is  universally  known,  and  that  everybody  pos- 
sesses an  innate  corrective  with  which  he  assigns  proper  place  to  image  and 
object,  i.e.  he  knows  approximately  the  distinction  between  them.  The 
difficulty  lies  in  the  fact  that  not  all  people  possess  an  identical  standard, 
and  that  upon  the  creation  of  the  latter  practically  all  human  qualities  exert 
an  influence. 

We  get  this  situation  in  miniature  each  time  we  hear  of  a  crime,  however 


450  PAUT    II.      TESTIMONIAL    EVIDENCE  No/235. 

barren  the  news  may  be,  —  no  more  than  a  telegraphic  word.  The  event 
must  naturally  have  some  degree  of  importance,  because,  if  I  hear  merely 
that  a  silver  watch  has  been  stolen,  I  do  not  try  to  imagine  that  situation. 
If,  however,  I  hear  that  near  a  hostelry  in  X,  a  peasant  was  robbed  !)y  two 
traveling  apprentices,  I  immediately  get  an  image  which  contains  not  only 
the  unknown  region.  l)Ut  also  the  event  of  the  robbery,  and  even  perhaps 
the  faces  of  those  concerned.  It  does  not  much  matter  that  this  image  is 
completely  false  in  practically  every  detail,  because  in  the  greater  number  of 
cases  it  is"  ccMrected.  The  real  danger  lies  in  the  fact  that  this  correction 
is  frequently  so  bad  and  often  fails  altogether  and  that,  in  consequence,  the 
first  image  again  breaks  through  and  remains  the  most  vigorous. 

(6)  The  Suhcoiiscious.  It  is  my  opinion  that  the  importance  of  uncon- 
scious operations  in  legal  procedure  is  undervalued.  We  could  establish 
much  that  is  significant  concerning  an  individual  whose  unconscious  doings 
we  knew.  For,  as  a  rule,  we  perform  unconsciously  things  that  are  deeply 
hal)itual.  therefore,  first  of  all  what  everybody  does  —  walk,  greet  your 
neighbor,  dodge,  eat,  etc.;  secondly,  we  perform  unconsciously  things  to 
which  we  have  become  accustomed  in  accordance  with  our  especial  characters. 
When,  during  my  work,  I  rise,  get  a  glass  of  water,  drink  it,  and  set  the  glass 
aside  again,  without  having  the  slightest  suspicion  of  having  done  so,  I 
nnist  agree  tliat  this  was  possible  only  in  my  well-known  residence  and  en- 
vironment, and  that  it  was  possible  to  nobody  else,  not  so  familiar.  The 
coachman,  perhaps,  puts  the  horses  into  the  stable,  rubs  them  down,  etc., 
and  thinks  of  something  else  while  doing  so.  He  has  performed  uncon- 
sciously what  another  could  not.  .  .  .  Such  complicated  processes  go  down 
to  the  simplest  operations.  Aubert  indicates,  for  example,  that  in  riding  a 
horse  at  gallop  you  jump  and  only  later  observe  whether  you  have  jumped 
to  the  right  or  the  left.  The  brain  does  not  merely  receive  impressions  un- 
consciously, it  registers  them  without  the  cooperation  of  consciousness, 
works  them  over  unconsciously,  awakens  the  latent  residua  without  the 
help  of  consciousness,  and  reacts  like  an  organ  endowed  with  organic  life 
toward  the  inner  stimuli  which  it  receives  from  other  parts  of  the  body. 
This  also  influences  the  activity  of  the  imagination. 

(r)  IlaUurinafions  find  Illusions.  The  limits  between  illusions  of  sense 
and  hallucinations  and  illusions  proper  can  in  no  sense  be  definitely  deter- 
mined inasmuch  as  any  phenomena  of  the  one  may  be  applied  to  the  other, 
and  vice  versa.  Most  safely  it  may  be  held  that  the  cause  of  illusions  of 
sense  lies  in  the  nature  of  sense  organs,  while  the  hallucinations  and  illusions 
are  flue  to  the  activity  of  the  brain.  The  latter  are  much  more  likely  to  fall 
within  the  scope  of  the  physician  than  sense  illusions,  but  at  the  same  time 
many  of  them  have  to  be  fletermined  upon  by  the  lawyer,  inasmuch  as  they 
really  occur  to  normal  people  or  to  such  whose  disease  is  just  beginning  so 
that  the  physician  cannot  yet  reach  it.  Nevertheless,  whenever  the  lawyer 
finds  himself  face  to  face  with  a  supposed  illusion  or  hallucination  he  must 
absolutely  call  in  the  physician.   .   .  . 

Hallucination  and  illusion  have  been  distinguished  by  the  fact  that 
hallucination  implies  no  external  object  whatever,  while  in  illusion  objects  are 
mistaken  and  misinterpreted.  When  one  thing  is  taken  for  another,  e.g. 
an  oven  for  a  man,  the  rustle  of  the  wind  for  a  human  song,  we  have  illusion. 
When  no  o!)jcctive  existence  is  perceived,  e.g.  when  a  man  is  seen   to  enter, 


No.  235.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  451 

a  voice  is  heard,  a  touch  is  felt,  although  nothing  whatever  has  happened, 
we  have  hallucination.  Illusion  is  a  partial,  hallucination  is  a  complete, 
supplementation  of  an  external  object.  Most  human  beings  are  from  time 
to  time  subject  to  illusions ;  indeed,  nobody  is  always  sober  and  intelligent 
in  all  his  perceptions  and  convictions.  The  luminous  center  of  our  intelligent 
perceptions  is  wrappetl  in  a  cloudy  half-shadow  of  illusion.  Sully  aims  to 
distinguish  the  essential  nature  of  illusion  from  that  characterized  by  ordinary 
language.  Illusion,  according  to  him,  is  often  used  to  denote  mistakes 
which  do  not  imply  untrue  perceptions.  We  say  a  man  has  an  illusion  who 
thinks  too  much  of  himself,  or  when  he  tells  stories  otherwise  than  as  they 
happen  because  of  a  weakness  of  memory.  Illusion  is  every  form  of  mistake 
which  substitutes  any  direct  self-evident  or  intuitive  knowledge,  whether 
as  sense  perception  or  as  any  other  form. 

Nowadays  the  cause  of  hallucination  and  Illusion  is  sought  in  the  over- 
excitement  of  the  cerebro-spinal  system.  As  this  stimulation  may  be  very 
various  in  its  intensity  and  significance,  from  the  momentary  rush  of  blood 
to  complete  lunacy,  so  hallucinations  and  illusions  may  be  insignificant  or 
signs  of  very  serious  mental  disturbances.  When  we  seek  the  form  of  these 
phenomena,  we  find  that  all  those  psychical  events  belong  to  it  which  have 
not  been  purposely  performed  or  lied  about.  When  Brutus  sees  Caesar's 
ghost ;  Macbeth,  Banquo's  ghost ;  Nicholas,  his  son ;  these  are  distinctly 
hallucinations  or  illusions  of  the  same  kind  as  those  "really  and  truly"  seen 
by  our  nurses.  The  stories  of  such  people  have  no  significance  for  the  crimi- 
nalist, but  if  a  person  has  seen  an  entering  thief,  an  escaping  murderer,  a 
bloody  corpse,  or  some  similar  object  of  criminal  law,  and  these  are  hallucina- 
tions like  classical  ghosts,  then  are  we  likely  to  be  much  deceived.  Hoppe 
enumerates  hallucinations  of  apparently  sound  (?)  people.  1.  A  priest, 
tired  by  mental  exertion,  saw,  while  he  was  writing,  a  boy's  head  look  over 
his  shoulder.  If  he  turned  toward  it,  it  disappeared  ;  if  he  resumed  writing,  it 
reappeared.  2.  "A  thoroughly  intelligent"  man  always  was  seeing  a  skele- 
ton. 3.  Pascal,  after  a  heavy  blow,  saw  a  fiery  abyss  into  which  he  was 
afraid  he  would  fall.  4.  A  man  who  had  seen  an  enormous  fire,  for  a  long 
time  afterward  saw  flames  continually.  5.  Numerous  cases  in  which  crimi- 
nals, especially  murderers,  always  had  their  victims  before  their  eyes. 
6.  Justus  Moser  saw  well-known  flowers  and  geometrical  figures  very  dis- 
tinctly. 7.  Bonnet  knows  a  "healthy"  man  who  saw  people,  birds,  etc., 
with  open  eyes.  8.  A  man  got  a  wound  in  his  left  ear  and  for  weeks  after- 
ward saw  a  cat.  9.  A  woman  eighty-eight  years  old  often  saw  everything 
covered  with  flowers,  — otherwise  she  was  quite  "well." 

A  part  of  these  stories  seems  considerably  fictitious,  a  part  applies  to  in- 
dubitable pathological  cases,  and  certain  of  them  are  confirmed  elsewhere. 
That  murderers,  particularly  women  murderers  of  children,  often  see  their 
victims  is  well  known  to  us  criminalists.  .  .  .  Cases  are  told  of  in  which 
prisoners  who  were  constipated  had  all  kinds  of  visual  and  auditory  halluci- 
nations and  appeared,  e.g.,  to  hear  in  the  rustling  of  their  straw,  all  sorts  of 
words.  That  isolation  predisposes  people  to  such  things  is  as  well  known  as 
the  fact  that  constipation  causes  a  rush  of  blood  to  the  head,  and  hence, 
nervous  excitement.  The  well-known  stories  of  robbers  which  are  often 
told  us  by  prisoners  are  not  always  the  fruit  of  malicious  invention.  Prob- 
ably a  not  insignificant  portion  are   the  result  of    hallucination.     Hoppe 


452  PART    II.       TESTIMONIAL    EVIDENCE  No.  235 

tells  of  a  great  group  of  hallucinations  in  conditions  of  waking  and  half- 
waking,  and  asserts  that  everybody  has  them  and  can  note  them  if  he  gives 
his  attention  thereto.  This  may  be  an  exaggeration,  but  it  is  true  that  a 
healthy  person  in  any  way  e.xcited  or  afraid  may  hear  all  kinds  of  things  in 
the  crackling  of  a  fire,  etc.,  and  may  see  all  kinds  of  things,  in  smoke,  in 
clouds,  etc.  .  .  .  High  bodily  temperature  may  easily  cause  hallucinations. 
Thus,  marching  soldiers  are  led  to  shoot  at  nonexisting  animals  and  appar- 
«.'ntly  approaching  enemies.  Uniform  and  fatiguing  mental  activity'  is  also 
a  source  of  hallucination.  Fechner  says  that  one  day  having  performed  a 
long  experiment  with  the  help  of  a  stop  watch,  he  heard  its  beats  through  the 
whole  evening  after.  So  again  when  he  was  studying  long  series  of  figures 
he  used  to  see  them  at  night  in  the  dark  so  distinctly  that  he  could  read 
them  off.  Then  there  are  illusions  of  touch  which  may  be  criminalistically 
important.  A  movement  of  air  may  be  taken  for  an  approaching  man.  A 
tight  collar  or  cravat  may  excite  the  image  of  being  stifled  !  Old  people 
frequently  have  a  sandy  taste  while  eating,  —  when  this  is  told  the  thought 
occurs  that  it  may  l)e  due  to  coarsely  powdered  arsenic,  yet  it  may  be  merely 
illusion.  The  slightest  abnormality  makes  hallucinations  and  illusions  very 
easy.  Persons  who  are  in  great  danger  have  all  kinds  of  hallucinations, 
particularly  of  people.  In  the  court  of  law,  when  witnesses  who  have  been 
assaulted  testify  to  having  seen  people,  hallucination  may  often  be  the  basis 
of  their  evidence.  Hunger  again,  or  loss  of  blood,  gives  rise  to  the  most 
various  hallucinations. 

It  might  seem  that  in  this  matter,  also,  the  results  are  destructive  and  that 
the  statements  of  witnesses  are  untrue  and  unrelial)le.  I  do  not  assert  that 
our  valuation  of  these  statements  shall  be  checked  from  all  possible  direc- 
tions, l)ut  I  do  say  that  much  of  what  we  ha\e  considered  as  true  depends 
only  on  illusions  in  the  broad  sense  of  the  word  and  that  it  is  our  duty  before 
all  things  rigorously  to  test  everything  that  underlies  our  researches. 

(d)  I  magi  native  Rr  presentations.  Illusions  of  sense,  hallucinations,  and 
illinions  proper  taken  as  a  group,  differ  from  imaginative  representations, 
because  the  individual  who  has  the  former  is  more  or  less  passive  and  sub- 
ject to  the  thing  from  which  they  arise,  while  with  the  latter  the  individual 
is  more  active  and  creates  new  images  by  the  combination  of  existing  or  only 
imagined  conditions.  ...  Of  course  there  is  no  sharp  boundary  between 
imaginative  ideas  and  sense  perception,  etc.  Many  phenomena  are  difficult  to 
classify  and  even  language  is  uncertain  in  its  usage.  The  notion  "  illusion  " 
has  indicated  many  a  false  ideal,  many  a  product  of  incoherent  fancy.  The 
rule  to  l)e  derived  from  all  the  foregoing  is  this  :  ^Yhenever  we  believe  a 
statement  to  be  based  on  imagination,  or  to  have  been  learned  from  some 
imaginative  source,  we  must  always  connect  it  with  its  most  proximate 
neighbors,  and  step  by  step  seek  out  its  elements  and  then  compound  them 
in  the  simplest  possible  form.  We  may,  in  this  fashion,  get  perhaps  at  the 
proper  content  of  the  matter.   .   .   . 

Ix-t  us  take  the  simplest  possible  instance  of  such  a  situation.  In  a  bowl- 
ing alley,  two  yoiiths,  A  and  H,  had  a  lively  quarrel,  in  which  A  held  the 
ball  in  his  hand  and  threatened  to  throw  it  at  B's  head.  B,  frightened,  ran 
away,  A  pursued  him,  after  a  few  steps  threw  the  ball  into  the  grass,  caught 
B,  antl  then  gave  him  an  easy  blow  with  the  flat  of  his  hand  on  the  back  of 
his  head.     B  began  to  wabble,  sank  to  the  ground,  became  unconscious,  and 


No.  235.  II.      TESTIMONIAL   PROCESS.      A.    PERCEPTION  453 

showed  all  the  signs  of  a  broken  head  (unconsciousness,  vomiting,  disten- 
tion of  the  pupils,  etc.).  All  the  particular  details  of  the  event  are  unani- 
mously testified  to  by  many  witnesses,  non-partisan  friends  of  A  and  B, 
and  among  them  the  parish  priest.  Simulation  is  completely  excluded  inas- 
much as  B,  a  simple  peasant  lad,  certainly  did  not  know  the  symptoms  of 
brain  fever,  and  could  not  hope  for  any  damages  from  the  al)solutely  poor 
A.  Let  us  now  consider  what  the  nearest  facts  are.  The  elements  of  the 
case  are :  B  sees  a  heavy  ball  in  A's  hand ;  A  threatens  B  with  it  and 
pursues  him ;  B  feels  a  blow  on  the  head.  The  compounding  of  these  ele- 
ments results  in  the  invincible  assumption  on  B's  part  that  A  had  struck 
him  on  the  head  with  the  ball.  The  consequence  of  this  imaginative  feeling 
was  the  development  of  all  the  phenomena  that  would  naturally  have  fol- 
lowed if  B  had  actually  been  struck  on  the  head. 

It  would  be  wrong  to  say  that  these  cases  are  so  rare  as  to  be  useless  in 
practice.  We  simply  do  not  observe  them,  for  the  reason  that  we  take  much 
to  be  real  because  it  is  confirmed  reliably.  More  accurate  examination 
would  show  that  many  things  are  merely  imaginative.  A  large  portion  of 
the  contradictions  we  meet  in  our  cases  is  explicable  b}^  the  fact  that  one 
man  is  the  victim  of  his  fancies  and  the  other  is  not.  .  .  .  Perhaps  all 
imaginative  people  are  likely  to  take  their  imaginings  as  actual  remembered 
events  and  persons.  If  this  happens  to  a  witness,  what  trouble  he  may 
cause  us  !  A  physician,  Dr.  Hadekamp,  said  that  he  used  to  see  the  flow 
of  blood  before  he  cut  the  vein  open.  Another  physician,  Dr.  Schmeisser, 
confirms  this  experience.  Such  cases  are  controlled  physically,  the  flow  of 
blood  cannot  be  seen  before  the  knife  is  removed.  Yet  how  often,  at  least 
chronologically,  do  similar  mistakes  occur  when  no  such  control  is  present  ? 
There  is  the  story  of  a  woman  who  could  describe  so  accurately  symptoms 
which  resulted  from  a  swallowed  needle,  that  the  physicians  were  deceived 
and  undertook  operations  which  only  served  to  show  that  the  woman  had 
merely  imagined  it  all.  A  similar  case  is  that  of  a  man  who  believed  himself 
to  have  swallowed  his  false  teeth.  He  even  had  serious  feelings  of  choking 
which  immediately  disappeared  on  the  discovery  of  the  teeth  under  his 
night  table.  .  .  .  There  is  the  story  of  another  man  who  had  a  three  days' 
pain  in  his  finger  because  he  had  seen  his  child  crush  an  analogous  finger.  .  .  . 

Taine  describes  the  splendid  scene  in  which  Balzac  once  told  Mad.  de 
Girardin  that  he  intended  to  give  Sandeau  a  horse ;  he  did  not  do  so,  but 
talked  so  much  about  it  that  he  used  to  ask  Sandeau  how  the  horse  was. 

Taine  comments  that  it  is  clear  that  the  starting  point  of  such  an  illusion 
is  a  voluntary  fiction.  The  person  in  question  knows  it  as  such  in  the  be- 
ginning but  forgets  it  at  the  end.  Such  false  memories  are  numerous 
among  barbarous  peoples  and  among  raw,  untrained,  and  childish  minds. 
They  see  a  simple  fact ;  the  more  they  think  of  it  the  more  they  see  in  it ; 
they  magnify  and  decorate  it  with  environing  circumstances,  and  finally, 
unite  all  the  details  into  a  whole  in  memory.  Then  they  are  unable  to  dis- 
tinguish what  is  true  from  what  is  not.  Most  legends  develop  in  this  way. 
A  peasant  assured  Taine  that  he  saw  his  sister's  soul  on  the  day  she  died,  — 
though  it  was  really  the  light  of  a  brandy  bottle  in  the  sunset. 

(f)  Misunderstandings.  (1)  Verbal  Misunderstandings.  Here  too  it  is 
not  possible  to  draw  an  absolutely  definite  boundary  between  acoustic  illu,- 
sions  and  misunderstandings.     Verbally  we  may  say  that  the  former  occur 


4.54  PART    II.       TESTIMONIAL   EVIDENCE  No.  235. 

when  the  mistake,  at  least  in  its  main  characteristic,  is  due  to  the  aural 
mechanism.  The  latter  is  intended  when  there  is  a  mistake  in  the  compre- 
hension of  a  word  or  of  a  sentence.  In  this  case  the  ear  has  acted  efficiently, 
but  the  mind  did  not  know  how  to  handle  what  had  been  heard  and  so  supple- 
ments it  by  something  else  in  connection  with  matter  more  or  less  senseless. 
Hence,  misunderstanilings  are  so  frequent  wath  foreign  words.  Compare 
the  singing  of  immigrant  school  children,  "My  can't  three  teas  of  tea"  for 
"My  country  'tis  of  thee,"  or  "  Pas  de  lieu  Rhone  que  nous"  with  "Paddle 
your  own  canoe." 

Tile  question  of  misunderstandings,  their  development  and  solution,  is 
of  great  importance  legally,  since  not  only  witnesses  but  clerks  and  secre- 
taries are  subject  to  them.  If  they  are  undiscovered  they  lead  to  dangerous 
mistakes,  and  their  discovery  causes  great  trouble  in  getting  at  the  correct  so- 
lution. .  .  .  The  mistakes  of  the  secretaries  may  in  any  event  be  reduced  to 
a  minimum  if  all  dictations  are  read  immediately,  and  not  by  the  secretary 
l)Ut  by  the  examining  judge  him.self.  If  the  writer  reads  them  he  makes  the 
same  mistakes,  and  only  a  very  intelligent  w^itness  will  perceive  them  and 
call  attention  to  them.  Unless  it  so  happens  the  mistake  remains.  I  cite 
a  few  of  the  errors  that  I  have  observed.  From  a  protocol  with  the  sus- 
pect:  "On  the  twelfth  of  the  month  I  left  Marie  Tomizil"  (instead  of, 
"my  domicile").  Instead  of  "irrelevant,"  —  "her  elephant."  Very  often 
words  are  written  in,  which  the  dictator  only  says  by  the  way;  e.g.  "come 
in,"  "go  on,"  "hurry  up,"  "look  out,"  etc.  If  such  words  get  into  the  text 
at  all,  it  is  difficult  to  puzzle  out  how  they  got  in.  How  easily  and  frequently 
people  misunderstand  is  shown  by  the  oath  they  take.  Hardly  a  day  passes 
on  which  at  least  one  witness  does  not  say  some  absolute  nonsense  while 
repeating  it. 

(2)  Other  Misunderstandings.  The  quantitative  method  of  modern 
psychophysics  may  lead  to  an  exact  experimental  determination  of  such 
false  conceptions  and  misunderstandings  as  those  indicated  above,  but  it  is 
still  too  young  to  have  any  practical  value.  It  is  vitiated  by  the  fact  that  it 
requires  artificial  conditions  and  that  the  results  have  reference  to  artificial 
conditions.  Wundt  has  tried  to  simplify  apparatus,  and  to  bring  experi- 
ment into  connection  with  real  life.  Cut  there  is  still  a  far  cry  from  the 
psychological  laboratory  to  the  business  of  life.  With  regard  to  misunder- 
standings the  case  is  certainly  so.  Most  occur  when  we  do  not  hear  dis- 
tinctly what  another  person  is  saying  and  supplement  it  with  our  own  notions. 
Here  the  misunderstanding  is  in  no  sense  linguistic,  for  w^ords  do  not  receive 
a  false  meaning.  The  misunderstanding  lies  in  the  failure  to  comprehend 
the  sense  of  what  we  have  heard,  and  the  substitution  of  incorrect  interpreta- 
tions.  .   .    . 

How  frc(iuently  and  hastily  we  build  things  out  is  show^n  by  a  simple  but 
psychologically  important  game.  Ask  anybody  at  hand  how  the  four  and 
the  six  look  on  his  watch,  and  let  him  draw  it.  Everybody  calmly  draws, 
IV  and  \'I,  but  if  you  look  at  your  watch  you  will  find  that  the  four  looks  so, 
II 11.  and  tl>-.it  there  is  no  six.  This  raises  the  involuntary  question,  "Now 
what  do  we  see  when  we  look  at  the  watch  if  we  do  not  see  the  figures?" 
and  the  further  question,  "Do  we  make  such  beautiful  mistakes  with  all 
things?" 

I  as.sert  that  only  that  has  been  reliably  seen  which  has  been  drawn.     My 


No.  236.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  455 

father  asked  my  drawing  teacher  to  teach  me  not  to  draw  but  to  observe. 
And  my  teacher,  instead  of  giving  me  copies,  followed  the  instruction  by 
giving  me  first  one  domino,  then  two,  then  three,  one  upon  the  other,  then  a 
match  box,  a  book,  a  candlestick,  etc.  And  even  to-day,  I  know  accurately 
only  those  objects  in  the  household  which  I  had  drawn.  Yet  frequently  we 
demand  of  our  witnesses  minutely  accurate  descriptions  of  things  they  had 
seen  only  once,  and  hastily  at  that. 

And  even  if  the  thing  has  been  seen  frequently,  local  and  temporal  prob- 
lems may  make  great  difficulties.  .  .  .  For  example,  if  you  have  traveled  nu- 
merous times  on  the  train  from  A  to  B,  and  for  once  you  start  your  journey 
from  C,  which  is  beyond  A,  the  familiar  stretch  from  A  to  B  looks  quite 
different  and  may  even  become  unrecognizable.  The  estimation  of  time 
may  exercise  considerable  influence  on  such  and  similar  local  effects.  .  . .  One 
needs  only  to  observe  how  quickly  witnesses  tend  to  identify  objects  presented 
for  identification  :  e.g.  knives,  letters,  pursfes,  etc.  To  receive  for  identifica- 
tion and  to  say  yes,  is  often  the  work  of  an  instant.  The  witness  argues, 
quite  unconsciously,  in  this  fashion  :  "  I  have  given  the  judge  only  one  clew 
(perhaps  different  from  the  one  in  question),  now  here  again  is  a  clew,  hence, 
it  must  be  the  one  I  gave  him."  That  the  matter  may  have  changed,  that 
there  has  been  some  confusion,  that  perhaps  other  witnesses  have  given 
similar  things,  is  not  at  all  considered.  Here  again  we  have  to  beware  of 
confusing  of  identities  with  agreements. 

Finally,,  we  must  consider  fatigue  and  other  conditions  of  excitation.  A 
witness  who  has  been  subjected  to  a  prolonged  and  fatiguing  examination 
falls  into  a  similar  condition  and  knows  at  the  end  much  less  than  at  the 
beginning.  Finally,  he  altogether  misunderstands  the  questions  put  to 
him.  The  situation  becomes  still  worse  when  the  defendant  has  been  so 
subjected  to  examination,  and  becomes  involved,  because  of  fatigue,  etc., 
in  the  famous  "contradictions."  If  "convincing  contradictions"  occur  at 
the  end  of  a  long  examination  of  a  witness  or  a  defendant,  it  is  well  to  find 
out  how  long  the  examination  took.  If  it  took  much  time  the  contradictions 
mean  little. 

The  same  phenomena  of  fatigue  may  even  lead  to  suspicion  of  negligence. 
Doctors,  trained  nurses,  nursery  maids,  young  mothers,  etc.,  who  became 
guilty  of  "negligence"  of  invalids  and  children  have,  in  many  instances, 
merely  "misunderstood"  because  of  great  fatigue.  It  is  for  this  reason  that 
the  numerous  sad  cases  occur  in  which  machine  tenders,  switch  tenders, 
etc.,  are  punished  for  negligence.  If  a  man  of  this  class,  year  after  year, 
serves  twenty-three  hours,  then  rests  seven  hours,  then  serves  twenty-three 
hours  again,  etc.,  he  is  inevitably  overtaken  by  fatigue  and  nervous  relaxa- 
tion in  which  signals,  warnings,  calls,  etc.,  are  simply  misunderstood. 

236.  G.F.Arnold.  Psychology  applied  to  Legal  Evidence.  (1906.  p.  133.) 
...  I.  Attention  as  an  Element  in  Perception.  First,  we  shall  attempt  to  de- 
scribe psychologically  in  what  attention  consists,  and  this  cannot  be  done  in 
a  few  words.  Attention  is  not  a  separate  faculty  of  the  mind  which  acts  on 
the  other  psychical  phenomena,  but  is  the  name  given  to  a  certain  state  of 
consciousness  as  a  whole,  and  that  state  is  one  of  monoideism.  "  The  normal 
condition,"  says  Ribot,  "is  plurality  of  states  of  consciousness  or  polyideism. 
Attention  is  the  momentary  inhibition,  to  the  exclusive  benefit  of  a  single 


456  PART    II.      TESTIMONIAL    EVIDENCE  No.  236. 

State,  of  this  perpetual  progression  ;  it  is  a  monoideism."  ...  If  you  try 
to  analyze  attention  further  you  get  the  following  factors  given  by  ^Yundt. 
Attention  contains  three  essential  constituents ;  an  increased  clearness  of 
ideas  ;  muscle  sensations  which  generally  belong  to  the  same  modality  as  the 
ideas,  anil  feelings  which  accompany  and  precede  the  ideational  change. 
At  the  same  time  the  concept  of  attention  proper  has  no  reference  to  the  first 
of  these  processes,  but  only  to  the  last  two.  Apperception,  therefore,  de- 
notes the  objective  change  set  up  in  ideational  content,  attention  the 
subjective  sensations  and  feelings  which  accompany  this  change  or  prepare 
the  way  for  it.  Both  processes  belong  together  as  parts  of  a  single  psychi- 
cal event.  Attention  in  the  wider  sense  is  not  —  and  this  is  the  important 
point  —  a  special  activity,  existing  alongside  of  its  three  constituent  factors, 
something  not  to  be  sensed  or  felt,  but  itself  productive  of  sensation  and 
feelings.  No  I  in  terms  of  our  own  psychological  analysis,  at  least,  it  is 
simply  the  name  of  the  complex  process  which  includes  those  three  con- 
stituents. .  .  . 

The  fundamental  property  of  the  nervous  system  consists  in  the  trans- 
formation of  a  primitive  excitation  into  a  movement.  This  is  reflex  action, 
the  type  of  nervous  activity.  But  we  also  know  that  certain  excitations  may 
impede,  slacken,  or  suppress  a  movement,  e.g.  suppression  of  the  movements 
of  the  heart  through  irritation  of  the  pneumogastric  nerve.  This  power 
of  inhibition  exists  also  in  the  brain,  just  as  we  can  begin,  continue,  or  in- 
crease a  movement,  we  can  also  suppress,  interrupt,  or  diminish  it;  every 
act  of  volition,  whether  impulsive  or  inhibitory,  acts  only  upon  muscles 
and  through  muscles.  The  mechanism  of  attention  is  motor,  and  in  all  cases 
of  attention  there  must  necessarily  be  a  play  of  muscular  elements,  real  or 
nascent  movements,  upon  which  the  power  of  inhibition  acts.  Spontaneous 
attention  is  natural  ami  devoid  of  eflort,  and  is  produced  by  some  anterior 
emotional  state ;  voluntary  attention  is  artificial,  caused  by  the  struggle 
for  existence  and  under  pressure  of  necessity  and  by  education.  .  .  . 

That  we  attend  to  what  we  are  interested  in  is  of  course  so  universally 
admitted  as  to  be  almost  a  truism  ;  we  only  notice  such  items,  and  without 
selective  interest  our  experience  would  be  a  chaos.  It  follows  from  this  that 
attention  will  vary  with  the  number  and  nature  of  the  interests  which  observers 
possess.  "We  dissociate,"  says  Professor  James,  "the  elements  of  origi- 
nally vague  totals  by  attending  to  them  or  noticing  them  alternately,  of 
course.  But  what  determines  which  elements  we  shall  attend  to  first? 
There  are  two  immediate  and  obvious  answers  :  first,  our  practical  or  in- 
stinctive interests,  and  secondly,  our  aesthetic  interests.  ...  A  creature 
which  has  few  instinctive  impulses  or  interests,  practical  or  aesthetic,  will 
dissociate  few  characters,  and  will  at  best  have  limited  reasoning  powers, 
whilst  one  whose  interests  are  very  varied  will  reason  much  better."  Now 
it  is  often  laid  down  as  the  mark  of  a  false  witness  that  he  declines  to  commit 
him.self  to  details  on  which  he  might  be  contradicted,  falling  back  on  such 
excuses  as  that  he  did  not  notice,  or  he  floes  not  recollect,  etc.,  and  it  is  not 
always  easy  to  decide  whether  such  pleas  are  genuine  or  not.  The  details 
on  which  he  is  (|uestioned  arc  really  matters  which,  assuming  he  were  a  genu- 
ine witness,  he  might  or  might  not  be  expected  to  have  noticed  according 
to  the  interests  which  he  naturally  possesses  ;  and  it  by  no  means  follows  that 
because  one  witness  has  observed  certain  details,  others,  if  they  were  really 


No.  236.  II.      TESTIMONIAL    PROCESS.      A.    PERCEPTION  457 

present,  could  have  done  the  same,  i.e.  unless  all  men  have  the  same  interests. 
It  is  difficult  for  the  judge  and  the  advocate  who  are  considering  the  matter 
after  the  event,  when  it  has  become  a  subject  of  special  interest  to  them, 
to  realize  that  before  the  existence  of  the  case  there  was  no  such  cause  to 
excite  the  interest  of  the  witness,  and  it  is  also  difficult  for  them,  equipped 
as  they  are  with  certain  interests  of  their  own,  to  place  themselves  mentally 
in  the  position  of  a  man  differently  equipped,  and  estimate  how  much  can 
reasonably  be  expected  from  him  in  the  way  of  attention.  .  .  . 

Among  the  other  determinants  of  attention  are  the  strength  and  persist- 
ence of  an  impression,  its  suddenness,  novelty,  and  generally'  its  disturbing 
character  in  relation  to  the  preexisting  state  of  mind.  This  is  really  again 
the  volume  and  intensity  of  the  feeling  it  excites,  which  may  be  bound  up 
with  the  idea  of  past  impressions  and  so  revived  along  with  them 

The  Effects  of  Attention.  .  .  .  It  shortens  reaction  time  and  accelerates 
perception.  ...  It  is  doubtful  whether  it  actually  augments  the  intensity  of 
sensations,  but  it  increases  the  clearness  of  all  that  we  perceive  or  conceive, 
and  this  it  does  in  several  ways.  It  chooses  the  appropriate  states  and  main- 
tains them,  by  inhibition,  within  our  consciousness,  and  so  secures  a  certain 
persistence  in  the  sensation  or  idea ;  it  thus  leads  to  its  retention  and  so 
secures  its  reproduction  (as  described  under  the  head  of  jMemory). 

Again,  the  concentration  of  attention  upon  some  objects  diminishes  the 
intensity  of  presentation  of  others  in  the  same  field,  whether  the  concentra- 
tion be  voluntary  or  non-voluntary ;  for  our  power  of  attention  is  limited, 
and  if,  therefore,  attention  is  drawn  off  by  new  presentations,  it  must  be  at 
the  expense  of  the  old  ones  ;  if  it  is  kept  concentrated  on  old  ones,  new  ones 
cannot  gain  an  entrance  into  consciousness.  It  is  this  redistribution  of  atten- 
tion which  explains  its  influence  on  will.^  ...  It  is  not  uncommon  to  hear 
it  given  as  a  reason  for  discrediting  a  statement,  that  the  witness  could  not 
possibly  have  seen  or  heard  all  that  he  professed  to  have  been  aware  of,  his 
attention  being  taken  up  at  the  time  by  this  or  that  event,  and  it  is  a  frequent 
saying  that  one  cannot  attend  to  two  things  at  the  same  time.  I  therefore 
propose  to  say  something  as  to  the  powers  of  attention  which  the  ordinary 
individual  possesses  : 

To  understand  this  we  must  distinguish  between  consciousness  and  atten- 
tion. There  are  various  grades  of  consciousness,  down  to  actual  uncon- 
sciousness, but  we  only  call  it  attention  when  the  psychical  content  is  clearly 
grasped  and  the  mental  state  is  accompanied  by  a  special  feeling;  other 
psychical  contents  are  merely  apprehended,  they  are  included  in  the  field 
of  consciousness  but  attention  is  not  concentrated  upon  them.  These 
latter  contents  come  and  go  within  the  field  of  consciousness  but  do  not 
advance  to  the  fixation  point  at  which  we  have  attention.  .  .  .  Speaking 
roughly,  therefore,  a  man  can  be  aware  of  three  or  four  times  as  much  as  he 
can  actually  attend  to,  and  it  is  untrue  that  he  can  only  attend  to  one  im- 
pression or  one  idea  at  a  time.  .  .  . 

II.  Relative  Variance  of  Powers  of  Perception.  A  second  condition  on 
which  depends  the  capacity  of  a  party  to  give  a  faithful  account  of  things 
is,  according  to  Best,  "his  powers,  either  natural  or  acquired,  of  perception 
and  observation."  .  .  .     We  rather  wish  to  insist  on  the  point  that  though 

'  J.  Ward,  Art.  "  Psychology,"  Encyclopcedia  Brilannica,  9th  ed.,  Vol.  XX,  pp.  42  et  seq., 
Animal  Magnetism,  p.  319. 


458  PART    II.       TESTIMONIAL    EVIDENCE  No.  236 

each  iiuiivitluiil  may  \>v  sure  of  his  own  sense  perceptions,  he  cannot,  or 
should  not,  be  equally  sure  that  others  necessarily  perceive  as  he  does. 
Yet  the  attitude  of  the  ordinary  man  is  to  accept  the  statements  of  others  as 
to  their  sense  perceptions  only  so  far  as  what  they  say  agrees  with  his  own 
experience.  It  is  a  natural  attitude,  it  is  true  ;  but  we  think  it  would  be  well 
to  recollect  the  assumption  on  which  it  is  founded,  and  to  be  sometimes  less 
skeptical  as  to  the  possil)ility  of  what  others  say  they  have  experienced.  .  .  . 
Some  individuals  possess  powers  beyond  the  average.  .  .  .  Professor  James 
has  quoted  a  number  of  instances  of  hypersesthesia  of  the  senses,^  in  one  of 
which  a  person  was  alile  to  pick  out  a  blank  card  from  a  pack  of  similar  ones 
merely  by  its  weight,  in  another  a  man  was  actually  able  to  read  the  image 
of  a  page  of  a  book  reflected  on  the  operator's  cornea  and  to  discriminate 
with   the  naked  eye  details   in  a  microscopic  preparation.  .  .  . 

Lastly,  reference  must  be  made  to  unusual  powers  which  blind  people 
sometimes  appear  to  possess.  Thus  Mr.  W.  H.  Levy  stated  that  he  seemed 
to  perceive  ol)jects  through  the  skin  of  his  face  and  to  have  the  impressions 
immeiliately  transmitted  to  the  brain.  None  of  the  five  senses  had  any- 
thing to  do  with  this  power,  and  he  regarded  it  as  an  unrecognized  sense 
which  he  called  "facial  perception."  By  it  he  could  distinguish  shops 
from  private  houses,  point  out  doors  and  windows  whether  they  were  shut 
or  open,  estimate  the  height  of  a  fence  and  discover  irregularities  in  height 
and  projections  and  indentations  in  walls.  Helen  Keller,  who  lost  her  sight 
and  hearing  in  early  infancy,  can  recognize  persons  by  the  mere  contact  of 
their  hands.  .  .  . 

We  think  that  it  has  been  sufficiently  shown  that  under  certain  circum- 
stances unusual  powers  of  sensation  are  displayed,  and  that  We  have  no 
grounds  for  limiting  the  possibility  of  their  display  to  those  particular  cir- 
cumstances. When  therefore  it  is  asserted  on  oath  by  an  apparently  re- 
spectal)le  witness  that  he  saw  or  heard  or  otherwise  experienced  something 
involving  a  display  of  power  of  the  scn.se  concerned  beyond  what  the  mag- 
istrate believes  to  be  possible  to  himself  or  mankind  in  general,  his  state- 
ment should  not  be  forthwith  discredited  as  impossible.  "  When  a  supposed 
fact,"  says  Best  ("  Evidence,"  §  24),  "  is  so  repugnant  to  the  laws  of  nature, 
assumed  for  this  purpose  to  be  fixed  and  imnnitable,  that  no  amount  of 
evidence  could  induce  us  to  believe  it,  such  supposed  fact  is  said  to  be 
impossilile  or  physically  impossible."  But  the  laws  of  nature  are  not  fixed 
and  immutable,  and  such  an  assumption  is  absurd.  .  .  . 

It  is  not  improl)al)le  that  some  readers  may  regard  it  as  extravagant  or 
foolish  to  even  take  into  consideration  such  matters  as  hypcraesthesia, 
hypnotism,  thought  transference  and  the  like  in  connection  with  legal 
evidence  and  the  decisions  of  the  law  courts.  If  so,  we  must  protest  against 
such  an  attitude.  ...  Sir  James  Stephen  no  doubt  has  advocated  the 
method  of  deciding  truth  and  falsehood  according  to  the  views  held  by 
the  bulk  of  the  community,  and  has  on  this  ground  justified  convictions  for 
witchcraft  by  juries  in  the  past,  and  this  is  a  very  parallel  instance.  He 
argues  that  it  was  the  duty  of  a  jury  to  refuse  to  consider  what  were  then  the 
merely  fanciful  speculations  which  denied  the  existence  of  witchcraft,  and 
in  consequence  of  this  niiiny  innocent  persons  were  convicted,  apparently 

'  .Jamc-jj.  Psycfioloaif,  Vt,\.  II.  pp.  00!i-011.  See  also  his  "Essay  on  Psychical  Re- 
er-arch,"  in  The  Will  to  BvUvpc  and  Other  E.imijis,  pp.  229  et  seq. 


No.  237.  II.      TESTIMONIAL   PROCESS.       A.    PERCEPTION  459 

rightly,  in  his  opinion.  In  just  the  same  way  now,  by  a  refusal  to  examine 
into  the  question  of  the  existence  of  the  unusual  phenomena  to  which  we 
have  drawn  attention,  because  the  bulk  of  the  community,  without  serious 
inquiry,  decline  to  believe  in  them,  true  statements  may  be,  and  doubtless 
sometimes  are,  disbelieved  and  injustice  is  done.  We  are  now  at  the  stage  in 
which  those  who  assert  the  existence  of  such  phenomena  are  held  by  the  bulk 
of  the  community  to  indulge  in  fanciful  speculations  ;  but  before  we  deter- 
mine to  adopt  this  view  we  may  remember  that  in  the  case  of  witchcraft  such 
persons  proved  to  be  right ;  and  may  therefore  pause  to  consider  whether  it 
will  not  be  wiser  to  first  study  what  the  experts  have  said  on  the  subject. 

237.  Wm.  C.  Robinson.  Forensic  Oratory;  a  Manual  for  Advocates. 
(1893.  p.  184.)  Cross-examination;  Exposure  of  Incorrectness  in  the  Testi- 
mony of  a  Credible  Witness ;  Incorrectness  Arising  from  Stating  Inferences  as 
Facts.  Witnesses,  like  all  other  men,  are  liable  to  draw  erroneous  inferences 
from  what  they  see  and  hear,  and,  having  drawn  them,  to  substitute  them 
for  the  facts  from  which  they  were  derived.  Much  of  the  evidence  intro- 
duced in  court,  especially  concerning  promises,  admissions,  threats,  and  other 
spoken  words,  is  of  this  character,  the  witness  describing,  not  the  language 
or  events  which  operated  on  his  senses,  but  the  conclusions  which  he  formed 
from  them  in  his  own  mind.  If  undisputed,  these  conclusions  are  accepted 
by  the  jury  as  the  facts  themselves,  and  their  judgment  in  the  premises  thus 
merely  reflects  that  of  the  witness.  Here,  therefore,  is  a  source  of  error 
which  the  cross-examiner  should  never  overlook.  His  method  of  combating 
it  is  by  refusing  to  receive  the  inferences  of  the  witness,  and  insisting  on  the 
full  disclosure  of  the  facts  on  which  the  inference  is  based.  ... 

Incorrectness  Arising  from  Mistakes  of  Fact.  Misrepresentations  which 
arise  out  of  mistakes  as  to  the  facts  themselves  are  frequently  discovered 
in  the  evidence.  Men  often  think  they  see  what  they  do  not  see,  and  still 
more  often  misinterpret  what  they  hear.  The  physical  senses,  however 
accurate  and  reliable  in  themselves,  depend  for  the  correctness  of  their 
impressions  so  entirely  on  surrounding  circumstances,  that  without  con- 
sidering these  the  truth  of  those  impressions  cannot  be  determined.  When- 
ever, therefore,  the  direct  examination  has  revealed  important  facts  resting 
upon  the  sensations  of  the  witness,  the  condition  under  which  those 
sensations  were  experienced  demand  the  careful  scrutiny  of  the  cross- 
examiner.  Thus,  where  the  witness  gained  his  information  through  the 
sense  of  sight,  the  degree  of  light,  the  distance  and  position  of  the  object,  the 
characteristics  which  distinguish  it  from  other  classes  of  objects  and  from 
other  objects  of  the  same  class,  its  resemblance  to  surrounding  objects,  the 
familiarity  of  the  witness  with  it,  the  extent  and  duration  of  his  attention 
to  it,  and  many  other  matters  bearing  a  similar  relation  to  the  act  of  vision, 
are  necessary  subjects  of  inquiry.  The  operation  of  the  other  senses  de- 
mands the  same  kind  of  investigation.  .  .  . 

WaJit  of  Attention.  The  degree  of  intellectual  attention  with  which  an  ob- 
ject was  regarded  is  another  element  to  be  considered  in  determining  the  ac- 
curacy and  completeness  with  which  it  was  observed.  The  impressions  made 
upon  the  eye  and  ear  are  not  necessarily  communicated  to  the  mind.  By 
whatever  psychological  hypothesis  the  fact  may  be  explained,  it  is  still  true 
that  unless  the  thought  is  fixed  upon  the  object  of  sensation,  the  sensation 


400  PART    II.      TESTIMONIAL   EVIDENCE  No.  237. 

terminates  with  the  organic  sense,  exciting  no  ideas  and  leaving  no  trace  in 
the  memory.  There  is  a  constant  ratio  between  the  mental  concentration 
of  the  observer  on  tiie  object,  and  the  fullness  and  precision  of  the  ideas 
which  he  obtains  concerning  it.  .  .  .  It  is  on  this  fact  that  the  rule  of  evidence 
is  baseil  which  gives  to  one  affirmative  witness  greater  weight  than  to  many 
merely  negative;  a  recognition  that  though  in  all  those  who  were  present 
the  same  physical  .sensations  may  have  been  experienced,  yet  only  those 
woukl  intellectually  apprehend  the  action  or  event  whose  thought  was  ante- 
cedently directed  to  it.  .  .  .  By  the  same  fact  the  wonderful  variety  with 
which  the  details  of  a  transaction  are  described  by  a  variety  of  witnesses  is 
explained,  each  relating  incidents  which  especially  attracted  his  attention 
and  omitting  all  the  others. 

Jl'atif  of  Attention:  Its  Causes.  .The  degree  of  attention  with  which 
any  given  object  is  regarded  depends  in  part  upon  the  poivcr  of  mental 
concentration  naturally  possessed  by  the  observer,  and  in  part  upon  the 
circumstances  under  which  the  observation  itself  is  made.  Some  per- 
sons, either  through  a  constitutional  defect  or  from  improper  training, 
have  no  faculty  of  fixing  and  controlling  their  own  thoughts.  Except 
in  the  rarest  instances,  they  never  give  their  full  attention  to  anything.  In 
reading,  the  eye  scans  the  printed  page,  but  the  mind  constantly  wanders 
from  it.  In  conversation,  the  ear  catches  the  words,  the  understanding 
comprehends  their  meaning,  and  the  tongue  replies,  but  all  the  while  the 
current  of  their  thoughts  is  flowing  toward  entirely  different  subjects.  Other 
persons  habitually  bend  all  their  energies  to  the  work  in  hand.  Their  eyes 
see  all  that  their  knowledge  of  the  attributes  of  things  enables  them  to  per- 
cei\e.  Their  ears  catch  e\"ery  sound  of  natural  ol)jects,  every  syllable  and 
undulation  of  the  human  voice.  Their  senses  are  alive  to  every  impression  of 
the  present  moment,  and  what  their  sense  perceives  is  communicated  in- 
stantly and  freely  to  their  minds,  uninterrupted  by  distractions,  unconfused 
by  re\eries.  Between  these  two  extremes  are  all  varieties  of  men,  each 
of  perceptions  whose  accuracy  is  in  proportion  to  the  attention  with  which 
he  surveys  the  objects  from  which  his  physical  sensations  are  derived. 
The  circumstances  of  the  observer  and  the  object,  and  the  relations  subsisting 
between  it  and  him,  also  affect  the  attention  with  which  he  regards  it,  and  its 
consec|uent  impression  on  his  mind.  The  degree  of  mental  energy  of  every 
kind  depends  largely  on  the  physical  condition  of  the  man  himself.  Weak- 
ness, discomfort,  pain  of  whatever  character  or  location,  destroy  his  power 
of  concentration,  and  centralize  his  thoughts  upon  his  own  distress.  Mental 
disturbance,  haste,  anxiety,  preoccupation,  or  any  other  sensible  emotion, 
profluces  the  same  absorption  in  himself  and  corresponding  inattention  to 
external  ol)jects.  The  interest  or  indifference  of  the  observer  toward  the 
object,  its  familiarity  or  strangeness  to  him,  the  motive  in  obedience  to 
which  he  directed  his  attention  toward  it,  its  relations  to  him  as  the  sole 
object  of  attention  or  but  f)ne  object  among  many  ecjually  interesting  and 
important  to  him,  the  duration  and  tlie  force  of  its  operation  on  his  senses, 
the  sensations  which  preceded  it  and  succeeded  it,  and  the  effort  produced 
by  these  upon  the  one  in  cjuestion,  —  in  short,  every  circumstance  which 
acted  at  the  time  upon  his  mind  or  body,  and  by  which  his  attention  toward 
this  one  object  may  have  been  diminished  or  intensified,  is  worthy  of  in- 
vestigation and  consideration,  as  indicative  of  the  degree  to  which  the  object 
took  possession  f)f  his  thoughts. 


No.  238.  II.       TESTIMONIAL    PROCESS.       B.    MEMORY  461 

238.  Arthur  C.  Train.  The  Prisoner  at  tJic  Bar.  (2(1  ed.  190S.  p.  224.) 
The  probative  value  of  all  honestly  given  testimony  depends,  naturally, 
first,  upon  the  witness's  original  capacity  to  observe  ;  second,  upon  the  extent 
to  which  his  memory  may  have  played  him  false ;  and  third,  upon  how  far 
he  really  means  exactly  what  he  says.  .  .  . 

The  first  consideration  is  how  far  the  witness  was  originally  capable  of 
receiving  correct  impressions  through  his  senses.  Naturally  this  depends 
almost  entirely  upon  his  physical  equipment  and  the  keenness  and  accuracy 
of  his  general  observation,  both  of  which  are  usually  evidenced  to  a  con- 
siderable degree  by  his  appearance  and  conduct  upon  the  stand.  .  .  . 

Witnesses  are  often  honestly  mistaken,  however,  as  to  their  own  ability 
to  observe  facts,  and  will  unhesitatingly  testify  that  they  could  hear  sounds 
and  discern  objects  at  extraordinary  distances.  Lawyers  frequently  at- 
tempt to  induce  aged  or  infirm  witnesses  to  testify  that  they  could  hear 
plainly  what  was  said  by  the  defendant,  in  an  ordinary  tone,  at  a  distance, 
say,  of  forty  feet.  The  lawyer  speaks  in  loud  and  distinct  tones  during  the 
preliminary  examination,  and  then  gradually  drops  his  voice  to  that  usually 
employed  in  speaking,  in  the  hope  that  the  witness  will  ask  him  to  repeat  the 
question.  This  ruse  usually  fails,  by  reason  of  the  fact  that  the  lawyer, 
in  his  anxiety  to  show  that  the  witness  could  not  possibly  hear  the  dis- 
tance claimed,  lowers  his  voice  to  such  an  extent  that  the  test  is  obviously 
unfair. 

For  similar  reasons  counsel  often  call  upon  such  witnesses  to  state  the 
time  by  the  clock  which  usually  hangs  upon  the  rear  wall  of  the  court  room. 
A  distinguished  but  conceited  advocate,  not  long  ago,  after  securing  an 
unqualified  statement  from  an  octogenarian,  who  was  bravely  enduring 
cross-examination,  that  he  "saw  the  whole  thing  as  if  it  had  occurred  ten 
feet  away,"  suddenly  challenged  him  to  tell  the  time  by  the  clock  referred  to. 
The  lawyer  did  not  look  around  himself,  as  he  had  done  so  about  half  an 
hour  before,  when  he  had  noticed  that  it  was  half  after  eleven.  The  old 
man  looked  at  the  clock  and  replied,  after  a  pause,  "  Half -past  eleven,"  upon 
which  the  lawyer,  knowing  that  it  must  be  nearly  twelve,  turned  to  the  jury 
and  burst  into  a  derisive  laugh,  exclaiming  sarcastically,  "That  is  all,"  and 
threw  himself  back  in  his  seat  with  an  air  of  having  finally  annihilated  the 
entire  value  of  the  witness's  testimony.  The  distinguished  practitioner, 
however,  found  himself  laughing  alone.  Presently  one  of  the  jury  chuckled, 
and  in  a  trice  the  whole  court  room  was  in  a  roar  at  the  lawyer's  expense. 
The  clock  had  stopped  —  at  half-past  eleven.  .  .  . 

In  daily  life  we  are  quite  as  likely  as  not  to  be  deceived  by  what  we  have 
seen,  and  this  fact  is  so  familiar  to  jurors  that  they  are  apt  to  distrust  wit- 
nesses who  profess  to  have  seen  much  of  complicated  or  rapidly  conducted 
transactions.  They  want  the  main  facts  stated  convincingly.  The  rest 
can  take  care  of  themselves.  The  extraordinary  extent  to  which  the  com- 
plex development  of  modern  life  has  dwarfed  our  powers  of  observation  is 
noticeable  nowhere  more  markedly  than  in  the  court-room.  Things  run  so 
smoothly,  transportation  facilities  are  so  perfect,  specialization  is  carried  to 
so  high  a  degree,  and  our  whole  existence  goes  on  so  much  indoors,  that  it 
ceases  to  be  a  matter  of  note  or  even  of  interest  that  the  breakfast  is  properly 
cooked  and  served,  that  we  are  whisked  downtown  (a  little  matter  say  of  five 
miles)  in  ten  or  twelve  minutes,  that  we  are  shot  up  to  our  offices  through 


462  PART    II.      TESTIM:NIAL   evidence  No.  2.T 

twenty  floors  in  an  electric  elevator,  that  there  is  a  hlizzard  or  a  deluge,  or 
that  part  of  Broadway  has  been  blown  up  or  a  fifteen-story  building  fallen 
down.  We  pass  days  without  paying  the  remotest  attention  to  the  weather, 
and  forget  that  we  have  relations.  Instead  of  walking  home  to  supper, 
pausing  to  talk  to  our  friends  liy  the  way,  we  drop  into  the  subway,  bury 
ourselves  in  newspapers,  and  are  vomited  forth  almost  without  our  knowing 
it  at  our  front  doorsteps.  The  multiplicity  of  detail  deprives  us  of  either 
the  desire  or  the  capacity  to  observe,  and  we  cultivate  a  habit  of  not  ob- 
serving lest  our  eyes  and  brains  be  overwhelmed  with  fatigue.  Observation 
has  ceased  to  be  necessary  and  has  taken  its  place  among  the  lost  arts. 

Compare  the  old  days  when  a  Greek  could  go  to  hear  the  "  Oedipus,"  and 
on  returning  home  could  recount  practically  the  whole  of  it  from  beginning 
to  end  for  the  benefit  of  the  wife  (who  was  not  allowed  to  go  herself),  or  even 
the  comparatively  recent  period  when  the  funeral  oration  over  Alexander 
Hamilton  could  be  reported  in  the  "  Evening  Post  "  from  memory. 


SUBTITLE    B  :    MEMORY 

239.  Hans  Gross.  Criminal  Psychology.  (1911.  transl.  Kallen,  §  51,  p. 
25S.)  (a)  General  Theory  of  Memory.  In  direct  connection  with  the  asso- 
ciation of  ideas  is  our  recollection  and  memory,  which  are  only  next  to  per- 
ception in  legal  importance  in  the  knowledge  of  the  witness.  Whether  the 
witness  wanU  to  tell  the  truth  is,  of  course,  a  question  which  depends  upon 
other  matters ;  but  whether  he  can  tell  the  truth  depends  upon  perception 
and  memory.  Now  the  latter  is  a  highly  complicated  and  variously  organ- 
ized function  which  is  difficult  to  understand,  even  in  the  daily  life,  and  much 
more  so  when  everything  depends  upon  whether  the  witness  has  noticed 
anything,  how,  how  long,  what  part  of  the  impression  has  sunk  more  deeply 
into  his  mind,  and  in  what  direction  his  defects  of  memory  are  to  be  sought. 
It  would  l)e  inexcusable  in  the  lawyer  not  to  think  about  this  and  to  make 
equivalent  use  of  all  the  phenomena  that  are  presented  to  him.  To  over- 
look the  rich  literature  and  enormous  work  that  has  been  devoted  to  this 
subject  is  to  raise  involuntarily  the  question,  for  whom  was  it  all  done? 
Nobody  needs  a  thoroughgoing  knowledge  of  the  essence  of  memory  more 
than  th.e  lawyer.  .  .  . 

According  to  Hcrl)ari  and  his  school,  memory  consists  in  the  possibility 
of  recognizing  the  molecular  arrangements  which  had  been  left  by  past 
impressions  in  the  ganglion  cells,  and  in  reading  them  in  identical  fashion. 
According  to  Wundt  and  his  pupils,  the  problem  is  one  of  the  disposition 
of  the  central  organs.  And  it  is  the  opir.ion  of  James  Mill  that  the  con- 
tent of  recollection  is  not  only  the  ide;.  of  the  remembered  object,  but 
also  the  idea  that  the  object  had  been  experienced  before.  Both  ideas 
together  constitute  the  whole  of  that  state  of  mind  which  we  denote  as 
memory.  .  .  .  When  we  take  all  the.se  opinions  concerning  memory  together 
we  conclude  that  neither  any  unity  nor  any  clear  description  of  the  matter 
has  l)een  attained.  Kbbinghaus's  sober  statement  niay  certainly  be  correct : 
"Our  knowledge  of  memory  ri.ses  almost  exclusively  from  the  observation  of 
extreme.  cspcciallN  Mriking,  cases.     Whenever  we  ask  about  more  special 


No.  239.  II.      TESTIMONIAL   PROCESS.       B.    MEMORY  463 

solutions  concerning  the  detail  of  what  has  been  counted  up,  and  their  other 
relations  of  dependence,  their  structure,  etc.,  there  are  no  answers."  .  .  . 

We  find  in  our  own  experience  evidence  of  the  fact  that  memory  and  the 
capacity  to  recall  something  often  depend  upon  health,  feeling,  location, 
and  chance  associations  which  cannot  be  commanded,  and  happen  as  acci- 
dentally as  anything  in  life  can.  Nobody  has  as  yet  paid  attention  to  the 
simple  daily  events  which  constitute  the  routine  of  the  criminalists.  We  find 
little  instruction  concerning  them,  and  our  difficulties  as  well  as  our  mistakes 
are  thereby  increased.  Even  the  modern  repeatedly  cited  experimental 
investigations  have  no  direct  bearing  upon  our  work. 

We  will  content  ourselves  with  viewing  the  individual  conceptions  of 
memory  and  recollection  as  occurring  in  particular  cases  and  with  consider- 
ing them,  now  one,  now  the  other,  according  to  the  requirements  of  the 
case.  We  shall  consider  the  general  relation  of  "reproduction"  to  memory. 
"  Reproduction"  w^e  shall  consider  in  a  general  sense  and  shall  subsume  under 
it  also  the  so-called  involuntary  reproductions  which  rise  in  the  forms  and 
qualities  of  past  events  without  being  evoked,  i.e.  which  rise  with  the  help 
of  unconscious  activity  through  the  more  or  less  independent  association 
of  ideas.  Exactly  this  unconscious  reproduction,  this  apparently  involun- 
tary activity,  is  perhaps  the  most  fruitful.   .   .   . 

The  theories  may  be  divided  into  three  essential  groups  : 

1.  What  is  received,  fades  away,  becomes  a  "trace,"  and  is  more  or  less 
overlaid  by  new  perceptions.  When  these  latter  are  ever  set  aside,  the  old 
trace  comes  into  the  foreground. 

2.  The  ideas  sink,  darken,  and  disintegrate.  If  they  receive  support  and 
intensification,  they  regain  complete  clearness. 

3.  The  ideas  crumble  up,  lose  their  parts.  When  anything  occurs  that 
reunites  them  and  restores  what  is  lost,  they  become  whole  again. 

Ebbinghaus  maintains,  correctly  enough,  that  not  one  of  these  explana- 
tions is  universally  satisfactory  ;  but  it  must  be  granted  that  now  one,  now 
another  is  useful  in  controlling  this  or  that  particular  case.  The  processes 
of  the  destruction  of  an  idea  may  be  as  various  as  those  of  the  destruction 
and  restoration  of  a  building.  If  a  building  is  destroyed  by  fire,  I  certainly 
cannot  explain  the  image  given  by  mereh'  assuming  that  it  was  the  victim 
of  the  hunger  of  time.  A  building  which  has  suffered  because  of  the  sinking 
of  the  earth  I  shall  have  to  image  by  quite  other  means  than  those  I  would 
use  if  it  had  been  destroyed  by  water. 

For  the  same  reason  when,  in  court,  somebody  asserts  a  sudden  "occur- 
rence," or  when  we  want  to  help  him  and  something  occurs  to  him,  we  shall 
have  to  proceed  in  different  fashion  and  determine  our  action  empirically 
by  the  conditions  of  the  moment.  We  shall  have  to  go  back,  with  the  help 
of  the  witness,  to  the  beginning  of  the  appearance  of  the  idea  in  question  and 
study  its  development  as  far  as  the  material  permits  us.  In  a  similar  manner 
we  must  make  use  of  every  possibility  of  explanation  when  we  are  studying 
the  disappearance  of  ideas.  At  one  point  or  another  we  shall  find  certain 
connections.  One  chief  mistake  in  such  reconstructive  work  lies  in  over- 
looking the  fact  that  no  individual  is  merely  passive  when  he  receives  sensa- 
tions ;  he  is  bound  to  make  use  of  a  certain  degree  of  activity.  Locke  and 
Bonnet  have  already  mentioned  this  fact,  and  anybody  may  verify  it  by 
comparing  his  experiments  of  trying  to  avoid  seeing  or  hearing,  and  trying 


4(34  PART    II.       TESTIMONIAL    EVIDENXE  No.  230, 

actively  to  see  or  to  hear.  For  tliis  reason  it  is  foolish  to  ask  anybody  how 
it  happened  that  he  perceived  less  than  another,  because  both  have  equally 
good  senses  and  were  able  to  perceive  as  much.  On  the  other  hand,  the 
i^rade  of  activity  each  has  made  use  of  in  perception  is  rarely  inquired  into, 
and  this  is  the  more  unfortunate  becau.se  memory  is  often  proportionate  to 
activitw  If,  then,  we  are  to  explain  how  various  statements  concerning 
contemporaneous  matters,  observed  a  long  time  ago,  are  to  be  combmed, 
it  will  not  be  enough  to  compare  the  memory,  sensory  acuteness,  and  intelli- 
gence of  the  witnesses.  The  chief  point  of  attention  should  be  the  activity 
which  has  lieen  put  in  motion  during  the  sense  perception  in  question. 

(6)  The  Forms  of  Reproduction.  There  is  a  scries  of  phenomena  for  which 
we  possess  particular  types  of  images  which  often  have  little  to  do  with 
the  things  themselves.  .  .  .  Lotze  shows  correctly  that  memory  never  brings 
l)ack  a  blinding  flash  of  light,  or  the  overpowering  blow  of  an  explosion  with 
the  intensity  of  the  image  in  proper  relation  to  the  impression.  .  .  .  Mauds- 
ley  points  out  correctly  that  we  can  have  no  memory  of  pain.  .  .  .  But  one 
neetl  not  limit  one's  self  to  pain,  but  may  assert  that  we  lack  memory  of  all  vn- 
pleasant  sensations.  The  first  time  one  jumps  into  the  water  from  a  very 
high  springboard,  the  first  time  one's  horse  rises  over  a  hurdle,  or  the  first 
time  the  Ijullets  whistle  past  one's  ear  in  battle,  are  all  most  unpleasant 
experiences,  and  whoever  denies  it  is  deceiving  himself  or  his  friends.  But 
when  we  think  of  them  we  feel  that  they  were  not  so  bad,  that  one  merely 
was  very  much  afraid,  etc.  But  this  is  not  the  case;  there  is  simply  no 
memory  for  these  sensations. 

This  fact  is  of  immense  importance  in  examination.  I  believe  that  no 
witness  has  been  able  effectively  to  describe  the  pain  caused  by  a  body  wound, 
the  fear  roused  by  arson,  the  fright  at  a  threat,  —  not,  indeed,  because  he 
lacked  the  words  to  do  so,  but  because  he  had  not  sufficient  memory  for 
these  impressions,  and  because  he  has  nothing  to-day  with  which  to  com- 
pare them.  Time,  naturally,  in  such  cases  makes  a  great  difference,  and  if 
a  man  were  to  describe  his  experiences  shortly  after  their  uncomfortable 
occurrence,  he  would  possibly  remember  them  better  than  he  would  later  on. 

But  these  ideas  may  be  not  only  voluntarily  brought  up ;  we  have  also 
a  certain  degree  of  pow(>r  in  rnakinq  these  intages  clearer  and  more  accurate. 
It  is  rather  foolish  to  have  the  examiner  invite  the  witness  to  "exert  his 
memory,  to  give  himself  the  trouljle,  etc."  This  effects  nothing,  or  some- 
thing wrong.  But  if  the  examiner  is  willing  to  take  the  trouble,  he  may 
excite  the  imagination  of  the  witness  and  give  him  the  opportimity  to  exercise 
his  power  over  the  imagination.  How  this  is  done  depends  naturally  upon 
the  nature  and  education  of  tiie  witness,  but  the  judge  may  aid  him  just  as  the 
skillful  teacher  may  aid  the  puzzled  pupil  to  remember.  When  the  pianist 
has  completely  forgotten  a  piece  of  nuisic  that  he  knew  very  well,  two  or 
three  chords  may  lead  him  to  explicate  these  chords  forward  or  backward, 
and  then — one  stef)  after  another  —  he  reproduces  the  whole  piece.  Of 
course  the  chords  which  are  brought  to  the  mind  of  the  player  must  be  prop- 
erly cho.sen  or  the  procedure  is  useless.  .  .  .  Whatever  may  especially  occur 
to  aid  the  memory  of  an  event,  occurs  best  at  the  place  where  the  event  itself 
happened,  and,  hence,  one  cannot  too  insistently  advise  the  examination  of 
witnesses,  in  important  cases,  only  in  loco  rei  sitse.  .  .  .  Then  the  differences 
between  wh;it  ll;|-^  pji-v-^'-d,  what  has  been  later  added,  and  what  is  found 


No.  239.  II.      TESTIMONIAL    PROCESS.       B.    MEMORY  465 

to-day  can  be  easily  determined  by  sticking  to  the  rule  of  Uphues,  that 
the  recognition  of  the  present  as  present  is  always  necessary  for  the  eventual 
recognition  of  the  past.  Kant  has  already  suggested  what  surprising  results 
such  an  examination  will  give  :  "  There  are  many  ideas  which  we  shall  never 
again  in  our  lives  be  conscious  of,  unless  some  occasion  cause  them  to  spring 
up  in  the  memory."  But  such  a  particularly  powerful  occasion  is  locality, 
inasmuch  as  it  brings  into  play  all  the  influences  which  our  senses  are  capable 
of  responding  to. 

It  is  characteristic,  as  is  popularly  known,  that  memory  can  be  intensified 
by  means  of  special  occasions.  It  is  Hofler's  opinion  that  the  Spartan  boys 
were  whipped  at  the  boundary  stones  of  their  country  in  order  that  they 
might  recall  their  position,  and  even  nowadays  our  peasants  have  the 
custom,  when  setting  up  new  boundary  stones,  of  grasping  small  boys  by 
the  ears  and  hair  in  order  that  they  shall  the  better  remember  the  position 
of  the  new  boundary  mark  when,  as  grown  men,  they  will  be  questioned 
about  it.  This  being  the  case,  it  is  safer  to  believe  a  witness  when  he  can 
demonstrate  some  intensely  influential  event  which  was  contemporaneous 
with  the  situation  under  discussion,  and  which  reminds  him  of  that  situ- 
ation. 

(c)  The  Peculiarities  of  Reproduction.  The  differences  in  memory  which 
men  exhibit  are  not,  among  their  other  human  qualities,  the  least.  As  is  well 
known,  this  difference  is  expressed  not  only  in  the  vigor,  reliability,  and 
promptness  of  their  memory,  but  also  in  the  field  of  memory,  in  the  accom- 
paniment of  rapid  prehensivity  by  rapid  forgetfulness,  or  slow  prehensivity 
and  slow  forgetfulness,  or  in  the  contrast  between  narrow,  but  intense 
memory,  and  broad  but  approximate  memory. 

Certain  special  considerations  arise  with  regard  to  the  field  of  greatest 
memory.  As  a  rule,  it  may  be  presupposed  that  a  memory  which  has 
developed  with  especial  vigor  in  one  direction  has  generally  done  this  at  the 
cost  of  memory  in  another  direction.  Thus,  as  a  rule,  memory  for  numbers 
and  memory  for  names  exclude  each  other.  My  father  had  so  bad  a  memory 
for  names  that  very  frequently  he  could  not  quickly  recall  my  Christian  name, 
and  I  was  his  own  son.  Frequently  he  had  to  repeat  the  names  of  his  four 
brothers  until  he  hit  upon  mine,  and  that  was  not  always  a  successful  way. 
When  he  undertook  an  introduction  it  was  always  :  "  My  honored  m  —  m 
—  m,"  —  "The  dear  friend  of  my  youth  m  —  m  —  m."  On  the  other 
hand,  his  memory  for  figures  was  astounding.  He  poted  and  remembered 
not  only  figures  that  interested  him  for  one  reason  or  another,  but  also  those 
that  had  not  the  slightest  connection  with  him,  and  that  he  had  read  merely 
by  accident.  He  could  recall  instantaneously  the  population  of  countries 
and  cities,  and  I  remember  that  once,  in  the  course  of  an  accidental  conversa- 
tion, he  mentioned  the  production  of  beetroot  in  a  certain  country  for  the 
last  ten  years,  or  the  factory  number  of  my  watch  that  he  had  given  me 
fifteen  years  before  and  had  never  since  held  in  his  hand. 

Such  various  developments  are  numerous  and  of  importance  for  us,  because 
we  frequently  are  unwilling  to  believe  the  witness  testifying  in  a  certain 
field  for  the  reason  that  his  memory  in  another  field  had  shown  itself  to  be 
unreliable.  .  .  .  These  fields  seem  to  be  of  a  remarkably  narrow  extent. 
Besides  specialists  (numismatists,  zoologists,  botanists,  heralds,  etc.)  who, 
apart  from  their  stupendous  memory  for  their  particular  matters,  appear 


466  PART    II.       TESTIMONIAL    EVDEXCE  No.  239 

to  have  no  memory  for  other  thing.s,  there  are  people  who  can  remember  only 
rliymes,  melodies,  shapes,  forms,  titles,  modes,  service,  relationships,  etc.  .  .  . 

It  is  a  matter  of  e.\perieiice  that  the  ffniii-tdiofic  have  an  excellent  memory 
and  can  accurately  reproduce  e\ents  which  are  really  impressi\e  or  alarming, 
and  which  have  left  effects  upon  them.  Many  a  thing  which  normal  people 
have  barely  noticed,  or  which  they  have  set  aside  in  their  memory  and 
have  forgotten,  is  remembered  by  the  semi-idiotic  and  reproduced.  On  the 
contrary,  the  latter  do  not  remember  things  which  normal  people  do,  and 
which  in  the  latter  frequently  have  a  disturbing  influence  on  the  important 
point  they  may  be  considering.  Thus  the  semi-idiotic  may  be  able  to 
describe  important  things  better  than  normal  people.  .  .  . 

Similar  experiences  are  yielded  in  the  case  of  the  memory  of  children. 
Children  and  animals  live  only  in  the  present,  because  they  have  no  his- 
torically organic  ideas  in  mind.  They  react  directly  upon  stimuli,  without 
any  disturbance  of  their  idea  of  the  past.  This  is  valid,  however,  only  for 
very  small  children.  At  a  later  age  children  make  good  witnesses,  and  a  well- 
brought-up  boy  is  the  best  w-itness  in  the  world.  We  have  only  to  keep  in 
mind  that  later  events  tend  in  the  child's  mind  to  w'ipe  out  earlier  ones  of  the 
same  kind.  .  .  .  Bolton,  who  has  made  a  systematic  study  of  the  memory 
of  children,  comes  to  the  familiar  conclusion  that  the  scope  of  memory  is 
measured  by  the  child's  capacity  of  concentrating  its  attention. 

That  aged  persons  have,  as  is  well  known,  a  good  memory  for  what  is 
long  past,  and  a  poor  one  for  recent  occurrences  is  not  remarkable.  It  is 
to  be  explained  by  the  fact  that  age  seems  to  be  accompanied  with  a  de- 
crease of  energy  in  the  brain,  so  that  it  no  longer  assimilates  influences,  and 
the  imagination  becomes  dark  and  the  judgment  of  facts  incorrect.   .   .   . 

((/)  Illusions  of  Memory.  Memory  illusion,  or  paramnesia,  consists  in 
the  illusory  opinion  of  having  experienced,  seen,  or  heard  something,  al- 
though there  has  been  no  such  experience,  vision,  or  sound.  It  is  the  more 
important  in  criminal  law  because  it  enters  unobtrusively  and  unnoticed 
into  the  circle  of  observation,  and  not  directly  by  means  of  a  demonstrated 
mistake.  Hence,  it  is  the  more  difficult  to  discover  and  has  a  disturbing 
influence  which  makes  it  very  hard  to  perceive  the  mistakes  that  have  oc- 
curred in  con.sequence  of  it. 

Everybody  is  familiar  with  tlie  phenomenon  in  which  the  sudden  impres- 
sion occurs,  that  what  is  experienced  has  already  been  met  with  before  so 
that  the  future  might  be  predicted.  .  .  .  Sully,  in  his  book  on  illusions, 
has  examined  the  problem  most  thoroughly  and  he  draws  simple  con- 
clusions. He  finds  that  vivacious  children  often  think  they  have  experi- 
enced what  is  told  them.  This,  however,  is  retained  in  the  memory  of  the 
adult,  who  continues  to  think  that  he  has  actually  experienced  it.  .  .  .  Dickens 
has  <lealt  with  this  dream  life  in  "  David  Copperfield."  Sully  adds,  that  we 
also  generate  illusions  of  memor,\'  when  we  assign  to  experiences  false  dates, 
and  believe  ourselves  to  have  felt,  as  children,  something  we  experienced 
later  and  merely  set  back  into  our  childhood. 

So,  again,  he  reduces  much  supposed  to  have  been  heard,  to  things  that 
have  been  read.  Novels  may  make  such  an  impression  that  wdiat  has  been 
read  or  described  there  appears  to  have  been  really  experienced.  A  name 
or  region  then  seems  to  l)e  familiar  because  we  have  read  of  something 
similar.      It  will  p«Thai)s  be  proper  not  to  reduce  all  the  phenomena  of  param- 


No.  240.  II.      TESTIMONIAL    PROCESS.      B.    MEMORY  467 

nesia  to  the  same  conditions.  Only  a  limited  number  of  them  seem  to  be 
so  reducible.  Impressions  often  occur  which  one  is  inclined  to  attribute  to 
illusory  memory,  merely  to  discover  later  that  they  were  real  but  uncon- 
scious memory  ;  the  things  had  been  actually  experienced  and  the  events 
had  been  forgotten.  Aside  from  these  unreal  illusions  of  memory,  many, 
if  not  all,  others,  are  explicable,  as  Sully  indicates,  by  the  fact  that  some- 
thing similar  to  what  has  been  experienced,  has  been  read  or  heard,  while 
the  fact  that  it  has  been  read  or  heard  is  half  forgotten  or  has  sunk  into  the 
subconsciousness.  Only  the  sensation  has  remained,  not  the  recollection 
that  it  was  read,  etc.  Another  part  of  this  phenomenon  may  possibly  be 
explained  by  vivid  dreams,  which  also  leave  strong  impressions  without 
leaving  the  memory  of  their  having  been  dreams.  All  this  may  happen  to 
anybody,  well  or  ill,  nervous  or  stolid.  Indeed,  Krapelin  asserts  that  param- 
nesia occurs  only  under  normal  circumstances.  It  may  also  be  generally 
assumed  that  a  certain  fatigued  condition  of  the  mind  or  of  the  body  renders 
this  occurrence  more  likely,  if  it  does  not  altogether  determine  it. 

240.  G.F.Arnold.  Psychology  of  Legal  Evidence.  (1906.  pp.  105,  403.) 
...  In  Memory  there  is  necessarily  some  contrast  of  past  and  present, 
in  Retentiveness  nothing  but  the  persistence  of  the  old.  Again,  though 
•Memory  includes  Recognition,  Recognition  as  such  does  not  include  Memory 
in  which  there  is  also  remembrance  of  the  time  and  circumstance  in  which 
an  impression,  piece  of  knowledge,  etc.,  was  acquired.  When  we  find 
ourselves  suddenly  reminded  by  what  is  happening  of  a  preceding  experi- 
ence exactly  like  it,  if  we  are  unable  to  assign  to  such  representation  a  place 
in  the  past,  instead  of  a  belief  that  it  happened  there  arises  bewilderment. 
We  distinguish  Imagination  from  Memory  because  in  the  former  there  is 
no  Recognition,  and  because  of  the  fixed  order  and  position  of  the  ideas  of 
what  is  remembered  or  expected  as  contrasted  with  the  liberty  of  the  im- 
agination to  transpose  and  change  its  ideas  :  at  the  same  time  the  machinery 
of  memory  must  be  largely  determined  by  men's  powers  of  imagining  which 
differ  greatly,  as  will  be  explained  later.  ...  In  the  present  chapter, 
unless  it  seems  specially  called  for,  no  precise  distinction  will  be  observed 
between  Memory  and  Recognition,  and  Retentiveness  will  be  treated  as 
the  basis  of  Memory. 

A  man's  native  retentiveness  depends  on  the  brain  tissue,  and  is  unchange- 
ahle.  "No  amount  of  culture,"  says  Professor  James,  "would  seem  capable 
of  modifying  a  man's  '  general  retentiveness.'  This  is  a  physiological  quality, 
given  once  for  all  with  his  organization  and  which  he  can  never  hope  to 
change.  It  differs  no  doubt  in  disease  and  health.  ...  It  is  better  in 
fresh  and  vigorous  hours  than  when  we  are  fagged  or  ill."  At  the  same  time 
retentiveness  is  affected  in  other  ways,  which  we  shall  now  proceed  to  con- 
sider as  the  conditions  of  memory. 

The  following  are  some  of  the  mental  conditions  of  memory:  Firstly,  as 
regards  the  circumstances  of  the  moment  of  the  original  appearance,  it 
depends  on  (a)  the  degree  of  impressiveness  of  the  original  experience,  i.e. 
the  amount  of  interest  it  awakened  and  of  attention  it  excited.  But  (6) 
the  absence  of  impressiveness  may  be  made  good  by  a  repetition  of  the 
actual  experience  or  by  the  fact  of  previous  mnemonic  revivals.  Time  and 
repetition  are  required  for  memory  to  be  established,     (c)  Our  state  of 


4tiS  PART    II.       TESTIMONIAL    F'  IDENCE  No.  240 

health  and  general  vital  power  art'ect.s  our  ability  to  take  in  impressions. 
u/j  The  presentative  element  must  have  intensity  and  distinctness  and 
also  sufficient  duration. 

Seconilly,  as  rejjards  the  moment  of  the  reappearance:  here  the  preexist- 
ing mental  conditions  and  association  of  ideas  are  the  important  matters. 
Every  recollection  is  determined  Uy  .some  link  of  association,  which  may  be 
either  of  contiguity  or  similarity,  i.e.  the  original  experience  may  have  oc- 
curretl  at  the  same  time  or  in  close  succession,  or  the  sight  of  one  place  or 
person  recalls  that  of  another  place  or  person.  Again,  a  fresh  and  healthy 
l)rain  is  also  reciuired  for  reproduction,  and  we  are  also  influenced  by  our 
emotional  states,  while  much  depends  on  the  nature  of  the  memories  them- 
selves. The  more  simple  and  less  complex  easily  disappear,  and  those 
which  have  many  strongly  marked  and  distinctive  sides  are  better  retained. 
We  are  further  aided  by  the  recency  of  the  occurrence  and  our  own  powers 
of  imagination.  The  above  is  a  mere  summary  and  not  intended  to  be 
exhaustive :  it  will  be  both  amplified  and  supplemented  in  the  course  of  the 
following  pages  under  various  heads. 

No  one  will  probably  dispute  that  different  men  have  different  powers  of 
memory,  but  the  point  to  which  we  now^  wish  to  draw  attention  is  that  there 
are  different  kinds  of  memory.  For  we  conceive  that  there  cannot  be  a 
greater  mistake  than  to  assume  that  we  can  judge  ofi'hand  of  the  possibility 
of  an  alleged  act  of  remembrance,  either  by  reference  to  our  own  powers  or 
to  a  supposed  average  power  of  recollection,  or  again  that  we  can  be  at  all 
sure  of  how  much  any  man  can  be  reasonably  expected  to  remember  under 
any  particidar  circumstances.  AVe  are  aware  that  such  estimates  are  con- 
fidently made  by  judges  and  advocates  in  spite  of  the  statements  of  wit- 
nesses that  they  do  actually  recollect  more  or  less  than  is  supposed  to  be 
possible  or  reasonable ;  and  the  more  we  have  studied  memory  and  all 
that  affects  it,  the  less  we  feel  disposed  to  accept  the  skeptical  views  of  the 
law  courts  concerning  it. 

The  varieties  which  we  are  about  to  speak  of  are  pure  individual  dif- 
ference.^ of  memory.  "  Idiosyncracies  are  frequent,"  says  Dr.  Ward,  "  thus 
we  find  one  person  has  an  exceptional  memory  for  sounds,  another  for  color, 
another  for  forms."  The  kinds  of  images  employed  in  memory  are  as  nu- 
merous as  the  diiferent  kinds  of  sensations,  viz.  visual,  auditory,  tactile, 
motor,  etc. :  we  may  use  them  singly  or  cumulatively,  but  each  has  his  own 
habits  and  according  as  visual  or  auditory  images  predominate  with  him, 
he  will  have  a  good  memory  for  sights  or  sounds.  Tlie  indifferent  kind  are 
those  in  whom  one  type  of  memory  is  eqiud  to  anotluT.  "The  statistical 
investigations  of  Mr.  F.  Galton,"  says  Professor  Sully,  "into  the  nature  of 
visual  representation,  or  what  he  calls  'visualization,'  go  to  show^  that  this 
power  varies  greatly  among  individuals  (of  the  same  race),  that  many 
pt-rsons  have  very  little  ability  to  call  up  distinct  mental  pictures  of  such 
familiar  objects  as  the  breakfast  table."  It  also  varies  with  race,  sex,  and 
age.  It  seems  to  us  plain  that  the  power  of  recollecting  a  scene  will  depend 
very  much  on  a  man's  jjower  of  visualization,  and  if  one  who  has  got  this 
power  ju<lges  one  who  has  not,  or  vice  versa,  his  estimate  of  the  truth  of 
the  hitter's  statements  is  likely  to  be  very  erroneous,  unless' he  has  some 
psychological  knowledge  of  memory.  .  .  .  We  recollect  to  have  seen  it 
stated  more  than  once  that  an  uneducated  villager  could  not  possibly  have 


No.  240.  II.      TESTIMONIAL   PROCESS.       B.    MEMORY  409 

remembered  all  he  stated  in  court  and  has  clearly  been  taught  by  the  police 
or  the  headman  of  the  village  or  by  whoever  can  conveniently  be  made  the 
villain  of  the  piece  :  we  would  therefore  warn  the  reader  that  there  are  no 
valid  grounds  for  attributing  bad  memory  to  uneducated  persons.  We 
do  not  suppose  that  a  similar  dictum  would  be  accepted  if  the  witness  were 
a  philosopher  or  a  mathematician,  yet  it  is  a  psychological  fact  that  savages 
and  uneducated  persons  have  more  powers  of  visualizing  than  persons  whose 
interests  are  rather  in  the  abstract :  but  there  is  also  another  reason.  AYhere 
the  range  of  interest  is  narrow,  it  is  concentrated,  and,  as  pointed  out  in 
the  case  of  the  idiot,  the  memory  is  therefore  likely  to  be  exact  within  the 
limits  of  observation.  Good  memory  is  partly  due  to  the  interest  we  take 
in  a  matter  and  partly  mechanical,  and  the  educated  rarely  have  the  latter 
kind  because  they  have  developed  the  former  at  its  expense :  high  mental 
power  is  seldom  combined  with  good  mechanical  memory.  You  may  see 
sometimes  how  well  ponies  remember  a  road,  because  they  do  not  think 
as  they  go  along  and  so  the  landmarks  are  the  only  things  impressed  on 
them  :  the  savage  is  a  modified  instance  of  the  same  kind.  That  he  should 
have  an  excellent  memory  of  the  mechanical  kind  might  have  been  suggested 
by  the  way  that  Homer's  poems  and  other  long  epics  have  been  handed 
down  correctly  by  quite  uneducated  persons.  As  the  mechanical  memory 
depends  on  the  juxtaposition  of  events  in  space  and  time  as  opposed  to  the 
memory  which  depends  on  intelligent  interest,  there  is  nothing  surprising 
in  the  fact  that  a  Burman  villager  remembers  whether  he  went  to  the  right 
or  left  or  whether  this  or  that  person  was  facing  north  or  south,  for  these  are 
the  kinds  of  questions  which  many  advocates  ask,  although  he  may  be  re- 
lating events  which  happened  long  ago. 

Allusion  has  already  been  made  to  emotion  as  influrncincj  memory.  There 
is  a  mistaken  impression  that  fear  prevents  attention  to  what  is  going  on 
and  therefore  hinders  memory,  and  it  has  been  argued  before  the  writer 
more  than  once  that  a  narrative  or  an  identification  is  not  reliable  because 
the  witness  being  frightened  at  the  time  could  not  have  noticed  or  recollected 
what  she  states.  This  is  a  frequent  incident  of  a  dacoity  or  robbery  case. 
It  is  well,  therefore,  to  state  exactly  what  the  effect  of  fear  is.  It  may  be 
that  the  fear  is  so  great  as  to  totally  paralyze  the  mind,  as  e.g.  when  the 
serpent  fascinates  its  prey,  and  in  such  cases  the  argument  would  have  founda- 
tion :  but  this  is  rarely  so,  and  usually  a  person  under  its  influence  observes 
better  and  remembers  clearly.  Nor  is  this  strange  if  we  realize  the  character 
of  emotion.  "Fear,"  says  Darwin,  "is  often  preceded  by  astonishment, 
and  is  so  far  akin  to  it  that  both  lead  to  the  sense  of  sight  and  hearing  being 
instantly  aroused.  It  leads  us  to  attend  minutely  to  everything  around 
us  because  we  are  then  specially  interested  in  them,  as  they  are  likely  to 
intimately  concern  us."  .  .  .  To  the  same  effect  again  Professor  Sully 
says  :  "  The  essential  element  in  interest  is  feeling,  and  any  marked  accom- 
paniment of  feeling,  whether  pleasurable  or  painful,  is,  as  we  all  know, 
a  great  aid  to  retention.  Thus  the  events  of  our  early  childhood  which  we 
permanently  retain  commonly  show  an  accompaniment  of  strong  feeling, 
more  particularly  perhaps  that  of  childish  wonder  at  something  new  and 
marvelous,  whether  delightful  or  terrible.  The  effect  of  disagreeable 
feeling  in  fixing  impression  is  illustrated  in  the  retention  of  the  image  of  an 
ugly  or  malevolent-looking  face,  of  words  in  a  foreign  language  which  have 


470  PART    II.      TESTIMONIAL   EVIDENCE  No.  2'.0. 

disagreeable  sensations,"  etc.  ...  He  then  points  out  that  great  emotion 
tends  to  color  or  give  a  particular  direction  to  the  ideas  of  the  time,  a  fact 
also  noted  by  Professor  James  as  follows :  "  When  any  strong  emotional 
state  whatever  is  upon  us  the  tendency  is  for  no  images,  but  such  as  are  con- 
grutnis  with  it  to  come  up.  If  others  In'  chance  oifer  themselves,  they  are 
instantly  smothered  and  crowded  out."  There  is  then  this  danger,  for  it 
will  equally  atfect  our  recollection  of  events.  But  apart  from  this,  the  effect 
of  fear,  so  far  from  hindering  recollection,  is  to  aid  it  by  giving  exceptional 
vi\idness,  distinctness,  and  persistence  to  the  images  called  up  at  the  time. 

Exceptional  memory  is  also  displayed  in  certain  pafholoriical  states  which 
are  akin  to  emotion,  especially  the  hypnotic :  instances  are  given  by  Binet 
and  Fere  (authors  of  "Animal  ]\lagiictism  ").  who  further  remark  "the 
acuteness  of  the  memory  during  somnambulism  without  absolutely  justify- 
ing those  who  assert  that  nothing  is  lost  to  memory  yet  shows  that  its  con- 
servative power  is  much  greater  than  is  supposed,  when  measured  by  the 
capacity  of  reproduction  or  recollection.  It  proves  that  in  many  cases  in 
which  we  belie\e  that  a  certain  fact  is  completely  effaced  from  the  memory, 
this  is  by  no  means  the  case ;  the  trace  of  it  is  there,  but  the  power  of  re- 
calling it  is  wanting ;  and  it  is  probable  that  under  the  influence  of  hypno- 
tism or  of  some  excitement  to  which  we  are  sensitive,  it  would  be  possible 
torevive  the  apparently  extinct  memory  of  the  fact  :n  question."  .  .  .  Pro- 
fessor Sully's  remarks  on  the  same  point  also  deserve  quoting :  "  The  stage 
of  complete  obliviscence  is  supposed  to  be  reached  when  no  effort  of  will 
and  no  available  aid  from  suggestive  forces  succeed  in  effecting  the  repro- 
duction. In  ortler,  however,  to  determine  that  a  fact  is  thus  irrecoverably 
forgotten,  we  ought  first  to  have  tried  the  maximum  force  of  the  reproductive 
agencies  and  this  is  often  out  of  our  power.  The  addition  of  the  stimuli  of 
locality,  sound  of  voice,  and  sO  forth,  might  serve  to  recall  images  of  persons 
which  are  now  apparently  irrecoverable.  The  remarkable  revival  of  remote 
antl  seemingly  lost  impressions  in  dreams  and  in  certain  forms  of  brain 
derangement  suggest  that  much  which  we  suppose  to  be  forgotten  might, 
under  the  most  favorable  conjunction  of  conditions,  be  recovered."  Some 
readers  will  remember  that  such  an  experiment  was  made  in  Wilkie 
Collins's  story,  "  The  Moonstone."  We  wish  we  had  space  to  quote  here 
some  of  the  pathological  evidence  in  question,  as  it  would  certainly  convince 
doubters  that  abnormal  powers  of  memory  have  been  displayed  under  such 
conditions ;  and,  if  this  be  so,  in  view  of  the  fact  that  we  cannot,  in  the 
present  state  of  our  knowledge,  define  the  conditions  of  its  display,  we  should 
have  more  hesitation  in  classing  as  impossible  what  appear  to  be  abnormal 
recollections  under  ordinary  circumstances. 

Nor,  again,  because  a  witness  once  says  that  he  cannot  recollect  a  person 
or  an  event,  does  it  follow  that  he  will  not  do  so  afterwards  under  other  cir- 
cumstances:  according  to  the  author's  experience,  as  evidence  is  at  present 
received,  it  is  (piitc  suilicient  for  a  man  to  have  failed  once  to  recollect, 
to  be  instantly  discredited  if  he  subsequently  professes  to  remember ; 
yet  the  inference  that  he  is  not  speaking  the  truth  in  such  a  case,  may 
clearly  in  the  light  of  the  above  facts  be  quite  erroneous.  It  is  not  neces- 
sary, however,  to  appeal  to  pathological  evidence  to  explain  sometimes  how 
it  can  be  that  a  man  may  honestly  recollect  after  stating  his  inability  to 
do  so  ;  for  we  are  often  al)le  to  identify  an  object,  as  a  face,  when  we  actually 


No.  240.  II.       TESTIMONIAL    PROCESS.       B.    MEMORY  471 

see  it,  without  having  any  corresponding  power  of  imaging  it  when  he  is 
absent.  The  lower  animals  which  have  at  best  only  a  rudimentary  power 
of  imaging,  often  display  a  mar\elous  power  of  recognizing.  This  important 
point  is  not  sufficiently  understood  :  it  is  a  common  practice  to  ask  a  witness 
to  describe  a  person,  an  article  of  jewelry  or  clothing,  etc.,  before  he  or  it 
is  shown  to  him,  and,  if  he  fails  to  give  an  accurate  description  beforehand, 
to  regard  it  as  a  proof  that  the  identification  is  not  genuine.  No  doubt 
such  a  description  would  be  a  valuable  confii*mation  of  his  statement ;  but 
the  failure  to  give  one  may  plainly  be  no  proof  of  its  falsity,  being  simply 
due  to  the  lack  of  power  to  visualize,  concerning  which  we  have  already 
spoken.  In  the  absence  of  such  power  it  is  not  plain  how  such  a  description 
could  be  expected,  and  indeed  the  expectation  seems  to  betray  some  igno- 
rance of  the  process  of  memory,  which  is  also  illustrated  by  the  following 
examples.  The  writer  remembers  a  High  Court  judge  remarking  in  a  dacoity 
case  in  which  a  woman  professed  to  have  identified  one  of  the  dacoits  who 
was  previously  a  stranger  to  her.  that  he  did  not  believe  her,  for  one  reason 
because  she  had  not  said  at  the  time  of  the  dacoity  that  she  would  be  able 
to  recognize  any  of  them :  and  yet  had  she  made  the  statement  he  desired 
it  would  have  been  cjuite  worthless.  For  in  memory  we  only  know  re- 
tention through  the  fact  of  revival :  what  this  woman  perceived  at  the  time 
was  subsequently  reproduced  under  the  new  form  of  an  image,  and  the  im- 
mediate conditions  of  the  appearance  of  the  image  was  the  recurrence  in 
some  form  of  that  mode  of  central  excitation  which  conditioned  the  original 
impression.  But  this  learned  judge  wished  the  poor  woman  to  say  before- 
hand what  she  would  not  know  until  the  cause  capable  of  exciting  the  image 
had  been  presented  to  her.  In  a  second  case,  viz.  one  of  kidnapping,  in 
which  a  mother  was  testifying  as  to  the  age  of  her  daughter,  the  advocate 
for  the  defense  questioned  her  as  to  whether  she  could  remember  the  names 
of  any  other  children  who  were  born  in  her  village' in  the  same  year,  which 
she  could  not  do.  Now  in  the  first  place  we  remember  what  we  are  in- 
terested in,  and  the  woman  was  presumably  not  interested  in  the  other 
children ;  but,  apart  from  this,  the  cross-examination  was  conducted  on 
a  totally  wrong  principle  so  far  as  memory  was  concerned  :  for  the  woman's 
daughter  was  present  in  court,  and  she  was  thus  an  exciting  cause  to  revive 
the  impressions  in  the  mother's  brain,  whereas  the  advocate  neither  pro- 
duced any  other  woman  from  the  village  nor  even  mentioned  her  name, 
so  that  there  was  no  reason  why  the  witness  shovdd  remember  anything 
about  any  one  else.  He  simply  ignored  the  fact  that  there  is  needed  in 
ordinary  cases  the  presence  of  something  to  remind  us  of  the  object,  or  to 
suggest  it  to  our  minds.  .  .  .  To  the  magistrate,  because  there  are  no 
associations  of  ideas  connected  with  these  things  in  his  mind,  they  cannot 
be  identified  in  the  absence  of  some  distinct  mark,  and  he  has  not  sufficient 
imagination  to  put  himself  in  the  villager's  place. 

Since  so  much  importance  is  usually  attached  to  the  existence  of  marks 
as  aids  to  memory,  we  must  devote  a  few  words  to  this  subject.  Psychologi- 
cally considered  such  marks  are  merely  reasons  for  the  recollection,  and  it 
seems  a  legitimate  cjuestion.  Why  do  we  always  want  a  reason,  i.e.  some- 
thing intermediate,  as  an  explanation  of  memory  ?  If  a  man  recognizes  a 
coat,  he  must  mention  a  mark  ;  if  he  recollects  a  date,  he  must  mention  some 
approximate  event  to  prove  it,  etc.     But  why  again  does  not  the  same 


472  PART    II.       TESTIMONIAL    EVIDENCE  No.  210. 

feeling  recur  as  to  the  mark,  event,  etc.,  and  so  on,  ad  infinitinn  ?  To 
luulerstantl  this  it  is  necessary  to  grasp  the  theory  of  association  of  ideas  hy 
similarity  and  contiguity,  and  the  explanation  of  what  is  known  as  the  feel- 
ing of  Recognition.  There  are  twt)  fundamental  forms  of  connection  be- 
tween ideational  elements,  connection  by  likeness,  and  connection  by 
contiguity,  and  both  are  concerned  in  every  case  of  actual  association. 
There  is  a  direct  connection  of  like  elements  of  different  ideas,  one  recalls 
the  other,  and  then  a  connection  attaches  itself  immediately  to  this  of  such 
elements  of  previous  ideas  as  have  been  externally  contiguous  to  those  like 
constituents  :  if,  as  we  look  at  the  total  result,  the  connections  of  the  like 
elements  are  predominant,  we  speak  of  a  similarity  association,  if  the  ex- 
ternal connections  are  the  stronger,  of  a  contiguity  association.^  In  cogni- 
tion the  presented  and  the  memorial  elements  combine  at  once  to  a  single 
idea,  referred  to  the  actual  impression,  and  from  cognition  Recognition  is 
developed  as  follows.  In  immediate  recognition  we  are  either  unconscious 
or  but  obscurely  conscious  of  the  connecting  links  by  whose  aid  recognition 
is  effecteil :  we  may  be  merely  conscious  that  we  have  had  the  idea  before 
without  there  being  any  recollection  of  the  attendant  circumstances,  or, 
although  the  recognition  is  immediate,  we  may  also  recall  the  temporal 
relations  and  spatial  surroundings  in  which  we  previou.sly  made  the  acquaint- 
ance of  the  recognized  object.  Now  it  is  only  when  we  consciously  localize 
the  recognized  idea  in  time  and  space  that  we  get  the  feeling  of  recognition  ; 
the  act  of  recognition  requires  these  contiguity  connections  for  its  comple- 
tion. Immediate  recognition  furnishes  the  transition  to  mediate  recogni- 
tion, where  we  are  clearly  conscious  that  recognition  is  brought  about  by 
the  mediation  of  secondary  ideas,  such  as  the  marks,  events,  etc.,  spoken  of 
above.  On  this  point  we  will  quote  Wundt's  words  :  "  Think  how  often  you 
meet  a  person  whom  at  first  sight  you  take  to  be  an  absolute  stranger. 
But  he  tells  you  his  nanw,  and  on  a  sudden  the  face  that  was  so  unfamiliar 
shows  you  the  features  of  an  old  acquaintance.  Or  there  may  be  other  medi- 
ating circumstances.  You  see  a  third  person  whom  you  have  often  noticed 
in  his  company,  and  your  eyes  chance  to  fall  on  a  coat,  or  a  traveling  bag 
that  awaken  your  memory.  Here  again  there  is  a  special  feeling  regularly 
as.sociated  with  the  act  of  recognition.  This  feeling  comes  later  and  arises 
more  gradually  than  the  immediate  recognition  feeling.  At  the  same  time 
you  will  find  that  it  may  be  very  vivid  even  when  the  apprehension  of  the 
agreement  l)etween  the  present  idea  and  previous  is  still  quite  indefinite." 
Now  Wundt's  view  is  thar  in  every  ca.se  of  recognition,  mediate  or  innnediate, 
secondary  or  auxiliary  ideas  are  in  fact  employed,  but  in  the  former  case 
they  are  percei\ed  first  and  the  agreement  of  the  two  principals  afterwards, 
while  in  the  latter  they  are  perceived  at  the  same  time  only  as  the  agree- 
ment of  the  principals  or  even  later:  but  in  every  instance  the  feel ituj  of 
recognition  depends  ui)on  the  excitation  of  auxiliary  ideas.  Profes.sor  Sully 
gives  the  physiological  explanation  of  this  feeling  thus  :  "when  a  particular 
central  clement  or  cluster  of  elements  is  reexcited  to  a  functional  activity 
similar  to  that  of  a  previous  excitation,  this  new  excitation  is  somehow 
iiir)dificd  by  the  rcsidiiuin  of  its  previous  activity  or  surviving  'psychological 

'  Wuiidt,  Humiin  nnd  AtntnnI  Pxi/chologi/.  pp.  290,  297.  (Tlio  writer  is  aware  that  there 
aro  other  explanationH  of  aM.sociation  of  ideas,  but  he  cannot  discuss  them  in  a  work  like 
the  present.) 


No.  240.  II.      TESTIMONIAL   PROCESS.       B.    MEMORY  473 

disposition.'  This  modification  is  the  only  assignable  nervous  substrate 
of  the  consciousness  of  famiharity  or  recognition."  The  importance  of 
marks,  proximate  events,  etc.,  as  auxihary  ideas  producing  the  feeling  of 
recognition  is  thus  plain,  and  it  is  not  necessary  to  go  back  and  seek  again 
further  marks  or  events  to  confirm  these,  because  as  soon  as  we  have  by 
their  aid  consciously  localized  the  past  impression  in  time  and  space,  we 
have  got  the  feeling  of  recognition  that  we  require  and  are  satisfied.  .  .  . 

But  we  must  insist  that  reasons  for  recollecting  events  cannot  always  be 
given,  and  it  is  dangerous  to  press  native  witnesses  for  them,  as  it  only 
results  in  their  inventing  some  transparently  fictitious  explanation,  which 
tends  to  discredit  them  unnecessarily.  There  is  nothing  strange,  as  some 
advocates  seem  to  think,  in  witnesses  recollecting  some  events  and  not 
others,  for  our  memories  restore  to  us  only  fragments  of  our  past  life  and  often 
what  now  seems  to  us  only  insignificant  details  of  a  scene  or  incident.  Sully 
says  :  "  It  seems  quite  impossible  to  account  for  these  particular  revivals, 
they  appear  to  be  so  capricious.  When  a  little  time  has  elapsed  after  an 
event  and  the  attendant  circumstances  fade  away  from  memory,  it  is  often 
difficult  to  say  why  we  were  impressed  with  it  as  we  afterwards  prove  to 
have  been.  It  is  no  doubt  possible  to  see  that  many  recollections  of  our 
childhood  owe  their  vividness  to  the  fact  of  the  exceptional  character  of  the 
events  ;  but  this  cannot  always  be  recognized.  Some  of  them  seem  to  our 
mature  minds  very  oddly  selected,  although  no  doubt  there  are  in  every 
case  good  reasons,  if  we  could  only  discover  them,  why  those  particular 
incidents  rather  than  any  others  should  have  been  retained.".  .  . 

We  have  spoken  above  of  mediate  and  immediate  recognition,  and  we 
shall  now  discuss  further  the  relation  of  memory  to  irifcrence.  With  reference 
to  this  we  should  like  to  quote  the  following  passage :  "  A  witness  may 
give  the  substance  of  conversations  or  writings,  but  he  will  not  be  permitted 
to  say  what  is  the  impression  left  on  him  by  a  conversation  unless  he  swears 
to  such  impressions  as  recollections  and  not  inferences."  ^  Those  authors 
apparently  hold  that  recollection  does  not  involve  inference,  an  opinion 
which  we  believe  to  be  erroneous,  as  will  appear  in  the  course  of  this  dis- 
cussion. Professor  Sully,  speaking  of  immediate  knowledge,  says :  "  It 
will  be  found  that  even  with  respect  to  memory,  when  the  remembered 
event  is  at  all  remote,  the  process  of  cognition  approximates  to  a  mediate 
operation,  viz.  one  of  inference."  Binet  after  stating  that  there  is  no  well- 
defined  distinction  between  a  perception  recollection  and  a  perception 
reasoning,  quotes  Professor  Sully,  that  "  in  both  cases  there  is  a  reinstate- 
ment of  the  past,  a  reproduction  of  earlier  experience,  a  process  of  adding 
to  a  present  impression,  a  product  of  imagination  taking  this  word  in  its 
widest  sense.  In  both  cases  the  same  laws  of  reproduction  or  association 
are  illustrated  ;  that  is  to  say,  an  association  of  resemblance  followed  by  an 
association  of  contiguity ;  .  .  .  our  state  of  mind  in  recognizing  an  object 
or  person  is  commonly  an  alternative  between  these  two  acts  of  separating 
the  mnemonic  image  from  the  percept  and  so  recalling  or  recollecting  the 
past,  and  fusing  the  image  and  the  percept  in  what  is  specially  marked  off 
as  recognition."  He  then  proceeds:  "In  what  respect  does  a  recollection 
differ  from  a  reasoning  ?  This  is  difficult  to  determine.  We  grasp  the 
analogies  between  these  two  acts  much  more  easily  than  their  differences, 

1  Ameer  Ali  and  VVoodroffe's  Indian  Evidence  Act,  2d  cd.  p.  948. 


474  PART    II.      TESTIMONIAL   EVIDENCE  No.  240. 

All  that  the  most  attentive  ob.^ervation  teaches  us  is  that  sometimes  the  sug- 
gested image  is  projected  and  localized  in  the  panorama  of  the  past,  of  which 
it  appears  to  be  a  fragment,  and  sometimes  it  is  referred  to  a  present  object, 
and  throws  off  the  character  of  oldness,  so  t  s  to  appear  actual."  ^  When, 
therefore,  we  say  a  witness  is  guessing  and  does  not  really  recollect,  can  we 
truly  distinguish  ?  Are  not  both  processes  alike,  in  following  out  association 
of  iiieas  ?  .  .  .  It  would  seem  then  that  it  is  impossible  to  distinguish  recollec- 
tion from  inference  in  the  way  desired  ;  and  any  one  who  will  swear  that  the 
impression  left  on  him  by  a  conversation  was  a  recollection  and  not  an  in- 
ference, will  in  our  opinii^i  swear  to  a  great  deal. 

But  this  is  not  our  only  objection  to  the  passage  in  question  ;  there  appears 
to  lie  at  the  root  of  it  a  fallacious  idea  that  impressions  are  not  to  be  accepted 
as  evidence  because  less  trustworthy  than  statements  of  recollection  of 
facts.  Yet  Ave  never  do  under  any  circumstance  reproduce  all  that  has 
happened,  and  we  intentionally  forget  much  that  we  see  and  hear,  for  it  is 
only  by  omitting  some  details  that  we  can  recall  what  we  want.  What 
memory  gives  us  is  always  an  impression,  or,  as  Professor  Stout  calls  it, 
a  generic  image :  "  We  simply  make  an  outline  sketch,  in  which  the  salient 
characters  of  things  and  events  and  actions  appear,  without  their  individualiz- 
ing details.  ...  It  is  possible  for  me  to  recall  the  whole  event  of  taking 
breakfast,  which  occupied  half  an  hour,  in  the  fraction  of  a  minute,  and  then 
pass  on  to  something  else."^  It  is  thus  idle  in  the  sphere  of  memory  to  seek 
for  anything  better  than  impressions,  and  if  we  are  to  discredit  these,  we 
must  discredit  all. 

There  are  various  ways  in  which  the  memory  can  he  assisted.  When  an 
actual  impression  cannot  be  repeated,  its  reproduction  will  to  some  extent 
have  the  same  result ;  thus  we  can  keep  the  images  of  remote  experiences 
from  disappearing  by  periodically  reviving  them,  as  when  children  talk  with 
their  parents  about  common  experiences  of  the  past.  .  .  .  Now,  looked 
at  as  a  revival  of  memory,  it  may  be  a  valuable  thing  for  witnesses  to  talk 
over  their  experiences  with  one  another  before  giving  evidence ;  but  this 
aspect  of  it  is  entirely  left  out  of  account  in  the  view  which  is  usually  taken 
of  it.  Its  sole  object  is  always  taken  to  be  to  concoct  together  a  story  which 
each  will  tell  consistently ;  if  a  witness  admits  in  the  box  that  he  has  talked 
over  the  matter  with  another  witness  before  entering  the  court,  he  is  as 
often  as  not  considered  unreliable  merely  on  that  account.  We  do  not  wish 
to  maintain  that  no  evidence  is  concocted,  or  that  it  is  never  concocted  in 
this  manner  ;  but  we  do  protest  against  such  a  view  being  invariably  taken. 
We  suggest  as  an  alternative  that  talking  over  the  occurrences  beforehand 
may  sometimes  l)y  reviving  the  memory  render  the  evidence  given,  not  less, 
but  more  reliable.  .  .  . 

It  has  no  doubt  been  frequently  noticed  that  it  is  easier  to  recall  events 
in  the  order  in  which  they  occurred,  and  that  witnesses,  if  left  to  themselves, 
habitually  narrate  occurrences  in  chronological  order;  it  has  always  struck 
the  writer  that  the  methotl  u.sually  adopted  by  public  prosecutors  of  asking 
qurxtiotis,  though  it  may  be  useful  in  excluding  irrelevant  matter,  is  certainly 
calculated  to  hinder  memory.  What  may  appear  to  be  irrelevant,  according 
to  the  Evidence  Act,  may  in  fact  be  a  necessary  link  in  the  association  of 

•  Binot,  Pauchology  of  Reasoning,  p.  176. 

»  Stout,  .innlytical  Psychology,  Vol.  II,  pp.  184-185. 


No.  240.  II.      TESTIMONIAL   PROCESS.       B.    MEMORY  475 

ideas  of  the  witness,  and  if  closely  examined  will  often  be  admissible  under 
§  6  or  one  of  the  following  sections  of  the  Act.  Dr.  J.  Ward  has  explained 
the  order  of  recall  as  follows  :  "  In  a  series  of  associated  presentations,  A, 
B,  C,  D,  E,  such  as  the  movements  made  in  writing,  the  words  of  a  poem 
learned  by  heart,  or  the  simple  letters  of  the  alphabet  themselves,  we  find 
that  each  member  recalls  its  successor  but  not  its  predecessor.  ...  B 
recalls  C  ;  why  does  not  C  recall  B  ?  We  have  seen  that  any  reproduction 
at  all  of  A  or  B  or  C  depends  primarily  upon  its  having  been  the  object  of 
special  attention  so  as  to  occupy  at  least  momentarily  the  focus  of  conscious- 
ness. Now  we  can  in  the  first  instance  only  surmise  that  the  order  in  which 
they  are  reproduced  is  determined  by  the  order  in  which  they  were  thus 
attended  to  when  first  presented."  .  .  . 

It  is  highly  important  to  allow  a  witness  time  when  giving  his  evidence, 
not  merely  because  hurry  causes  him  to  say  what  he  may  not  really  intend, 
but  because  of  the  actual  process  by  which  we  recall  a  forgotten  thing. 
Professor  James  describes  it  thus  :  "  We  recollect  the  general  subject  to 
which  the  thought  relates ;  the  thing  is  a  gap  in  the  midst  of  other  things. 
We  then  think  over  the  details  and  from  each  detail  there  radiates  lines  of 
association  forming  so. many  tentative  guesses.  Many  at  once  are  seen  to 
be  irrelevant.  These  added  associations  arise  independently  of  the  will  by 
a  spontaneous  process,  and  our  will  lingers  over  those  which  seem  pertinent 
and  ignores  the  rest.  Then  the  accumulation  of  associates  becomes  so 
great  that  the  combined  tensions  of  their  neural  processes  break  through 
the  bar,  and  the  nervous  wave  pours  into  the  tract  which  has  so  long  been 
awaiting  its  advent." 

Memoranda  for  the  purpose  of  refreshing  memory  are  of  course  admissible 
both  in  the  English  and  the  Indian  law  under  certain  circumstances.  .  .  . 
The  legal  writers  above  quoted  have  this  to  say :  "  It  is  further  to  be  ob- 
served that  the  committing  of  a  statement  to  writing  calls  forth  unavoid- 
ably a  greater  degree  of  attention  than  the  exhibition  of  it  viva  voce  in  the 
way  of  ordinary  conversation.  If  this  be  done  honestly,  at  the  time  of  the 
occurrence  which  forms  the  subject  of  the  statement,  or  so  soon  afterwards 
that  the  incidents  must  have  been  fresh  in  the  writer's  memory,  the  writing 
is  a  most  reliable  means  of  preserving  the  truth,  more  reliable  indeed  than 
simple  memory  itself."  This  is  somewhat  loosely  expressed.  If  it  is  in- 
tended to  say  that  the  writing  calls  forth  a  greater  degree  of  attention  to 
the  occurrence  itself,  the  statement  is  in  the  nature  of  a  "  hysteron  proteron." 
For  the  writing  does  not  in  any  way  cause  the  attention,  which  must  be 
prior  to  it,  but  it  is  the  attention  given  which  aids  retention  and  so  facili- 
tates the  subsequent  commitment  to  writing,  the  writing  being  merely 
the  mode  of  expressing  the  conscious  thought.  If,  however,  all  that  is 
meant  is  that  the  committing  to  writing  calls  forth  greater  attention  to  the 
writing  than  the  speaking  of  the  occurrence  does  to  the  speaking,  this  may 
or  may  not  be  so,  we  should  say,  according  to  the  circumstances,  but  we 
do  not  quite  understand  either  the  value  or  the  application  of  such  a  state- 
ment here.  If  we  may  conjecture,  perhaps  the  passage  was  intended  to 
assert  that  writing  causes  reflection  on  the  occurrence,  and  this  reflection, 
while  the  occurrence  is  recent,  impresses  it  on  the  memory  better  than  the 
mere  act  of  speaking  it.  This  is  doubtless  true ;  when  we,  so  to  speak, 
objectify  anything,  it  involves  care  and  attention  to  the  process,  i.e.  here 


470  PART    II.      TESTIMONIAL   EVIDENCE  No.  210. 

the  cerebral  activity  ;  but  after  all  the  passage  amounts  to  little  more  than 
saying  that  memory  aided  by  something  else  is  more  reliable  than  memory 
aided  by  nothing  else,  a  somewhat  self-e\ident  proposition. 

These  same  writers  go  on  to  distinguish  three  ways  of  using  such  a  mem- 
orandum. (1)  The  writing  is  in  the  stricter  sense  used  to  refresh  the  niemor\- ; 
that  is,  the  witness  has  a  present  memory  of  the  facts  after  the  inspection  of  the 
writing.  In  this  case  the  document  is  resorted  to  to  revive  a  faded  memorii 
and  the  witness  swears  from  the  actual  recollection  of  the  facts  which  the 
tlocument  evokes.  Memory  is  in  other  words  restored.  The  italics  are  those 
of  the  commentators  ;  to  speak  of  "  reviving  a  faded  memory,"  and  "  restor- 
ing memory"  is  open  to  the  objection  that  memory  is  always  a  construction 
from  the  present,  and  it  is  therefore  better  to  speak  of  a  past  recollection. 
What  is  really  revived  or  restored  is  the  mental  image,  and  it  is  because  of 
the  power  of  words  to  do  this  that  documents  are  used  for  this  purpose. 

(2)  The  next  case,  viz.  where  the  witness  merely  recollects  having  seen 
the  writing  l)efore,  antl  remembers  that  at  the  time  he  saw  it,  he  knew  the 
contents  to  be  correct,  seems  to  clearly  involve  inference. 

(3)  The  third  case  is  "  where  it  brings  to  the  mind  of  the  witness  neither 
any  recollection  of  thQ  facts  mentioned  in  it,  nor  any  recollection  of  the  xoriting 
itself,  but  which  nevertheless  enables  him  to  swear  to  a  particular  fact  from 
the  conviction  of  his  mind  on  seeing  a  writing  which  he  knows  to  be  genuine." 
It  is  explained  Ijy  those  authors  that  the  witness  here  swears  "from  a  con- 
viction arising  from  the  knowledge  of  his  own  habits  and  conduct  sufficiently 
strong  to  make  the  existence  of  the  document  wholly  irreconcilable  with 
tiie  non-existence  of  the  fact,  and  so  to  convince  him  of  the  affirmative"  ; 
and  again  "  the  witness  is  allowed  to  testify  to  the  matter  so  recorded  be- 
cause he  knows  he  could  not  have  made  the  entry  unless  the  fact  had  been 
true."  It  is  evident  from  these  explanations  that  the  witness  is  here  al- 
lowed to  gi\e  evidence  from  inference  ;  he  infers  from  his  implicit  knowledge 
of  his  self  that  something  which  he  has  done  expresses  what  is  true.  He  is 
even  allowed  to  swear  that  a  writing  which  he  did  not  make  himself,  but 
which  some  one  else  made  and  which  he  read  at  the  time  and  knew  then 
to  be  correct  must  necessarily  be  true,  which  is  likewise  an  inference. 

Our  object  in  noticing  these  passages  is  merely  to  illustrate  the  way  in 
which  evidence  on  inference  is  allowed  in  some  cases  ;  because  it  seems  to  us 
that  when  it  is  thus  admitted  it  is  hardly  worth  while  to  invent  reasons 
and  strain  interpretations  elsewhere  (of  which  examples  have  been  given), 
in  order  to  argue  that  what  are  really  inferences  can  be  really  otherwise 
explained.   .   .   . 

Frdincj,  as  interest,  clearly  influences  and  determines  what  we  attend  to, 
and  hence  what  we  remember,  and  we  shall  have  more  to  say  on  this  point 
under  the  head  of  Prejudice  [ante,  No.  203].  It  is  with  the  revivability  of 
the  emotions  that  we  are  here  concerned.  .  .  .  We  can  produce  new  griefs 
and  ra|)tur('s  by  summoning  up  a  lively  thought  of  their  exciting  cause,  and 
though  the  cause  is  now  only  an  idea,  it  produces  the  same  organic  irradia- 
tions, or  almost  the  same,  which  were  produced  by  its  original,  so  that  the 
emotion  is  again  a  reality.  This  explains  why  the  narrative  of  a  genuine 
witness  is  lively  comi)ared  with  that  of  a  false  one,  who  is  unable  to  summon 
up  even  the  reflection  of  an  emotion  of  which  he  never  experienced  the  excit- 
ing cause;   for  it  is  exceedingly  difficult  to  imitate  emotions,  because  of  the 


No.  240.  II.      TESTIMONIAL    PROCESS.       B.    MEMORY  477 

immense  number  of  parts  modified  in  each  emotion.  "We  may  catch  the 
trick,"  says  Professor  James,  "with  the  voluntary  muscles,  but  fail  with 
the  skin,  glands,  heart,  and  other  viscera.  Just  as  an  artificially  imitated 
sneeze  lacks  something  of  the  reality,  so  the  attempt  to  imitate  an  emotion 
in  the  absence  of  its  normal  instigating  cause  is  apt  to  be  rather  hollow." 
Feeling  also  affects  our  memories  in  another  way :  we  project  our  present 
modes  of  experience  into  the  past,  and  paint  our  past  in  the  hues  of  the 
present.  Thus  we  imagine  that  things  which  impressed  us  formerly  must 
answer  to  what  is  impressive  in  our  present  stage  of  mental  development ; 
we  unconsciously  transform  the  past  occurrence  by  reasoning  from  our 
present  standard  of  what  is  impressive.^  ...  If  we  reflect  on  this,  it  would 
appear  to  afford  an  explanation  of  why  a  person  sometimes  gives  contra- 
dictory accounts  of  the  same  thing  ;  at  all  events,  when  some  interval  elapses 
between  his  two  statements.  This  change  of  memory,  as  it  may  be  termed, 
rather  than  obliviscence,  might  constitute  a  valid  defense  to  .a  charge  of 
perjury  based  on  two  contradictory  depositions.  .  .  . 

Fallacies  of  Memory.  "When  I  distinctly  recall  an  event,"  says  Pro- 
fessor Sully,  "  I  am  immediately  sure  of  three  things :  (a)  that  something 
did  really  happen  to  me ;  (6)  that  it  happened  in  the  way  I  now  think ;  (c) 
that  it  happened  when  it  appears  to  have  happened."  Hence,  there  are 
three  classes  of  illusion:  (1)  false  recollections  to  which  there  correspond 
no  real  events  of  personal  history ;  (2)  others  which  misrepresent  the 
manner  of  the  happening  of  the  events ;  (3)  others  which  falsify  the  date 
of  events  remembered. 

(1)  The  first  kind  is  in  the  nature  of  hallucinations,  and  concerns  imagina- 
tion, the  effect  of  which  on  memory  has  been  thus  described  by  the  same 
writer :  "  Not  only  does  our  idea  of  the  past  become  inexact  by  the  mere 
decay  and  disappearance  of  essential  features,  it  becomes  positively  incor- 
rect through  the  gradual  incorporation  of  elements  that  do  not  properly 
belong  to  it.  Sometimes  it  is  easy  to  see  how  these  extraneous  ideas  get 
imported  into  our  mental  representation  of  a  past  event.  Suppose,  e.g., 
that  a  man  has  lost  a  valuable  scarfpin.  His  wife  suggests  that  a  par- 
ticular servant,  whose  reputation  does  not  stand  too  high,  has  stolen  it. 
When  he  afterwards  recalls  the  loss,  the  chances  are  that  he  will  confuse 
the  fact  with  the  conjecture  attached  to  it,  and  say  that  he  remembers- 
that  this  particular  servant  did  steal  the  pin.  Thus  the  past  activity  of 
imagination  serves  to  corrupt  and  partially  falsify  recollections  that  have  a 
genuine  basis  of  fact.  It  is  evident  that  this  class  of  mnemonic  illusions 
approximates  in  character  to  illusions  of  perception.  When  the  imagination 
supplies  the  interpretation  at  the  very  time  the  mind  reads  this  into  the 
perceived  object,  the  error  is  one  of  perception.  W^hen  the  addition  is 
made  afterwards,  on  reflecting  upon  the  perception,  the  error  is  one  of 
memory."  - 

(2)  (3)  But  besides  confusing  facts  with  conjectures,  we  may  also  con- 
fuse experiences  themselves,  and  this  is  a  source  of  many  errors.  .  .  .  Such 
confusions  ma^^  usually  be  traced  to  association  of  ideas,  especially  in  the 
case  of  a  misrecoUection  of  dates  or  the  mistaking  of  persons.  How  this 
comes  about  may  be  seen  from  the  following:  "We  might  find,  e.g.,  that 
the  two  persons  were  associated  in  my  mind  by  a  link  of  resemblance,  or 

1  Sully,  Illusions,  p.  268.  ^  ibid.,  Illusiotis,  pp.  264-265. 


478  PART    II.      TESTIMONIAL    EVIDENCE  No.  241. 

that  I  had  dealings  with  the  other  person  about  the  same  time.  Simi- 
larly, when  we  manage  to  join  an  event  to  a  wrong  place,  w^e  may  find  it  is 
becau-se  we  heard  of  the  occurrence  when  staying  at  the  particular  local- 
ity, or  in  some  other  way  had  the  image  of  the  place  closely  associated  in 
our  minds  with  tlie  event.  But  often  we  are  wholly  unable  to  explain  the 
displacement."  ^  Such  fallacies  depend  on  the  adulteration  of  pure  obser- 
vation with  inference  and  conjecture.  There  are  others  due  to  a  rather 
different  cause,  which  has  been  termed,  by  Professor  Stout,  coalescence. 
Coalescence  or  overlapping  is  where  an  old  combination  or  new  combina- 
tion is  relatively  so  powerful  as  to  overbear  the  tendency  opposed  to  it  with- 
out a  struggle.  .  .  .  The  gradual  tran.sformation  of  a  story  as  it  passes  from 
one  person  to  another  is  in  part  due  to  coalescence.  Each  hearer  uncon- 
sciously modifies  it  according  to  his  preconceived  ideas  and  transmits  it  to 
his  neighbors  with  this  added  modification.^  It  is  of  course  largely  to  guard 
against  this  that  hearsay  evidence  is  prohibited  in  law.  Professor  James 
describes  this  as  one  great  source  of  the  fallil)ility  of  testimony  meant  to 
be  quite  honest :  "  The  most  frequent  source  of  false  memory  is  the  accounts 
we  give  to  others  of  our  experience.  Such  accounts  we  almost  always  make 
l)otli  more  simple  and  more  interesting  than  the  truth.  We  quote  what  we 
should  have  said  or  done  rather  than  what  we  really  said  or  did  ;  and  in  the 
first  telling  we  may  be  fully  aware  of  the  distinction.  But  ere  long  the 
fiction  expels  the  reality  from  memory  and  reigns  in  its  stead  alone." 

Enough  perhaps  has  been  now  said  to  make  clear  the  chief  sources  of 
error  in  memory  and  what  in  consequence  must  be  looked  for  in  weighing 
evidence. 

241.  E.  W.  C'oLEGROVE.  Memory:  An  Inductive  Study.  (1900.  p.  264.) 
Many  helpful  pedagogical  suggestions  were  received  from  high  school, 
normal,  and  college  students  in  reply  to  question  11  [in  a  list  of  inquiries 
made  on  the  subject  of  Memory]. 

"Question  11.  Describe  fully  any  aids  to  memory  which  you  have 
found  useful.  How  do  you  fix  in  mind  and  recall  (a)  figures,  dates,  dimen- 
sions ;  (h)  forms  of  faces,  micro.scopic  structures,  leaves,  crystals,  patterns, 
figures  on  the  wall,  carpet,  or  dress,  phrases  in  music,  and  the  cut  of  the 
dresses  ?  (e)  How  do  you  fix  and  recall  passages  of  prose  and  poetry,  dec- 
lamations, and  recitations  ?  Why  and  how  do  you  memorize  fine  passages  ? 
In  learning  foreign  languages,  describe  devices  for  fixing  new  forms  and 
phrases.  Descril>e  your  svstem  of  keeping  appointments.  What  memoran- 
dum do  you  keep,  what  book  is  used,  and  how  do  you  make  entries?  As  a 
student,  how  full  notes  do  you  take  in  the  classroom?  How  would  j'ou 
teach  a  i)oy  to  remember  things  on  time  ?  Do  you  store  up  facts  and  dates, 
with  no  definite  idea  of  how  you  will  use  them  ?"  [Among  the  replies  may 
be  noted  the  following:] 

Figures  are  mentally  r('j)resentcd  as  clearly  as  possible,  —  a  "picture  of 
them  as  they  look  i)rintcd  or  written."  A  child  thought  of  the  figures  to  be 
carried  in  division  as  "  gone  up  in  the  attic"  ;  he  would  "call  up  attic  to 
.see  if  anything  was  there."  One  "  locates  them  on  a  certain  page  of  a  book." 
Several  "  write  them  a  few  times."  Three  visualize  in  colored  terms. 
Female,  age  U),  recalls  the  letter  A  as  l)lafk  on  a'red  background.     FemalCj 

'  Sully,  Illwsions,  p.  206.  »  Stout,  Analylical  PsycholoQy,  Vol.  I,  pp.  286-2S7 


:.'o.  211.  II.      TESTIMONIAL   PROCESS.       B.    MEMORY  479 

age  21  :  "Words  seemed  colored.  My  name  is  red,  my  sister's  is  yellow. 
I  often  remember  by  color."  Male,  age  18:  "I  remember  figures  by 
color."  Association  helps ;  a  college  student  writes :  "  I  associate 
figures  with  what  is  familiar.  If  I  hear  that  Mr.  A.  receives  $5000  salary, 
I  say  to  myself  that  is  five  times  as  much  as  my  old  school  teacher  got. 
After  this  the  salary  is  easily  recalled."  Place-localization,  and  association, 
are  chiefly  relied  upon.  Some  have  a  kind  of  mnemonic  system,  and  group 
or  reverse  the  numbers.  One  associates  the  figure  8  with  a  doughnut. 
Faces  are  recalled  by  types.  After  fixing  the  type  to  which  it  belongs, 
the  eyes,  hair,  nose,  cheek  bones,  complexion,  and  scars  are  noted.  A 
college  student  writes :  "I  try  to  trace  a  resemblance  between  a  strange 
face  and  one  I  know."  A  middle-aged  woman  takes  careful  notice  of  the 
hand ;  she  has  a  poor  memory  for  faces,  but  can  often  locate  the  person  by 
the  hand.  A  normal  student  writes  the  initial  of  the  person  or  place  on 
the  left  hand ;  after  it  has  been  erased,  she  still  visualizes  it  there.  One 
analyzes  the  features ;  "  if  any  feature  resembles  a  well-known  face,  it  is 
easily  recalled.".  .  .  Phrases  in  music  are  recalled  by  playing,  or  by  attempt- 
ing to  play,  or  by  humming  the  tune.  College  student,  m., age  22  :  "I  recall 
the  time  intervals  and  note  the  first  part  of  the  theme ;  I  recall  the  rest  by 
association."  Female,  age  17,  normal  student:  "I  remember  phrases  in 
music  by  thinking  if  they  are  similar  to  phrases  in  any  selections  that  I  have 
heard."  ...  It  is  worthy  of  note  that  some  excellent  musicians  recall 
music  better  after  an  interval.  They  cannot  inimediately  reproduce  it,  if 
they  have  enjoyed  it  intensely.  Sometimes  an  interval  of  a  day  or  two  is 
necessary  in  order  to  recall  it  well.  It  is  quite  possible  that  there  is  a  modi- 
fication of  the  basilar  membrane  which  serves  as  a  basis  for  subsequent 
recall. 

Furthermore,  it  is  true  that  many  people  find  that  a  time  interval  is 
necessary  to  recall  well  any  experience.  E.  C,  f.,  age  17,  recalls  better 
now  what  happened  in  all  school  grades  than  when  she  was  younger.  Male, 
age  20 :  "I  can  define  and  locate  my  former  experiences  better  noAV  than  I 
could  a  year  or  so  after  they  happened."  Female,  age  19:  "I  can  recall 
now  things  that  happened  S  or  10  years  ago,  which  I  could  not  recall  4  years 
ago."  Apart  from  a  maturer  mind,  perspective  seems  to  be  necessary  to 
many  in  order  that  they  may  have  a  good  memory.   .   .   . 

Passages  of  prose  and  declamations  are  memorized  by  paying  attention  to 
the  thought.  After  the  thought  is  fixed,  it  easily  clothes  itself  in  language. 
Not  a  few,  however,  memorize  mechanically,  attention  being  paid  especially 
to  the  beginnings  and  endings  of  sentences.  Repetition  and  reading  aloud 
are  frequently  mentioned.  Clear  mental  representation  and  a  purely  local 
memory  are  of  service.  Male,  17:  "I  usually  memorize  by  imprinting  the 
object  and  its  surroundings  on  my  mind  like  a  negative.  In  memorizing 
Lew  Wallace's  'Chariot  Race,'  comprising  16  pages,  I  read  it  through 
twelve  times.  I  imprinted  the  photograph  of  the  page  on  my  mind,  and 
then  read  what  I  saw."  .  .  . 

A  large  number  of  devices  are  given  for  keeping  appointments.  Females 
change  rings,  insert  paper  under  a  ring,  pin  paper  on  dress,  etc.  There  are 
other  favorite  mechanical  devices.  Chairs  are  turned  over,  and  other  furni- 
ture disarranged.  A  middle-aged  man  hid  his  hat  to  remind  him  of  an 
appointment.     Next  morning  he  hunted  up  another  hat,  but  did  not  recall 


480  PART    II.      TESTIMONIAL    EVIDENCE  No.  241. 

why  the  one  usually  worn  was  gone.  One  associates  appointments  with  the 
hands  of  the  clock  at  the  hour  fixed.  Not  a  few  find  it  necessary  to  repeat 
the  appointment  again  and  again.  Others  are  aided  by  a  memorandum. 
As  a  rule  those  who  say  their  memories  are  utterly  untrustw^orthy  do  not  use 
notes.  Yet  W.,  m.,  age  26,  writes  that  the  only  appointment  he  has  missed 
for  years  is  one  which  he  noted  down.  Female,  age  16,  writes  .  To  keep 
an  appointment  I  write  the  first  letter  of  the  person  or  place  connected 
with  the  appointment  on  my  left  hand.  Even  if  it  be  erased,  1  still  imagine 
it  there."     Clear  mental  representation  is  the  great  help  in  such  cases. 

There  is  a  wide  di\ersity  of  opinion  as  to  how  fi-U  notes  a  student  should 
take,  and  almost  all  degrees  of  copiousness  are  indicated.  Female,  age  37, 
believes  her  memory  was  injured  by  taking  full  notes  at  the  normal  school. 
Again,  "too  many  notes  make  the  general  idea  of  the  lecture  indistinct." 
One  writes  that  the  state  of  his  health  determines  how  full  notes  he  takes ; 
if  the  pliysical  tone  is  low,  he  is  obliged  to  take  more  copious  notes.  Some 
are  best  aided  In-  jotting  down  the  headings  and  by  giving  attention  un- 
reservedly to  the  lecture.  A  normal  student  writes  out  very  full  notes,  and 
never  thinks  of  the  contents  of  the  lecture  until  she  leaves  the  lecture  room. 
Some  take  "key"  words  with  which  the  rest  is  associated.  Concentration 
of  attention  and  "hand  and  arm"  memory  are  acquired  as  a  rule  by  taking 
quite  copious  notes.  To  take  few  notes  is  a  work  of  art,  and  the  essentials 
must  be  seized  upon.  The  consensus  of  opinions  received  would  seem  to 
favor  few  notes.  Where  full  notes  are  taken,  they  are  not  often  re- 
viewer!.  .   .   . 

The  request  made  under  heading  13  of  the  syllabus  called  forth  a  wealth 
of  material.  "  13.  Describe  cases  of  exceptional  forgetfulness  in  old  and 
young,  stating  whether  it  was  due  to  distraction,  abstraction,  loss  of  mental 
power,  or  heredity.  As  a  rule,  does  defect  in  memory  in  children  appear 
in  the  field  of  things  done,  known,  or  felt?"  Certain  cases  due  to  ab- 
straction are  as  follows :  A  young  lady  went  to  telegraph  for  an  umbrella 
left  on  a  car  ;  she  had  been  holding  it  over  her  head  for  thirty  minutes.  A 
lady  walked  into  the  parlor  with  a  SIO  bill  in  one  hand,  a  match  in  the 
other;  she  put  the  bill  in  the  stove  and  saved  the  match.  A  college 
professor  forgets  to  eat  his  meals.  A  boy  broke  his  ribs,  and  forgot  all 
about  it  in  two  days.  A  man  picked  up  a  pebble  and  put  it  in  his 
pocket ;  took  out  his  watch  and  threw  it  into  the  ocean.  A  lady  tried  to 
tie  her  horse  with  the  blanket  and  cover  him  with  the  line.  A  boy 
returned  from  the  store  three  times  to  find  out  w'hat  his  mother  wanted.  A 
lady  who  was  called  away  by  an  important  message,  before  breakfast, 
forgot  until  late  in  the  day  that  she  had  eaten  neither  breakfast  nor  dinner. 
.\  gentleman,  age  50,  came  down  from  his  study  and  asked  his  wife  if  she 
knew  where  his  pen  was ;  he  thought  the  children  had  mislaid  it ;  she  told 
liiin  if  he  would  take  it  out  of  his  mouth,  he  would  talk  more  plainly.  A 
l)oy,  age  9.  sent  to  store  for  extract  of  peppermint,  brought  paregoric  ;  sent 
back  with  a  bottle  lalx'lcd  peppermint,  l)rought  vanilla;  third  time  sent  he 
brought  the  peppermint.  A  college  professor,  expert  in  numbers,  is  fre- 
(juently  seen  with  one  black  and  one  tan  shoe  on.  A  minister  became 
absorbed  in  a  l)Ook  and  forgot  that  it  was  Sunday.  A  man  walked  home 
and  left  his  horse  in  the  village  all  night.  The  same  man  drove  lioiiie  from 
church  and  left  his  wife. 


No.  242.  II.      TESTIMONIAL   PROCESS.       B.    MEMORY  481 

A  great  share  of  cases  of  lack  of  memory  are  due  to  abstraction,  or  to 
absent-mindedness,  which  Mach  terms  "present-mindedness."  It  often 
characterizes  people  of  great  ability  along  narrow  lines  of  thought.  The 
following  is  an  instance  of  lack  of  memory  due  to  fatigue  :  Female,  age  22  : 
"At  the  age  of  16  I  had  been  traveling  all  day ;  I  went  to  the  ticket  office 
at  the  last  change  of  cars,  but  could  not  think  where  I  was  going;  yet  I 
had  lived  in  the  town  sixteen  years."  There  are  a  few  instances  given  in 
which  loss  of  memory  is  due  to  distraction.  A  middle-aged  woman  heard 
of  her  son's  death  by  drowning ;  she  could  not  remember  her  husband's 
address  in  order  to  telegraph  him,  although  she  had  written  there  hundreds 
of  times.  "Aunt  recalls  nothing  that  happens  since  her  husband's  death." 
Defective  memory  in  children  is  ascribed  to  things  known.  There  are  many 
instances  reported  in  which  forgetting  occurred  in  the  field  of  things  done ; 
many  of  these  cases,  however,  are  evidently  cases  of  temporary  forgetfulness 
due  to  abstraction.  All  of  the  Indians,  with  a  single  exception,  state  that 
things  known  are  most  easily  forgotten.  As  to  abstraction,  no  period  of 
life  is  free  from  its  influence.  Not  a  few  draw  comfort  from  the  facts,  fre- 
quently cited,  that  Samuel  Johnson  when  he  had  stepped  from  the  sidewalk 
would  continue  for  a  long  distance  with  one  foot  in  the  gutter  and  one  on 
the  walk ;  that  Pestalozzi  did  not  know  enough  to  put  up  his  umbrella 
when  it  rained ;  that  Sir  Isaac  Newton  supposed  he  had  eaten  when  he  saw 
the  chicken  bones  on  his  plate ;  and  that  Edison  forgot  his  wedding  day. 
The  fact  is  that  no  period  of  life  is  free  from  noticeable  abstraction.  The 
boy  with  book  in  hand  forgets  to  go  to  dinner  after  he  has  rung  the  bell ; 
the  young  woman  goes  to  different  parts  of  the  house,  she  knows  not  why ; 
middle  age  hunts  for  the  thimble  on  its  finger,  or  the  pen  in  its  mouth ; 
while  old  age  is  troubled  that  it  cannot  find  the  glasses  on  its  nose. 

242.  Wm.  C.  Robinson.  Forensic  Oratory;  a  Manual  for  Advocates. 
(1893.  p.  193.)  ...  It  is  not  easy  to  define  in  what  a  faithful  memory 
consists.  Some  persons  are  endowed  with  excellent  general  memories, 
recalling  the  minutest  details  of  events  or  conversations  after  the  lapse  of 
many  years.  Others  remember  with  precision  and  completeness  only  cer- 
tain classes  of  facts,  — localities,  dates,  faces,  names,  or  abstract  processes 
of  thought.  Slill  others  are  without  distinct  recollections  of  any  kind,  their 
memories  apparently  preserving  some  faint,  uncertain  traces  of  almost 
every  incident  of  their  whole  lives,  but  with  no  clear  and  definite  impression 
in  regard  to  any.  In  persons  of  the  first  description,  the  memor}^  may  always 
be  considered  good.  In  persons  of  the  second,  it  is  good  whenever  the  thing 
remembered  is  of  that  class  which  their  memories  are  accustomed  to  preserve, 
and  bad,  at  least  for  all  the  purposes  of  evidence,  when  the  fact  belongs  to 
that  class  which  their  memories  do  not  retain.  In  persons  of  the  third  de- 
scription, the  memory  is  always  bad,  and  on  their  uncorroborated  evidence 
no  question  of  importance  ought  to  be  decided.  Were  these  distinctions 
generally  understood,  or  if  understood,  were  they  remembered  and  considered 
by  the  jury,  the  cross-examination  as  a  test  of  memory  should  properly 
be  limited  to  the  power  of  the  witness  to  retain  impressions  concerning 
the  class  of  objects  to  which  the  evidence  relates.  When  the  inquiry  is  as 
to  the  identity  of  persons,  the  ability  of  the  witness  to  distinguish  and 
remember  faces,  forms,  and  voices  is  the  only  faculty  in  question,  and 


4S2  PART    II.       TESTIMONIAL    EVIDENCE  No.  243. 

whether  or  not  locaUties  and  dates  are  easily  recollected  by  him  is  of  no 
consequence  whatever.  In  actual  practice,  however,  the  law  permits  the 
jury  to  infer  a  general  want  of  recollection  from  a  special  one,  and  the 
cross-e.\a miner  to  expose  defects  in  memory  by  testing  it  with  facts  of  any 
class  that  he  desires. 

Defective  Memory:  how  Detected.  The  direct  examination  of  the  witness 
in  most  instances  informs  the  advocate  as  to  the  true  condition  of  his  memory. 
If  he  speaks  positively  and  exhaustively  concerning  one  class  of  facts,  and 
hesitatingly  or  inaccurately  concerning  others,  it  may  well  be  concluded 
where  his  weakness  lies,  and  with  what  questions  it  may  best  be  tested  and 
exposed.  If  it  be  generally  deficient,  the  whole  field  of  the  past  is  open  to 
the  advocate,  and  the  more  varied  and  disassociated  are  the  topics  it  em- 
braces, the  more  thoroughly  are  his  defects  revealed.  On  the  other  hand,  if 
his  memory  appears  generally  perfect,  and  able  to  recall  events  of  every 
kind  with  equal  ease,  the  cross-examiner  must  discover  a  deficiency  in 
reference  to  some  class  of  facts  as  yet  unnoticed,  or  his  attempt  will  but  cor- 
roborate the  credibility  it  was  intended  to  destroy.  The  tests  applied  to 
the  memory  of  a  witness  by  the  cross-examiner  must  be  fully  and  immediately 
apparent,  as  such,  to  the  jury.  If  the  subject  he  employs  is  not  one  which 
the  jury  realize  that  they  themselves  would  easily  remember,  the  failure  of 
the  witness  to  recall  it  will  create  no  surprise.  If  it  is  so  far  outside  of  their 
sphere  of  information  that,  when  he  misremembers,  or,  not  remembering 
at  all,  invents,  they  do  not  instantly  detect  him,  they  can  draw  no  con- 
clusion as  to  the  strength  or  weakness  of  his  memory.  These  tests  must, 
therefore,  be  such  as  the  jury  are  conscious  that  they  could  endure,  and  also 
such  as  they  can  see  that  the  witness  does  not  successfully  sustain.  Ques- 
tions relating  to  important  epochs  in  the  life  of  the  witness,  to  such  facts 
in  the  cause  as,  if  he  tells  the  truth  in  reference  to  his  knowledge  of  them, 
must  have  impressed  him  deeply,  to  those  public  events  of  which  no  man  can 
be  ignorant,  to  any  striking  occurrences  in  the  court  room  during  the  trial  of 
the  cause,  to  matters  fully  demonstrated  in  his  presence  by  the  testimony  of 
preceding  witnesses,  or  to  objects  to  which  the  attention  of  the  witness  is 
directed  and  which  after  a  few  moments  he  may  be  requested  to  describe, 
answer  the.se  two  requisites.  With  an  honest  witness  this  method  of  exami- 
nation is  short  and  easy ;  with  a  cunning  and  dishonest  witness  its  success 
depends  mainly  on  the  judgment  with  which  the  subject  for  these  tests  has 
l)een  selected. 

243.  Arthur  C.Tkain.  The  Prisoner  at  the  Bar.  (2ded.  1908.  p.  228.) 
Almost  all  cases  are  stronger  in  court  than  they  give  the  impression  of 
being  when  the  witnesses  are  first  examined  in  the  private  office.   .   .   . 

The  reason  is  not  far  to  seek.  Witnesses  to  the  events  leading  up  to  a 
crime  are  acquainted  with  a  thousand  details  which  are  as  vivid,  and  prob- 
ably more  vivid,  to  them  than  the  occurrence  in  regard  to  which  their 
testimony  is  actually  desired.  It  may  well  be  that  the  immaterial  facts 
are  the  only  ones  which  have  interested  them  at  all,  while  their  knowledge  of 
the  criminal  act  is  relatively  slight.  For  example,  they  know,  of  course, 
that  they  were  in  the  saloon  ;  are  ■positive  that  the  complainant  and  de- 
fendant were  playing  cards,  even  remembering  some  of  the  hands  dealt ; 
are  aure  that  the  complainant  arose  and  walked  away ;    have  a  very  vivid 


No.  243.  II.      TESTIMONIAL   PROCESS.       B.    MEMORY  483 

recollection  that  in  a  few  moments  the  defendant  got  up  and  followed  him 
across  the  room  ;  are  pretty  clear,  although  their  attention  was  still  upon  the 
game,  that  the  two  men  had  an  argument ;  and  have  a  strong  impression  that 
the  defendant  hit  the  complainant.  In  point  of  fact,  their  evidence  is 
really  of  far  less  value,  if  of  any  at  all,  in  regard  to  the  actual  striking  than 
in  regard  to  the  events  leading  up  to  it,  for  at  the  time  of  the  blow  their 
attention  was  being  given  less  to  the  participants  in  the  quarrel  than  to 
something  else.  Their  ideas  are  in  truth  very  hazy  as  to  the  latter  part  of  the 
transaction.  However,  they  become  witnesses,  pronouncing  themselves  ready 
to  swear  that  they  saw  the  blow  struck,  which  is  perhaps  the  fact.  Their 
evidence  is  practically  of  no  value  on  the  question  of  justification  or  self- 
defense.  But  finding,  on  being  examined,  that  their  testimony  is  wanted 
principally  on  that  aspect  of  the  case,  they  naturally  tell  their  entire  story 
as  if  they  were  as  clear  in  their  own  minds  upon  one  part  of  it  as  another. 
Being  able  to  give  details  as  to  the  earlier  aspect  of  the  quarrel,  they  feel 
obliged  to  be  equally  definite  as  to  all  of  it.  If  they  have  an  idea  that  the 
striking  was  without  excuse,  they  gradually  imagine  details  to  fit  their 
point  of  view.  This  is  done  quite  unconsciously.  Before  long  they  are  as 
glib  with  their  description  of  the  assault  as  they  are  about  the  game  of  cards. 
They  get  hazy  on  what  occurred  before,  and  overwhelmingly  positive  as  to 
what  occurred  towards  and  at  the  last,  and  on  the  witness  stand  swear  con- 
vincingly that  they  saw  the  defendant  strike  the  complainant,  exactly  how 
he  did  it,  the  words  he  said,  and  that  the  complainant  made  no  offer  of 
any  sort  to  strike  the  defendant.  From  allowing  their  minds  to  dwell  on 
their  own  conception  of  what  must  have  occurred,  they  are  soon  convinced 
that  it  did  occur  in  that  way,  and  their  account  flows  forth  with  a  circum- 
stantiality that  carries  with  it  an  irresistible  impression  of  veracity. 

The  witness  remembers  in  a  large  proportion  of  cases  what  he  wants  t-o 
remember,  or  believes  occurred.  The  liar  with  his  prepared  lie  is  far  less 
dangerous  than  the  honest,  but  mistaken  witness,  or  the  witness  who  draws 
inadvertently  upon  his  imagination.  Most  juries  instinctively  know  a  liar 
when  they  see  and  hear  one,  but  few  of  them  can  determine  in  the  case  of  an 
honestly  intentioned  witness  how  much  of  his  evidence  should  be  discarded 
as  unreliable,  and  how  much  accepted  as  true. 

The  greatest  difficulty  in  the  trial  of  jury  cases  so  far  as  the  evidence  is 
concerned  lies  in  the  fallibility  of  the  human  mind,  and  not  in  the  inventive 
genius  of  the  devil.  An  old  man  who  combines  a  venerable  appearance  with 
a  failing  memory  is  the  witness  most  to  be  feared  by  either  side. 

Both  men  and  women  habitually  testify  to  facts  as  actually  occurring  on 
a  specific  occasion  because  they  occurred  on  most  occasions :  Q.  "Did  your 
husband  lock  the  door?"  A.  "Of  course  he  did."  Q.  "How  do  you 
know?"     A.  "He  a/H'a?/5  locks  the  door." 

Witness  after  witness  will  take  the  stand  and  testify  positively  that  certain 
events  took  place,  or  certain  acts  were  done,  when  in  point  of  fact  all  they 
can  really  swear  to  is  that  they  usually  took  place  or  usually  were  done : 
Q.  " Did  he  put  on  his  hat  ? "  A.  "Certainly  he  did."  Q.  "Did  you  see 
him  ?"     A.    "  No,  but  he  must  have  put  on  his  hat  if  he  went  out." 

And  the  probability  is  that  the  whole  question  to  be  determined  was 
whether  or  not  "  he"  did  go  out  or  stay  in. 

The  layman  chancing  to  listen  to  a  criminal  trial  finds  himself  gasping  with 


4S4  PART    11.      TESTIMONIAL    EVIDENCE  No.  241. 

astonishnu-nt  at  the  ddu^a'  of  minute  facts  which  pour  from  the  witnesses' 
mouths  in  regard  to  the  happenings  of  some  particular  day  a  year  or  so 
before.  He  knows  that  it  is  humanly  impossible  actually  to  remember  any 
such  facts,  e\en  had  thc\-  occurred  the  day  before  yesterday.  He  may 
ask  himself  what  he  did  that  very  morning  and  be  unable  to  give  any  satis- 
factory reply.  And  yet  the  jury  belie\e  this  testimony,  and  because  the 
witness  swears  to  it  it  goes  upon  the  record  as  evidence  of  actual  knowledge. 
In  ninety-nine  cases  out  of  a  hundred,  counsel's  only  recourse  is  to  argue 
to  the  jury  that  such  a  memory  is  impossible.  But  in  the  same  proportion 
of  cases  the  jury  will  take  the  oath  of  the  witness  against  the  lawyer's 
reasoning  and  their  own  common  sense.  This  is  because  of  the  fictitious  value 
given  to  the  witness's  oath  by  talesmen  w^ho  attach  little  significance  to 
their  own.  "He  swears  to  it,"  says  the  juryman,  rubbing  his  forehead. 
"  Well,  he  must  remember  it  or  he  wouldn't  swear  to  it !"  And  the  witness 
probably  thinks  he  dues  remember  it.    .    .    . 


SUBTITLE    C:    NARRATION 

244.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)'  The 
third  element  forming  an  essential  part  of  all  testimony  {ante,  No.  163)  is 
the  process  of  laying  before  the  tribunal  the  witness's  results  of  his  Obser- 
vation or  Perception,  and  his  Recollection,  i.e.  the  process  of  Narration  or 
Communication.  In  this  element,  as  in  the  other  two,  there  are  many 
opportunities  for  defects  fatal  to  testimonial  trustworthiness.  As  with  the 
elements  of  Perception  and  of  Recollection,  so  here  also,  experience  has 
shown  that  certain  dangers  are  to  be  looked  for,  and  that  certain  restric- 
tions .should  be  imposed  in  order  to  prevent  them.  What  these  dangers 
and  defects  are  depends  upon  the  specific  virtue  wiiich  this  element  of  Nar- 
ration or  Communication  ought  to  possess. 

Its  office  is  to  make  intelligible  to  the  tribunal  the  knowledge  and  recollec- 
tion of  the  witness,  whatever  that  may  amount  to,  affirmative  or  negative, 
useful  or  trivial.  Its  prime  and  essential  virtue,  then,  consists  in  accurafely 
Tf producing  and  expressing  the  actual  and  sincere  Recollection.  Assuming 
that  the  witness's  Recollection  fairly  represents  and  corresponds  to  his 
Perception  ;  then,  if  his  Narration  or  Communication  fairly  represents  and 
corresponds  to  his  Recollection,  and  is  intelligil)le  by  the  tribunal,  the  ele- 
ments of  testimonial  value  are  complete  ;  l)ut  not  otherwise.  So  far  as  the 
statement  is  found  plainly  or  probal)ly  lacking  in  either  of  these  respects, 
namely,  in  correspondence  to  recollected  knowledge  or  in  intelligibility,  then 
its  value  diminishes  accordingly.  Most  of  the  usual  defects  occur  in  the 
former  respect,  i.e.  an  absence,  actual  or  probable,  of  this  correspondence 
between  the  witness's  uttered  statement  and  his  conscious  recollection  which 
heought  tobestating.  In  the  other  respect,  i.e.  intelligibility  to  the  tribunal 
of  the  witness's  utterance,  comparatively  few  questions  arise. 

The  simplest  form  of  testimonial  statement  (from  which  others  may  be 
conceived  of  as  deviations)  is  an  (1)  uniiiternii)te(l  narrative  (2)  expressed  in 
words  (3)  uttered  orally  (4)  and  intelligible  directly  l)y  the  tribunal.     In 

'  [.Ad.-ii.tfMl  from  tlic  sanif  author'.s  Treatise  on  Evidence.     (1905.     Vol.  I,  §  7G6.)] 


No.  245.  II.      TESTIMONIAL    PROCESS.      C.    NARRATION  485 

any  one  of  these  features,  there  may  be  a  variation  from  this  simple  and 
natural  type  ;  the  inquiry  therefore  concerns  not  only  the  inherent  dangers 
of  this  simplest  form,  hut  also  the  added  ones  introduced  by  a  variance  in  one 
or  another  of  the  four  respects.  That  is  to  say,  testimony  may  be  (1)  fur- 
nished upon  systematic  inicrwr/afious,  and  not  as  a  spontaneous  utterance  ;  or 
(2)  it  may  be  non-verbal,  i.e.  expressed  dramatically,  in  conduct  or  gestures  ; 
or  (3)  it  may  be  furnished  in  ivriting,  not  orally ;  or,  finally,  (4)  its  language 
may  require  interpretation,  before  it  becomes  intelligible  to  the  tribunal. 

Topic  1.     Language  and  Demeanor  as  a  Means  of  Expression 

245.  William  James.  The  Principles  of  Psychology.  (1889.  Vol.  I,  pp.  37, 
53.)  .  .  .  One  of  the  most  instructive  proofs  of  motor  localization  in  the  cortex 
is  that  furnished  by  the  disease  now  called  aphemia,  or  motor  aphasia.  Motor 
aphasia  is  neither  loss  of  voice  nor  paralysis  of  the  tongue  or  lips.  The 
patient's  voice  is  as  strong  as  ever,  and  all  the  innervations  of  his  hypoglossal 
and  facial  nerves,  except  those  necessary  for  speaking,  may  go  on  perfectly 
well.  He  can  laugh  and  cry,  and  even  sing  ;  but  he  either  is  unable  to  utter 
any  words  at  all ;  or  a  few  meaningless  stock  phrases  form  his  only  speech ; 
or  else  he  speaks  incoherently  and  confusedly,  mispronouncing,  misplacing, 
and  misusing  his  words  in  various  degrees.  Sometimes  his  speech  is  a  mere 
broth  of  unintelligible  syllables.  In  cases  of  pure  motor  aphasia  the  patient 
recognizes  his  mistakes  and  suffers  acutely  from  them.  Now  whenever  a 
patient  dies  in  such  a  condition  as  this,  and  an  examination  of  his  brain  is 
permitted,  it  is  found  that  the  lowest  frontal  gyrus  is  the  seat  of  injury. 
Broca  first  noticed  this  fact  in  1861  and  since  then  the  gyrus  has  gone  by  the 
name  of  Broca's  convolution.  The  injury  in  right-handed  people  is  found 
on  the  left  hemisphere,  and  in  left-handed  people  on  the  right  hemisphere. 
Most  people,  in  fact,  are  left-brained,  that  is,  all  their  delicate  and  specialized 
movements  are  handed  over  to  the  charge  of  the  left  hemisphere.  The 
ordinary  right-handedness  for  such  movements  is  only  a  consequence  of  that 
fact,  a  consequence  which  shows  outwardly  on  account  of  that  extensive 
decussation  of  the  fibers  whereby  most  of  those  from  the  left  hemisphere  pass 
to  the  right  half  of  the  body  only.  But  the  left-brainedness  might  exist  in 
equal  measure  and  not  show  outwardly.  This  would  happen  wherever 
organs  on  both  sides  of  the  body  could  be  governed  by  the  left  hemisphere ; 
and  just  such  a  case  seems  offered  by  the  vocal  organs,  in  that  highly  delicate 
and  special  motor  service  which  we  call  speech.  Either  hemisphere  can 
innervate  them  bilaterally,  just  as  either  seems  able  to  innervate  bilater- 
ally the  muscles  of  the  trunk,  ribs,  and  diaphragm.  Of  the  special  move- 
ments of  speech,  however,  it  would  appear  (from  the  facts  of  aphasia)  that 
the  left  hemisphere  in  most  persons  habitually  takes  exclusive  charge.  With 
that  hemisphere  thrown  out  of  gear,  speech  is  undone ;  even  though  the 
opposite  hemisphere  still  be  there  for  the  performance  of  less  specialized 
acts,  such  as  the  various  movements  required  in  eating.  .  .  . 

In  man  the  temporal  lobe  is  imquestionably  the  seat  of  the  hearing  func- 
tion, and  the  superior  convolution  adjacent  to  the  sylvian  fissure  is  its  most 
important  part.  The  phenomena  of  aphasia  show  this.  We  studied 
motor  aphasia  a  few  pages  back ;  we  must  now  consider  sensory  aphasia. 
Our  knowledge  of  this  disease  has  had  three  stages :    we  may  talk  of  the 


4S0  PART    II.       TESTIMONIAL   EVIDENCE  No.  245. 

period  of  Broca,  the  period  of  Wernicke,  and  the  period  of  Charcot.  What 
Broca's  discovery  was  we  have  seen.  Wernicke  was  the  first  to  discriminate 
those  cases  in  whicli  the  patient  cannot  even  understand  speech  from  those  in 
which  he  can  understand,  only  not  talk ;  and  to  ascribe  the  former  condition 
to  lesion  of  the  temporal  lobe.  The  condition  in  question  is  word  deafness, 
and  the  disease  is  auditor)/  aphasia.  The  latest  statistical  survey  of  the 
subject  is  that  by  Dr.  Allen  Starr.  In  the  seven  cases  of  pure  word  deafness 
which  he  has  collected,  cases  in  which  the  patient  could  read,  talk,  and  write, 
but  not  understand  what  was  said  to  him,  the  lesion  was  limited  to  the  first 
and  second  temporal  convolutions  in  their  posterior  two  thirds.  The  lesion 
(in  right-handed,  i.e.  left-brained,  persons)  is  always  on  the  left  side,  like 
the  lesion  in  motor  aphasia.  Crude  hearing  would  not  be  abolished,  even 
were  the  left  center  for  it  utterly  destroyed  ;  the  right  center  w'ould  still 
provide  for  that.  But  the  linguistic  use  of  hearing  appears  bound  up  with 
the  integrity  of  the  left  center  more  or  less  exclusively.  Here  it  must  be 
that  worfls  heard  enter  into  association  w^ith  the  things  which  they  represent, 
on  the  one  hand,  and  with  the  movements  necessary  for  pronouncing  them, 
on  the  other.  In  a  large  majority  of  Dr.  Starr's  fifty  cases,  the  power  either 
to  name  objects  or  to  talk  coherently  was  impaired.  This  shows  that  in 
most  of  us  (as  Wernicke  said)  speech  mustgo  on  from  auditor}'  cues  ;  that  is, 
it  must  be  that  our  ideas  do  not  innervate  our  motor  centers  directly,  but 
only  after  first  arousing  the  mental  sound  of  the  words.  This  is  the  im- 
mediate stimulus  to  articulation  ;  and  where  the  possibility  of  this  is  abolished 
by  the  destruction  of  its  usual  channel  in  the  left  temporal  lobe,  the  articu- 
lation must  suffer.   .   .   . 

It  is  the  minuter  analysis  of  the  facts  in  the  light  of  such  individual  dif- 
ferences as  these  which  consitute  Charcot's  contribution  towards  clearing 
up  the  subject.  Every  namable  thing,  act,  or  relation  has  numerous  proper- 
ties, qualities,  or  aspects.  In  our  minds  the  properties  of  each  thing,  to- 
gether with  its  name,  form  an  associated  group.  If  different  parts  of  the 
brain  are  severally  concerned  with  the  several  properties,  and  a  farther 
part  with  the  hearing,  and  still  another  with  the  uttering,  of  the  name, 
there  must  inevitably  be  brought  about  (through  the  law  of  association 
which  we  shall  later  study)  such  a  dynamic  connection  amongst  all  these 
brain  parts  that  the  activity  of  any  one  of  them  will  be  likely  to  awaken  the 
activity  of  all  the  rest.  When  we  are  talking  as  we  think,  the  ultimate 
process  is  that  of  utterance.  If  the  brain  part  for  that  be  injured,  speech  is 
impossible  or  disorderly,  even  though  all  the  other  brain  parts  be  intact : 
an<l  this  is  just  the  condition  of  things  which  we  found  to  bo  brought  about 
by  limited  lesion  of  the  left  inferior  frontal  convolution.  But  back  of  that 
last  act  various  orders  of  succession  are  possible  in  the  associations  of  a 
talking  man's  ideas.  The  more  usual  order  seems  to  be  from  the  tactile, 
visual,  or  other  properties  of  the  things  thought  about  to  the  sound  of  their 
names,  and  then  to  the  hitter's  utterance.  But  if  in  a  certain  individual 
the  thought  of  the  look  of  an  object  or  of  the  look  of  its  printed  name  be  the 
process  which  habitually  precedes  articulation,  then  the  loss  of  the  hearing 
center  will  pro  tanto  not  affect  that  individual's  speech.  He  will  be  men- 
tally deaf,  i.e.  liis  understanding  of  speech  will  suifer,  but  he  will  not  be 
aphasic.  In  this  way  it  is  possible  to  explain  the  seven  cases  of  pure  word 
deafness  which  figure  in  Dr.  Starr's  table.  .  .  . 


No    216.  II.      TESTIMONIAL    PROCESS.       C.    NARRATION  487 

Thus,  there  in  no  "  center  of  Speech  "  in  the  brain  any  more  than  there  is 
a  faculty  of  Speech  in  the  mind.  The  entire  brain,  more  or  less,  is 
at  work  in  a  man  who  uses  language. 


246.  Wm.  D.  Whitney.  Oriental  and  Linguistic  Studies  (1873.  p.  353) ; 
and  Language  and  the  Study  of  Language  (1869.  pp.  405,  102).  .  .  .  That  men 
have  willed  language,  as  language,  into  existence,  or,  in  its  production,  have 
labored  consciously  for  the  enrichment  of  their,  mental  working,  we  do 
not  believe.  The  first  man  who,  on  being  attacked  by  a  wolf,  seized  a  club 
or  a  stone  and  with  it  crushed  his  adversary's  head,  was  not  conscious  that 
he  was  commencing  a  series  of  acts  which  would  lead  finally  to  rifles  and 
engine,  would  make  man  the  master  (comparatively  speaking)  instead 
of  the  slave  of  nature,  would  call  out  and  train  some  of  his  noblest  powers, 
and  be  an  essential  element  in  his  advancement  to  culture.  He  knew  nothing 
either  of  the  laws  of  association  and  the  creative  forces  in  his  own  mind 
that  prompted  the  act,  or  of  the  laws  of  matter  which  made  the  weapon 
accomplish  what  his  fist  alone  could  not.  The  psychologist  and  the  physicist, 
between  them,  can  trace  out  now  and  state  with  exactness  those  laws  and 
forces ;  can  formulate  the  perceptions  and  apperceptions  and  reflex  actions 
on  the  one  hand  ;  can  put  in  terms  of  a  and  b  and  x  and  y  the  additional 
power  conferred,  on  the  other  hand  ;  and  can  even  maintain,  as  we  infer, 
that  those  laws  and  forces  and  formulas  produced  the  man's  act ;  while  all 
that  he  himself  knew  was  that  he  was  defending  himself  in  a  sudden  emer- 
gency. ... 

Our  view  of  the  history  of  origination  and  development  of  language 
is  closely  akin  with  what  we  have  just  laid  down  respecting  that  of  mechan- 
ical invention.  Men  have  not,  in  truth,  produced  language  reflectively,  or 
even  with  consciousness  of  what  they  were  doing ;  they  do  not,  in  general, 
even  so  use  it  after  it  is  produced.  The  great  majority  of  the  human  race 
have  no  more  idea  that  they  are  in  the  habit  of  "using  language"  than 
M.  Jourdain  had  that  he  "spoke  prose";  all  they  know  is  that  they  can 
and  do  talk.  That  is  to  say,  language  exists  to  them  for  the  purpose  of 
communication  simply ;  of  its  value  to  the  operations  of  their  own  minds, 
of  its  importance  as  an  element  in  human  culture,  of  its  wonderful  intricacy 
and  regularity  of  structure,  nay,  even  of  the  distinction  of  the  parts  of 
speech,  they  have  not  so  much  as  a  faint  conception,  and  would  stare  in 
stupid  astonishment  if  you  set  it  forth  to  them. 

And  we  claim  that  all  the  other  uses  and  values  of  language  come  as 
unforeseen  consequences  of  its  use  as  a  means  of  communication.  The  desire 
of  communication  is  a  real  living  force,  to  the  impelling  action  of  which 
every  human  being,  in  every  stage  of  culture,  is  accessible  ;  and,  so  far  as  we 
can  see,  it  is  the  only  force  that  was  equal  to  initiating  the  process  of  language 
making,  as  it  is  also  the  one  that  has  kept  up  the  process  to  the  present  time. 
It  works  both  consciously  and  unconsciously ;  consciously,  as  regards  the 
immediate  end  to  be  attained ;  unconsciously,  as  regards  the  further  con- 
sequences of  the  act.  When  two  men  of  different  speech  meet,  they  fall  to 
trying  simply  to  understand  one  another ;  so  far  as  this  goes,  they  know  well 
enough  what  they  are  about ;  that  they  are  thus  making  language  they  do 
not  know  ;  that  is  to  say,  they  do  not  think  of  it  in  that  light.     The  man  who 


4SS  PART    II.      TESTIMONIAL   EVIDENCE  No.  210. 

beckons  to  his  friend  across  a  crowded  room,  or  coughs,  or  hems  to  attract 
his  attention,  connnits,  consciously  and  yet  unconsciously,  a  rude  and 
rudimentary  act  of  lanjiuage  making  —  one  analogous  doubtless  with  innu- 
merable acts  that  preceded  the  successful  initiation  of  the  spoken  speech  which 
we  have.  Xo  one  consciously  makes  language,  save  he  who  uses  it  most 
reflectively.  .  .  .  And  so  men  ha\e  gone  on  from  the  beginning,  always 
finding  a  sign  for  tlie  ne.xt  idea,  stereotyping  the  conception  l)y  a  word,  and 
working  with  it  till  the  call  for  another  came ;  and  the  result,  at  any  stage 
of  the  process,  is  the  language  of  that  stage.  .  .  . 

Language,  then,  is  the  spoken  means  whereby  thought  is  communicated, 
and  it  is  only  that.  Language  is  not  thought,  nor  is  thought  language;  nor 
is  there  a  mysterious  and  indissoluble  connection  between  the  two,  as  there 
is  between  soul  and  body,  so  that  the  one  cannot  exist  and  manifest  itself 
without  the  other.  There  can  hardly  be  a  greater  and  more  pernicious 
error,  in  linguistics  or  in  metaphysics,  than  the  doctrine  that  language  and 
thought  are  identical.  It  is,  unfortunately,  an  error  often  committed,  both 
by  linguists  and  by  metaphysicians.  "Man  speaks  because  he  thinks" 
is  the  dictum  out  of  which  more  than  one  scholar  has  proceeded  to  develop 
his  system  of  linguistic  philosophy.  .  .  . 

That  thought  and  speech  are  not  the  same  is  a  direct  and  necessary  infer- 
ence, I  believe,  from  more  than  one  of  the  truths  respecting  language 
which  our  discussions  have  already  established ;  but  the  high  importance 
attaching  to  a  right  understanding  of  the  point  will  justify  us  in  a  brief  re- 
view of  those  truths  in  their  application  to  it.  In  the  first  place,  we  have 
often  had  our  attention  directed  to  the  imperfection  of  language  as  a  full 
representation  of  tliought.  Words  and  phrases  are  but  the  skeleton  of 
expression,  hints  of  meaning,  light  touches  of  a  skillful  sketcher's  pencil, 
to  which  the  appreciative  sense  and  sympathetic  mind  must  supply  the 
filling  up  and  coloring.  Our  own  mental  acts  and  states  we  can  review  in 
our  consciousness  in  minute  detail,  but  we  can  never  perfectly  disclose  them 
to  another  by  speech ;  nor  will  words  alone,  with  whatever  sincerity  and 
candor  they  may  be  uttered,  put  us  in  possession  of  another's  consciousness. 
In  anything  but  the  most  objective  scientific  description,  or  the  driest 
reasoning  on  subjects  the  most  plain  and  obvious,  we  want  more  or  less 
knowledge  of  the  individuality  of  the  speaker  or  writer,  ere  we  can  under- 
stand him  intimately ;  his  style  of  thought  and  sentiment  must  be  gathered 
from  the  totality  of  our  intercourse  with  him,  to  make  us  sure  that  we 
penetrate  to  the  central  meaning  of  any  word  he  utters ;  and  such  study 
may  enable  us  to  find  deeper  and  deeper  significance  in  expressions  that 
once  seemed  trivial  or  commonplace.  A  look  or  tone  often  sheds  more 
light  upon  character  or  intent  than  a  flood  of  words  could  do.  Humor, 
banter,  irony  are  illustrations  of  what  tone,  or  style,  or  perceived  incon- 
gruity can  accomplish  in  the  way  of  impressing  upon  words  a  difterent  mean- 
ing from  that  which  they  of  themselves  would  wear. 

That  language  is  impotent  to  express  our  feelings,  though  often,  perhaps, 
plearlcd  as  a  form  merely,  is  also  a  frequent  genuine  experience.  Nor  is  it 
for  our  feelings  alone  that  the  ordinary  conventional  phrases,  weakened 
in  their  force  by  insincere  and  hyperbolical  use,  are  found  in.suflficient : 
apprehensions,  dislinctions,  opinions,  of  every  kind,  elude  our  efforts  at 
description,  definition,  intimation.     How  often  must  we  labor,  by  painful 


No.  247.  II.      TESTIMONIAL    PROCESS.       C.    NARRATION  489 

circumlocution,  by  gradual  approach  and  limitation,  to  place  before  the 
minds  of  others  a  conception  which  is  clearly  present  to  our  own  conscious- 
ness !  How  often,  when  we  have  the  expression  nearly  complete,  we  miss  a 
single  word  that  we  need,  and  must  search  for  it,  in  our  memories  or  our 
dictionaries,  perhaps  not  finding  it  in  either  !  How  different  is  the  capacity 
of  ready  and  distinct  expression  in  men  whose  power  of  thought  is  not  un- 
like !  .  .  .  How  often  we  understand  what  one  says  better  than  he  him- 
self says  it,  and  correct  his  expression,  to  his  own  gratification  and  accep- 
tance. And  if  all  the  resources  of  expression  are  not  equally  at  the  command 
of  all  men  of  equal  mental  force  and  training,  so  neither  are  they,  at  their 
best,  adequate  to  the  wealth  of  conception  of  him  who  wields  them  ;  that  would 
be  but  a  poorly  stored  and  infertile  mind  which  did  not  sometimes  feel 
the  limited  capacity  of  language,  and  long  for  fuller  means  of  expression.  .  .  . 

Moreover,  there  is  no  internal  and  necessary  connection  between  a  word 
and  the  idea  designated  by  it,  no  tie  save  a  mental  association  binds  the 
two  together.  Conventional  usage,  the  mutual  understanding  of  speakers 
and  hearers,  allots  to  each  vocable  its  significance,  and  the  same  authority 
which  makes  is  able  to  change,  and  to  change  as  it  will,  in  whatever  w^ay, 
and  to  whatever  extent.  .  .  . 

Hence  the  impossibility  that  one  should  ever  apprehend  with  absolute 
truth  what  another,  even  with  t;he  nicest  use  of  language,  endeavors  to 
communicate  to  him.  This  incapacity  of  speech  to  reveal  all  that  the  mind 
contains  meets  us  at  every  point.  The  soul  of  each  man  is  a  mystery  which 
no  other  man  can  fathom  :  the  most  perfect  system  of  signs,  the  most 
richly  developed  language,  leads  only  to  a  partial  comprehension,  a  mutual 
intelligence,  whose  degree  of  completeness  depends  upon  the  nature  of  the 
subject  treated,  and  the  acquaintance  of  the  hearer  w4th  the  mental  and 
moral  character  of  the  speaker. 

247.  \Vm.  C.  Robinson.  Forensic  Oratory,  a  Manual  for  Advocates.  (1893. 
p.  126.)  .  .  .  The  oral  testimony  of  a  prepossessing  witness,  if  skillfully 
arranged  and  agreeably  and  forcibly  delivered,  is  itself  a  true  oration.  It 
conciliates  the  hearer  toward  the  witness,  and  also  toward  the  cause  for 
which  his  evidence  is  given.  It  produces  faith  in  the  correctness  of  his 
assertions,  and  awakens  sympathy  with  him  in  his  apparent  interest  in  those 
who  call  him.  It  engenders  a  conviction  that  the  party  for  whom  he  ap- 
pears is  in  the  right,  and  a  disposition  to  express  this  conviction  by  a  favor- 
able verdict.  It  often  has  more  influence  than  the  utterances  of  the  advo- 
cate himself,  since  no  suspicion  that  he  acts  a  part  attaches  to  a  witness, 
and  his  disinterestedness,  if  not  established,  is  generally  presumed.  .  .  .  The 
reliability  of  a  witness  as  a  source  of  knowledge  is  also  measured  by  his 
power  of  expressing  accurately  and  intelligibly  the  ideas  which  he  has  received 
and  still  retains.  The  real  evidence  —  that  which  convinces  —  is  the  idea 
conveyed  by  the  words  of  the  witness  to  the  mind  of  the  jury,  and  whether 
this  idea  corresponds  with  the  facts  as  they  actually  occurred  depends  no 
less  on  the  propriety  of  the  language  in  which  they  are  expressed  than  on  the 
fullness  and  precision  with  which  they  were  observed  and  remembered. 
Faults  of  expression  in  the  witness  thus  become  faults  of  opinion  in  the  jury, 
and  scarcely  less  prejudicial  to  the  interests  of  the  cause  than  the  utterances 
of  ignorance  or  falsehood. 


490  PART    II.      TESTIMONIAL   EVIDEXCE  No.  248. 

Among  uncultivated  persons  habitual  errors  of  expression  are  not  un- 
common. They  use  words  in  an  improper  or  provincial  sense.  They 
employ  exaggerating  epithets  and  adjectives.  They  describe  objects,  not 
by  delineating  their  characteristic  features,  but  in  fragmentary  outlines, 
or  by  portraying  their  most  universal  indistinctive  attributes.  They 
reproduce  events,  not  in  their  proper  order  and  relations,  but  with  whatever 
sequence  and  connection  the  inspiration  of  the  moment  may  direct.  They 
do  not  lead,  but  mislead,  the  deductions  of  their  hearers,  with  the  best 
intentions  and  sufficient  knowledge  unwittingly  producing  false  impressions 
on  the  minds  of  those  whose  mistake  originates  in  the  assumption  that  the 
words  are  spoken  in  the  same  sense  in  which  they  are  understood. 

248.  Hans  Gross.  Criminal  Pfiiichologii.  (transl.  Kallen.  1911.  §59, 
p.  287.)  Thf  Forms  of  Girincj  Testimony.  Wherever  we  turn  we  face  the 
absolute  importance  of  language  for  our  work.  Whatever  we  hear  or  read 
concerning  a  crime  is  expressed  in  words,  and  everything  perceived  with  the 
eye,  or  any  other  sense,  must  be  clothed  in  words  before  it  can  be  put  to  use. 
.  .  .  Yet,  who  needs  this  knowledge  ?  The  lawyer.  Other  disciplines  can  find 
in  it  only  a  scientific  interest,  but  it  is  practically  and  absolutely  valuable  only 
for  us  lawyers,  who  must,  by  means  of  language,  take  evidence,  remember  it, 
and  variously  interpret  it.  A  failure  in  a  proper  understanding  of  language 
may  give  rise  to  false  conceptions  and  the  most  serious  of  mistakes.  Hence, 
nobody  is  so  bound  as  the  criminal  lawyer  to  study  the  general  character  of 
language,  and  to  familiarize  himself  with  its  force,  nature,  and  development. 
Without  this  knowledge  the  lawyer  may  be  able  to  make  use  of  language, 
but,  failing  to  understand  it,  will  slip  up  before  the  slightest  difficulty.   .... 

(r/)  Varirti)  in  Forms  of  Expression.  Men  being  different  in  nature  and 
bringing-up  on  the  one  hand,  and  language,  being  on  the  other,  a  living  organ- 
ism which  varies  with  its  soil,  i.e.  with  the  human  individual  who  makes  use 
of  it,  it  is  inevitable  that  each  man  should  haveespecial  and  private  forms  of 
expression.  These  forms,  if  the  man  comes  before  us  as  witness  or  prisoner, 
we  must  study,  each  by  itself.  Fortunately,  this  study  must  be  combined 
with  another  that  it  implies,  i.e.  the  character  and  nature  of  the  individual. 
The  one  without  the  other  is  unthinkable.  Whoever  aims  to  study  a  man's 
character  must  first  of  all  attend  to  his  ways  of  expression,  inasmuch  as 
these  are  most  significant  of  a  man's  qualities,  and  most  illuminating.  .  .  . 

The  especial  use  of  certain  forms  is  incHvidual  as  well  as  social.  Every 
person  has  his  private  usage.  One  makes  use  of  "certainly,"  another  of 
"  yes,  indeed  ; "  one  prefers  "  dark,"  another  "  darkish.".  .  .  Even  when  it  is 
simple  to  bring  out  what  is  intended  by  an  expression,  it  is  still  quite  as 
simple  to  overlook  the  fact  that  people  use  peculiar  expressions  for  ordinary 
things.  .  .  .  Numerous  examples  may  develop  with  comparative  speed  in 
each  indivi(hud  speaker,  and,  if  the  development  is  not  traced,  may  lead,  in 
the  law  court,  to  very  serious  misunderstandings.  People  who  nowadays 
name  abstract  things,  conceive,  according  to  their  intelligence,  now  this 
an<l  now  that  phenomenon  by  means  of  it.  Then  they  wonder  at  the  other 
fellow's  not  understanding  them.   ... 

ih)  Conditions  Affrrting  the  Mode  of  Expression.  As  a  rule  it  must  be 
maintained  that  time,  even  a  little  time,  makes  an  essential  difference  in  the 
forrention  of  any  object.     Mittermaier,  and  indeed  Bentham,  have  shown 


No.  249.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  491 

what  an  influence  the  interval  between  observation  and  announcement  ex- 
ercises on  the  form  of  exposition.  The  witness  who  is  immediately  examined 
may,  perhaps,  say  the  same  thing  that  he  would  say  several  weeks  after  — 
but  his  presentation  is  different,  he  uses  different  words,  he  understands  by 
the  different  words  different  concepts,  and  so  his  testimony  becomes  altered. 

A  similar  eff'ect  may  be  brought  about  by  the  surrounding  circurmta7iccs 
under  which  the  evidence  is  given.  Every  one  of  us  knows  what  surprising 
differences  occur  between  the  statements  of  the  witness  made  in  the  silent 
office  of  the  examining  justice  and  his  secretary,  and  what  he  says  in  the 
open  trial  before  the  jury.  There  is  frequently  an  inclination  to  attack 
angrily  the  witnesses  who  make  such  divergent  statements.  Yet  more 
accurate  observation  would  show  that  the  testimony  is  essentially  the  same 
as  the  former,  but  that  the  manner  of  giving  it  is  different,  and  hence  the 
apparently  different  story.  The  difference  between  the  members  of  the 
audience  has  a  powerful  influence.  It  is  generally  true  that  reproductive 
construction  is  intensified  by  the  sight  of  a  larger  number  of  attentive 
hearers,  .  .  .  but  only  when  the  speaker  is  certain  of  his  subject  and  of  the 
favor  of  his  auditors.  .  .  .  The  interest  belongs  only  to  the  subject,  and 
the  speaker  himself  receives,  perhaps,  the  undivided  antipathy,  hatred, 
disgust,  or  scorn,  of  all  the  listeners.  Nevertheless,  attention  is  intense  and 
strained,  and  inasmuch  as  the  speaker  knows  that  this  does  not  pertain  to 
him  or  his  merits,  it  confuses  and  depresses  him.  It  is  for  this  reason  that 
so  many  criminal  trials  turn  out  quite  contrary  to  expectation.  Those  who 
have  seen  the  trial  only,  and  were  not  at  the  prior  examination,  understand 
the  result  still  less  when  they  are  told  that  "nothing  has  altered"  since  the 
prior  examination  —  and  yet  much  has  altered ;  the  witnesses,  excited  or 
frightened  by  the  crowd  of  listeners,  have  spoken  and  expressed  themselves 
otherwise  than  before,  until,  in  this  manner,  the  whole  case  has  become  diff'er- 
ent. 

In  a  similar  fashion,  some  fact  may  be  shown  in  another  light  by  the 
7nanner  of  narration  used  by  a  particular  witness.  Take,  as  example,  some 
energetically  influential  quality  like  humor.  It  is  self-evident  that  joke, 
witticism,  comedy,  are  excluded  from  the  court  room,  but  if  somebody  has 
actually  introduced  real,  genuine  humor  by  way  of  the  dry  form  of  his  testi- 
mony, without  having  crossed  in  a  single  word  the  permissible  limit,  he  may, 
not  rarely,  narrate  a  very  serious  story  so  as  to  reduce  its  dangerous  aspect 
to  a  minimum.  Frequently  the  testimony  of  some  funny  witness  makes 
the  rounds  of  all  the  newspapers  for  the  pleasure  of  their  readers.  Every- 
body knows  how  a  really  humorous  person  may  so  narrate  experiences, 
doubtful  situations  of  his  student  days,  unpleasant  traveling  experiences, 
difficult  positions  in  quarrels,  etc.,  that  every  listener  must  laugh.  At  the 
same  time,  the  events  told  of  were  troublesome,  difficult,  even  quite  danger- 
ous. The  narrator  does  not  in  the  least  lie,  but  he  manages  to  give  his  story 
the  twist  that  even  the  victim  of  the  situation  is  glad  to  laugh  at. 

249.  Arthur  C.  Train.  The  Prisoner  at  the  Bar.  (2ded.  1908.  p.  236.) 
The  final  question  to  be  determined  by  the  juror  in  regard  to  the  testimony 
of  any  witness  is  how  far  the  latter  has  succeeded  in  conveying  his  actual 
recollections  through  the  medium  of  speech  and  gesture.  This  necessarily 
depends  upon  a  variety  of  considerations.     Among  these  are  his  familiarity 


492  PART    II.      TESTIMONIAL   EVIDENCE  No.  210. 

with  the  EngUsh  hinguage ;  inadvertent  accentuation  of  wrong  words  or  of 
tlie  less  important  features  of  his  testimony ;  his  physical  condition,  which 
in  nine  cases  out  of  ten  is  one  of  extreme  nervousness  and  timidity,  if  not  of 
actual  fear;  and  a  hunih-ed  other  trifling,  but,  in  the  aggregate,  material 
matters. 

The  most  effective  testimony  is  that  which  is  given  with  what  the  jury 
regard  as  the  evidences  of  candor.  It  is  a  familiar  fact  that  the  surer  a 
person  is  of  anything,  particularly  among  the  laboring  classes,  the  more 
loudly  will  he  assert  its  truth.  This  is  so  well  known  to  the  jury  as  ordinarily 
constituted  that  unless  testimony  is  given  with  positiveness  it  might  as  well 
not  be  given  at  all.  Much  as  it  is  to  be  deprecated,  an  assertive  lie  is  of 
much  more  weight  with  a  jury  than  an  anemic  statement  of  the  truth.  The 
juror  imagines  himself  telling  the  story,  and  feels  that  if  he  were  doing  so 
and  his  testimony  were  true,  he  would  be  so  convincing  that  the  jury  could 
have  no  doubt  about  it  at  all.  Ofttimes  a  witness  leads  the  jury  to  suspect 
that  he  is  a  liar  simply  because  he  has  too  strong  a  sense  of  the  proprieties 
of  his  position  vehemently  to  resent  a  suggestion  of  untruthfulness.  The 
gentleman  who  mildly  replies  "That  is  not  so"  to  a  challenge  of  his  veracity, 
makes  far  less  impression  on  the  jury  than  the  coal  heaver  wdio  leans  forward 
and  shakes  his  fist  in  the  shyster's  face,  exclaiming :  "  If  ye  said  that  out- 
side, ye  little  spalpeen,  I'd  knock  yer  head  ofl."  "Ah,"  say  the  jury, 
"there's  a  man  for  you."  Just  as  your  puritan  is  at  a  disadvantage  in  an 
alehouse,  and  your  dandy  in  a  mob,  so  are  the  hypcrconscientious  and  the 
oversensitive  and  refined  before  a  jury.  The  most  effective  witness  is  he 
whom  the  general  run  of  jurors  can  understand,  who  speaks  their  own 
language,  feels  about  the  same  emotions,  and  is  not  so  morbidly  conscientious 
about  details  that  in  qualifying  testimony  he  finds  himself  entangled  and 
rendered  helpless  in  his  own  refinements.  A  distinguished  lawyer  testifying 
in  a  recent  case  was  so  careful  to  qualify  every  statement  and  refine  every 
bit  of  his  evidence  that  the  jurj^  took  the  word  of  a  perjured  loafer  and  a 
street-walker  in  preference.  This  kind  of  thing  happens  again  and  again, 
and  the  wily  witness  who  thinks  himself  clever  in  appearing  overdisin- 
terested  is  "hoist  by  his  own  petard."  The  jury  at  once  distrust  him. 
They  feel  either  that  he  is  making  it  all  up,  or  is  in  fact  not  sure  of  his  evi- 
dence, else,  they  argue,  he  would  be  more  positive  in  giving  it. 

Most  witnesses  in  the  general  run  of  criminal  cases  have  no  comprehension 
of  the  meaning  of  words  of  more  than  three  syllables.  It  is  hopeless  to  make 
use  of  even  such  modest  nieinl)ers  of  our  national  vocabulary  as  "preceding," 
".subsequent,"  "various,"  etc.  A  negro  when  asked  if  certain  shots  were 
"simultaneous"  replied:  "Yas,  boss.  Dat's  it !  'Zactly  simultaneous! 
One  rif/lif  after  de  odder." 

The  ordinary  witness  usually  says  "minutes"  when  he  means  "seconds." 
He  will  testify  without  hesitation  that  the  defendant  drew  liis  revolver  and 
immediately  shot  the  complainant,  illustrating  on  the  stand  the  rapidity 
of  the  movement.  When  asked  how  long  it  took,  he  will  answer:  "Oh, 
about  two  or  three  niiiuitcs." 

A  i)ropcr  Micdium  in  wliich  to  converse  l)etween  the  lawyer  and  W'itness  is 
sometimes  diflicult  to  find,  and  invariably  much  tact  is  required  in  handling 
witnesses  of  limited  education.  The  writer  remembers  one  witness  who  was 
Cfjiiipletely  disconcerted  by  the  use  of  the  word  "cravat,"  and  at  the  precise 


:;o.  2.M.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  493 

moment  the  attorney  was  so  confused  as  not  to  be  able  to  remember  any 
synonym.  The  Tenderloin  and  the  Bowery  have  a  vocabulary  of  their  own 
differing  somewhat  from  that  of  beggars  and  professional  criminals.  The 
language  of  the  ordinary  policeman  is  a  polyglot  of  all  three.  Popular  writers 
on  the  "powers  that  prey,"  and  dabblers  in  criminology  in  general,  are  apt 
to  become  the  victims  of  self-alleged  "ex-convicts"  and  "criminals"  w^ho 
are  anxious  to  sell  unreliable  information  for  honest  liquor.  A  large  part  of 
the  lingo  in  realistic  treatises  on  prison  life  and  "life  among  the  burglars," 
originates  in  the  doped  imagination  of  whatever  fanciful  "reformed"  thief 
happens  to  be  the  personal  gold  mine  of  that  particular  author.  Thieves, 
like  any  distinct  class,  make  use  of  slang,  some  of  which  is  peculiar  to  them 
alone.  But  for  the  most  part  the  "  tough"  elements  in  the  community  make 
themselves  easily  understood  either  in  the  office  or  on  the  witness  stand. 

Where  the  witness  speaks  a  foreign  language,  the  task  of  discovering  ex- 
actly what  he  knows,  or  even  what  he  actually  says,  is  herculean.  In  the 
first  place  interpreters,  as  a  rule,  give  the  substance  —  as  they  understand 
it  —  of  the  witness's  testimony  rather  than  his  exact  words.  It  is  also 
practically  impossible  to  cross-examine  through  an  interpreter,  for  the  whole 
psychological  significance  of  the  answer  is  destroyed,  ample  opportunity 
being  given  for  the  witness  to  collect  his  wits  and  carefully  to  frame  his 
reply.  One  could  cross-examine  a  deaf  mute  by  means  of  the  finger  alpha- 
bet about  as  effectively  as  an  Italian  through  a  court  interpreter,  who  prob- 
ably  speaks    (defectively)    seventeen   languages. 


250.  G.  L.  DuPRAT.  Le  Mcnsongc:  fiude  dc  psychosociologie.  (1909. 
2d  ed.  pp.  15,  120.)  Kinds  of  Lies.  Some  liars  add  to  a  true  statement  by 
adorning  facts,  by  giving  to  people,  acts,  or  things  non-existent  qualities  ;  or 
by  exaggerating  the  extent,  value,  etc.,  of  a  fact  or  a  relation;  or  by  inventing 
new  facts.  They  are  like  the  artists,  who  sometimes  simplify  or  "purify" 
nature,  idealizing  it  while  preserving  its  essentials,  but  also  sometimes  enrich 
the  data  of  experience  l)y  combining  them  in  a  new  order  to  make  new  forms. 
Thus  there  are  lies  (1)  of  attribution,  (2)  of  addition,  (3)  of  exaggeration, 
(4)  of  recombination,  (5)  of  pure  fiction.  Lies  applying  to  personal  qualities 
or  acts  include  slander,  false  prosecution,  false  witnessing.  Lies  applying 
to  external  facts  include  false  representations,  fraud  in  general,  and  (when 
a  prior  oath  to  deal  honestly  has  been  taken)  disloyalty.  They  thus  pass 
beyond  mere  expressions  of  the  speaker's  own  thought  and  include  state- 
ments of  external  fact,  and  it  is  not  possible  to  draw  a  boundary  between 
false  testimony  and  fraud.  There  is  an  intermediate  type,  simulation,  in 
which  a  mendacious  assertion  combines  with  false  conduct  adapted  to  give 
it  credence.   .  .  . 

But  the  lie  of  dissimulation  must  also  be  included,  —  the  lie  by  suppressing 
facts,  even  without  express  negation  in  words  or  conduct.  The  false  witness, 
by  his  words  or  by  his  silence,  may  deny  the  existence  of  a  fact ;  the  false 
historian  may  deny  the  existence  of  persons  or  events  which  would  embarrass 
his  proof  of  the  view  to  which  he  is  committed  ; .  .  .  the  smuggler  is  typically 
a  dissimulator,  who  conceals  a  part  of  the  truth.  Dissimulation,  in  short,  is 
a  negative  or  inhibitiye  suggestion,  in  contrast  to  simulation  or  lie  in  the 
ordinary  sense,  which  is  a  positive  suggestion. 


494 


PART   II.      TESTIMONIAL   EVIDENCE 


No.  250. 


The  two  extreme  types  of  lie  are  therefore  the  positive,  which  creates  a 
complete  fiction,  interpolated  by  imagination  in  the  world  of  reality,  and 
the  lugaiiir,  which  removes  from  outward  expression  whatever  might  furnish 
a  clew  to  the  truth.  Between  these  two  extremes  may  be  arranged  the  other 
types,  in  the  order  of  their  affinities  ;  thus  : 

Classification  of  Lies  {or,  Modes  of  Suggesting  Error) 
A.    Positive  Suggestion  contrasted  with  B.    Negative  Suggestion 


Invention  (slander,  fraud, 
false  prosecution,  false 
witness) 

Fiction,  simulation 

Addition 

Deformation 

Exaggeration 


Complete  dissimulation ; 
denegation ;  suppression 
of  testimony. 

Omission 

Mutilation 

Attenuation 


To  this  classification  of  lies  would  correspond  that  of  liars.  Those  who  make 
positive  suggestions  exhibit  capacity  of  invention  ;  those  who  make  negative 
suggestions  are  frequently  lacking  in  imagination.  ...  Of  course,  many 
lies  are  mixed  in  character,  partaking  both  of  positive  and  of  negative  sug- 
gestion. Moreover,  every  lie  in  so  far  as  it  creates  a  new  form  for  some  sup- 
posed fact  is  deformative,  and  thus  is  in  a  sense  a  positive  suggestion ;  so 
that  every  liar  to  this  extent  uses  imagination.  Nevertheless  there  is  always, 
within  the  same  group,  a  relative  contrast  between  the  liar  who  needs  more 
or  less  mental  activity  to  construct  or  amplify,  and  the  one  who  needs 
merely  deny,  suppress,  or  mutilate,  without  having  to  invent  anything  but 
what  is  furnished  him  in  the  very  experience  which  he  desires  to  impress 
falsely  on  the  other  person.  .  .  . 

The  lie,  then,  may  be  thus  defined  :  A  psychosociologic  fact  of  suggestion, 
oral  or  otherwise,  by  means  of  which  one  tends,  more  or  less  intentionally, 
to  introduce  into  another's  mind  a  l)elief,  positive  or  negative,  not  in  har- 
mony with  what  the  actor  supposes  to  be  the  truth. 

Neuromuscular  -phenomena  of  the  lie.  Does  the  liar's  mental  state  mani- 
fest itself  by  any  biologic  modifications  ?  As  to  persons  of  strong  character, 
skillful  to  the  point  of  dissimulating  the  very  sentiment  which  they  experience 
in  the  act  itself  of  dissimidation,  it  is  certainly  difficult  to  discover  in  them 
the  traces  of  the  lie.  On  the  other  hand,  children  usually  betray  themselves 
readily  enough.^  Some  children  are  reported  as  lying  "with  apparent 
Ccindor"  ;  but  these  are  the  scarcely  conscious  lies,  for  young  beings  are  rare 
who  dissimulate  to  the  point  of  giving  every  appearance  of  candor.  Many  are 
embarrassed  ;  they  are  uneasy  under  the  inquirer's  gaze  ;  their  eyes  will  not 
meet  jours ;  and  they  show  a  haste  to  escape  from  further  scrutiny,  by 
making  involuntary  movements  to  get  away  or  to  elude  attention  or  to  take 
up  some  new  activity.  Some,  in  spite  of  an  apparent  coolness,  cannot 
avoid  contracting  the  muscles,  tapping  the  sole  of  the  foot  in  a  certain 
rhythm,  crunching  something  in  their  fingers,  or  plunging  their  hands  in 
their  pockets  and  then  taking  them  out  in  alternate  movements.     Others 

'  Tho  invosti)?ation.s  of  the  Society  for  the  Psychological  Study  of  Children  will  here 
yield  still  oihi-r  valiial)lc  results. 


No.  250.  II.       TESTIMONIAL   PROCESS.       C.    NARRATION  495 

show  their  uneasiness  by  an  excitement,  an  exaggerated  boldness  amounting 
to  insolence :  in  their  emotion  they  go  beyond  all  moderation  in  the  pas- 
sionate expression  of  their  assertions,  in  the  volubility  of  their  language,  in 
the  quickness  of  their  answers,  or  in  the  audacity  of  their  questions ;  a  sud- 
den release  of  control  seems  to  give  vent  to  a  flow  of  words  which  threaten 
to  become  incoherent,  as  in  lunatics  afflicted  with  acute  mania.  In  some 
children,  while  speech  becomes  copious,  the  voice  is  low,  yet  with  others  it  is 
high  pitched  with  outbursts  like  spasms.  The  excitement  may  induce  only 
vasomotor  modifications,  blushes,  or  paleness,  or  each  alternatively.  Some- 
times the  only  perceptible  mark  is  a  trembling  of  the  hand,  or  a  winking  of 
the  eyes,  or  a  rapid  dilation  of  the  nostrils,  or  a  slight  creasing  of  the  hairy 
skin,  or  an  odd  smile  either  fugitive  or  lasting  and  then  almost  inscrutable. 
The  protrusion  of  the  lips,  or  their  contraction  with  discoloration  of  the 
mucus,  sometimes  replaces  the  smile.  In  some  instances,  the  liar  tosses 
his  head  ;  sometimes  he  watches  for  some  sign  of  acc^uiescence ;  sometimes 
he  fluctuates  between  boldness  and  confusion. 

This  diversity  of  physiologic  manifestations  of  the  mental  state  of  lying 
demonstrates  plainly  that  it  involves  an  affective  (emotional)  condition. 
As  William  James  has  shown,  affective  phenomena  consist  essentially,  from 
the  physiological  point  of  view,  in  a  greater  or  less  number  of  muscular  and 
vasomotor  reflexes,  forming  combinations  so  varied  that  anj-  classification 
of  the  emotions  is  impossible.  In  the  state  of  lying  there  are  phenomena 
either  of  excitation  or  of  depression  or  of  the  one  alternating  with  the 
other. 

Nevertheless,  we  must  not  confuse  affective  phenomena,  strictly  so-called, 
with  the  phenomena  of  expressive  mimicry  due  to  simulation  and  aimed  at 
producing  or  increasing  the  confidence  of  a  watching  auditor.  .  .  .  For 
example,  a  liar  may  simulate  laughter ;  and  when  the  simulation  is  a  poor 
one,  we  have  the  "forced  laugh,"  in  which  only  facial  displacements  occur 
without  the  expression  of  a  true  geniality ;  the  lips  are  merely  parted,  the 
nasolabial  furrow  is  bent  convexly  inward  for  most  of  its  length,  the  creased 
skin  radiates  in  wrinkles  around  the  eyes  towards  the  temples. 

After  allowing  for  these  physiologic  modifications  which  may  accompany 
the  lie  without  being  an  intrinsic  mark  of  it,  we  may  still  concede  that  7io 
intentional  derogation  from  the  truth  can  take  place  without  a  tendency  to  mus- 
cidar  contractions  or  expansions,  —  phenomena  of  inhibition  or  excitation. 
The  reason  for  this  must  be  sought  in  that  cerebral  physiology  which  is  the 
basis  for  a  psychological  explanation  of  the  lie. 

Psychology  of  the  lie.  We  have  seen  that  the  lie  is  either  a  positive,  more 
or  less  complex  invention,  or  a  negative  invention.  But  throughout  all  it 
includes  an  act  of  imagination.  Lying  invention  shows  all  the  species  of  im- 
agination so  well  classified  and  described  by  Ribot  in  his  great  work  on  "  The 
Creative  Imagination."  .  .  .  There  is  the  plastic  imagination,  the  difiluent 
imagination,  the  mystical  imagination,  the  scientific  imagination,  the  prac- 
tical imagination,  the  commercial  imagination,  the  Utopian  imagination. 
We  may  safely  assert  —  a  truism,  to  be  sure,  but  a  necessary  one  —  that  all 
species  of  imagination  may  serve,  not  only  to  discover  truths,  but  to  invent 
lies.  But  what  seems  to  be  the  peculiarity  of  imagination  used  in  lying  is 
that  it  can  go  to  the  length  of  completely  negating  the  existence  of  the 
object  in  question.  ...     In  contrast  with  the  other  species,  it  alone  can  be 


496  PART   II.      TESTIMONIAL   EVIDENCE  No.  251. 

simply  negative.     In  certain  cases,  then,  we  have  inhibition,  rather  than 
production. 

Among  the  nenromuscuUir  phenomena  characteristic  of  a  psycho-phy- 
^ioh)gic  lying  state,  we  have  often  above  noted  acts  of  contradiction,  of  re- 
pression of  incipient  movements,  —  in  short,  of  inhil)ition.  The  liar  must 
keep  from  expressing  aloud  his  thought.  He  is  not  merely  imagining ;  he  is 
at  the  same  moment  conceiving  something  which  he  ought  truly  to  express 
and  something  different  which  he  is  to  succeed  in  suggesting  to  others.  The 
process  is  thus  more  complex  than  in  merely  creative  imagination.  Now 
if  there  is  any  law  of  psychopathology  that  is  well  established  by  experi- 
ment or  observation,  it  is  this,^  that  every  clear  and  living  idea  engenders  the 
corresponding  morcmrnt.  Hence  it  must  be  conceded  that  a  very  clear 
mental  representation  of  something  which  one  ought  to  be  telling — and  it  is 
very  clear  in  many  instances  of  derogation  from  the  truth,  and  clearer  in 
proportion  as  the  sense  of  duty  may  be  prompting  obedience  —  engenders  a 
strong  tendency  to  pronounce  the  suitable  words  and  to  make  the  gestures 
or  postures  naturally  accompanying  that  thought.  Thence  occurs  often  a 
violent  antagonism  between  this  natural  propensity  and  the  other  inclina- 
tion (casual  or  habitual)  to  disguise  the  truth  l)y  affirming  something  dif- 
ferent. Before  this  antagonism  can  attenuate  to  the  point  where  dissimula- 
tion becomes  easy,  the  habit  of  telling  the  thing  contrary  to  what  one  ought 
to  tell  must  have  become  a  strong  one.  Hence  we  come  to  a  distinction 
between  the  casual  liar  and  the  habitual  liar,  —  the  liar  who  promptly  con- 
founds himself,  and  the  tenacious  liar  who  persists  in  his  lie. 

The  casual  liar  may  be  a  person  having  a  vivid  imagination  or  experiencing 
a  lively  emotion,  who  impulsively  affirms  or  denies  without  precise  reflection 
on  his  erroneous  assertion  and  the  distance  between  it  and  the  truth.  It  is 
only  when  he  receives  some  check  that  he  definitely  conceives  the  truth. 
Then  he  may  either  persist  in  his  falsity,  through  vanity,  pride,  self-esteem, 
or  shame  ;  or  may  hasten  to  some  other  topic  ;  or  may  recant.  If  he  recants, 
one  may  perhaps  detect  slight  symptoms  of  lack  of  frankness ;  if  he  hastens 
to  leave  the  subject,  he  usually  betrays  himself  by  his  precipitateness  or 
worried  air ;  if  he  persists,  he  tends  to  become  the  habitual  liar  and  needs 
now  a  great  power  of  inhibition. 

With  the  tenaciou,s  liar,  the  lie  is  generally  habitual.  Fatigue,  worry,  un- 
easiness, recur  as  infrequently  as  the  inhibition  has  been  frequent.  The 
physiological  marks  of  lying  are  less  apparent,  the  muscular  contractions 
less  forcil)le  and  particularly  less  spasmodic.  He  is  more  at  home  in  sup- 
porting his  assertions  by  a  persuasive  mimicry,  —  facial  expressions  appro- 
priate to  frankness,  smiles  less  false,  intonations  less  artificial,  etc.  Menda- 
cious invention  here  tends  to  free  itself  from  almost  all  the  shackles 
customarily  provided  by  a  consciousness  of  the  truth. 

251.  A.  ( '.  Plowden.  Grain  or  Chaff;  the  Autobiography  of  a  Police  Mag- 
istrate. (1903.  p.  225.)  ...  It  would  be  unreasonable,  however,  to  turn 
your  eyes  away  altogether.  Indeed,  it  is  not  possible  to  do  it.  You  cannot 
watch  a  face  too  closely,  provided  you  can  trust  yourself  not  to  be  led  away 
by  tf)0  hasty  inferences.  Much  of  the  interest  of  my  work  I  feel  to  lie  in  a 
close  .scrutiny  of  the  iiumnii  countenance,  whether  in  the  dock  or  the  witness 
'  See  P.  .laiK't,  L'automalisme  psijchologique. 


No.  253.  II.      TESTIMONIAL    PROCESS.       C.    NARRATION  xdt 

box.  I  make  a  mental  note  if  a  prisoner  has  abnormal  ears.  They  are 
often  significant.  And  if  I  am  doubtful  about  a  witness  speaking  the  truth, 
I  direct  my  attention  to  his  mouth  and  to  his  hands.  The  mouth  is  perhaps 
the  most  expressive  feature,  and  the  hands  of  a  har  are  seldom  at  rest.  But 
where  I  often  think  much  is  to  be  learned  from  a  witness  is  after  he  has  given 
his  evidence  and  left  the  box.  I  continue  to  watch  him  as  he  sits  unsus- 
pectingly in  his  place  in  the  court,  while  other  witnesses,  especially  those 
that  are  opposed  to  him,  are  examined.  The  expressions  that  pass  over  his 
face  on  these  occasions  are  often  very  instructive. 

252.  Amos  C.  Miller.  Examination  of  Witnesses.  (Illinois  Law  Review. 
1907.  Vol.  II,  p.  257.)  It  is,  of  course,  of  the  greatest  importance  to  be  able 
to  determine  whether  a  witness  is  willfully  falsifying  or  whether  he  is  hon- 
estly mistaken.  Of  course,  there  are  all  degrees  between  an  honest  mistake 
and  a  willful  lie.  How  to  correctly  measure  the  elements  of  this  honesty  in 
a  witness's  testimony  is  largely  a  matter  of  experience  which  each  man  is 
compelled  to  gain  for  himself.  But  there  are  a  few  suggestions  which  may 
be  of  assistance.  A  witness  who  is  testifying  falsely  will,  as  a  rule,  try  to 
evade,  on  cross-examination,  questions  on  collateral  matters ;  this,  of 
course,  in  order  to  avoid  the  danger  of  being  entrapped.  He  will  frequently 
ask  the  cross-examiner  to  repeat  plain,  simple  questions  in  order  to  give  him 
a  chance  to  think  up  a  consistent  reply.  He  will  often  carefully  and  slowly 
repeat  over  a  question  on  cross-examination  for  the  purpose  of  giving  him 
time  to  think ;  or  he  will  answer  irresponsively  in  order  to  steer  the  cross- 
examiner  off  the  track.  I  have  also  observed  that  the  witness  who  is  swear- 
ing to  a  clear-cut  lie  will,  while  so  doing,  throw  back  his  head  with  an  indif- 
ferent air  and  close  his  eyes  or  blink.  My  experience  has  taught  me  to 
believe  that  that  is  an  almost  certain  sign  of  deliberate  dishonesty. 


Topic  2.     Narration  as  affected  by  Interrogation  and  Suggestion 

253.    Richard  Harris.     Hints  on  Advocacy.      (Amer.  ed.  1892.     p.  29). 

I.  One  of  the  most  important  branches  of  advocacy  is  the  examination  of 
a  witness  in  chief.  .  .  .  One  fact  should  be  remembered  to  start  with,  and  it 
is  this  :  the  witness  whom  he  has  to  examine  has  probably  a  plain,  straight- 
forward story  to  tell,  and  that  upon  the  telling  it  depends  the  belief  or  dis- 
belief of  the  jury,  and  their  consequent  verdict.  If  it  were  to  be  told  amid 
a  social  circle  of  friends,  it  would  be  narrated  with  more  or  less  circumlocu- 
tion and  considerable  exactness.  But  all  the  facts  would  come  out;  and  that 
is  the  first  thing  to  insure,  if  the  case  be,  as  I  must  all  along  assume  it  to  be, 
an  honest  one.  I  have  often  known  half  a  story  told,  and  that  the  worst 
half,  too,  the  rest  having  to  be  got  out  by  the  leader  in  reexamination,  if  he 
have  the  opportunity.  If  the  story  were  being  told  as  I  have  suggested,  in 
private,  all  the  company  would  understand  it,  and  if  the  narrator  were 
known  as  a  man  of  truth,  all  would  believe  him.  It  would  require  no  advo- 
cate to  elicit  the  facts  or  to  confuse  the  dates  ;  the  events  would  flow  pretty 
much  in  their  natural  order.  Now  change  the  audience  ;  let  the  same  man 
attempt  to  tell  the  same  story  in  a  court  of  justice.  His  first  feeling  is  that 
he  must  not  tell  it  in  his  own  way.     He  is  going  to  be  examined  upon  it ;  he 


498  PART    II.      TESTIMONIAL    EVIDENCE  No.  2.53. 

is  to  have  it  dragged  out  of  him  piecemeal,  disjointedly,  by  a  series  of 
questions  —  in  fact,  he  is  to  be  interrupted  at  every  point  in  a  worse 
manner  than  if  everybody  in  the  room,  one  after  another,  had  questioned 
him  about  what  he  was  going  to  tell,  instead  of  waiting  till  he  had  told  it. 
It  is  not  unlike  a  post  mortem  ;  only  the  witness  is  alive,  -and  keenly 
sensitive  to  the  painful  operation.  He  knows  that  every  word  will  be 
disputed,  if  not  flatly  contradicted.  He  has  never  had  his  veracity  ques- 
tioned, perhaps,  but  now  it  is  very  likely  to  be  suggested  that  he  is  com- 
mitting rank  perjury. 

This  is  pretty  nearly  the  state  of  mind  of  many  a  witness,  when  for  the  first 
time  he  enters  the  box  to  be  examined.  In  the  first  place,  then,  he  is  in  the 
worst  possible  frame  of  mind  to  be  examined — he  is  agitated,  confused,  and 
bewildered.  Now  put  to  examine  him  an  agitated,  confused,  and  bewildered 
young  advocate,  and  you  have  got  the  worst  of  all  elements  together  for  the 
production  of  what  is  Avanted,  namely  evidence.  First  of  all,  the  man  is 
asked  his  name,  as  if  he  were  going  to  say  his  catechism,  and  much  confusion 
there  often  is  about  that,  the  witness  feeling  that  the  judge  is  surprised,  if 
not  angry,  at  his  not  having  a  more  agreeable  one,  or  for  having  a  name  at 
all.  He  blushes,  feels  humiliated,  but  escaping  a  reprimand  thinks  he  has 
got  off  remarkal)ly  well  so  far.  Then  he  faces  the  young  counsel,  and  won- 
ders what  he  will  be  asked  next. 

Now  the  best  thing  the  advocate  can  do  under  these  circumstances  is  to 
remember  that  the  witness  has  something  to  tell,  and  that  but  for  him,  the 
advocate,  would  probably  tell  it  very  well,  "in  his  own  way."  The  fvicer 
interruptions,  therefore,  the  better ;  and  the  fewer  questions,  the  less  questions 
will  be  needed.  Watching  should  be  the  chief  work ;  especially  to  see  that 
the  story  be  not  confused  with  extraneous  and  irrelevant  matter.  • .  .  . 
The  most  usefvd  questions  for  eliciting  facts  are  the  most  commonplace, 
"What  took  place  next?"  being  infinitely  better  than  putting  a  question 
from  the  narrative  in  your  brief,  which  leads  the  witness  to  contradict  you. 
The  interrogative  "  Yes  ?  "  as  it  asks  nothing  and  yet  everything  is  better 
than  a  rigmarole  praise,  such  as,  "  Do  you  remember  what  the  defendant  did 
or  said  upon  that  ?"  The  witness  after  such  a  question  is  generally  puzzled, 
as  if  you  were  asking  him  a  conundrum  which  is  to  be  passed  on  to  the  next 
person  after  he  has  given  it  up. 

Judges  frequently  rebuke  juniors  for  putting  a  question  in  this  form  : 
"Do  you  remember  the  2!)th  of  February  lastf"  In  the  first  place,  it  is  not 
the  day  that  has  to  be  remembered  at  all,  and  whether  the  witness  recollects 
it  or  not  is  immaterial.  It  is  generally  the /ads  that  took  place  about  that 
time  you  want  deposed  to,  and  if  the  date  is  at  all  material,  you  are  putting 
the  c|uestion  in  the  worst  possible  form  to  get  it.  A  witness  so  interrogated 
begins  to  wonder  whether  he  remembers  the  day,  or  whether  he  does  not, 
and  becomes  jjuzzled.  We  don't  rememl)er  days.  You  might  just  as  well 
ask  if  he  remembers  the  1st  of  May,  1816,  the  day  on  which  he  was  born, 
instead  of  asking  him  the  date  of  his  birth.  This  is  one  of  the  commonest, 
and  at  the  same  time  one  of  the  stupidest  blunders  that  can  l)e  made.  I 
will,  therefore,  at  the  risk  of  repetition,  give  one  more  illustration.  Suppose 
you  ask  a  witness  if  he  rememl)ers  the  10th  of  June,  1874 ;  he  probably  does 
not,  and  both  he  and  you  are  bewildered,  and  think  you  are  at  cross-pur- 
poses ;    hut  a.sk  him  if  he  was  at  Niagara  in  that  year,  and  you  will  get  the 


No.  253.  II,      TESTIMONIAL   PROCESS.       C.    NARRATION  499 

answer  without  hesitation ;  inquire  when  it  was,  and  he  will  tell  you  the 
10th  of  June.  In  this  way  you  will  avoid  taxing  a  witness's  memory  ;  always 
a  dangerous  proceeding. 

Another  common  error  is  worth  noting,  and  that  is  the  not  permitting  a 
witness  to  finish  his  answer,  or  tell  all  he  knows  on  a  material  matter.  In 
the  very  midst  of  an  important  answer  a  witness  is  very  often  interrupted 
by  a  frivolous  question  upon  something  utterly  immaterial.  This  seems  so 
absurd  on  paper  that  it  needs  an  example.  A  witness  is  giving  an  answer 
when  some  such  question  as  this  is  interposed  !  "  What  time  was  this  ?  ' ' 
or,  "Had  you  seen  Mr.  Smith  before  this?"  A  question  is  often  left  half 
answered  by  such  interruptions,  the  better  half  perhaps  being  untold.  "  He 
never  asked  me  about  that,"  says  the  witness  after  the  case  is  over ;  or,  "I 
could  have  explained  that  if  he  had  let  me.".  .  .  All  unnecessary  interrup-' 
tions  produce  confusion  in  the  mind  of  the  witness  and  jury  and  tend  to  the 
damage  of  your  case. 

But  although  it  is  by  far  the  best  to  let  a  witness  tell  his  story  in  his  own 
way  as  much  as  possible,  it  is  absolutely  necessary  to  prevent  him  from 
rambling  into  irrelevant  matter.  Most  uneducated  witnesses  begin  a  story 
with  some  utterly  irrelevant  observation,  such  as,  if  they  are  going  to  tell 
what  took  place  at  a  fire,  they  will  say,  "  I  was  just  fastening  up  my  back 
door,  when  I  heard  a  shout."  Get  him  as  soon  as  you  can  at  the  fire  and 
the  evidence  will  come  with  little  trouble. 

Every  question  should  not  only  be  intelligible  and  relevant  in  itself,  but 
it  should  be  put  in  such  a  form  that  its  relevancy  to  the  case  may  be  ap- 
parent to  him.  A  question,  without  being  leading,  should  be  a  reminder  of 
events  rather  than  a  test  of  the  witness's  recollection.  I  will  give  an  illus- 
tration which  will  show  how  easy  it  is  to  blunder,  and  how  necessary  it  is  to 
avoid  blundering.  A  man  brings  an  action  against  a  railway  company  for 
false  imprisonment.  The  facts  are  these  :  He  lost  his  ticket  and  refused  to 
pay ;  the  porter  on  the  platform  called  the  inspector,  who  sent  for  a  police- 
man, and  then  gave  him  into  custody.  The  best  way  not  to  get  the  facts 
out  is  to  examine  him  in  the  following  manner :  — 

"Were  you  asked  for  your  ticket?  —  Yes." 

"Did    you    produce    it? — ^  No." 

"Why  not?  — I  had  lost  it." 

"  Are  you  sure  you  took  it  ?  —  Quite." 

"  Positive  ?  (This  is  a  good  opening  for  the  wedge  of  cross-examination 
—  a  doubt  thrown  on  your  own  witness.)  —  I  am  quite  sure." 

"  What  did  the  defendants  say  then  ;  I  mean  the  porter  ?  "  (This  blunder 
ought  not  to  have  been  made.)  At  this  point  the  witness  is  in  a  hopeless 
muddle,  and  says:  "I  was  given  into  custody." 

The  story  is  not  half  told,  although  it  is  one  of  the  simplest  to  tell. 

Now  the  counsel  contradicts  by  way  of  explanation,  and  says,  "No,  no; 
do  attend."  Witness  strokes  his  chin  as  though  about  to  be  shaved.  Judge 
glances  at  him,  and  wonder's  if  he's  lying.  Counsel  for  the  defendants 
(sure  to  be  eminent)  smile,  and  the  jury  look  knowingly  at  one  another,  and 
begin  to  think  it's  a  trumped-up  attorney's  action. 

Now  start  again  with  another  question. 

"  When  the  train  stopped  you  got  out  ?  —  I  didn't  get  out  afore  it  stopped, 
sir." 


500  PART    II.      TESTIMONIAL    EVIDENCE  No.  253 

"Did  any  one  ask  you  for  your  ticket  ?  —  They  did;"  emphatically,  as 
tliou^ih  he  knows  now  where  he  is. 

""Wj^^^y  —  j'„^  ^jire  I  don't  know  who  he  is;  never  seen  the  man  before 
in  my  life." 

"Well,  well,  did  he  do  anythinji  ?  —  No,  sir;  he  didn't  do  nothin'  as  I 
knows  of;"  evidently  puzzled,  as  if  he  had  forgotten  some  important  event 
upon  which  the  whole  case  turns. 

This  looks  so  ridiculous  on  paper  that  it  is  possible  some  readers  will  doubt 
if  it  ever  happened.  I  can  only  say  there  are  many  much  more  ridiculous 
incidents  that  occur  in  courts  of  justice  when  young  counsel  have  what  is 
calleil  a  "stupid"  witness  in  the  box.  In  court  the  stupidity  always  seems 
to  l)e  that  of  the  witness  ;  on  paper  it  looks  as  if  the  learned  counsel  could 
establish  a  better  title  to  it. 

This  leads  me  to  notice  a  cardinal  rule  in  examination  in  chief.  It  is 
seldom  regarded  as  such  by  beginners,  and  only  seems  to  be  observed  as  the 
result  of  experience.  Why  it  should  not  be  learned  at  once  and  implicitly 
obeyeil  I  do  not  know,  except  it  be  that  it  has  never  been  written  down. 
The  rule  is  this,  that  in  examining  a  witness  the  order  of  time  ought  always  to 
be  observed.  Stated  in  writing,  it  looks  simple  enough,  and  everybody  says 
"of  course."  Plain  as  one  of  the  ten  commandments,  and  as  often  violated 
by  young  advocates. 

In  putting  questions  long-drawn  sentences  should  be  avoided.  The  following 
is  an  almost  verbatim  report.  The  advocate  was  experienced,  but  he  was 
anxious  to  get  as  much  as  he  could  into  a  question  ;  and  whenever  your  ques- 
tion is  too  large  the  answer  will  be  worthless  : 

"  Were  you  present  at  the  meeting  of  the  trustees  when  an  agreement  was 
entered  into  between  them  and  the  plaintiff?"     Answer,  "Yes." 

Q.  "Will  you  be  kind  enough  to  tell  us  what  took  place  between  the 
parties  with  reference  to  the  agreement  that  was  then  entered  into  between 
them  ?" 

The  more  neatly  a  question  is  put,  the  better,  as  it  has  to  be  under- 
stood not  only  by  the  witness,  but  by  the  jury.  All  that  was  necessary  to 
be  asked  might  have  been  put  in  the  following  words  :  "Was  an  agreement 
entered  into  between  the  trustees  and  the  plaintiff  ?"  —  "Yes."  "What 
was  it  ?"  It  will  api)car  even  more  strange  that  after  the  answer  was  given 
by  one  witness,  which  was  all  that  was  necessary  to  prove  that  part  of  the 
case,  the  question  was  repeated  to  another  with  additional  verbiage. 

"Will  you  be  good  enough  to  inform  us  what  took  place  upon  that  oc- 
casion between  the  parties,  as  nearly  as  you  can,  with  reference  to  the  agree- 
ment that  was  then,  as  you  have  stated,  entered  into  between  them.  Please 
tell  us,  not  exactly,  but  as  nearly  as  you  can  in  your'  own  way  what  his  exact 
words  were  ?  " 

II.  Next  to  examination-in-chief  nothing  is  more  important  or  difficult 
in  advocacy  than  rms-s-craiiiindfiou.  It  is  infinitely  the  most  dangerous 
l)ranch,  inasmuch  as  its  errors  are  almost  always  irremediable.  It  is  in  ad- 
vocacy very  like  what  "cutting  out"  is  in  naval  warfare,  and  you  require  a 
good  many  of  the  same  (|ualities ;  courage  with  caution,  boldness  with  dex- 
terity, as  well  as  judgment  and  discrimination.  .  .  .  Cross-examination 
may  almost  be  regarded  as  a  mental  duel  between  advocate  and  witness. 
The  first  rccpiisite  therefore  on  the  part  of  the  attacking  party  (namely,  the 


No.  253.  II.      TESTIMONIAL    PROCESS.      C.    NARRATION  501 

advocate)  is  a  knowledge  of  human  character.  This  is  the  first  requisite, 
and  it  is  an  indispensable  one.  But  I  suppose  almost  everybody  conceives 
himself  to  be  a  master  of  this  science. 

With  respect  to  style,  as  before  remarked,  every  man  has  his  own,  or  shoiUd 
have.  .  .  .  With  regard  to  manner,  a  man  should  imitate  the  best.  The  most 
eminent  are  as  a  rule  the  most  unaffected,  and  the  quiet,  moderate  manner  is 
generally  the  most  effective.  I  do  not  intend  to  imply  that  bluster  and  a 
high  tone  will  not  sometimes  unnerve  a  timid  witness,  but  this  is  not  cross- 
examination  or  true  advocacy.  It  is  not  art,  but  bullying  —  not  intellectual 
power,  but  mere  physical  momentum.  Nor  would  I  say  that  an  advocate 
should  at  all  times  treat  a  witness  with  the  gentleness  of  a  dove.  Severity 
of  tone  and  manner,  compatible  with  self-respect,  is  frequently  necessary 
to  keep  a  witness  in  check,  and  to  draw  or  drive  the  truth  out  of  him  if  he 
have  any.  But  the  severity  will  lose  none  of  its  force,  nay,  it  will  receive  an 
increase  of  it,  by  being  furbished  with  the  polish  of  courtesy  instead  of 
roughened  with  the  language  of  uncompromising  rudeness.  Instances  of 
the  latter  kind  are  extremely  rare  at  the  English  bar.  But  they  do 
occasionally  appear,  and  are  usually  followed  by  a  public  outcry  against 
them ;  they  do  not,  however,  cast  discredit  on  the  great  body  of  a 
profession  which  is  as  jealous  of  its  high  reputation  for  courtesy  and  honor 
as  it  is  deserving  of  it. 

I  make  these  observations  because  I  am  about  to  quote  a  passage  from 
Archbishop's  Whateley's  "Elements  of  Rhetoric"  on  Cross-examination, 
wherein  he  passes  a  severe  stricture  upon  advocates  generally,  and  which,  I 
am  sure,  so  far  as  my  own  experience  and  observation  go,  is  utterly  un- 
deserved. At  page  165,  he  says  :  "In  oral  examination  of  witnesses  a  skill- 
ful cross-examiner  will  often  elicit  from  a  reluctant  witness  most  important 
truths  which  the  witness  is  desirous  of  concealing  or  disguising.  There  is 
another  kind  of  skill,  which  consists  in  so  alarming,  misleading,  or  bewilder- 
ing an  honest  witness  as  to  throw  discredit  on  his  testimony  or  prevent  the 
effect  of  it.  On  this  kind  of  art,  which  may  be  characterized  as  the  most,  or 
one  of  the  most,  base  and  depraved  of  all  possible  employments  of  intellec- 
tual power,  I  shall  only  make  one  further  observation."  I  pause  here  for  a 
m.oment  to  say  that  so  far  as  my  experience  of  the  bar  is  concerned,  and  I 
think  it  must  be  greater  than  that  of  the  Right  Reverend  Father  in  God  who 
penned  these  words,  a  more  undeserved  slander  against  a  body  of  honorable 
men  was  never  penned  even  by  a  Churchman.  He  proceeds  to  say  :  "  I  am 
convinced  that  the  most  effectual  mode  of  eliciting  truth  is  quite  different 
from  that  by  which  an  honest,  simple-minded  witness  is  most  easily  baffled 
and  confused.  I  have  seen  the  experiment  .tried  of  subjecting  a  witness  to 
such  a  kind  of  cross-examination  by  a  practiced  lawyer  as  would  have  been, 
I  am  convinced,  the  most  likely  to  alarm  and  perplex  many  an  honest  wit- 
ness without  any  effect  in  shaking  his  testimony.  .  .  .  And  afterwards, 
by  a  totally  opposite  mode  of  examination,  such  as  would  not  have  at  all 
perplexed  one  who  was  honestly  telling  the  truth"  (nothing,  it  seems,  will 
perplex  an  honest  witness  but  an  alarming  style)  —  "  that  same  witness  was 
drawn  on  step  by  step  to  acknowledge  the  utter  falsity  of  the  whole.  Gener- 
ally speaking,  I  believe  that  a  quiet,  gentle,  and  straightforward  —  though 
full  and  careful  —  examination,  will  be  the  most  adapted  to  elicit  truth,  and 
that  the  manoeuvers  and  the  browbeating  which  are  the  most  adapted  to 


502 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  254. 


confuse  an  honest  witness  are  just  what  tlie  dishonest  one  is  the  best  pre- 
pared for."  When  I  read  tho.se  wordy  sentences  I  couUl  not  help  thinking 
It  was  a  pity  that  the  Archbishop  did  not  confine  himself  to  theology.  He 
seems  to  think  an  honest  witness  easily  baffled  and  frightened  into  telling 
a  lie.  and  to  imagine  that  a  lirutal  liar  is  best  induced  to  tell  the  truth  by 
wooing  him  with  sweet  words,  and  by  a  straightforward,  full,  and  careful 
examination.  I  can  only  say  his  acquaintance  with  truthful  witnes.ses  must 
have  been  small  indeed,  and  the  hypocrisy  practiced  upon  his  gentle  ques- 
tioning must  have  misled  him  into  the  falsest  views  of  human  nature  ever 
formed  even  by  those  who  assume  to  be  the  best  acquainted  with  man's 
spiritual  existence. 


254.  BARBELL  v.  PICKWICK. 
Club.     1S37.     c.  XXIV.) 

"Nathaniel  Winkle  I"  said  Mr. 
Skimpin.  "Here  I"  replied  a  feeble 
voice.  Mr.  Winkle  entered  the  wit- 
ness box,  and  having  been  duly 
sworn,  bowed  to  the  judge  with 
consideraljle  deference.  "  Don't  look 
at  me.  sir,"  said  the  judge,'  sharply, 
in  acknowledgment  of  the  salute ; 
"  look  at  the  jury."  Mr.  Winkle 
obeyed  the  mandate,  and  looked  at 
the  place  where  he  thought  it  most 
probal)le  the  jury  might  be ;  for 
seeing  anything  in  his  then  state  of 
intellectual  complication  was  wholly 
out  of  the  question.  Mr.  Winkle 
was  then  examined  by. Mr.  Skimpin, 
who,  being  a  promising  young  man 
of  two  or  three  and  forty,  was  of 
course  anxious  to  confuse  a  witness 
who  was  notoriously  predispo.sed 
in  favor  of  tlie  other  side,  as  much 
as  he  coulfl.  "  Now,  sir,"  said  Mr. 
Skimpin,  "  have  the  goodness  to  let 
his  lyordship  and  the  jury  know  what 
your  name  is,  will  you  ?"  And  Mr. 
Skimpin  inclined  his  head  on  one 
side  to  listen  with  great  sharpness 
to  the  answer,  and  glanced  at  the 
jury  meanwhile,  as  if  to  imply  that 
he  rather  expected  Mr.  Winkle's 
natural  taste  for  perjury  would 
induce  him  to  give  some  name  which 
did  not  belong  to  him.  "Winkle," 
replied  the  witness.  "What's  your 
Christian  name,  sir?"  angrily  in- 
(piired  the  little  judge.  "  Xatliani(>l, 
sir."     "  Danieb-r-any  other  name  ?" 

'  The  riamf  ".St.ireloiKh,"  givoa  by  the  nov 
ni&ed  Mr.  J.  GoMclec. 


(Charles  Dickens.     The  Pickwick 

"  Nathaniel,  sir  —  my  Lord,  I 
mean."  "Nathaniel  Daniel,  or 
Daniel  Nathaniel?"  "No,  my 
Lord,  only  Nathaniel  —  not  Daniel 
at  all."  "What  did  you  tell  me  it 
was  Daniel  for  then,  sir  ?  "  inquired 
the  judge.  "  I  didn't,  my  Lord,"  re- 
plied Mr.  Winkle.  "  You  did,  sir," 
replied  the  judge,  with  a  severe 
frown.  "  How  could  I  have  got 
Daniel  on  my  notes,  unless  you  told 
me  so,  sir  ?  "  ,  This  argument  was, 
of  course,  unanswerable.  "  Mr. 
Winkle  has  rather  a  short  memory, 
my  Lord,"  interposed  Mr.  Skimpin, 
with  another  glance  at  the  jury. 
"  We  shall  find  means  to  refresh  it 
before  we  have  quite  done  with  him, 
I  dare  say."  "  You  had  better  be 
careful,  sir,"  said  the  little  judge, 
with  a  sinister  look  at  the  witness. 
Poor  Mr.  Winkle  bowed,  and  en- 
deavored to  feign  an  easiness  of 
manner,  which,  in  his  then  state  of 
confusion,  gave  him  rather  the  air 
of  a  disconcerted  pickpocket. 
"  Now,  Mr.  Winkle,"  said  Mr.  Skim- 
pin, "  attend  to  me,  if  you  please, 
sir;  and  let  me  recommend  you, 
for  your  own  sake,  to  bear  in  mind 
his  Lordship's  injunctions  to  be 
careful.  I  believe  you  are  a  partic- 
ular friend  of  Pickwick,  the  defend- 
ant, are  you  not  ?  "  "  I  have  known 
Mr.  Pickwick  now,  as  well  as  I 
recollect  at  this  moment,  nearly"  — 
"  Pray,  Mr.   Winkle,  do  not  evade 

I'list  to  this  judge,  is  supposed  to  have  sig- 


No.  25r). 


II.      TESTIMONIAL   PROCESS.       C.    NARRATION 


503 


the  question.  Are  you,  or  are  you 
not,  a  particular  friend  of  the  de- 
fendant's ?  "  "  I  was  just  about  to 
say,  that  "  —  "Will  you,  or  will  you 
not,  answer  my  question,  sir  ?  "  "  If 
you  don't  answer  the  question, 
you'll  be  committed,  sir,"  inter- 
posed the  little  judge,  looking  over 
his  notebook.  "  Come,  sir,"  said 
Mr.  Skimpin,  "yes  or  no,  if  you 
please."  "Yes,  I  am."  "Yes,  you 
are.  And  why  couldn't  you  say 
that  at  once,  sir  ?  Perhaps  you 
know  the  plaintiflF  too  —  eh,  Mr. 
Winkle  ?  "  "  I  don't  know  her ;  I've 
seen  her."  "Oh,  you  don't  know 
her,  but  you've  seen  her  ?  Now, 
have  the  goodness  to  tell  the  gentle- 
men of  the  jury  what  you  mean  by 
that,  Mr.  Winkle."  "  "I  mean  that 
I  am  not  intimate  with  her,  bvit  that 
I  have  seen  her  when  I  went  to  call 
on  Mr.  Pickwick,  in  Goswell  Street." 
"  How  often  have  you  seen  her, 
sir?"  "Hov/  often?"  "Yes,  Mr. 
Winkle,  how  often  ?  I'll  repeat  the 
question  for  you  a  dozen  times,  if 
you  require  it,  sir."  And  the 
learned  gentleman,  with  a  firm  and 
steady  frown,  placed  his  hands  on 
his  hips,  and  smiled  suspiciously  at 


the  jury.  On  this  question  there 
arose  the  edifying  browbeating, 
customary  on  such  points.  First 
of  all,  Mr.  Winkle  said  it  was  quite 
impossible  for  him  to  say  how  many 
times  he  had  seen  Mrs.  Bardell. 
Then  he  was  asked  if  he  had  seen 
her  twenty  times,  to  which  he  replied, 
"Certainly,  —  more  than  that." 
Then  he  was  asked  whether  he 
hadn't  seen  her  a  hundred  times  — 
whether  he  couldn't  swear  that  he 
had  seen  her  more  than  fifty  times 
—  whether  he  didn't  know  that  he 
had  seen  her  at  least  seventy-five 
times  —  and  so  forth ;  the  satis- 
factory conclusion  which  was  ar- 
rived at,  at  last,  being,  that  he  had 
better  take  care  of  himself,  and  mind 
what  he  was  about.  The  witness 
having  been  by  these  means  reduced 
to  the  requisite  ebb  of  nervous  per- 
plexity, the  examination  was  con- 
tinued. .  .  .  Tracy  Tupman  and 
Agustus  Snodgrass  were  severally 
called  into  the  box;  both  corrob- 
orated the  testimony  of  their  un- 
happy friend ;  and  each  was  driven 
to  the  verge  of  desperation  by  ex- 
cessive badgering. 


255.  John  C.  Reed.  Conduct  of  Lawsuits.  (2d  ed.  1912.  §  90.)  .  .  . 
I  note  that  the  wary  veterans  of  the  courts  cross-examine  le^s  and  less  as 
they  grow  older  in  practice.  By  the  multitude,  cross-examination  is  as 
much  overrated  as  advocacy.  Sometimes  a  great  speech  bears  down  the 
adversary,  and  sometimes  a  searching  cross-examination  turns  a  wit  ess 
inside  out  and  shows  him  up  to  be  a  perjured  villain.  But  ordinarily  cases 
are  not  won  by  either  speaking  or  cross-examining.  The  tyro's  conception 
of  the  purpose  of  the  latter  is  that  it  is  to  involve  every  adverse  witness  in 
an  inconsistency  or  self-contradiction.  But  you  will  often  see  a  dozen  con- 
secutive cases  tried  wherein  no  witness  who  is  game  for  the  cross-examiner 
makes  his  appearance.  It  is  only  the  profligate  who  swears  falsely ;  and 
if  not  the  profligate,  it  is  the  extremely  heedless  who  make  such  glaring 
blunders  and  mistakes  as  to  destroy  the  credit  of  their  testimony. 

These  cautions  are  placed  in  the  forefront  of  the  chapter,  to  be  meditated 
before  the  student  comes  to  the  places  farther  on,  where  copious  use  is  made 
of  the  writings  of  Mr.  Cox  and  Mr.  Harris,  who,  while  giving  very  valuable 
instructions,  yet  hurtfully  exaggerate  what  can  be  effected  by  cross-examina- 
tion. Mr.  Cox  says,  "  There  is  never  a  cause  contested,  the  result  of  which 
is  not  mainly  dependent  upon  the  skill  with  which  the  advocate  conducts 
his  cross-examination."  In  Mr.  Harris's  "Hints,"  it  is  implied  in  a  few  pas- 
sages that  there  are  witnesses  who  cannot  be  shaken,  yet  the  bulk  of  what 


504:  PAKT    II.      TESTIMONIAL    EVIDENCE  No.  233 

he  say.s  and  hi.s  chief  stress  are  in  deahng  with  those  whose  direct  testimony 
is  overturned  by  the  questions  of  the  adverse  counsel ;  and  consequently  the 
most  careful  reader  infers  that  he  thinks  cross-e.xamination  can  be  made  to 
do  wonders  in  almost  every  case.  Long  ago,  Quintilian  gave  the  subject 
a  somewhat  better  treatment,  which  has  been  highly  applauded  by  dif- 
ferent English  and  American  writers.  But  the  doctrine  of  the  current  books 
of  the  day  lags  behind  the  prevailing  practice  of  the  best  lawyers.  This 
d«)ctrine  is  that  of  Mr.  ("ox  and  Mr.  Harris,  as  indicated  above.  It  is 
utterly  misleading;  for  it  is  generalized  from  exceptional  instances,  and 
takes  hardly  any  account  of  the  kind  of  witnesses  whose  testimony  wins 
more  than  three  fourths  of  the  verdicts  in  our  courts.  .  .  .  The  practice 
and  judgment  of  Scarlett,  the  great  English  lawyer  who  lost  fewer  cases 
that  lie  ought  to  ha\e  won  and  won  more  that  he  ought  to  have  lost  than  any 
other  hero  of  legal  biography,  outweigh  the  opinions  of  the  authors  men- 
tioned. ...  It  was  his  custom,  rarely  departed  from,  merely  to  probe  his 
adversary's  witnesses  for  further  proof  of  his  own  case,  scorning  to  waste 
his  time  in  badgering  them  by  an  examination  more  entertaining  to  visitors 
than  effective  with  the  jury.  He  says  in  his  Autobiography  :  "  .  .  .  I  cross- 
examined  in  general  very  little,  and  more  with  a  view  to  enforce  the  facts 
I  meant  to  rely  upon,  than  to  affect  the  witness's  credit,  —  for  the  most 
part  a  vain  attempt." 

Having  premised  as  above  in  order  to  protect  the  student  against  prev- 
alent errors  and  to  foreshadow  to  him  the  main  end  of  cross-examination, 
we  will  now  pursue  our  subject.  And  we  adopt  the  plan  followed  in  the 
last  chapter ;  that  is,  we  begin  with  average  witnesses,  and  we  award 
due  prominence  to  the  methods  most  common  in  actual  practice.  .  .  .  You 
cross-examine  these  three  classes:  (1)  The  witness  whose  version  you 
accept  so  far  as  it  goes.  (2)  The  witness  whom  you  show  to  be  mistaken, 
or  the  force  of  whose  testimony  you  take  off  by  other  means,  not  however 
attacking  his  veracity.  (3)  The  witness  whom  you  show  to  be  unworthy 
of  credit.  We  add  that  there  are  really  but  two  kinds  of  witnesses,  the 
truthful  and  the  untruthful ;  and  consequently  there  are  at  bottom  but  two 
kinds  of  cross-e.xamination,  the  one  intended  to  elicit  friendly  evidence, 
and  the  other  to  show  the  unreliability  of  the  witness.  We  wish  to  impress 
it  upon  our  student  that  the  first  kind  is  in  general  use  in  every  sort  of  case, 
while  the  second  is  only  of  occasional  importance. 

We  now  take  up  the  witness  mentioned  in  the  first  class  of  our  enumeration, 
that  is,  he  whose  version  you  accept  as  far  as  it  goes.  Your  objects  with  him 
are  but  two,  (a)  the  first  to  have  him  complete  what  the  direct  examiner  has 
incompletely  presented  through  .such  partial  questions  as  will  be  explained 
in  a  ntomcnt,  and  (h)  the  second  to  make  him,  if  you  can,  reenforce  your 
own  proofs. 

(a)  TJH'  rxamiiHT  in  chief  is  privileged  to  ask  such  relevant  questions  as  he 
pleases,  and  to  keep  the  witness  from  answering  anything  more.  He  gener- 
ally culls  from  what  the  latter  knows  of  the  matter  in  controversy  such  parts 
only  as  are  favorable.  ...  If  you  observe  the  trial  of  issues  of  fact,  you 
will  note  that  nearly  every  witness  is  made  to  suppress  some  important  parts 
of  a  transaction  while  replying  to  the  direct  examiner;  and  that  often, 
where  he  i.s  given  free  range  by  being  told  to  make  his  statement  in  his  own 
way.  he  omits  .some  details  which  would  aid  the  other  side  should  thev  be 


No.  256.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  505 

proved.  To  make  the  witness  give  a  coviplcte  narrative,  if  what  has  been 
kept  back  is  favorable  to  your  side,  may  be  regarded  as  the  point  where  cross- 
examination  should  generally  begin.  .  .  . 

{b)  We  now  come  to  what  is  practically  the  most  effective  and  most 
widely  useful  of  all  the  different  sorts  of  cross-examination.  In  it  you  have  the 
opposite  witness  to  prove  independent  facts  in  your  favor.  ...  A  person  may 
have  been  present  when  a  sum  of  money  was  borrowed,  and  he  may  also  have 
seen  the  money  repaid  afterwards  to  one  who  is  claimed  to  have  been  the  agent 
of  the  lender  to  receive  it.  If  this  witness  testifies  for  the  plaintiff  on  the 
trial  of  a  suit  for  the  money,  his  counsel  will  ask  nothing  about  the  repayment. 
He  may  not  even  know  of  it.  But  you  ha\'e  been  told  of  it  by  your  client, 
and  you  therefore  will  draw  it  out  when  you  take  the  witness.  .  .  .  Note 
the  usual  cross-examinations  by  good  practitioners,  and  you  will  find  that 
in  a  large  proportion  they  ask  hardly  any  questions  except  such  as  are  now 
our  special  subject.  In  most  cases  they  see  intuitively  that  there  is  no  very 
distorted  statement  to  be  rectified,  and  that  there  are  no  serious  mistakes 
to  be  corrected  ;  and  they  only  make  the  witness  reenforce  their  side  as  to 
some  detail.  .  .  .  While  the  kind  of  cross-examination  now  in  hand  is  the 
most  important  of  all,  it  is  also  the  most  easy.  It  requires  no  great  skill. 
It  will  generally  l)e  well  done  if  with  patience  you  have  had  your  client  and 
his  following  to  tell  you  all  that  the  witnesses  for  the  other  side  know  in  his 
favor,  and  you  then  question  accordingly. 

As  we  leave  this  branch  of  the  subject,  we  must  ask  you  not  to  fall  into 
the  error  of  rating  its  place  in  practice  by  the  short  notice  it  has  received 
from  us.  It  is  too  simple  to  need  much  explanation.  But  if  you  stay  at  the 
bar,  you  will  have  increasing  use  for  it,  and  after  a  while  you  will,  as  a  general 
rule,  prepare  no  other  sort  of  cross-examination  for  the  average  witness. 
It  is  a  larger  field  for  your  powers  than  appears  at  first.  The  cross-examiner 
requires  much  attention  and  assiduity  to  collect  from  the  opposite  witnesses 
all  the  help  possible.  It  is  not  only  such  important  facts  as  we  used  for 
illustration  in  the  last  section  that  he  must  search  for.  They  would  be 
overlooked  by  only  a  very  dull  man.  He  is  to  exhaust  many  details  ;  such 
as  strengthening  one  of  his  own  witnesses  stoutly  attacked  by  having  the 
witness  under  examination  to  concur  with  him  in  even  a  small  matter ;  the 
conduct,  expression,  or  language  of  the  adverse  party  on  some  occasion 
which  the  latter  has  probably  forgotten ;  minute  circumstances,  such  as  the 
shapes  and  positions  of  marks ;  in  short,  the  details  relevant  here  are  as 
varied  and  extensive  as  the  entire  possibilities  of  proof. 

256.  Amos  C.  Miller.  Examination  of  Witnesses.  (Illinois  Law  Review. 
1907.  Vol.  II,  p.  257.)  ...  I  have  said  above  that  it  is  necessary  to  treat 
a  witness  who  is  honestly  mistaken  very  differently  from  the  way  you  treat 
a  witness  who  is  lying.  The  truth  of  this  is  manifest.  If  the  witness  who 
is  honestly  mistaken  is  treated  harshly  or  in  a  manner  which  shows  to  him 
that  his  cross-examiner  believes  him  to  be  lying  or  wants  his  hearers  to  so 
believe,  he  will  quickly  resent  it  and  strengthen  his  testimony  upon  the  very 
points  on  which  it  is  desired  to  weaken  him.  If,  on  the  contrary,  the  honestly 
mistaken  witness  has  his  attention  called  to  collateral  matters  inconsistent 
with  his  testimony,  and  the  truth  of  which  he  is  likely  to  recognize,  and  if 
he  at  the  same  time  is  treated  courteously  and  considerately,  he  is  quite 


506  PART    II.      TESTIMONIAL   EVIDENCE  No.  257. 

likely  either  to  change  his  testimony  or  modify  it  or  become  so  uncertain 
as  to  make  his  testimony  utterly  worthless  to  the  party  calling  him.  He 
may  gain  so  favorable  an  impression  of  the  cross-examining  counsel,  and  of 
his  superior  knowledge  of  the  facts  in  the  case,  that  he  will  suddenly  develop 
an  e.xtreme  conscientiousness  about  testifying  to  things  of  which  he  is  not 
perfectly  certain. 


257.  G.M.  Whipple.  Manual  of  McninJ  and  Physical  Tests}  (1910.  p.  404.) 
Tests  of  Suggestibilitij.  The  term  "suggestion"  has  found  different  usages 
in  psychology.  Four  different  usages  at  least  may  be  distinguished.  (1) 
Suggestion  is  equivalent  to  association,  e.g.  the  idea  "horse"  suggests  the 
idea  "  Black  Beauty."  (2)  Suggestion  is  the  conveyance  of  an  idea  by  hint, 
intimation,  or  insinuation,  e.g.  the  orator  suggests  an  idea  by  an  appropriate 
gesture.  (3)  Suggestion  is  a  method  of  creating  and  controlling  hypnosis. 
(4)  Suggestion  is  a  method  of  creating  belief  or  aflFecting  judgment,  usually 
an  erroneous  belief  or  false  judgment,  in  the  normal  consciousness. 

The  tests  which  follow  all  purport  to  measure  susceptibility  to  suggestion 
in  this  last-named  sense.  In  them,  the  experimenter  seeks  by  suitable 
arrangement  of  the  test  material  or  of  the  instructions,  to  induce  the  subject 
to  judge  otherwise  than  he  naturally  would  —  to  induce  him,  for  example, 
to  judge  equal  lines  or  equal  weights  to  be  unequal,  or  to  perceive  warmth 
when  there  is  no  warmth,  etc.  If  the  attempt  is  successful,  the  subject  is 
said  to  have  yielded,  or  to  have  "accepted"  the  suggestion.  The  degree 
of  his  suggestibility  is  indicated  by  the  quickness  or  frequency  of  his  "yields." 

Efficiency  in  observation,  attention,  memory,  and  the  like  has  been 
shown  to  be  specific,  not  general  in  character.  For  this  reason,  suggesti- 
bility must  be  tested  by  more  than  one  method.   .   ,   . 

Test  4^.  Suggestion  by  Progressive  Lines.  .  .  .  Arrange  the  kymograph  drum 
so  that  it  may  lie  horizontally  and  be  revolved  freely  by  hand.  .  .  .  On 
the  strip  of  white  paper,  draw  with  a  ruling  pen  20  parallel,  straight  black 
lines,  2  cm.  apart  and  each  1  mm.  wide.  .  .  .  Seat  S-  50  cm.  from  the  screen 
and  provide  him  with  a  sheet  of  cross-section  paper.  The  instructions  should 
take  the  following  form  :  "  I  want  to  try  a  test  to  see  how  good  your  'eye' 
is.  I'll  show  you  a  line,  say  an  inch  or  two  long,  and  I  want  you  to  reproduce 
it  right  afterwards  from  memory.  Some  persons  make  bad  mistakes ; 
they  may  make  a  line  2  inches  long  when  I  show  them  one  3  inches  long ; 
others  make  one  4  or  5  inches  long.  Let's  see  how  well  you  can  do.  I  shall 
show  the  line  to  you  through  this  slit.  Take  just  one  look  at  it,  then  make 
a  mark  on  this  paper  (cross-section  paper)  just  the  distance  from  this  edge 
(left-hand  margin)  that  the  line  is  long.  When  that  is  done,  I  shall  show 
you  the  second  line,  then  the  third,  and  so  on.  ...  E  then  turns  the  drum 
to  bring  the  first,  or  shortest,  line  into  view.  As  soon  as  S  turns  his  attention 
to  the  recording  of  his  estimate  on  the  paper,  the  drum  is  moved  forward 
slightly  to  conceal  the  line  .so  that  further  comparison  is  impossible.  As  soon 
as  S  has  placed  his  mark,  then,  and  not  before,  the  next  line  is  exposed. 
This  precaution  serves  to  maintain  the  impression  that  a  new,  and  hence 
probably  a  longer,  line  is  exposed.  ...     If  S  has  ceased  to  respond  to  the 

'  Published  at  Baltimore,  by  the  Warwick  &  Yorko  Co. 
*  |S  =  Subject,  i.e.  person  to  bo  cxporimented  upon.  —  Ed.] 


No.  257.  II.      TESTIMONIAL    PROCESS.       C.    NARRATION  507 

suggestion  of  progressive  augmentation  at  the  20th  exposure,  the  test  ends 
at  that  point.  .  .  .  For  a  measure  of  suggestibihty,  E  may  take  the  number 
of  Hues  out  of  the  last  10  hnes  that  are  drawn  longer  than  the  5th  line  was 
drawn.  .  .  . 

Results.  ...  (3)  Inspection  of  the  records  of  individual  pupils  shows  that  in 
some  cases  the  force  of  suggestion  was  steady  and  persistent,  while  in  others 
it  reached  a  maximum,  and  then  declined.  (4)  Extremely  suggestible 
S's  may  make  their  "estimate"  of  the  line  without  even  looking  at  it  when 
exposed ;  their  minds  are  so  completely  dominated  by  the  suggestion  of 
uniform  augmentation  that  they  do  not  trouble  to  observe  the  stimulus.  .  .  . 
(6)  In  either  form  of  test,  the  1st  line  is  apt  to  be  overestimated.  The  5th 
line  is  almost  invariably  underestimated.  Generally  speaking,  this  under- 
estimation is  less  pronounced  in  those  S's  that  least  prove  least  suggestible. 

Test  43-  Suggestion  of  line  lengths.  .  .  .  [Two  forms  of  suggestion  may 
be  used];  the  first  Binet  terms  "contradictory  suggestion,"  the  second 
"directive  suggestion"  ("  suggestion  directrice  ")  :  in  the  former  E  makes 
certain  statements  that  are  intended  to  interrupt  or  modify  a  judgment 
that  S  has  just  made  ;  in  the  latter,  statements  that  are  intended  to  control 
or  influence  a  judgment  that  S  is  just  about  to  make. 

A.  Contradictory  Suggestion.  Materials.  Drawing  utensils.  A  sheet 
of  cardboard  upon  which  are  drawn  in  ink  24  parallel,  straight  black  lines, 
ranging  in  length  from  12  to  104  mm.,  by  increments  of  4  mm.  The  lines 
all  begin  at  the  same  distance  from  the  left-hand  margin,  are  7  mm.  apart, 
and  are  numbered  in  order  of  their  length,  from  1  to  24.  These  rectangular 
pieces  of  cardboard,  about  12  X  20  cm.,  on  each  of  which  is  drawn  a  single 
straight  line.  These  three  stimulus  lines  correspond  to  numbers  6,  12,  and 
18  of  the  24  comparison  lines,  and  are,  accordingly,  32,  56,  and  80  mm.  long, 
respectively. 

Method.  Show  S  the  card  of  comparison  lines,  and  explain  their  nvmiber- 
ing.  Replace  this  by  the  first  stimulus  line  (32  mm.),  saying  :  "  Look  care- 
fully at  this  line."  After  4  sec,  remove  the  stimulus  card,  present  the 
comparison  card,  and  say  :  "  Tell  me  the  number  of  the  line  that  is  just 
the  length  of  the  one  I  showed  you."  At  the  moment  that  S  gives  his  judg- 
ment, E  says  :  "  Are  you  sure  ?  Isn't  it  the  — th  ?"  —  indicating  always  the 
next  longer  line.  If  S  answers  "No,"  E  repeats  the  question  in  exactly  the 
same  form.  If  S  still  answers  "No,"  the  attempt  to  produce  suggestion  is 
suspended,  and  the  case  is  recorded  as  one  "resistance."  The  second  and 
the  third  stimulus  lines  are  presented  and  the  same  procedure  is  followed 
in  each  case.  If,  in  any  of  the  trials,  S  answers  "Yes,"  E  then  inquires: 
"Isn't  it  this  one?"  —  indicating  the  next  longer  line  and  this  inquiry  is 
carried  on  from  line  to  line  until  S  has  twice  resisted  the  suggestion,  i.e. 
has  twice  answered  "No"  to  the  same  question.  .  .  , 

Results.  ...  (2)  Of  25  children,  aged  8-10  years,  Binet  found  6  who 
resisted  suggestion  completely,  6  who  "yielded"  once,  5  twice,  2  three 
times,  2  four  times,  and  1  each  six,  seven,  and  more  than  seven  times.  .  .  . 
(4)  S's  who  have  selected  the  correct  line  are  less  apt  to  change  their  desig- 
nation under  suggestion  than  are  S's  who  have  selected  the  wrong  line : 
thus  Binet  and  Henri  found  that  56  per  cent  changed  their  selection 
when  it  was  actually  right,  but  88  per  cent  when  it  was  wrong.  Moreover, 
of  the  latter,  81  per  cent  made  the  change  in  the  proper  direction. 


50S  PART    II.      TESTI.MOXIAL    EVIDENCE  No.  253 

B.  Direct  ire  Suggvfitioii.  Apparatus.  A.s  in  Test  42,  save  that  only 
GO  mm.  lines  are  used. 

Method.  Seat  S  50  cm.  from  the  cardboard  screen  and  provide  him  with 
a  slieet  of  cro.ss-section  paper.  Instruct  him  as  follows:  "I'm  going  to 
show  you  a  number  of  lines.  You  will  see  them  appear  through  this  slit, 
one  at  a  time.  AVlu-n  I  show  you  a  line,  take  a  good  look  at  it ;  then  make 
a  mark  on  this  paper  at  just  the  distance  from  this  edge  (left-hand)  that  the 
line  is  long.  When  that  is  done,  I  shall  show  you  the  second,  then  the  third, 
and  so  on.  You  will  make  the  mark  for  the  length  of  the  second  line  on 
the  second  line  of  your  paper,  for  the  third  on  the  next  line,  and  so  on." 
E  now  displays  the  oth,  i.e.  the  first  (50  mm.  line  of  the  series,  with  the 
remark :  "  Here  is  the  first  one."  When  S  is  ready  for  the  second  line, 
i.e.  7-10  sec.  later,  E  remarks,  as  he  exposes  it :  "Here  is  a  longer  one." 
When  tlie  third  is  exposed  he  remarks,  "Here  is  a  shorter  one,"  and  he 
continues  to  use  these  remarks,  alternately,  at  the  moment  of  exposure  of 
each  line,  until  15  lines  have  been  exposed,  the  first  without  suggestion, 
the  remainder  coupled  with  14  suggestions  —  7  of  shorter,  7  of  longer. 
These  suggestions  must  be  given  just  before  the  line  is  exposed,  in  a  quiet 
tone,  without  looking  at  S.  S  should  see  the  disk  turn  and  the  new  line 
appear  at  the  moment  that  he  receives  the  suggestion.    .    .    . 

Results.  (1)  .  .  .  Sixteen  of  23  pupils  tested  by  Binet  submitted  com- 
pletely to  the  suggestion,  and  no  one  resisted  every  suggestion.  ...  (4) 
There  are  marked  individual  differences  in  the  suggestibility  of  school 
children  under  the  conditions  of  this  test.  Binet  found  that  in  18  trials 
the  number  of  resistances  to  suggestion  ranged  from  0  to  14.   .   .   . 

[Reverting  to  the  effect  of  suggestion  on  the  correctness  of  reports  in 
general,  as  observed  in  experiments  with  a  colored  picture  [post,  No.  290], 
the  following  generalizations  have  been  made  :] 

(11)  Dependence  on  Form  of  Report.  All  authorities  agree  that  the  use  of 
the  interrogatory,^  whether  the  complete  or  incomplete  form,  increases  the 
range  and  decreases  the  accuracy  of  the  report.^  Thus,  in  comparison  with 
the  narrative,^  the  range  of  the  interrogatory  may  be  50  per  cent  greater, 
while  the  inaccuracy  (of  the  incomplete  interrogatory)  may  be  as  much  as 
550  per  cent  greater.  In  general  terms  we  may  say  that  about  one  tenth 
of  the  narrative  is  ine.xact,  but  about  one  quarter  of  the  interrogatory.  .  .  . 

(12)  Dependence  on  the  Type  of  Question.  The  introduction  of  leading  or 
suggestive  questions  very  noticeably  decreases  the  accuracy  of  report  for 
children,  and,  unless  the  conditions  of  report  are  quite  favorable,  even  for 
adults.  The  greater  suggestibility  of  children  is  shown  by  Stern's  results, 
in  wiiich  the  inaccuracy  of  boys  and  girls  aged  7  to  14  was  from  32  to  39 
per  cent,  as  against  10  per  cent  inaccuracy  for  young  men  aged  16  to  19 
years. 

258.  James  Ram.  On  Faet.s-  as  Subjects  of  Tnquir;/  by  a  Jury.  (3d  Amer. 
ed.  1873.  p.  131.)  .\  witness  about  to  narrate  facts  may  be  left  to  tell 
his  story  in  his  own  way,  or  it  may  be  drawn  from  liim  l)y  (juestions  put 
to  him. 

The  former  method  of  iclling  the  story  is  open  to  these  objections:   The 
witness  may  not  think  enough  to  call  to  mind  all  he  can  relate ;  from  care- 
'  [Fi.r  tlw  t..<lnM.:il  iii.;iiiing  of  these  terms  with  this  author,  see  post.  No.  290.  — Ed.] 


Kj.  258.  II.      TESTIMONIAL    PROCESS.       C.    NARRATION  509 

lessness  or  oversight  he  may  omit  to  mention  some  circumstances  ;  he  may 
think  or  fancy  the  circumstances  he  withholds  are  not  material  to  a  proper 
understanding  of  his  story ;  indeed,  he  may  think  or  fancy  that  his  story 
will  be  best  understood,  if  it  be  not  loaded  with  matters  which  he  views  as 
redundant,  but  which  nevertheless  are  essential  to  see  the  facts  in  their 
proper  proportions  and  color.  .  .  .  Supposing,  besides,  the  witness  does 
not  wish  to  speak  the  whole  truth,  it  is  obvious  his  wish  will  be  promoted, 
by  leaving  him  to  tell  his  tale  in  his  own  way.  .  .  . 

In  the  other  method  of  obtaining  a  relation  of  facts,  the  one  by  question 
and  answer,  the  object  of  the  interrogator  is,  to  get  from  the  witness  all  he 
himself  saw,  heard,  said,  and  did,  excluding  all  hearsay,  and  other  irrelevant 
matter.  x\nd  the  questions  being  framed  with  a  view  to  this  exclusion,  if 
the  witness  confines  himself  strictly  to  the  questions  addressed  to  him,  his 
answers  will  contain  no  hearsay  nor  other  irrelevant  matter.  But  as,  ac- 
cording to  this  method,  the  witness's  narrative  consists  solely  of  his  answers 
to  the  questions  put  to  him,  this  obvious  inconvenience  attends  it,  that  if 
all  the  questions  required  to  bring  out  the  witness's  whole  story  are  not  put 
to  him,  he  may  in  his  evidence  leave  out  circumstances  important  to  be 
known.  .  .  . 

The  basis  of  interrogation  of  a  witness  is  something  of  which  his  examiner 
desires  to  be  informed,  and  which  he  knows,  thinks,  assumes,  or  hopes,  the 
witness  will  be  able  to  tell  him.  There  are  two  ways  of  questioning :  one 
where  the  words  made  use  of  in  the  question  suggest  or  prompt  a  particular 
answer,  and  which  is  called  a  leading  question ;  the  other,  where  the  ques- 
tion does  not  so  lead,  but  is  put  in  general  terms,  without  at  all  pointing  to 
a  particular  reply.  This  may  be  called  an  open  question  ;  it  is  open  to  any 
answer.  "  Did  not  you  see  this  ?"  or  "  Did  not  you  hear  that  ?  "  are  leading 
questions.  In  them  the  person  questioned  is  in  a  manner  prompted  to 
answer,  he  did  see  or  hear  this  or  that  particular  thing.  "  It  is  a  good  point 
of  cunning  for  a  man  to  shape  the  answer  he  would  have  in  his  own  words 
and  propositions  :  for  it  makes  the  other  party  stick  the  less."  ^  "Ye  will, 
therefore  (addressing  Morris),  please  tell  Mr.  Justice  Inglewood,  whether 
we  did  not  travel  several  miles  together  on  the  road,  in  consequence  of  your 
own  anxious  request  and  suggestion,  reiterated  once  and  again,  baith  on  the 
evening  that  we  were  at  Northallerton,  and  there  declined  by  me,  but  after- 
ward accepted,  when  I  overtook  ye  on  the  road  near  Clobery  Allers,  and  was 
prevailed  on  by  you  to  resign  my  ain  intentions  of  proceeding  to  Rothbury  ; 
and,  for  my  misfortune,  to  accompany  you  on  your  proposed  route.  '  It's 
a  melancholy  truth,'  answered  Morris,  holding  down  his  head,  as  he  gave 
this  general  assent  to  the  long  and  leading  question  which  Campbell  put  to 
him."  '  Assuming  that  the  person  questioned  honestly  desires  to  speak  the 
truth,  and  that  his  memory  is  not  defective,  a  strong  probability  is  that, 
whether  the  question  be  open  or  leading,  he  will  return  precisely  the  same 
answer  to  it. 

Each  kind  of  question  has,  however,  its  advantages  and  disadvantages. 
If  the  witness  be  dishonest,  and  there  be  connivance  between  him  and 
his  interrogator ;  or  supposing  the  former  honest,  and  the  latter  not  to 
be  so ;  it  is  plain  that  a  leading  question  may  tend  to  bring  out  the  answer 
which  the  interrogator  desires.     And  assuming  that  both  the  witness  and  the 

1  Bacon's  Essays :  Of  Cunning.  ^  Rob  Roy. 


510  PART    II.      TESTIMONIAL    EVIDENCE  No.  259. 

interrogator  are  honest,  both  wishing  the  truth  to  be  spoken ;  here,  if  the 
witness  remembers  httle  or  nothing,  or  if  he  be  dull,  or  heedless,  or  be  con- 
fused, or  embarrassed  by  timidity  or  any  other  cause,  there  is  danger  that, 
if  he  is  addressed  by  a  leading  question,  he  may,  without  thought  or  con- 
sideration, echo  in  his  reply  the  words  put  in  the  question,  and  so  fail  to 
speak  the  truth. 

An  open  question  imposes  on  an  lionest  witness  the  necessity  of  thought, 
a  consideration  of  both  the  question  and  reply.  It  forces  him  to  resort  to, 
and,  if  need  be,  to  ransack  his  memory,  and  obliges  him  to  utter  only 
what  he  remembers.  On  the  other  hand,  it  is  very  possible,  in  many  cases 
prol)able.  that  from  sickness,  old  age,  or  other  cause,  his  memory  may  be  so 
infirm  that  he  cannot  be  brought  to  a  correct  answer,  except  by  a  leading 
question.  All  open  questions,  every  question  short  of  a  leading  one,  may 
fail  to  quicken  his  memory,  and  bring  him  to  express  the  fact  of  which  he 
has  knowledge.  Nothing,  for  instance,  is  more  common,  than  to  forget 
a  person's  name,  and,  without  hearing  it  again,  to  be  quite  unable  to  call 
it  to  mind.  We  constantly  hear  people  say,  "  If  I  heard  his  name,  I  should 
know  it  directly."  If  the  name  be  pronounced,  the  hearing  of  it  refreshes 
the  power  of  recollection,  and  the  name  is  instantly  remembered. 

259.  Charles  C.  Moore.  A  Treatise  on  Facts,  or  the  Weight  and  Value  of 
Evidence.  (1908.  Vol.  II,  §§699,814,  etc.)  .  .  .  Leading  Questions.  Lord 
Bacon  said  :  "  It  is  a  good  point  of  cunning  for  a  man  to  shape  the  answer  he 
would  have  in  his  own  words,  for  it  makes  the  other  party  stick  the  less."  A 
leading  question  propounded  to  a  witness  may,  by  creating  an  inference  in 
his  mind,  cause  him  to  testify  in  accordance  with  the  suggestion  conveyed 
by  the  question  ;  his  answer  may  be  "  rather  an  echo  to  the  question  "  than 
a  genuine  recollection  of  events,  and  in  some  cases  may  alone  be  inadequate 
to  support  a  verdict  or  decree.  Professor  Kuhlmann  gives  the  results  of 
some  laboratory  experiments  by  Lipmann,  and  says  they  "leave  no  doubt 
that  memory  illusion  is  greater  when  the  statements  made  are  answers  to 
particular  questions,  than  when  the  statements  are  made  spontaneously 
on  the  part  of  the  subject  without  special  questioning."  In  an  article 
elsewhere  cited  Professor  C'laparcde  says :  "  In  the  giving  of  evidence 
suggestion  plays  a  most  important  part.  The  simple  fact  of  questioning 
a  witness,  of  pressing  him  to  answer,  enormously  increases  the  risk  of 
errors  in  his  evidence.  The  form  of  the  question  also  influences  the  value 
of  the  reply  that  is  made  to  it.  Let  us  suppose,  for  instance,  that  some 
persons  are  (juestioned  about  the  color  of  a  certain  dog.  The  replies  are 
likely  to  be  much  more  correct  if  we  ask  the  witnesses,  'What  is  (was)  the 
color  of  the  dog  ? '  than  if  we  were  to  say  to  them,  '  Was  the  dog  white,  or 
was  it  brown  ? '  The  question  will  be  positively  suggestive  if  we  ask, 
'Wjis  the  tlog  wiiite?'  To  such  a  question  the  answer  is  probably  of  no 
value.  In  (lucstioning  witnesses  —  that  is  to  say,  in  pressing  them  and 
forcing  their  memory  —  we  may  obtain,  it  is  true,  a  much  more  extensive 
deposition  than  if  we  leave  them  free  to  answer  spontaneously.  Any  ad- 
vantage thus  obtained,  however,  is  problematical,  since  we  lose  in  fidelity 
whatever  we  may  gain  in  extent  of  information."   .   .   . 

l/<'a(ling  rpicstions  do,  however,  often  stimidate  genuine  recollection.  But 
if  counsel  are  pi-rtnittcd  to  so  frame  a  ciuestion  put  to  their  own  witness  as 


>'o.  261.  11.        TESTIMONIAL    PROCE33.       C.    NARRATION  511 

to  suggest  the  answer  desired,  there  is  always  imminent  danger  of  getting 
before  the  jury  the  phrases  and  ideas  not  really  those  of  the  witness.  Com- 
paratively small  weight,  in  any  case,  is  due  to  testimony  as  to  critical  facts, 
elicited  from  a  friendly  witness  under  strenuous  pressure  of  leading  ques- 
tions by  counsel  for  the  party  on  whose  behalf  he  testifies.  .  .  . 

260.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^  As- 
suming a  Controverted  Fact.  A  question  which  in  part  assumes  the  truth  of 
a  controverted  fact  may  lead  a  witness  to  reply  without  taking  care  to 
specify  that  his  answer  is  based  on  that  assumption,  and  may  thus  commit 
him  to  an  assertion  of  the  assumed  fact,  though  in  fact  he  may  not 
desire  or  be  able  to  do  so.      This  is  obviously  a  danger  to  be  prevented  : 

1888.  Parnell  Commission's  Proceedings.  19th  day,  Times'  Rep.,  pt.  5,  p.  221  ;  the 
"Times"  having  charged  the  Irish  Land  League  with  complicity  in  crime  and  out- 
rage, a  constable  testifying  to  outrages  was  cross-examined  by  the  opponents  as  to  his 
partisan  employment  by  the  "Times"  in  procuring  its  evidence;  Mr.  Lockwood: 
"How  long  have  you  been  engaged  in  getting  up  the  case  for  'The  Times'  ?"  Sir 
H.  James:  "What  I  object  to  is  that  Mr.  Lockwood,  without  having  any  foundation 
for  it,  should  ask  the  witness  'How  long  have  you  been  engaged  in  getting  up  the  case 
for  'The  Times'?'"  Mr.  Lockwood:  "I  will  not  argue  with  my  learned  friend  as  to 
the  exact  form  of  the  question,  but  I  submit  that  it  is  perfectly  proper  and  regular. 
If  the  man  has  not  been  engaged  in  getting  up  the  case  for  'The  Times,'  he  can  say 
so;"  Sir  H.  James:  "I  submit  that  my  learned  friend  has  no  right  to  put  this 
question  without  foundation.  Counsel  has  no  right  to  say  'When  did  you  murder 
A.  B.  ?'  unless  there  is  some  foundation  for  the  question.  In  this  same  way  he  has 
no  right  to  ask  'How  long  have  you  been  engaged  in  getting  up  this  case?'  for  it 
assumes  the  fact."  .  .  .  President  Hannen:  "I  do  not  consider  that  Mr.  Lock- 
wood  was  entitled  to  put  the  question  in  that  form  and  to  assume  that  the  witness 
has  been  employed  by  'The  Times.' "  ^ 

261.  Francis  L.  Wellman.  Bay  in  Court.  (1910.  p.  79.)  The  rule 
against  leading  questions  (with  few  exceptions)  is  strictly  adhered  to, 
and  very  properly  so.  Some  lawyers  put  the  clearly  inadmissible  question 
which  suggests  the  answer,  and  though  it  is  ruled  out,  perhaps  with  a 
rebuke  from  the  court,  the  witness  nevertheless  has  caught  the  idea. 
This  is  disreputable  practice.  .  .  .  Every  advocate  is  in  honor  bound 
not  to  transgress  the  rule  against  "leading  questions"  when  it  really  comes 
to  important  matters. 

But  it  is  sometimes  extremely  difficult.  Indeed,  there  are  cases  in  which 
the  Court,  in  its  discretion,  may  permit  him  to  ask  leading  questions  in  the 
interests  of  justice,  so  that  important  testimony  ma}^  not  be  lost.  Suppose, 
for  instance,  a  witness  is  giving  his  memory  of  a  long  conversation  he  over- 
heard between  the  parties  to  an  action,  and,  as  often  happens,  leaves  out 
of  his  narrative  perhaps  what,  in  law,  amounts  to  the  most  important  part. 
In  vain  the  advocate  tries  not  to  lead  him.     He  asks,  "  Have  you  given  all 

^  [Adapted  from  the  same  author's  Treatise  on  Evidence.  (1905.  Vol.  I,  §  771.)] 
^  The  following  anecdote  neatly  illustrates  this  trick  of  a  "loaded"  or  "forked"  ques- 
tion :  "Sir  Frank  Lockwood  was  once  engaged  in  a  case  in  which  Sir  Charles  Russell  (the 
late  Lord  Chief  Justice  of  England)  was  the  opposing  counsel.  Sir  Charles  was  trying 
to  browbeat  a  witness  into  giving  a  direct  answer,  'Yes,'  or  'No.'  'You  can  answer  any 
question  yes  or  no,'  declared  Sir  Charles.  'Oh,  can  you?'  retorted  Lockwood.  'May 
I  ask  if  you  have  left  off  beating  your  wife?'"      {Green  Bag,  Vol.  XH,  p.  671.) 


512 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  26:'. 


the  conversation  ?  "  "Was  that  all  that  was  said  ?"  The  witness  remem- 
bers no  more.  The  memory  of  the  witness  had  been  exhausted  by  direct 
questions,  and  then  the  Court  may  properly  permit  him  to  lead  the  witness 
so  far  as  to  ask  the  witness  whether  anything  was  said  about  so  and  so 
(without  suggesting  what  was  said),  s^nd  thus  call  his  attention  to  the  matter 
which  the  witness  had  inadvertently  overlooked,  and  thus  save  very  im- 
portant testimony  which  should  otherwise  be  lost. 

So,  too,  when  it  is  discovered  that  a  witness  is  hostile,  the  Court,  as  already 
intimated,  may  permit  leading  questions  to  be  put,  because  the  reason  for 
the  rule  against  them  no  longer  exists.  In  other  words,  the  rule  against 
putting  leading  questions  to  your  own  witness  is  based  upon  the  tendency 
of  the  human  mind  to  adopt  the  suggestion  of  the  person  or  side  that  it 
desires  to  aid  and  to  quickly  respond  to  any  hint  of  what  is  wanted  to  assist 
the  party  making  the  suggestion.  Hence,  in  the  case  of  a  hostile  witness 
obviouslv  the  rea.son  for  the  rule  is  gone. 


262.    PAT  HOGAN'S  CASE.    (J. 
Bar.      1879.      p.  238.) 

.  .  .  O'Connell  defended  a  man 
named  Hogan,  charged  with  murder. 
A  hat,  believed  to  be  the  prisoner's, 
was  found  close  to  the  l)ody  of  the 
nuirdered  man,  and  this  was  the 
principal  ground  for  supposing 
Hogan  was  the  perpetrator  of  the 
foul  deed.  That  the  deceased  came 
by  his  death  by  violence,  the  state 
of  the  body  clearly  showed ;  and 
O'Connell  felt  the  case  for  the  pris- 
oner required  the  exercise  of  his 
utmost  powers.  The  Crown  coun- 
sel made  a  strong  point  on  the  hat, 
which  was  profluced  in  court. 
O'Connell  cross-examined  the  neigh- 
bor of  the  prisoner,  who  identified 
it. 

"It  is  not  difVerent  from  other 
hats,"  said   O'Connell. 

A.  "Well,  seemingly,  ])ut  I  know 
the  hat." 

"Are  you  perfectly  sure  that  this 
was  the  liat  found  near  the  bodv?" 


Roderick  O'Flanagan.    The  Irish 

A.    "Sartin  sure." 

O'Connell  proceeded  to  inspect 
the  caubeen,  and  turned  up  the 
lining  as  he  peered  into  the  in- 
terior. 

Q.  "W'as  the  prisoner's  name 
PAT  HOGAN"  (he  spelled  each 
letter  slowly)  "in  it  at  the  time 
you  found  it  ?" 

A.    "  'Twas,  of  coorse." 

Q.  "You  could  not  be  mis- 
taken ?" 

A.    "No,  sir." 

Q.  "  And  all  you  swore  is  as 
true  as  that  ?  " 

A.    "Quite." 

"Then  go  off  the  table  this  min- 
ute!" cried  O'Connell,  trium- 
phantly. Addressing  the  Judge,  he 
said,  "My  Lord,  there  can  be  no 
conviction  here.  There  is  no  name 
in  the  hat!" 

The  prisoner  was  at  once 
acquitted. 


203.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913. )i  Re- 
peating precisely  the  .nunc  question  on  cross-examination,  in  order  by  sheer 
moral  force  to  compel  a  witness  to  admit  the  truth,  after  an  original  false 
an.iinr  or  rtfu.sal  to  answer  is  a  process  which  not  only  savors  of  intimi- 
dation and  browbeating,  but  also  tends  to  waste  time.  Accordingly,  it  is 
not  doutitl'ul  that  tlir  trial  Court  has  discretion  to  refuse  or  to  allow  this, 
as  seems  best  under  the  circumstances.     Nevertheless,  when  used  sparingly 

'  [Adapfffl  from  the  sanio  author's  Treatise  on  Evidence.     (1905.     Vol.  I,  §  782.)] 


-Vo.  263.  11.      TESTIMONIAL    PROCESS.       C.    NARRATION  513 

and  against  a  witness  who  in  the  cross-examiner's  behef  is  falsifying,  there 
ought  to  be  no  judicial  interference ;  for  there  is  perhaps  none  of  the 
lesser  expedients  (that  is,  ranking  after  Cross-examination  and  Sequestra- 
tion) which  has  so  keen  and  striking  an  efficacy,  when  employed  by 
skillful  hands,  in  extracting  the  truth  and  exposing  a  lie.  Simple  as 
this  expedient  seems,  it  rests  on  a  deep  moral  basis ;  and  the  annals  of 
our  trials  demonstrate  its  power.  In  the  following  passages,  ranging  over 
three  centuries,  some  of  the  most  notable  illustrations  will  be  found  : 

Count  Coningsmark's  Trial.  (1682.  9  How.  St.  Tr.  1,  55.)  [The  Count,  charged 
with  murder,  was  said  to  have  absconded  in  disguise ;  and  a  Swedish  fellow  country- 
man of  his,  at  whose  house  he  had  changed  his  clothes,  was  called]  :  Q.  "Pray,  what 
did  the  Count  say  to  you  about  his  coming  in  disguise  to  your  house?"  A.  "He 
said  nothing,  but  that  he  was  desirous  to  go  to  Gravesend ;  .  .  .  I  helped  him  to  a 
coat,  stocking,  and  shoes."  Q.  "Then  I  ask  you,  what  did  he  declare  to  you?" 
A.  "Why,  he  did  desire  to  have  those  clothes."  Q.  "You  are  an  honest  man,  tell 
the  truth."  A.  "He  declared  nothing  to  me."  Q.  "Did  he  desire  you  to  let  him 
have  your  clothes  because  he  was  in  trouble?"  A.  "He  desired  a  coat  of  me, 
and  a  pair  of  stockings  to  keep  his  legs  warm."  Q.  "I  do  ask  you,  did  he  declare 
the  reason  why  he  would  have  those  cloaths  was  because  he  would  not  be  known  ?  " 
A.  "He  said  he  was  afraid  of  coming  into  trouble."  Q.  "Why  were  you  unwilling  to 
tell  this?" 

Lord  Baltimore's  Trial.  (1768.  Gurney's  Rep.  77.)  [Abduction  and  rape  of  Sarah 
Woodcock ;  the  testimony  showed  plainly  that  the  case  was  in  truth  one  of  willing 
seduction,  although  the  complainant  testified  flatly  to  the  use  of  force  and  coercion ; 
her  evidence  was  suspiciously  inconsistent,  and,  on  her  cross-examination  by  the 
accused  himself,  the  following  answers  were  elicited:]  Q.  "How  old  are  you?" 
A.  "I  am  twenty-seven."  Q.  "Will  you  swear  you  are  no  older?"  A.  "I  will  swear 
I  am  twenty-eight."  Q.  "Will  you  swear  you  are  no  older?"  A.  "I  will  swear  I 
am  that."  Q.  "Will  you  swear  you  are  no  older  ?  "  A.  "  I  do  not  know  I  need  tell  ; 
I  am  twenty-nine,  and  that  is  my  age;  I  cannot  exactly  tell."  Q.  "To  the  best  of 
your  belief,  how  old  are  you  ?  "  A.  "I  believe  I  am  thirty  next  July ;  I  cannot  be  sura 
of  that,  whether  I  am  or  no." 

Norton  s  Trial.  (1784.  Sel.  Crim.  Trials  at  Old  Bailey,  I,  456.)  [The  accused,  aged 
11,  was  indicted  for  felonious  larceny;  and  one  Isaac  Barney,  a  patrolman,  swore 
to  a  confession  by  the  boy  when  under  arrest  that  he  had  watched  while  two  men 
entered  the  house ;  the  following  comprised  the  entire  cross-examination  of  this 
witness]:  Counsel:  "You  had  frighted  this  poor  child  out  of  his  senses  ?"  Witness: 
"I  do  not  think  he  was  afraid."  Counsel:  "Do  you  know  what  reward  there  is  for 
the  conviction  of  this  poor  infant?"  Witness:  "Upon  my  oath  I  do  not  know." 
Counsel:  "Do  you  mean  to  say  that  you,  a  patrol,  do  not  know?"  Witness:  "I 
am  sure  it  is  a  thing  I  never  had."  Counsel:  "You  shall  not  slip  through  my  fingers 
so,"  Witness:  "Upon  my  word  and  honor  I  do  not  know."  Counsel:  "Upon  your 
oath,  sir?"  Witness:  "I  do  not."  Counsel:  "Did  you  never  hear  that  there  was 
a  reward  of  forty  pounds  upon  the  conviction  of  that  child?"  Witness:  "I  never 
knew  any  such  thing."  Counsel:  "But  you  have  heard  it?"  Witness:  "I  never 
heard  any  such  thing."  Counsel:  "Come,  come,  sir,  it  is  a  fair  question,  and  the 
jury  see  and  hear  you.  Upon  your  oath,  did  you  never  hear  that  you  would  be 
entitled  to  forty  pounds  as  the  price  of  that  poor  infant's  blood  ?"  Witness:  "Your 
honor,. I  cannot  say."  Counsel:  "But  you  shall  say  before  you  leave  that  place." 
Witness:  "I  have  heard  other  people  talking  about  such  things."  Counsel:  "So  I 
thought ;  and  with  that  answer  I  leave  your  testimony  with  the  jury." 

Queen  Caroline's  Trial.  (1820.  Linn's  ed.,  I,  48,  78.)  [In  attempting  to  prove  an 
act  of  adultery  at  Naples,  between  the  Queen  and  her  servant  Bergami,  one  of  the  ma- 
terial facts  alleged  by  the  prosecution  was  that  the  Queen's  sleeping  room  adjoined 


514  PART    II.       TESTIMONIAL    EVIDENCE  No.  264. 

Dergami's,  with  only  a  corridor  and  a  cabinet  intervening,  and  that  there  was  no 
access  from  the  Queen's  room  to  Hergami's  except  by  that  passage;  to  this  the 
servant  Majocchi,  wlio  for  a  time  slept  in  the  cabinet  mentioned,  testified  as  follows, 
on  being  asked  by  Mr.  Solicitor-General  fop/pf/  (afterwards  L.  C.  Lyndhurst)  whether 
there  was  no  other  intervening  passage]  :  "There  was  nothing  else.  One  was  obliged 
to  pass  through  the  corridor,  from  the  corridor  to  the  cabinet,  and  from  the  cabinet 
into  the  room  of  Bergami.  There  was  nothing  else."  Then,  on  his  cross-examina- 
tion, Mr.  Brougham  asked  as  follows  :  "  Will  you  swear  there  was  no  passage  by  which 
her  Royal  Highness  could  enter  Bergami's  room,  when  he  was  confined  with  his  ill- 
ness, except  going  through  the  room  [i.e.  cabinet]  where  you  slept?"  Majocchi: 
"I  have  seen  that  passage ;  other  passages  I  have  not  seen."  Mr.  Brougham:  "Will 
you  swear  there  was  no  other  passage?"  Majocchi:  "There  was  a  great  saloon, 
after  which  there  came  the  room  of  her  Royal  Highness,  after  which  there  was  a 
little  corridor,  and  so  you  passed  into  the  cabinet.  I  have  seen  no  other  passage." 
Mr.  Brougham  :  "Will  you  swear  there  was  no  other  passage  ?"  Majocchi:  "I  can- 
not swear ;  I  have  seen  no  other  but  this ;  and  I  cannot  say  there  was  any  other  but 
this."  Mr.  Brougham:  "Will  you  swear  that  there  was  no  other  way  by  which  any 
person  going  into  Bergami's  room  could  go,  except  by  passing  through  the  cabinet  ?" 
Majocchi:  "I  cannot  swear  that  there  is  another;  I  have  seen  but  that;  there 
might  have  been,  but  I  have  not  seen  any,  and  I  cannot  assert  but  that  alone." 
Mr.  Brougham:  "Will  you  swear  that  if  a  person  wished  to  go  from  the  Princess's 
[i.e.  Queen's]  room  to  Bergami's  room,  he  or  she  could  not  go  a:ny  other  way  than 
through  the  cabinet  in  which  you  slept?"  Majocchi:  "There  was  another  passage 
to  go  into  the  room  of  Bergami."  Mr.  Brougham:  "Without  passing  tlu-ough  the 
cabinet  where  you  slept  ?  "     Majocchi :  "  Yes." 


264.  Charles  C.  Moore.  A  Treatise  on  Facts,  or  Thf  Weight  and  Value 
of  Endcncc.  (1908.  Vol.  II,  §§  699,  814,  etc.)  Memory  Refreshed  or  Revived 
by  Memorandum.  .  .  .  We  have  elsewhere  seen  how  readily  imagination  and 
jnference  produce  false  recollection.  This  facility  often  makes  it  extremely 
difficult  for  judges  to  arrive  at  satisfactory  conclusions,  becau.se,  in  many 
cases,  witnesses  do  really,  by  attentive  and  careful  recollection,  recall  the 
memory  of  facts  which  hafl  faded  away,  and  were  not,  when  first  questioned, 
present  to  their  minds.  ...  A  memorandum,  however,  may  exert  an  im- 
proper control  over  the  recollection  of  a  witness,  instead  of  merely  refresh- 
ing his  memory.  We  ha\e  already  seen  that  the  memory  of  an  interested 
witness  tends  to  favor  himself.  .  .  .  Where  a  party  testified  in  his  own 
interest  to  a  transaction  of  remote  date,  and  the  written  evidence  thereof 
favored  his  statement,  the  Court  observed  that  "  the  witness  would  naturally 
rely  more  on  the  written  papers  as  to  what  the  transaction  really  was,  than 
on  any  obscure  or  imperfect  recollections  of  anything  differing  from  them  ;" 
for  example,  it  would  not  be  singular  if,  looking  at  a  deed  to  himself,  abso- 
lute on  its  face,  he  should  forget  or  deny  a  contemporaneous  understanding 
that  it  was  a  mortgage.  In  a  collision  case  between  vessels  some  of  the  sea- 
men testified,  several  months  after  the  collision,  as  to  the  direction  of  the 
wind,  their  testiinony  in  that  regard  agreeing  with  an  entry  in  the  log 
kept  by  the  master.  Hut  it  was  found  that  the  original  entry  had  been 
obliterated  by  anotlicr  entry  in  a  different  ink.  The  Court  said  it  was 
most  reasonable  to  believe  that  the  altered  log  had  been  shown  to  the 
witnesses,  an<l  bad  h-d  tlwir  recollection  into  the  error  committed  in  the 
fabricated   entry. 


No.  265.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  515 

265.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^ 
Prepared  Deposition.  Since  the  witness'  statement  must  correspond 
spontaneously  to  his  actual  recollection,  it  is  plain  that  to  permit  him 
to  commit  to  ivriting  beforehand  certain  statements  and  then  to  read  them 
or  hand  them  in  as  his  testimony  would  be  to  abandon  all  safeguard 
against  fabrication  and  to  make  possible  any  manner  of  pretended  testi- 
mony. This  mode  of  furnishing  testimony  is  universally  prohibited.  It 
is  of  course  to  be  distinguished  from  the  use  of  writings  which  genuinely 
revive  a  present  recollection  or  record  a  past  recollection.  Indeed  the 
object  of  the  restrictions  placed  upon  those  two  uses  of  writing  is  chiefly 
to  insure  that  they  are  not  writings  of  the  prohibited  and  improper  sort. 
The  distinction  is  a  clear  one,  namely,  between  writings  which  frankly 
purport  to  be  used  to  aid  memory  (in  which  they  are  to  be  tested  by  the 
appropriate  restrictions)  and  writings  which  do  not  purport  to  be  so  used ; 
the  latter  falling  within  the  present  prohibition  : 

Eu)ON,L.C.,  in  Shaw  V.  Li?idsey.  (1808.  15  Ves.  Jr.  380,  381)  :  "Upon  general 
principals  nothing  is  more  clear  than  that  a  witness  before  commissioners  cannot  be 
examined  in  such  a  manner  that  the  effect  is,  not  his  testimony  given  in  answer  to 
interrogatories,  but  (as  it  is  termed)  filing  an  affidavit.  .  .  .  All  courts  of  justice 
are  extremely  anxious  to  secure  the  pure  examination  of  witnesses  by  not  permitting 
that  mode  of  examination  which  could  lead  to  infinite  mischief.  Many  instances 
have  occurred  of  a  witness  coming  into  court  holding  in  his  hand  an  answer  which  he 
has  conscientiously  framed  as  his  answer  to  interrogatories,  with  the  substance  of 
which  he  may  be  acquainted,  —  the  answer  of  an  honest,  conscientious  man,  and 
the  value  of  his  testimony  perhaps  not  diminished  by  his  anxiety  to  be  correct. 
Yet  courts  of  law  and  equity,  with  the  view  of  excluding  general  mischief,  concur  in  re- 
fusing to  allow  it.  .  .  .  The  habitual  practice  of  law,  upon  an  examination  viva  voce 
is  not  to  permit  any  suggestion  to  the  witness  by  the  attorney,  counsel,  or  any  other 
person;  the  same  strictness  prevails  in  this  court,  where  the  extent  of  mischievous 
management  that  would  ensue,  if  a  witness  should  be  permitted  to  go  before  com- 
missioners with  a  prepared  deposition,  is  obvious." 

Kent,  C,  in  UnderhilL  v.  Van  Cortlarult.  (1817.  2  Johns.  Ch.  339,  346)  :  "He  went 
before  the  examiner  with  a  prepared  deposition.  This  is  against  the  course  and 
policy  of  the  court,  and  it  would  lead  to  the  most  dangerous  practices.  The  witness 
should  go  before  the  examiner,  as  Lord  Coke  observes,  'untaught  and  without  in- 
struction.' He  should  be  free  to  answer  the  sifting  interrogatories  that  are  framed  for 
the  issue  in  that  case,  instead  of  merely  filing  an  affidavit  ready  drawn." 

266.  BROWN  u.  BRAMBLE.  (Peter  Harvey.  Reminiscences  of  Daniel 
Webster.     1901.     p.  67.) 

One  Brown  had  taken  from  one  "  in  full  consideration  of  and  can- 
Bramble  a  bond  to  pay  said  Brown  celing  this  bond."  Brown,  not 
$100  a  year  for  life.  After  a  while  being  able  to  read  or  write,  signed 
Bramble  began  to  persuade  Brown  the  indorsement  by  making  his 
to  cancel  said  bond  for  a  definite  mark,  and  the  bond  was  kept  by 
sum,  but  Brown  woidd  always  him.  When  Brown  demanded  pay- 
refuse.  It  was  Bramble's  custom  ment  the  following  year,  the  other 
to  indorse  the  annual  payments  on  contended  that  he  owed  nothing, 
the  bond.  At  next  payment  citing  the  indorsement  of  the  previ- 
Bramble  indorsed,  not  $100,  but  ous  year.  Brown  consulted  Mason, 
$1000  as  paid  on  the  bond,  adding,  but      finding      him      retained      by 

^  [Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     Vol.  I,  §  787.)] 


516                                          PART    II.      TESTIMONIAL    EVIDENCE  No.  207 

Bramble,  went  with  his  story  to  Lovejoy  was  supposed  to  give. 
Webster,  who,  putting  faith  in  his  Webster  says:  "There  sat  Mason, 
story,  entered  into  the  fight,  wliich  full  of  assurance,  and  for  a  moment 
came  on  at  Exeter,  New  Hampshire.  I  hesitated.  Now,  I  thought,  I  will 
There  was  at  that  trial  a  witness  for  make  a  spoon  or  spoil  a  horn.  I 
Braml)le  by  the  name  of  Lovejoy,  took  the  pen  from  behind  my  ear, 
who,  it  appears,  was  a  "chronic"  drew  myself  up,  and  marched  out- 
witness,  appearing  in  nearly  every  side  of  the  box  to  the  witness  stand. 
case  held  in  the  neighborhood.  A  'Sir,'  I  exclaimed  to  Lovejoy,  'give 
friend  of  Brown,  seeing  Bramble  in  me  the  paper  from  which  you  are 
conversation  with  Lovejoy,  noticed  testifying!'  In  an  instant  he  pulled 
that  the  former  gave  to  Lovejoy  a  it  out  of  his  pocket ;  but  before  he 
paper,  and  informed  Wel)ster  of  the  had  it  quite  out  he  hesitated,  and 
fact  just  liefore  the  trial.  Love-  attempted  to  put  it  back.  I  seized 
joy's  testimony  seeming  to  Webster  it  in  triumph.  There  loas  his  festi- 
somewhat  unnatural,  Webster  came  moui/  in  Bramble's  handwriting!" 
to  the  conclusion  that  said  paper  The  end  was  that  the  case  was 
given  by  Bramble  must  contain  the  settled  on  terms  dictated  by  W'eb- 
evidence,  or  rather  testimony,  which  star. 


267.  Charles  C.  Moore.  A  Treatise  on  Facts,  or  The  Weight  and  Value 
of  Ei'idence.  (19D8.  Vol.  II,  §§  699,  814,  828,  836,  838, 1268.)  Prepossession 
{Autosuggestion]  causing  Error  in  Obsermtiun.  .  .  .  Froude  says:  "In 
certain  conditions  of  mind  the  distinction  between  objective  and  subjective 
truth  has  no  existence.  An  impression  is  created  that  it  is  fit,  right,  or  likely 
that  certain  things  should  take  place,  and  the  outward  fact  is  assumed  to 
correspond  with  that  impression."  The  effect  of  prepossession,  of  which 
interesting  illustrations  relating  to  both  observation  and  memory  are  found 
in  various  places  in  this  work,  was  strikingly  stated  by  Mr.  Justice  Grier. 
"Tell  a  man  that  a  person's  name  with  which  he  is  acquainted  has  been 
forged,"  said  he,  "  and  nine  cases  out  of  ten,  he  will  be  astute  enough  to  fancy 
he  discovers  some  marks  of  it."  Belief  that  there  were  such  creatures  as 
witches,  which  obsessed  the  witnesses  for  the  prosecution  in  the  old  witch- 
craft cases,  undoubtedly  caused  frightful  errors  in  their  testimony  to  what 
they  had  seen.  An  observer's  false  preconceived  conclusion  may  cause 
him  to  testify  erroneously  to  the  identity  of  persons  or  objects  that  he  has 
seen.  If  a  man  l)elieved  that  another  man  introduced  to  him  by  a  woman 
was  her  husband,  it  would  not  be  strange  if  he  failed  to  notice  that  the  man 
was  not  introduced  as  her  husband,  and  if  he  subsequently  testified  errone- 
ously on  that  point.  ...  In  New  York  City  instances  scandalously  nu- 
merous have  occurred  where  ambulance  surgeons,  judging  from  a  man's 
environment  or  other  circumstances,  have  erroneously  diagnosed  insensi- 
bility caused  l)y  a  fracture  of  the  skull  as  a  case  of  alcoholism.  In  a  case 
in  Canada  where  the  plaintiff  was  severely  injured  by  walking  off  a  sidewalk, 
the  defendant  city  contended  that  he  was  under  the  influence  of  \\i\\\or  at 
the  time;  the  attendants  at  a  hospital  to  which  he  had  been  immediately 
taken  made  such  an  entry  in  their  records.  "Instances  of  such  mistakes 
are  not  rare,"  said  ( 'hief  Justice  Mulock,  of  Ontario.  "  The  plaintiff  a  short 
time  before  had  had  a  glass  of  whisky,  which,  doul)tless,  would  be  observable 
by  a  person  dressing  his  wounds.  He  arrived  at  the  hospital  in  an  excited 
state,  doubtless  resulting  largely,  if  not  wholly,  from  the  accident.     His 


No.  267.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  517 

face  was  covered  with  blood,  and  he  was  in  the  company  of  a  poHceman. 
On  such  evidence  the  attendants  concluded  that  he  was  under  the  influence 
of  liquor.     The  evidence  does  not,  I  think,  support  such  a  conclusion."  .  .  . 

Witness  influenced  by  hearing  Others  Testify.  The  lawyer  who  has  prac- 
ticed long  in  jury  causes  cannot  have  failed  to  observe  that  the  practice 
of  permitting  witnesses  to  hear  each  other's  testimony  has  often  resulted 
in  a  great  and  gross  abuse  of  public  justice.  Human  nature  is  frail,  and  that 
frailty  is  as  often  illustrated  in  the  witness  box  as  elsewhere.  The  witness 
in  an  excited  litigation  often  becomes  the  mere  partisan  of  the  litigant  whose 
cause  he  represents.  His  solicitude  in  the  cause,  and  his  anxiety  to  win  the 
verdict,  are  often  no  less  than  those  of  his  friend  and  summoner,  whose  life, 
liberty,  or  property  may  depend  upon  that  verdict.  He  comes  to  regard 
the  adverse  party  and  the  adverse  witnesses  as  his  adversaries,  and  often, 
with  scarce  a  consciousness  of  the  serious  obligation  that  is  upon  him, 
lapses  into  the  conviction  that  the  scene  before  him  is  a  mere  tilt  and  tourney 
in  which  he  enters  to  overturn  and  countervail  the  testimony  of  the  adverse 
party.  He  has  heard  the  evidence  of  his  own  party  in  regard  to  the  transac- 
tion, and  perhaps  he  remembers  it  somewhat  differently ;  but  a  conflict 
would  be  fatal ;  and  he  often  reasons  his  flexible  conscience  into  the  opinion 
that  his  own  memory  is  at  fault,  and  the  statement  of  his  confederate 
is  the  true  version,  and  he  therefore  corroborates  it.  He  has  heard  the  testi- 
mony of  the  adverse  party,  and  his  ingenuity  is  taxed  at  once  to  strike  it 
where  it  is  vulnerable,  and  to  destroy  it.  .  .  .  The  purpose  to  be  sub- 
served in  putting  witnesses  "under  the  rule"  [by  separating  them  during 
each  other's  testimony]  is  that  they  may  not  be  able  to  strengthen  or  color 
their  own  testimony,  or  to  testify  to  greater  advantage  in  line  with  their 
bias,  or  to  have  their  memories  refreshed,  sometimes  unduly,  by  hearing  the 
testimony  of  other  witnesses.  .  .  . 

Tutored  Witnesses.  The  mere  fact  that  attorneys  at  law,  in  preparing 
their  case  for  trial,  have  talked  with  a  witness,  should  not  be  presented  to 
the  jury  as  ground  for  discrediting  such  witness,  for  it  is  the  duty  of  the 
attorney  to  learn  from  witnesses  what  testimony  they  can  give,  in  order  to 
enable  him  to  conduct  the  trial  on  his  part  with  expedition.  To  endeavor 
to  learn  from  a  witness,  for  the  first  time,  on  the  witness  stand,  whether 
he  knows  anything  of  the  facts  at  issue,  would  involve  a  needless  waste  of  the 
time  of  the  court.  Nevertheless,  the  substance  of  conversation  had  before 
the  trial,  between  the  witness  and  the  attorney  or  others,  in  relation  to 
the  testimony  to  be  given,  is  proper  subject  of  inquiry  and  within  the  field 
of  legitimate  cross-examination,  and  it  may  be  that  the  trier  of  facts  will 
receive  a  strong  impression  that  the  vague  and  indistinct  recollection  of 
a  witness  has  been  pointed  for  the  purposes  of  the  case  by  the  suggestions  of 
counsel  —  that  the  latter  controlled  and  mastered  the  memory  of  the  wit- 
ness. .  .  .  Courts  look  with  great  suspicion  upon  the  testimony  of  witnesses 
when  there  is  reason  to  believe  that  they  have  been  willing  pupils  diligently 
instructed  by  interested  parties  how  to  make  their  several  testimonies  fit 
in  with  each  other  so  as  to  give  united  support  to  the  cause  and  yet  avoid 
the  appearance  of  confederacy.  For  example,  in  considering  the  course 
followed  to  get  together  a  host  of  witnesses  to  prove  testamentary  incapacity 
in  a  will  case.  Sir  John  Nicholl,  who  was  not  only  a  celebrated  jurist,  but 
a  magistrate  of  transcendent  sagacity  in  estimating  the  value  of  testimony, 


518  PART    II.       TESTIMONIAL    EVIDENCE  No.  2GS. 

spoke  as  follows  :  "A  room  is  taken  at  'The  Ship  in  Distress,'  a  tavern  at 
Horsleydown ;  there  the  witnesses  attend  and  are  entertained  ;  they  talk 
the  matter  over,  a  long  bill  is  incurred,  the  landlord  and  landlady  are  two 
of  the  witnesses ;  Mr.  Alderson  (an  interested  party)  goes  there  frequently, 
and  carries  his  own  claret  there.  How  is  the  court  to  estimate  the  degree 
of  reliance  to  be  placed  on  witnesses  so  got  together  and  so  brought  for- 
ward?"  .   .   . 

2()S.  John  C.  Reed.  Conduct  of  Laiosuits.  (2d.  ed.  1912.  §  101).  ...  It 
is  also  an  advantage  that  (at  an  early  interview]  you  commit  and  fasten  the 
witness  to  his  tuirrative.  For  sometimes  a  witness  is  wavering.  When  the 
transaction  is  fresh,  he  is  full  of  nothing  but  its  actual  details,  but  frequently 
he  is  disposed  afterwards  to  alter  his  first  report.  He  may  begin  to  recoil 
from  the  effect  of  his  testimony  upon  the  interest  or  feelings  of  the  op- 
posite party  and  his  relatives  and  friends,  and  he  is  usually  influenced 
by  their  appeals  and  solicitations.  All  of  us  have  observed  that  the 
testimony  of  good  men  is  shaped  and  colored  by  their  associates.  You  will 
sometimes  find  that  the  others,  while  testifying  to  the  same  facts,  repeat 
many  particulars  of  the  first  witness,  although  they  may  have  been  excluded 
from  court  (hiring  his  examination.  This  is  because  they  have  talked 
over  the  matter  together,  each  desiring  to  avoid  being  contradicted  by  the 
rest.  Many  times  the  others  labor  to  reproduce  the  narrative  of  the  one 
of  most  intelligence  and  standing ;  and  he  may  be  strongly  biased,  for  all 
of  his  .seeming  frankness.  You  have  a  multitude  of  reasons  for  being  in 
haste  to  make  your  slippery  witness  sure  and  steadfast. 

269.  Francis  L.  Wellman.  Bay  in  Court.  (1910.  p.  79) The  advo- 
cate should  get  his  client  to  bring  his  witnesses  to  him  at  once  ;  should  take 
their  stories  in  detail,  squeeze  them  dry  of  information ;  and  be  careful  not 
to  suggest  any  answers  by  his  questions.  He  should  always  bear  in  mind 
that  the  same  witness  in  the  quiet  of  a  lawyer's  office,  where  he  may  want  to 
appear  important  as  well  as  obliging,  is  apt  to  tell  an  entirely  difterent 
story  from  the  one  he  will  stick  to  when  he  takes  his  oath  in  a  court  room  in 
the  presence  of  the  judge,  jury,  antl  audience,  especially  if  he  has  heard  other 
witnesses  broken  down  by  cross-examination.  Unless  an  advocate  is  care- 
ful, therefore,  when  he  takes  a  witness's  statement  in  his  office,  he  will  be 
entirely  deceived  by  him.  Nearly  every  witness  is  prone  to  exaggeration 
and  can  be  easily  encouraged  to  state  as  facts  matters  that  are  merely 
hearsay  or  his  own  inference.  Lawyers  themselves  are  in  a  large  measure 
to  blame  for  this  state  of  things  because  thev  lead  and  push  a  witness  too 
far.   ... 

Tlicrc  is  a  great  difference  between  "coaching"  a  witness  and  preparing 
liim  for  the  witness  stand.  If  a  witness  is  "coached,"  he  is  apt  to  be  led  to 
perjury,  but  if  he  is  merely  prepared,  then,  in  my  judgment,  the  cause  of 
truth  is  advanced.  Why  should  a  timid,  nervous  witness  be  left  to  the  ten- 
der mercies  of  the  opposing  lawyer  without  a  word  of  advice  ?  .  .  .  There  is 
nothing  so  annoying  as  a  fool  in  the  witness  box,  especially  when  the  ex- 
aminer knows  tlie  man  who  is  making  a  fool  of  himself  is  really  telling  the 
literal  truth.  Why  not  remind  a  witness  to  keep  his  temper,  to  speak  slowly 
and  distinctly,  to  be  respectful  to  the  court  and  the  opposing  lawyer  ?     Why 


No.  270.  II.      TESTIMONIAL    PROCESS.       C.    NARRATION  .        519 

not  caution  him  not  to  try  to  be  "smart"  or  flippant  in  his  replies?  Why 
npt  caution  him  that  he  should  carefully  understand  a  question  before  he 
attempts  to  answer  it ;  to  try  to  make  his  answers  short  and  responsive, 
and  not  volunteer  matters  about  which  he  is  not  questioned  ?  .  .  .  Why 
should  not  an  advocate  test  his  own  witnesses  by  cross-examination  before- 
hand in  his  ofhce  ?  It  often  relieves  their  minds  very  much,  because  they 
not  infrequently  are  afraid  that  when  they  mount  the  witness  stand,  their 
whole  past  will  be  raked  tip  by  the  cross-examiner,  and  this  fear  often  makes 
them  hesitate  to  tell  all  they  really  know.  Such  a  rehearsal  is  good  for  the 
examining  counsel  as  well.  It  teaches  him  how  to  manage  and  handle  his 
own  witnesses  when  he  reaches  the  court  room,  and  if  he  is  careful  to  confine 
these  rehearsals  to  the  manner  only  and  not  the  matter  of  the  testimony, 
he  will  find  them  of  the  greatest  service  at  the  trial,  both  to  himself  as  well 
as  the  cause  he  represents.  .  .  . 

270;  Arthur  C.  Train.  The  Prisoner  at  the  Bar.  (2d  ed.  1908.  p.  233.)  What 
the  witness  frequently  does  is  to  discuss  the  matter  with  his  friends  who  were 
present  on  the  occasion  in  question,  and,  as  it  were,  form  a  sort  of  "pool" 
of  their  common  recollections,  impressions,  and  beliefs.  One  suggestion 
corrects  or  modifies  another  until  a  comparatively  lucid  and  logical  story  is 
evoked.  When  this  has  been  accomplished  the  witness  mentally  exclaims  : 
"  Of  course  !  That  was  just  the  way  it  was  !  Now  I  remember  it  all  ! " 
The  time  is  so  distant  that  whatever  the  final  crystallization  of  the  matter 
may  be,  it  is  far  from  likely  that  it  will  thereafter  be  shown  to  be  inaccurate 
by  any  piece  of  evidence  which  will  present  itself  to  the  witness  and  his 
friends.  The  account  thus  developed  by  mutual  questions  and  "refresh- 
ing" of  each  other's  recollection  becomes,  so  far  as  the  parties  to  it  are  con- 
cerned, the  fact.  The  witness  is  now  positive  that  he  did  and  said  exactly 
so  and  so,  and  nothing  will  swerve  him  from  it,  for  inherently  there  is  noth- 
ing in  the  story  or  its  make-up  that  affords  any  reason  for  questioning  its 
accuracy.  This  story  repeated  from  time  to  time  becomes  one  of  the  most 
vivid  things  in  the  witness's  mental  experience.  He  repeats  it  over  and  over, 
is  cross-examined  by  his  own  attorney  upon  it,  incorporates  it  in  an  affidavit 
to  which  he  swears,  and  when  he  takes  the  stand  recounts  these  ancient 
happenings  with  an  aggressiveness  and  enthusiasm  that  bring  dismay  to  the 
other  side. 

But  what  a  farce  to  call  this  recollection  !  What  is  this  circumstantial 
romance  when  it  comes  to  be  analyzed  ?  Jones,  a  friend  of  Smith  the  pro- 
spective witness,  is  anxious  to  establish  an  alibi,  and  asks  Smith  if  he  doesn't 
remember  meeting  him  in  the  club  on  February  12,  two  years  before.  Smith 
has  no  recollection  of  it  at  all,  but  Jones  says :  "  Oh,  yes,  you  were  going  to 
the  theater  with  Robinson."  Of  course,  if  Jones  is  so  sure,  Smith  naturally 
begins  to  think  it  is  probably  the  fact,  and  he  does  remember  vaguely  that 
he  and  Robinson  spent  an  evening  together.  So  he  consults  his  diary  and 
finds  it  recorded  there  that  he  did  attend  the  theater  on  the  day  in 
question  with  Robinson.  He  does  not  remember  the  play,  but  Robinson 
recalls  that  it  was  "The  Chinese  Honeymoon,"  and  believes  that  they  dined 
together  first  at  the  club.  Smith  now  thinks  he  remembers  this  himself. 
Then  Robinson  suggests  that  they  probably  went  to  the  theater  in  a  cab. 
They  look  in  a  file  of  old  papers  and  find  that  it  was  raining.     That  settles 


520 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  271 


it  —  of  course,  they  went  in  a  cab.  The  ne.vt  question  is  the  hour.  They 
have  no  recollection  of  being  lute,  so  they  must  have  arrived  on  time.  .Well, 
the  paper  says  the  play  commenced  at  eight,  and  it  takes  a  cab  about  twenty 
minutes  to  get  from  the  club  to  Daly's  Theater,  so  it  is  reasonably  clear  that 
they  must  have  started  a  little  before  eight.  Smith  unconsciously  is  per- 
suaded to  believe  that  if  Jones  was  right  about  their  going  to  the  theater, 
he  mu.sf  also  have  been  in  the  club  at  the  time  he  says  he  was  there.  Both 
he  and  Robinson  recall  that  Jones  was  always  hanging  round  the  club  two 
years  ago,  and  as  neither  can  remember  an  evening  when  he  wasn't  there, 
they  decide  he  must  have  been  there  that  night.  Robinson  has  a  dim  rec- 
ollection that  they  had  a  drink  together.  That  is  a  pretty  safe  guess  and 
has  all  the  air  of  verisimilitude.  In  an  hour  or  two  Smith  is  ready  to  swear 
positively  from  recollection  that  he  dined  w^ith  Robinson  at  the  club  on  Feb- 
ruary 12,  two  years  ago,  met  Jones,  had  a  drink  with  him,  that  this  occurred 
at  seven  fifty-five,  that  it  was  raining,  that  they  took  a  cab,  etc.  In  its 
elements  this  testimony  is  entirely  hearsay  upon  the  only  vital  point,  i.e. 
Jones's  presence  in  the  club  at  that  time,  and  the  immaterial  remainder  is 
made  up  of  equal  parts  of  diary,  newspaper,  playbill,  weather  report,  usual 
custom,  reliance  on  Robinson's  alleged  recollection,  and  belief  in  Jones's 
innocence.  He  has  practically  no  actual  memory  of  the  facts  at  all,  and  the 
only  thing  he  really  does  remember  is  that  a  long  time  ago  he  did  attend  some 
theater  with  Robinson. 


271.    THE    HOSPITAL    CASE. 

Court.      1910.      p.  79.) 

.  .  .  One  of  the  most  remarkable 
cases  of  suggestive  evidence  came 
under  my  own  observation  some 
years  ago  when  I  was  defending  one 
of  the  nurses  of  the  Mills  Training 
School  —  a  most  estimable  young 
man  —  who  had  been  indicted 
for  deliberately  choking  to  death  a 
patient  in  the  Insane  Ward  at  Belle- 
vue  Hospital.  A  reporter  of  the 
Journal  had  made  a  contract  with 
his  newspaper  for  SI 50  to  feign 
insanity  and  get  himself  committed 
to  the  insane  ward  at  IJellevuc  Hos- 
j)ital  for  the  purpose  of  writing  an 
article  upon  the  treatment  of  the 
insane  for  |)ublicati<)n  in  the  Journal. 
During  liis  first  night  in  the  hospital 
one  of  its  patients  died,  and  the 
reporter  t-onceived  the  idea  of  weav- 
ing around  this  occurrence  a  tragic 
(though  false)  story  of  the  abuse 
of  the  insane,  resulting  in  death.  In 
his  artich"  he  claimed  to  have  seen 
two  trained  nurses  (one  of  whom  was 
this  young  man  )  strangle  this  patient 
to  death   because  lie  \voul<l   not  eat 


(Francis  L.  Wellman.     Day  in 

his  supper.  He  graphically  de- 
scribed how  these  nurses  had  wound 
a  towel  aroimd  the  insane  man's 
throat  and  had  twisted  it  until  the 
patient  was  strangled  to  death. 
Newspaper  pictures,  occupying  a 
full  page  of  the  Journal,  were  pub- 
lished, purporting  to  show  all  the 
details  of  the  alleged  process,  in 
vogue  at  the  hospital,  of  strangu- 
lation by  means  of  a  towel.  The 
indictment  of  this  young  man  for 
murder  followed  the  Journal  ex- 
posure of  these  alleged  hospital 
al)uses.  The  whole  community  was 
wrought  up  to  a  high  pitch  of  ex- 
citement. At  the  trial  the  perjury- 
lying  reporter,  as  a  witness  for  the 
prosecution,  told  the  same  story, 
but  was  so  thoroughly  discredited 
and  brought  to  bay  on  the  second 
day  of  his  lengthy  cross-examination 
that  he  fled  the  town,  writing  from 
Philadelphia  to  his  mother  in  this 
city  that  he  dare  not  ever  return  to 
New  York.  This  fact,  however 
could  not  be  communicated  to  the 


No.  272. 


TESTIMONI.\L   PROCESS.       C.    NARRATION 


521 


jury,  during  the  trial,  still  unfinished, 
and  the  greatest  difficulty  to  over- 
come was  the  fact  that  three  insane 
patients  were  brought  from  the  same 
hospital  by  the  Assistant  District 
Attorney,  and  called  as  witnesses, 
and  (being  found  by  the  court  to 
have  sufficient  intelligence)  were 
allowed  to  testify  to  all  the  alleged 
details  of  the  murder  as  they  them- 
selves had  witnessed. 

All  three  of  these  insane  patients 
had  seen  and  studied  the  pictures 
and  descriptions  published  in  the 
Journal,  and  these  pictorial  repro- 
ductions of  occurrences  alleged  to 
have  taken  place  in  their  own  wards 
at  the  asylum,  had  served  as  such 
vivid,  though  false  suggestions  to 
their  diseased  minds  (already  natu- 
rally antagonistic  to  their  keepers 
and  nurses)  that  they  afterwards 
honestly  believed  and  felt  warranted 
in  taking  an  oath  that  they  them- 
selves had  actually  witnessed  these 
very  occurrences  that  had  also  been 
sworn  to  by  the  reporter.  These 
three  witnesses  —  as  many  people 
suffering  from  certain  forms  of 
insanity  are  quite  capable  of  doing 


—  gave  their  testimony  in  the  most 
remarkably  graphic  and  convincing 
manner,  and  it  made  such  a  pro- 
found impression  upon  the  court  and 
jury,  and  the  prosecution  was  so 
bitter  and  determined,  that  it 
seemed  almost  impossible  to  pre- 
vent the  conviction  of  my  client. 
The  jurors,  however  (having  been 
carefully  chosen  by  both  sides  from 
a  "special  panel"),  were  unusually 
intelligent  and  competent  to  weigh 
carefully  the  false  (though  honest) 
testimony  of  these  three  witnesses 
against  certain  scientific  and  medical 
testimony  offered  in  behalf  of  the 
defense  which  conclusively  showed 
that  the  deceased  could  not  have 
been  strangled  to  death,  and  this 
very  long  trial  ended  in  a  prompt 
acquittal  of  the  defendant.  This 
case  is  a  striking  illustration  of  the 
dangerous  effect  of  leading  and 
false  suggestions  upon  minds  sus- 
ceptible of  such  influences,  and  in 
this  instance  came  very  near  result- 
ing in  the  conviction  and  possible 
execution  of  an  entirely  innocent 
and  very  worthy  young  man. 


272.  PUYENBROECK'S  CASE.  (Guy  M.  Whipple.  Journal  of 
American  Institute  of  Criminal  Law  and  Criminology,  1913,  Vol.  IV  ; 
summarizing  Les  Temoignages  d'Enfants  dans  un  Proces  Retentissant,  by 
J.  Varendonck,  in  Archives  de  Psychologie,  XI ;  July,  1911,  pp.  129-171.) 


The  district  in  Belgium  in  which 
the  crime  occurred  had  been  aroused 
by  three  previous  similar  crimes  — 
violation  and  murder  of  young  girls 
—  committed  within  a  single  month. 
When  the  9-year-old  Cecile  De 
Bruj^cker  (C)  was  killed  on  Sunday, 
June  12,  1910,  in  daylight  and 
within  a  short  distance  of  her  home, 
the  countryside  was  in  consterna- 
tion and  rage.  The  child's  move- 
ments were  known  up  to  4  o'clock, 
when  she  was  playing  with  two 
other  little  girls,  and  the  crime  was 
committed  between  4  and  5  o'clock. 
On  her  failure  to  return  home,  her 
mother,  after  futile  search,  went  to 
the  homes  of  her  playmates,  Louise 
Van  de  Stuyft   (L),   aged   10,   and 


Louisa  Van  Puyenbroeck  (L.  V.  P. 
aged  8.  These  girls  were  wakened 
from  sleep  and  stated :  "  C  played 
with  us,  but  ice  haven't  seen  her 
since."  This  declaration  constitutes, 
in  the  opinion  of  the  author,  the 
only  correct  statement  made  by 
these  children.  The  village  was 
roused,  the  police  summoned.  At 
3  in  the  morning,  the  police  com- 
missioner arrived,  woke  L  again 
from  sleep  and  questioned  her  at 
length  (no  record  being  made  of 
this  examination).  L  then  con- 
ducted him  to  the  place  where  she 
last  played  icith  C.  Soon  after  they 
discovered  C's  body  a  short  distance 
away.  So  soon  as  the  body  was 
discovered,    L's    declarations    were 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  272. 


extended  and,  amplified  :  she  now- 
stated  that  "a  tall,  dark  man,  with 
black  mustache"  had  ottered  C  a 
penny  to  go  with  him.  She  (L) 
followed,  and  soon  afterward  found 
C  dead  in  the  ditch.  She  ran  home, 
afraid,  went  to  bed  that  night  with- 
out mentioning  the  occurrence,  l)e- 
cause  she  was  afraid  to  tell  what  had 
happened. 

On  Wednesday,  the  police  re- 
ceived an  anonymous  letter  assert- 
ing that  Amand  Van  Puyenbroeck 
( ] '.  P.)  must  be  the  assassin.  Thurs- 
day the  examining  magistrate  inter- 
viewed him  anfl  put  him  under 
arrest.  He  was  taken  by  train  to 
the  prison  in  a  neighboring  town, 
but  at  some  risk  of  his  life  at  the 
hands  of  an  infuriated  mob.  From 
this  moment,  declarations  implicat- 
ing r.  P.  succeeded  with  striking 
rapidity  and  yielded  a  large  amount 
of  circumstantial  and  hearsay  evi- 
dence against  him. 

L,  as  already  noted,  was  submitted 
to  two  examinations  by  the  police 
commissioner,  one  just  before,  and 
one  shortly  after  the  discovery  of 
the  body.  The  next  day,  June  13th, 
both  L  and  L.  T.  P.  were  sul)jectc{l 
to  a  third  examination,  this  time 
at  the  hands  of  the  examining  magis- 
trate. Both  children  showed  glar- 
ing discrepancies  and  alterations 
from  their  first  and  their  second 
declarations.  The  questions  pro- 
])ounded  l)y  the  magistrate  were 
couched  in  a  highly  suggestive  form 
and  were  based  upon  the  assump- 
tion that  the  first  statements  of  the 
girls  (expressing  entire  ignorance  of 
the  murder)  were  incorrect.  Thus 
the  magistrate  said :  "  You  cer- 
tainly know  the  assassin,  tell  me 
who  it  was."  "  I  do  not  know  him," 
replied  the  child.  To  which  the 
magistrate  said  :  "  Didn't  C  mention 
the  miscreant's  name  —  as  Dick, 
Jan,  Francois,  or  Jidcs?"  The 
child  tiien  evidently  chose  one  of 
these  names  to  relic\e  herself  from 
the  pressure  put  upon  her,  for  she 
made  the  rotnui-aliout  statement: 
"  FJvirc   \:m    FuNcribrocck   told    mc 


that  C  had  said  that  the  man's 
name  was  Jan."  Now,  later,  when 
Elvire  was  examined,  ^he  asserted 
that  she  knew  nothing  about  the 
attair.  "But  you  must,"  retorted 
the  magistrate,  "for  you  told  L 
that  you  heard  C  call  him  Jan." 

It  was  not  imtil  after  this  name 
had  been  thus  lugged  into  discussion 
that  the  anonymous  letter  appeared. 
It  must  be  explained,  further,  that 
the  accused,  Amand  V.  P.,  was  some- 
times known  as  Jan.  Also  that  he 
was  the  father  of  L.  V.  P.,  whose 
testimony  helped  to  involve  him. 
Rather  extraordinary  was  the  fact 
that  the  subsequent  testimony  in- 
cluded the  assertion  that  the  "man" 
stood  within  2  meters  of  the  girls 
when  he  ottered  the  penny  and  yet 
was  not  recognized  by  his  own  daugh- 
ter or  by  a  neighbor's  child.  Almost 
equally  extraordinary  was  the  cir- 
cumstance that,  if  the  later  evidence 
is  to  be  believed,  these  children, 
after  witnessing  the  outrageous 
death  of  their  playmate  at  the  hands 
of  a  man  they  knew,  ran  away  and 
played  for  an  hour  in  the  street 
before  his  house,  and  then  went 
to  bed  without  mentioning  the  crime, 
because  they  forgot  it  or  because 
they  were  afraid  (both  explanations 
were  made). 

Despite  these  seemingly  impos- 
sible obstacles  in  the  acceptance 
of  the  guilt  of  V.  P.,  the  intense 
social  pressure  for  the  conviction 
of  some  one  was  now  focused  upon 
the  definite  attempt  to  convict 
him.  The  sudden  flood  of  clew 
and  bits  of  "evidence"  which  ap- 
peared as  soon  as  he  was  arrested, 
and  which  were  plainly  the  prod- 
uct of  rumor,  imagination,  and 
general  excitement,  was  explained 
on  the  groimd  that  "now  tongues 
were  released  from  their  pre\ious 
fear  of  V.  P." 

Again,  acting  on  this  belief,  which 
was  soon  universal,  that  the  little 
girls  knew  every  detail  of  the  crime, 
there  appears  on  the  scene  a  woman 
nan)ed  Dierens,  who  had  semi- 
official oversight  over  certain  phases 


II.      TESTIMONIAL   PROCESS.       C.    NARRATION 


523 


of  their  religious  life.  On  June 
13th,  this  woman  asked  L  who 
killed  C,  and  obtained  the  response 
that  L  was  then  giving,  viz. :  "A 
dark  man  with  black  mustache," 
etc.  On  June  19th,  after  V.  P.'s 
arrest,  the  woman,  after  some 
exhortation,  asked  this  terribly  sug- 
gestive question  :  "  Now,  wasn't 
it  really  V.  P.  who  killed  CV 
L  nodded  her  head  faintly.  '  Again 
the  same  question,  and  again  L 
nodded  her  head,  but  added  :  "  All 
the  boys  say  so."  A  third  time  the 
question  and  the  same  response. 
Then  the  woman  hastened  to  report 
her  "success"  to  the  authorities, 
saying :  "  She  is  weakening  and  on 
the  point  of  confessing  all."  It  does 
not  need  a  psychologist  to  anticipate 
what  followed.  The  commissioner 
repaired  again  to  i's  house  and 
armed  with  the  woman's  statement, 
proceeded  to  secure  from  L  (and 
from  L.  V.  P.,  who  had,  it  may  be 
added,  ample  opportunity  to  discuss 
the  testimony  with  L)  all  the 
"evidence"  desired. 

In  the  trial,  which  followed  in 
January,  1911,  the  circumstantial 
evidence  against  V.  P.  was  success- 
fully met  by  counterevidence,  so 
that  the  chief  reliance  of  the  pros- 
ecution was  upon  the  testimony  of 
the  two  little  girls  aforesaid.  Counsel 
for  the  defense  thereupon  engaged 
a  number  of  psychologists  to  testify 
to  the  unreliability  of  this  juvenile 
testimony.  The  chief  part  of  this 
expert  testimony  was  presented 
by  Varendonck,  the  author  of  the 
present  article.  He  had  examined, 
line  by  line,  the  voluminous  record 
(nearly  1000  pages)  secured  in 
the  preliminary  hearings  and  had 
conducted  a  series  of  experiments 
upon  school  children,  in  which,  so 
far  as  feasible,  the  nature  and 
form  of  the  questions  propounded 
by  the  authorities  to  the  girls  was 
reproduced.  This  he  sought  to  put 
before  the  court,  together  with  a 
general  account  of  the  work  that 
had  been  done  by  experts  in  the 
study   of   the   psychology   of   testi- 


mony. He  concluded  that  the  girls 
had  positively  not  seen  the  murder 
or  the  murderer,  and  that  their 
testimony  was  worthless.  Varen- 
donck's  testimony  was  the  occasion 
of  several  violent  outbursts  of 
wrath  on  the  part  of  the  court 
officials,  who  publicly  ridiculed  the 
pretensions  of  psychologists  to  dic- 
tate to  them  how  questions  should 
be  asked  or  what  evidence  was 
reliable.  Despite  numerous  sensa- 
tional passages-at-arms  between  the 
court  and  the  psychologists,  the 
jury  was  impressed  by  the  arguments 
and  the  accused  was  acquitted. 

It  remains  to  cite  briefly  some 
of  the  experimental  evidence  offered 
on  this  occasion.  Eighteen  7-year- 
old  pupils  were  asked  the  color  of 
the  beard  of  one  of  the  teachers 
in  their  building:  16  answered 
"black";  2  did  not  answer;  the 
man  has  7io  beard.  Of  20  8-year- 
old  pupils  who  replied  to  a  similar 
query,  19  reported  a  color;  only 
one  said  the  man  had  no  beard 
(which  was  correct).  Similar  results 
were  obtained  from  older  pupils. 
In  one  class,  a  pupil  laughed  aloud 
at  the  query  and  exclaimed  :  "  He 
hasn't  any  beard."  Nevertheless, 
12  of  the  22  reported  a  definite 
color.  Again,  a  teacher  of  a  certain 
class  visited  another  class,  stood 
before  them  for  5  minutes,  talking 
and  gesticulating,  but  keeping  his 
hat  on.  Directly  after  he  left,  the 
teacher  of  the  class  obtained,  in 
response  to  the  query :    "  In  which 

hand  did  Mr. hold  his  hat?" 

17  answers  of  "right,"  7  of  "left," 
and  only  3  correct  answers.  Other 
experiments  showed  that  sugges- 
tions of  odor  or  temperature  could 
be  easily  evoked  in  school  children. 
Finally,  to  duplicate  the  strongly 
suggestive  questions  of  the  magis- 
trate, another  experiment  was  tried 
with  8-year-old  pupils,  who  gave 
written  answers  to  the  following : 
"When  you  were  standing  in  line 
in  the  yard,  a  man  came  up  to  me, 
didn't  he  ?  You  surely  know  who 
it   was.     Write   his    name   on    vour 


524                                          PART    II.      TESTIMONIAL    EVIDENCE  No.  273. 

l)aper."     Though   no   one   had    ap-  It    is    not    surprising    that    this 

proaihed   the  teacher,   7  of  the  22  experimental   demonstration   of   the 

pupils   gave   a    man's    name.      The  complete     failure     of     children     to 

experimenter    then     continued    the  withstand    the    lure    of    suggestive 

test   by  saying:    "Was  it   not   Mr.  (juestions  produced  a  profound  efi'ect 

M ?"  to  which   17  pupils  now  upon    the   jury.     It   is    perhaps   as 

answered  "Yes."     Before  a  number  little  surprising  that  the  legal  authori- 

of  lawyers,   individual   pupils  were  ties  did  not  take  kindly  to  the  testi- 

then  subjected  to  oral  examination  mony  of  the  psychologists.     There 

and  gave  complete  descriptions  of  is,  howe\'er,  the  satisfaction  that  the 

the    "man's"     dress    and    personal  study  of  the  psychology  of  testimony 

appearance.  has  sa\etl  a  man  from  the  gallows. 


273.  G.  F.  Arnold.  Psycholoqy  applied  to  Legal  Evidence.  (1906.  p.  344.) 
.  .  .  There  is  nothing  really  wonderful  in  hypnotism  :  the  hypnotic  sub- 
ject is  not  governed  by  special  psychological  laws,  l)ut  the  germs  of  all  his 
symptoms  can  be  traced  in  the  normal  state :  the  physical  disturbance  also 
caused  by  suggestion  has  many  characters  in  common  Avith  the  spontaneous 
disturbance  found  in  an  insane  person,  and  the  hallucination  of  hypnotism 
does  not  essentially  difter  from  the  ordinary  forms  of  hallucination.  The 
phenomena  are  only  an  exaggeration  and  pathological  deviation.  The  fact 
that  hypnotic  patients  have  displayed  extraordinary  powers  of  memory, 
sensation,  and  discrimination  has  tended  to  give  hypnotism  an  air  of  the 
mar\elous  which  has  led  some  people  to  discredit  what  they  hear  of 
it.  Those,  however,  who  have  studied  the  subject  explain  this  by  a 
simple  hypothesis  which  is  known  as  "the  principle  of  compensation 
of  functions,"  according  to  which  the  inhibition  of  the  activity  of  one 
region  is  always  connected  with  an  increase  in  the  activity  of  the  other 
interrelated  areas.  ^ 

This  interrelation  may  be  either  direct  (neurodynamic),  or  indirect 
(vasomotoric).  The  first  is  probably  due  to  the  fact  that  energy  which 
accumulates  in  one  region,  as  the  result  of  inhibition,  is  discharged  through 
the  connecting  fibers  into  other  central  regions.  The  second  is  due  to  con- 
traction of  the  capillaries  as  a  result  of  inhibition,  and  a  compensating 
dilation  of  the  blood  vessels  in  other  regions.  The  increased  blood  supply 
due  to  this  dilation  is  in  turn  attended  by  an  increase  in  the  activity  of  the 
region  in  question.  ...  In  hypnosis  it  is  possible  for  chfferent  regions 
within  the  apperception  center  itself  to  be  so  related  that  while  certain 
of  these  regions  are  i)artially  inhibited,  others  are  correspondingly  more 
open  to  excitation.  ...  In  such  states  of  partial  hypnosis  the  subject 
may  carry  out  in  an  automatic  way  complicated  acts,  all  his  other  functions 
.seeming  to  !)<■  in  a  waking  state.  Or  he  may  show  certain  psychological 
activities  of  clearer  discrimination,  or  strikingly  exact  recognition,  or  re- 
production of  certain  particular  sensatitms  and  feelings  to  the  exclusion  of 
all  (tther  forms  of  activity. 

The  method  of  producing  the  hypnotic  state  is  either  by  fatiguing  the 
senses  or  by  acting  on  the  imagination.  ...  It  is  not  necessary  that 
suggestion  shouhl  always  be  present:  "a  whole  series  of  purely  pliysical 
agents  exist,  which  prove  that  sleep  can  be  induced  without  the  aid  of  the 
subject's  imagination,  against  his  will  and  without  his  knowledge."     At  the 


No.  273.  II.       TESTIMONIAL    PROCESS.       C.    NARRATION  525 

same  time  these  cases  are  rare,  and  as  it  is  suggestion  that  is  usually  cm- 
ployed,  it  will  be  well  to  explain  what  is  meant  by  this  term  : 

Suggestion  uses  ideas  and  the  subject's  intelligence :  it  consists  in  intro- 
ducing, cultivating,  and  confirming,  an  idea  in  the  mind  of  the  subject  of  the 
experiment.  The  states  it  produces  are  the  results  of  that  mental  sus- 
ceptibility, which  we  all  to  some  degree  possess,  of  yielding  assent  to  out- 
ward suggestion,  of  affirming  what  we  strongly  conceive,  and  of  acting  in 
accordance  with  what  we  are  made  to  expect.^  There  are  as  many  forms  of 
suggestion  as  there  are  modes  of  entering  into  relations  with  another  per- 
son. Spoken  or  written  suggestion  is  the  simplest.  But  gestures  can  be 
employed,  and,  though  less  precise  in  meaning,  suggestion  by  their  means 
is  more  intense.  Several  ways  can  also  be  combined.  In  what  is  known  as 
autosuggestion,  the  suggestion  has  its  origin  in  the  subject's  intelligence : 
instead  of  being  the  result  of  an  external  impression,  as  in  the  case  of  verbal 
suggestion,  it  results  from  an  internal  impression,  such  as  a  fixed  idea  or 
delirious  conception ;  these  are  often  derived  from  hallucinations.  Again, 
suggestion  may  produce  either  an  active  or  impulsive  phenomenon,  such 
as  a  sensation  of  pain,  an  act,  etc.,  or  a  phenomenon  of  paralysis,  e.g.  loss 
of  memory,  anaesthesia :  there  are  different  psychological  explanations  of 
these  two  states ;  in  the  former  association  of  ideas  is  used,  in  the  latter  it 
is  supposed  that  the  experimenter  produces  a  mental  impression  which 
has  an  inhibitory  effect  on  one  of  the  sensorial  or  motor  functions.  .  .  . 

A  further  question  is  how  much  spontaneity  exists  in  the  hypnotic  state. 
The  subject  is  capable  of  reflecting  and  reasoning  and  under  the  influence 
of  suggestion  will  himself  invent  expedients  which  were  not  suggested  to  him, 
to  carry  out  the  order ;  also  on  awaking  he  imagines  his  acts  were  spon- 
taneous and  invents  reasons  of  his  own  for  doing  them.  "  Subjects  in  this 
condition,"  says  Professor  James,  "will  receive  and  execute  suggestions  of 
crime,  and  act  out  a  theft,  forgery,  arson,  or  murder.  A  girl  will  believe 
that  she  is  married  to  her  hypnotizer,  etc.  It  is  unfair,  howexer,  to  say  that, 
in  these  cases,  the  subject  is  a  pure  puppet  with  no  spontaneity.  His 
spontaneity  is  certainly  not  in  abeyance  so  far  as  things  go  which  are  har- 
moniously associated  with  the  suggestion  given  him.  He  takes  the  text 
from  his  operator ;  but  he  may  amplify  and  develop  it  enormously  as  he  acts 
it  out.  His  spontaneity  is  lost  only  for  those  systems  of  ideas  which  conflict 
with  the  suggested  delusion.  The  latter  is  thus  'systematized':  the  rest 
of  consciousness  is  shut  off,  excluded,  dissociated  from  it.  In  extreme  cases 
the  rest  of  the  mind  would  seem  to  be  actually  abolished  and  the  hypnotic 
subject  to  be  literally  a  changed  personality." 

As  regards  the  testimony  of  hypnotized  persons  as  to  what  happened  to 
them  in  the  hypnotic  state,  it  must  first  be  remarked  that,  after  waking,  the 
subject  is  still  liable  to  suggestions,  which  will  last  if  he  has  been  told  that  he 
will  still  see  the  object,  etc.,  when  awake.  Though  he  remains  influenced  by 
the  hypnotic  suggestion,  it  appears  to  him  to  be  spontaneous,  and  he  does 
not  remember  how  the  hallucination  was  produced,  nor  who  gave  him  the 
order,  nor  even  that  it  was  given  at  all ;  he  will  proceed  to  carry  out  an  act, 

*  Professor  James  notes  that  the  power  of  suggestion  is  insignificant  unless  the  subject 
is  first  thrown  into  the  trance-like  state,  but  after  that  there  are  no  limits  to  its  power  : 
this  state  has  no  particular  outward  symptoms,  as  the  bodily  phenomena  which  are  called 
such  are  really  the  products  of  suggestion,  but  these  suggestions  could  not  have  been  made 
successfully  without  the  trance  state. 


526  PART    II.      TESTIMONIAL    EVIDENCE  No.  275. 

which  he  has  been  tohi  to  do,  and  if  asked  why  he  does  so,  will  reply  that  he 
does  not  know  or  will  invent  some  reason.  A  subject's  statement  as  to  the  time 
he  has  been  in  the  hypnotic  sleep  can  rarely  be  accepted  ;  he  cannot  measure 
the  time,  as  he  has  no  landmark.  Nor  do  the  subjects  know  how  often  they 
have  been  hypnotized,  though  they  sometimes  have  a  general  impression 
about  it  caused  by  an  impression  of  cold  and  shivering.  This,  however,  is 
not  always  present  and  it  can  be  destroyed  by  suggestion.  Sometimes 
oblivion  as  to  what  occurred  during  the  sleeping  state  is  complete,  sometimes 
partial,  sometimes  the  events  which  occurred  during  hypnosis  recur  to  the 
mind  with  great  force,  when  they  are  recalled  by  some  external  circumstance. 
No  rule  can  be  laid  down,  as  there  is  every  variety  of  case  from  the  most 
profound  oblivion  to  the  most  lucid  recollection.  If  the  hypnotizer  tells  the 
patient  that  he  will  remember  nothing  on  awaking,  the  suggestion  will 
destroy  the  subject's  recollection  of  all  that  has  occurred  ;  he  may  even 
undergo  all  sorts  of  violence  and  have  no  remembrance  of  it.  The  subject 
who  says  he  remembers  everything  cannot  be  trusted ;  if  he  find,  e.g.,  that 
he  has  a  wound,  he  is  apt  to  invent  an  explanation  or  accept  one  given  him, 
l)ut  in  all  cases  he  ends  l)y  suggesting  to  himself  that  he  saw  things  as  he 
explained  them.  Or,  again,  he  may  err  because  of  the  suggestion  of  the  ex- 
perimenter who  has  impressed  upon  him  a  recollection  which  is  false.  If, 
however,  the  subject  is  hypnotized  anew,  the  recollection  of  all  which  oc- 
currefl  during  the  former  hypnosis  is  then  revived,  if  he  has  received  no 
special  suggestion  of  oblivion ;  it  has  been  shown,  however,  that  subjects 
wliile  in  a  hypnotic  state  are  capable  of  simulation  and  of  suppressing  the 
truth. 

Topic  3.     Narration  as  affected  by  Typical  Temperaments 

275.  W.M.  C.  Robinson.  Forensic  Oratory  ;  a  Manual  for  Advocates. 
(1893.     p.  126.) 

Intelligible  Evidence:  hoiv  Rendered  Unintelligihle.  The  Rambling  Wit- 
ness; his  Treatment.  Testimony  in  itself  intelligible  is  often  rendered 
difficult  of  comprehension  by  the  incompleteness,  or  the  want  of  con- 
tinuity, with  which  it  is  presented.  These  evils  are  due  either  to  the 
defective  mental  constitution  of  the  witness,  or  to  his  moral  weakness,  or 
to  his  personal  hostility,  or  to  the  improper  conduct  of  the  advocate.  A 
defective  mental  constitution  manifests  itself  in  rambling,  or  in  dull  and 
stupid  witnesses.  In  many  individuals  there  apparently  exists  no  power  of 
fixing  the  attention  on  a  single  object  and  persistently  pursuing  its  consider- 
ation, and  from  such  an  individual  it  is  useless  to  expect  any  exhaustive 
and  coherent  statement  of  the  facts  within  his  knowledge.  Any  idea  which 
suddenly  arises  in  his  mind,  during  the  course  of  his  narration,  diverts  his 
thought  into  another  channel ;  he  loses  sight  of  many  details  which  he  should 
remember,  and  continues  his  relation  without  consciousness  of  the  omission. 
If  he  endeavors  to  express  this  new  idea,  his  effort  to  explain  it  leads  him  still 
further  from  his  proper  subject,  and  when  he  returns  to  it,  if  ever,  it  is  at  a 
point  different  from  that  at  which  it  was  abandoned,  while  the  intermediate 
ideas,  however  necessary  to  the  comprehension  of  the  whole,  are  left  un- 
utterefl.  The  examination  of  a  witness  of  this  defective  mental  character 
should  be  close  and  catechetical.     The  questions  of  the  advocate  should 


r.o.  'Zio. 


II.       TESTIMONIAL    PROCESS.       C.    NARRATION  527 


lead  him  step  by  step  throuj^h  the  entire  subject  of  his  testimony,  in  logical 
order  and  without  omissions.  If  he  persists  in  rambling  and  irrelevant 
replies,  he  should  not  be  rudely  interrupted,  for  any  mental  shock  or  moral 
perturbation  will  increase  his  tlifficulties,  but  when  he  has  finished  what  he 
wishes  to  relate,  the  cjuestion  from  whose  true  reply  he  has  departed  should 
be  patiently  repeated,  and  the  examination  pass  from  this  point  to  the  next 
only  when  the  proper  answer  is  obtained. 

Th"  Dull  and  Siupid  Witness:  his  Treatment.  The  same  obstacles  are 
encountered  in  eliciting  the  evidence  of  a  dull  and  stupid  witness.  His 
perceptions  are  cloudy  and  indefinite.  His  processes  of  recollection  and 
reflection  are  slow  and  disconnected.  .  .  .  The  patience  of  the  advocate  i^ 
in  this  examination  must  be  inexhaustible.  To  take  the  witness  again  and 
again  over  his  story  in  order  to  recall  to  him  some  e\'ent  or  fact  which  seems 
to  elude  every  effort  of  his  memory,  to  construct  questions  which  contain 
some  word  or  phrase  suggestive  of  the  missing  thought,  to  contrive  methods 
of  explanation  or  illustration  which  enable  him  to  make  himself  clearly 
understood  by  the  jury,  to  afford  him  opportunities  for  reconciling  incon- 
sistencies into  which  his  misapprehension  of  the  questions  or  the  inaccuracy 
of  his  replies  has  led  him,  taxes  the  ingenuity  and  perseverance  of  the  most 
adroit  and  indefatigable  lawyers.  The  task  imposed  upon  them  is  nothing  ^ 
less  than  the  creation  of  the  testimony,  save  that  the  facts,  as  crude  and  indefi- 
nite ideas,  lie  dormant  in  the  recollection  of  the  witness.  It  is  the  advocate 
who  gives  to  these  ideas  vitality  and  form,  who  clothes  them  in  suitable 
expressions,  who  arranges,  produces,  and  communicates  them  to  the  jury. 

The  Timid  and  Self-conscious  Witness:  his  Treatment.  The  testimony 
of  a  witness  whose  moral  weakness  manifests  itself  in  an  undue  timidity  and 
self-consciousness  is  subject  to  the  same  defects.  His  attention  is  divided 
between  the  ideas  which  he  is  requested  to  present,  and  the  effect  that  he- 
supposes  is  to  be  produced  by  their  disclosure  on  himself  or  on  the  cause. 
His  apprehensions  and  conjectures  often  work  through  his  imagination  on 
his  memory,  until  without  intending  falsehood  he  omits  or  colors  facts  to  a 
degree  irreconcilable  with  truth.  No  sooner  are  his  ideas  uttered,  however, 
than  he  becomes  conscious  of  their  error.  If  he  now  attempts  an  explanation, 
it  usually  results  in  his  entire  discomfiture.  If  he  persists  in  the  misrepresen- 
tation or  concealment,  a  new  cause  of  embarrassment  arises  in  the  fear  of 
subsequent  exposure,  and  leads  to  still  more  harmful  falsehoods  and  sup- 
pressions. Thus,  with  the  best  intentions  at  the  outset,  and  knowing 
matters  of  importance  to  the  cause,  a  nervous,  apprehensive  witness  may 
finally  retire  suspected  of  the  grossest  perjury,  and  without  having  related 
a  single  matter  as  it  actually  occurred.  No  witness  who  is  liable  to  this 
infirmity  should  be  permitted  to  narrate  material  facts  until  his  embarrass- 
ment and  fear  are  overcome.  By  simple  questions  in  reference  to  his  occupa- 
tion, residence,  or  relation  to  the  parties  of  the  cause,  eliciting  replies  in 
which  mistake  will  be  impossible,  he  should  be  gradually  assured  that  he  is 
capable  of  understanding,  and  of  properly  responding  to,  the  inquiries  which 
are  to  be  proposed  to  him,  and  his  entire  attention  fixed  on  the  proceeding 
in  which  he  is  now  engaged.  When  at  last  fully  at  his  ease,  the  more  mate- 
rial portions  of  his  evidence  should  be  approached,  the  questions  made,  if 
possible,  even  more  simple  and  direct,  and  limiting  the  answer  to  the  point 
required.  .  .   . 


528  PART    II.       TESTIMONIAL    EVIDE?«;CF.  No.  275. 

The  Bold  atid  Zealous  Witness:  his  Treatment.  The  moral  weakness  of 
a  bold  and  zealous  witness  creates  almost  equal  difficulties.  He  also  is 
self-conscious,  but  in  him  self-consciousness  is  manifested  by  a  high  opinion 
of  his  tliscernment  of  the  real  requirements  of  the  cause,  and  of  the  impor- 
tance and  conclusiveness  of  his  own  evidence  concerning  it.  He  feels  that, 
if  permitted  to  state  fully,  in  his  own  way,  what  he  thinks  as  well  as  what  he 
knows,  the  jury  must  tlecide  at  once  in  favor  of  the  party  in  whose  interest 
he  is  called.  He  rebels  at  interference,  even  of  his  own  counsel,  is  jealous 
of  the  questions  in  reply  to  which  his  testimony  is  delivered,  and  avails  him- 
self of  every  opportunity  to  assert  his  own  opinions  and  escape  the  limits 
within  which  the  interrogatories  are  intended  to  confine  him.  He  is  a  dan- 
gerous witness,  rarely  adhering  strictly  to  the  truth,  easily  led  astray  by 
flattery,  and  liable  to  betray  the  cause  whenever  he  suspects  that  his  services 
are  unappreciated.  This  witness  requires  the  most  prudent  and  at  the  same 
time  the  most  inflexible  control.  While  he  should  not  be  irritated  by  sen- 
sible restrictions,  he  must  still  be  kept  within  the  narrowest  limits,  and  his 
evidence  confined  in  matter  and  expression  to  the  precise  truth  which  it  is 
necessary  for  him  to  disclose.  .  .  .  The  entire  examination  of  this  witness 
should  be  conducted  with  a  view  to  the  dangers  which  will  attend  his  cross- 
examination.  Exaggerations  in  his  evidence,  which  are  likely  then  to  be 
exposed,  should  be  corrected  as  soon  as  made,  by  questions  bringing  him  to 
some  known  standard  and  furnishing  a  measure  of  his  actual  meaning.  If 
he  endeavors  to  conceal  unfavorable  facts  which  are  certain  sometime  to 
appear,  such  inquiries  should  be  propounded  as  will  now  elicit  them  in 
the   least   unfavorable  form.  .   .   . 

The  Hostile  Witness:  his  Treatment.  Incompleteness  or  obscurity  in  the 
testimony  of  a  hostile  witness  is  caused  by  difficulties  of  an  entirely  different 
character.  The  obstacles  encountered  in  the  examination  of  the  rambling, 
the  self-conscious,  or  the  stupid  witness  arise  from  intellectual  or  emotional 
defects,  and  can  be  overcome  by  enlightening  the  mind  of  the  witness,  or  by 
assisting  him  to  bring  his  impulses  under  control.  The  obstacle  encountered 
in  an  adverse  witness,  however,  is  an  antagonistic  will.  He  labors  usually 
under  no  mental  or  emotional  eml)arrassments.  He  knows  clearly  and 
precisely  the  facts  which  ought  to  form  his  evidence.  He  is  able  to  narrate 
them  positively  and  coherently,  if  he  so  chooses.  But,  actuated  by  interest, 
or  partiality,  or  more  secret  impulses,  he  is  determined  to  withhold  the 
knowledge  he  po.ssesses,  or,  if  compelled  to  yield  it,  to  communicate  it  in 
language  which  will  make  it  as  valueless  as  possible.  Where  such  a  witness  is 
the  .sole  repository  of  ideas  whicli  arc  essential  to  the  cause,  the  advocate 
has  no  other  course  than  to  produce  him,  and  render  him  as  useful  as  he  may. 
Otherwise,  he  should  avoid  him  altogether.  For  it  is  seldom  that  the  bene- 
fit to  be  derived  from  such  a  witness  is  equal  to  the  injury  which  his  reluct- 
ance to  assist  and  his  perversion  of  the  facts  inflict.  When,  however,  it 
becomes  necessary  to  improve  him,  the  advocate  must  first  discover  the 
cause  and  character  of  his  hostility.  If  it  be  partial  only,  manifesting  itself 
toward  a  single  person  or  a  single  feature  of  the  cause,  it  may  be  possible 
during  the  whole  examination  to  ignore  the  objectionable  individuals  or 
issues,  and  to  approach  the  witness  solely  upon  matter  concerning  which  he 
will  freely  testify.  If  his  antagonism  extend  to  the  entire  cause,  or  to  all 
the  parties  by  whom  he  is  called,  there  is  little  hope  of  rendering  him  useful 


No.  275.  II.       TESTIMONIAL   PROCESS.       C.    NARRATION  529 

unless  he  can  be  either  conciliated,  circumvented,  or  subdued.  In  order  to 
conciliate  him,  the  weak  points  in  his  disposition  must  be  ascertained,  and 
siege  laid  to  his  heart  by  questions  which  appeal  directly  to  these  vulnerable 
characteristics.  Once  in  a  good  humor  with  himself  and  with  the  advocate, 
his  motive  for  concealment  or  perversion  of  the  truth  exercises  less  influence 
upon  his  mind,  and  he  replies  with  little  hesitation  to  cautious  inquiries  which 
do  not  directly  touch  his  prejudices,  or  present  anew  to  him  the  exciting 
cause  of  his  antagonism.  .  .  . 

Classes  of  Liars:  Mode  of  interrogating  them.  A  witness  who  is  not  able, 
or  is  not  disposed,  to  tell  the  truth,  fails  in  the  most  essential  attribute  of 
credibility,  and  from  the  moment  when  this  fault  becomes  apparent  to  the 
jury  their  confidence  in  him  and  in  his  testimony  is  at  an  end.  Of  such  wit- 
nesses there  are  three  classes :  X^e  innocent  liar,  whose  imaginations  are  so 
intimately  mingled  with  his  memories  that  he  does  not  distinguish  between 
the  facts  and  fancies  which  occupy  his  mind,  but  believes  and  utters  both 
alike  as  true  ;  the  careless  liar,  whose  love  of  the  pathetic  or  the  marvelous, 
or  whose  desire  to  attract  attention  to  himself,  overcomes  his  weak  allegiance 
to  the  truth,  and  leads  him  to  weave  facts  and  falsehoods  together  in  his 
common  conversation,  to  round  out  his  narrations  by  the  insertion  of  in- 
vented incidents,  to  give  dramatic  completeness  to  events  by  supplying 
with  fiction  whatever  may  be  wanting  in  the  circumstance  itself ;  the 
willful  liar,  who  for  some  definite  purpose  deliberately  asserts  what  he  knows 
to  be  untrue.  .  .  .  The  innocent,  imaginative  liar  is  generally  endowed 
with  no  remarkable  astuteness,  and,  being  honest  in  his  intentions,  readily 
follows  wherever  a  kindly  questioner  may  wish  to  lead  him.  .  .  .  When  he 
is  called  upon  to  state  facts,  at  the  instance  of  the  adverse  party,  the  nat- 
ural desire  to  serve  a  friend  stimulates  his  imagination  as  well  as  his  memory, 
and  the  story  he  relates  is  the  net  result  of  fancy  and  recollection.  The 
cross-examiner  may  take  advantage  of  the  same  docility  in  order  to  exhibit 
to  the  jury  his  liability  to  self-deception.  If  circumstances  which  they  know 
did  not  occur,  but  which  are  in  keeping  with  the  other  parts  of  the  trans- 
action as  narrated  by  him,  are  now  suggested  to  him,  his  imagination  is  very 
likely  to  insert  them  into  the  picture  which  his  memory  preserves,  and  he 
will  express  his  certainty  of  their  existence  with  as  much  positiveness  as 
that  of  any  other  matter  to  which  he  has  testified.  This  process  may  be 
indefinitely  repeated,  until  the  jury  see  that  he  is  willing  to  adopt  and  swear 
to  any  details  which  are  not  manifestly  improbable,  or  until  his  contradiction 
of  other  witnesses,  or  of  former  portions  of  his  own  evidence,  destroys  their 
faith  in  his  intelligence  or  honesty.  .  .  .  The  exposure  of  the  careless  liar 
is  a  work  of  little  difficulty.  The  cross-examiner  needs  but  to  apply  the 
goad,  and  give  him  rein.  The  same  qualities  which  mislead  him  in  his 
statements  in  regard  to  one  event  operate  on  all  the  occurrences  of  life,  and 
in  his  mouth  " a  little  one"  always  "  becomes  a  thousand,"  and  "  two  roister- 
ing youths"  develop  into  "eleven  men  in  buckram"  and  "three  in  Kendal- 
green."  Let  fitting  incidents,  whose  details  are  already  accurately  before 
the  jury,  be  but  presented  to  him  for  description,  and  his  palpable  additions 
and  exaggerations  will  complete  his  ruin.  .  .  .  The  willful  liar,  though  prob- 
ably a  rare  phenomenon,  sometimes  appears  within  our  courts,  and  when  he 
does  appear  generally  eludes  or  l)affles  all  the  artifices  of  the  cross-examiner. 
.  .  .     An  open  attack  upon  a  willful  liar  in  order  to  compel  him  to  confess 


530  PART    II.       TESTIMONIAL    EVIDENCE  No.  276. 

his  voluntary  falsehood  is  nearly  always  useless,  at  least  until  he  has  been 
driven  to  the  wall  by  a  superior  foe,  or  has  been  reduced  to  such  a  state  of 
mental  confusion  that  he  is  willing  to  admit  whatever  the  victorious  cross- 
examiner  may  see  fit  to  demand.  His  willingness  to  lie  may  with  more  ease 
and  certainty  be  shown  by  unveiling  the  evil  motives  which  impel  him,  or  by 
entangling  him  in  inconsistencies  and  contradictions  which  render  it  im- 
possible to  accept  any  of  his  statements  as  worthy  of  belief. 

27().  RiCH.\KD  Harris.  Hints  on  Advocacy.  (Amer.  ed.  1892.  pp.  Go, 
107.)  The  Flippant  Witness.  ^Yhen  a  witness  comes  into  the  box  with 
what  is  commonly  called  a  "knowing"  look,  and  with  a  determined  pose 
of  the  head,  as  though  he  would  say,  "Now,  then,  Mr.  Counselor,  I'm  your 
man,  tackle  me,"  you  may  be  sure  you  have  a  Flippant  and  masterful  being 
to  deal  with.  He  has  come  determined  to  answer  concisely  and  sharply ; 
means  to  say  "  no  "  and  "  yes,"  and  no  more ;  always  to  be  accompanied  with 
a  lateral  nod,  as  much  as  to  say,  "take  that." 

But  although  I  have  used  the  masculine  pronoun,  this  witness  is  very  often 
a  female.  She  has  come  to  show  herself  off  before  her  friends  ;  she  told  them 
last  night  how  she  would  do  it,  and  feels  cjuite  equal  to  "  any  counselor  as  ever 
wore  a  wig." 

In  dealing  with  this  witness,  an  advocate  should  carefully  abstain  from 
administering  rebukes,  or  attempting  "to  put  the  witness  down."  His 
ol)ject  should  be  to  keep  her  up  as  much  as  possible,  to  encourage  that  fine 
frenzied  exuberance,  which  by  and  bye  will  most  surely  damage  the  case 
she  has  come  to  serve.  .  .  . 

You  will  always  approach  her  as  if  she  were  a  wild  animal  ready  to  tear 
you  if  she  could  get  near  enough.  Therefore,  circumvent.  You  may  be 
sure  she  w^ill  never  give  an  answer  that  she  supposes  may  be  favorable.  I 
have  known  this  kind  of  witness  so  "worked  up,"  that  at  last  she  has  refused 
to  give  an  answer  that  she  may  think  favorable  even  to  her  own  side,  for  fear 
it  may  be  made  use  of  somehow  by  the  other. 

The  Dogged  Witness.  The  dogged  witness  is  the  exact  opposite  of  the  one 
I  have  just  been  dealing  with.  He  will  shake  his  head  rather  than  say  no. 
As  much  as  to  say  :  "You  don't  catch  me.  You  see  him,  gentlemen,  and 
you  see  me.  I'm  up  to  him."  He  seems  always  to  have  the  fear  of  perjury 
before  his  eyes,  and  to  know  that  if  he  keeps  to  a  nod  or  a  shake  of  the  head, 
he  is  safe.  He  is  under  the  impression  that  damage  the  case  he  must,  what- 
ever he  says.  "A  still  tongue  makes  a  wise  head,"  has  always  been  his 
maxim. 

How  are  you  to  deal  with  liim  ?  .  .  .  Insinuation  will  help  you  with  this 
witness.  Hut  carefully  avoid  asking  for  too  much  at  the  time.  Get  little 
answers  to  little  questions,,  and  you  will  find  as  a  rule  that  answers  are 
strung  together  like  a  row  of  beads  within  the  man.  .  .  . 

This  witness,  without  l)eing  untruthful,  is  always  hostile  ;  he  looks  on  you 
as  a  dangerous  man,  a  sort  of  spy,  regards  you  as  he  would  an  ill-looking 
stranger  on  a  race  course  who  wanted  to  draw  him  into  conversation. 
He  will  become  bolder  as  he  proceeds,  especially  if  you  prove  to  him  that 
you  are  by  no  means  the  terrible  creature  he  at  first  thought  you.  And 
the  best  way  to  foster  this  idea  is  to  accustom  him  to  answer.  Let  him  see 
that  your  (juestions  are  of  the  simplest  possible  kind  ;   even  so  simple  and 


No.  276.  II.      TESTIMONIAL    PROCESS.       C.    NARRATION  531 

SO  easily  answered,  that  it  seems  almost  stupid  to  ask  or  answer  them.  "Of 
course,"  he  says  to  one  ;  "  Certainly,"  to  another  ;  "  No  doubt  about  that," 
to  a  third,  and  so  on.  Presently  you  slip  one  in  that  is  neither  "of  course" 
nor  "certainly,"  and  get  your  answer. 

He  may  be  an  old  man  (generally  is),  and  the  subject  of  inquiry  a  right 
of  way.  He  may  be  "  the  oldest  inhabitant."  What  are  the  moving  springs 
of  human  conduct  ?  Love  of  justice,  which  he  has  known  from  a  boy  up- 
wards, and  his  father  before  him,  as  "  right  is  right,  and  wrong  is  no  man's 
right."  Self-approbation,  or  vanity,  concentrated  in  him  under  the  form  of 
"a  iconderful  memory,"  which  has  been  the  talk  of  the  neighbors  for  years; 
the  knowing  more  of  by-gone  times  than  any  man  or  woman  in  the  place ; 
Selfishness,  called  by  him  his  "  uprighfedriess  and  doivnstraightedness" ; 
Independence  of  spirit,  "  he  cares  for  no  man,  and  always  paid  twenty  shillings 
in  the  pound"  —  these  are  the  vulnerable  points  in  his  armor;  and  if  you 
cannot  thrust  an  arrow  in  at  any  of  these,  you  had  better  hang  up  your  bow, 
for  you  will  never  make  a  good  archer.  He  will  answer  anything  if  you  ap- 
peal to  his  memory,  or  if  your  question  magnifies  his  independence  of  spirit, 
or  brings  out  in  all  its  dazzling  luster  that  "  uprightedness  and  down- 
straightedriess,"  of  which  exalted  virtue  he  believes  himself  to  have  been 
ever  a  most  distinguinshed  example,  if  not  the  actual  discoverer. 

And  thus  the  Dogged  witness  may  be  tamed  and  rendered  docile,  even  as 
that  more  sagacious  creature,  the  elephant,  may  be  taught  to  stand  on  its  head. 

The  Hesitating  Witness.  A  hesitating  witness  may  be  a  very  cautious  and 
truthful  witness,  or  a  very  great  liar.  You  will  find  this  out  before  you 
begin  to  cross-examine.  In  most  cases  the  hesitating  man  is  wondering  what 
effect  the  answer  will  have  upon  the  case,  and  not  what  the  proper  answer  is. 
By  no  means  hurry  this  individual.  Let  him  consider  well  the  weight  of  his 
intended  answer,  and  the  scale  into  which  it  should  go,  and  in  all  probability 
he  will  put  it  into  the  wrong  one  after  all.  If  he  should,  leave  it  there  by  all 
means.  I  advise  this,  because  I  have  so  often  seen  young  advocates  care- 
fully take  it  out  again  and  put  it  into  the  other.  Besides,  your  giving  him 
plenty  of  time  will  tend  to  confuse  him  —  as  confused  he  should  be  if  he  is 
not  honest.  He  can't  go  on  weighing  and  balancing  answers  without  be- 
coming bewildered  as  to  their  probable  results.  .  .  .  Very  often  he  will 
repeat  the  question  to  gain  time.  Sometimes  he  pretends  not  to  hear, 
sometimes  not  to  know ;  all  this  time  he  is  adjusting  his  weights,  and  in  all 
probability  some  of  them  are  false.  .  .  . 

Hesitation,  however,  may  result  from  a  desire  to  be  scrupulously  ac- 
curate, in  which  case  you  must  be  careful  that  the  mere  strictness  of  language 
do  not  convey  a  false  impression.  The  letter  sometimes,  even  in  advocacy, 
kills,  where  the  spirit  would  make  alive. 

The  Nervous  Witness.  A  nervous  witness  is  one  of  the  most  difficult  to 
deal  with.  The  answers  either  do  not  come  at  all,  or  they  tumble  out  two 
or  three  at  a  time ;  and  then  they  often  come  with  opposites  in  close  com- 
panionship;  a  "Yes"  and  a  "No"  together,  while  "1  don't  know"  comes 
close  behind.  "I  believe  so,"  or  "I  don't  think  so,"  is  a  frequent  answer 
with  this  witness,  as  it  is  with  the  lying  and  the  truthful  witness.  They 
are  all  partial  to  this  expression,  but  all  from  dift'erent  and  opposite  motives. 

You  must  deal  gently  with  this  curious  specimen  of  human  nature.  He 
is  to  be  encouraged.      It  is  no  use  to  bray  him  in  a  mortar.  .  .  .     You 


532  PART    II.      TESTIMONIAL    EVIDENCE  No.  27& 

should  (leal  as  gently  with  a  weakness  of  this  kind  as  you  would  with  a 
shying  horse ;  encourage  and  humor  him,  while  you  familiarize  him  with 
the  ilreaded  object,  which  is  your  learned  self.  The  nervous  witness,  like 
all  others,  is  either  to  be  cross-examined  or  not ;  if  he  be,  you  must  do  it 
without  driving  him  into  such  a  state  that  his  answer,  however  favorable, 
will  have  no  \alue  in  the  eyes  of  the  jury  ;  and  this  will  surely  be  the  effect 
of  agitating  him  by  petulant  impatience.  Endeavor  to  quiet  his  nerves  if 
you  think  you  can  obtain  anything  serviceable  to  your  case ;  if  not,  leave 
him  alone  altogether.  Great  allowance  is  always  made  for  a  nervous 
witness,  who  invariably  receives  the  sympathy  of  the  jury.  You  have  to 
guard,  therefore,  against  offending  that  sympathy,  as  you  undoubtedly 
would  by  a  severe  tone  or  manner. 

The  Humorous  Witness.  The  humorous  witness  is  mostly  found  in  theatri- 
cal cases,  where  he  is  generally  looked  for ;  and  in  the  majority  of  them  he 
seems  to  be  conscious  that  he  is  expected.  He  scarcely  ever  says  a  good 
thing,  although  everybody-  laughs  whenever  he  tries  to.  He  is  generally 
encouraged  all  round,  and  very  often  the  judge  will  say  a  good  thing  for  him. 
This  witness  is  a  pul)lic  character,  and  at  any  risk  he  must  not  disappoint 
his  eager  patrons.  If  he  says  a  good  thing,  it  will  be  in  to-morrow's  paper, 
and  the  theatrical  world  will  have  it  for  breakfast.  If  he  cannot  manage  it, 
his  performance  will  be  a  failure.  So  he  mounts  the  box  and  looks  all  round 
the  court  as  much  as  to  say,  "The  last  witness  was  nothing,  now  comes  the 
real  performance." 

Xo  one  need  be  told  that  his  weak  point,  like  that  of  almost  all  men,  is 
vanity,  and  his  strong  one  good  temper.  You  will  scarcely  ever  find  him 
intentionally  false,  and  he  seldom  attempts  to  mislead.  He  rarely  has  any 
interest  in  the  case,  and  most  frequently  not  the  excitement  incident  to  party 
feeling.  As  a  rule  he  is  the  friend  of  both  sides,  as  he  is  with  the  human 
family  generally ;  for  though  he  may  be  out  at  elbows  with  all  the  world, 
he  brings  "railing  accusation"  against  no  one. 

Supposing  the  action  to  be  one  of  assault,  you  can  successfully  appeal  to 
his  good  nature  if  you  are  for  the  defendant ;  and  he  will  almost  rub  the  cause 
of  action  out  for  aou  as  he  would  a  debtor  account  from  a  slate.  Play  him 
with  his  superabundant  good  humor,  and  lay  aside  the  style  of  the  cross- 
examiner  altogether.  Be  with  him  like  a  schoolmaster  with  the  boys  after 
school,  and  you  will  find  that  he  will  jump  to  your  conclusions  if  you  offer 
him  a  back.   .   .   . 

The  Cuuninfi  l\'Hn(ss.  The  cunning  witness  must  be  dealt  with  cunningly. 
Humor  would  be  mere  pastime,  and  straightforward  questioning  out  of 
character  with  him.  But  by  way  of  contrast,  and  for  that  only,  straight- 
forwardness may  not  be  out  of  place  with  the  jury.  Whatever  of  honesty, 
whether  of  appedraiire,  manner,  tone,  or  language  contrasts  with  the  vulgar, 
self-asserting  and  mendacious  acting  of  this  witness  will  tend  to  destroy  him. 
It  will  be  the  antidote  to  his  craftiness.  It  is  strange,  but  true,  that  no  man 
can  be  what  is  usually  understood  as  a  "cunning  person"  and  conceal  the 
fact.  He  is  not  really  a  shrewd  man,  but  only  thinks  he  is,  tries  to  be,  and, 
above  all,  wishes  to  l)e  thought  so.  He  always  pretends  that  he  has  some 
deep  and  hidden  meaning  in  what  he  .says  and  does,  which  no  amount  of 
skill  or  perception  on  your  part  can  penetrate.  He  would  be  an  impostor 
to  the  world  if  lie  could,  but  the  only  person  he  really  imposes  upon  is  him- 


No.  276.  II.      TESTIMONIAL    PROCESS.      C.    NARRATION  533 

self.  Every  one  can  see  that  he  tries  to  appear  what  he  is  not,  and  that  he 
pretends  to  know  a  great  deal  more  than  he  does.  This  is  the  man  to  show 
to  the  jury  in  his  real  character,  and  they  will  enjoy  your  good-humored 
exposure  of  the  cheat.  .  .  . 

The  Canting  Hypocrite.  The  canting  hypocrite  is  not  the  least  pleasing 
object  of  creation  when  in  the  witness  box,  nor  is  he  the  most  difficult  to 
cross-examine.  He  invariably  speaks  from  the  very  best  and  purest  of 
motives.  His  desire  is  only  to  speak  the  truth ;  no,  not  merely  that,  but 
without  so  much  as  an  apparent  tinge  of  partiality.  He  has  no  interest  in 
the  case  —  no  feeling.  It  is  such  a  pity  it  could  not  have  been  settled  out 
of  court  as  he  proposed,  himself  to  be  the  arbitrator. 

Here  is  a  good  man  for  you  !  It  is  a  pity  that  necessity  and  a  sense  of 
duty  should  compel  you  to  cross-examine  such  a  man  at  all.  It  seems  al- 
most an  insult,  but  excusable  on  this  ground  —  that  his  extreme  disinterested- 
ness and  impartiality  might  impose  upon  the  jury  and  do  your  client  an 
injustice  if  you  did  not.  Now  you  wnll  observe  about  this  rogue  that  when- 
ever he  approaches  a  downright  lie  he  shirks  it.  It  is  a  part  of  his  very 
character  to  believe  he  is  an  honest  man.  When  he  comes  to  a  lie,  therefore, 
that  he  dares  not  face,  he  is  like  a  bad  hunter  who  will  not  leap  the  fence, 
but  looks  round  to  see  if  there  be  a  gap  somewhere  hard  by  or  a  somewhat 
lower  fence  that  he  may  scramble  over,  and  so  not  do  violence  to  himself  in 
the  event  of  a  mishap.  The  hypocrite  coming  up  to  the  lie,  says  :  "  I  am 
not  quite  clear;  I  should  hardly  like  to  go  so  far  as  that."  But  he  will 
wriggle  over  on  to  the  other  side  somehow  if  you  show  him  a  place.  So,  if 
you  put  it  to  him  something  in  this  form  :  "  I  presume  I  may  take  it,  Mr. 
Pecksniff,  that  so-and-so  is  the  case  ?  "  "  Well,"  says  he,  "  I  think  you  may." 
Now  he's  fairly  over.  You  will  not  fail  to  mark  this  characteristic  in  him, 
that  whenever  he  begins  to  think,  to  be  not  quite  sure,  not  clear,  and  to  believe 
and  presume,  and  so  forth,  he  is  incubating  a  downright  lie.  He  himself  is  a 
lie  that  needs  little  telling.  His  evidence,  which  may  and  will  be  always  on 
the  confines  of  truth,  must  be  closely  examined  to  see  on  which  side  of  the 
boundary  it  really  is.  .  .  .  He  is  too  excellent  to  deny  the  truth  if  you 
put  it  to  him  in  infinitesimally  small  quautities  at  a  time  in  the  shape  of  simple 
leading  questions,  each  one  carrying  with  it  the  shadow  of  perjury,  which  this 
man  will  always  avoid  committing  at  any  cost. 

The  rogue  believes  in  two  things — Religion  and  his  own  Goodness.  His  vy 
religion  is  covetousness,  which  he  always  construes  into  a  Special  Providence  ; 
and  his  Goodness  is  exemplified  in  an  enthusiastic  worship  of  Himself. 
He  is  an  eminently  moral  man,  as  every  one  will  tell  you  ;  but  his  morality 
springs  not  from  a  genuine  piety,  but  from  arrant  cowardice.  He  would  sin 
to  his  heart's  content  but  for  the  dread  of  punishment.  He  is  a  weak  sinner 
nevertheless,  who  cannot  even  plead  a  robust  constitution  in  mitigation. 

The  Witness  partly  True  and  partly  False.  The  witness  who  is  partly  true 
and  partly  false,  without  hypocrisy,  knowing  that  he  is  giving  color  to  some 
facts,  suppressing  others,  and  adding  little  ones  to  make  good  measure  for 
his  party,  is  the  most  difficult  of  all  to  deal  with.  The  process  of  separating 
the  true  from  the  false  requires  skill  as  well  as  ingenuity  and  patience.  You 
must  have  a  delicacy  of  touch  in  manipulating  evidence  of  this  kind  that 
comes  only  by  actual  practice.  Experienced  advocates  are  frequently 
deceived,  and  judges  even  fail  at  times  to  separate  what  is  true  from  what  is 


534  PART   II.      TESTIMONIAL   EVIDENCE  No.  276. 

false.  .  .  .  And  you  must  bear  in  mind  that  it  is  not  sufficient  for  you  your- 
self to  know  the  nature  and  character  of  the  evidence  ;  your  task  will  only  be 
half  accomplished  at  this  point.  There  will  still  remain  the  more  difficult  one 
of  e.Khil)itinii  it  to  the  jury  in  the  same  light,  and  with  the  same  aspect  with 
which  it  presents  itself  to  your  own  mind.  ...  If,  however,  you  can  lay 
hold  of  any  one  part  and  expose  an  incongruity  or  an  incompatibility,  you 
will  have  accomplished  a  great  deal.  Expose  an  attempt  at  deception  any- 
where in  a  witness's  evidence,  and  you  have  nearly,  if  not  quite,  destroyed  it 
all.  You  must  watch  carefully  to  find  out  if  there  be  a  want  of  assimilation 
in  the  parts  of  the  story ;  if  there  be  a  disagreement  between  some  of  the 
false  parts  and  some  of  the  true,  you  must  ascertain  whether  the  alleged  facts 
can  exist  together  and  in  connection  with  one  another,  and  must  cross- 
examine  for  causes  and  effects  ;  you  will  then  determine  whether  they  agree 
with  the  facts  stated  by  other  witnesses.  Men  do  not  gather  "figs  off 
thistles,"  and  if  you  find  the  same  cause  producing  opposite  effects,  there  is 
falsehood  somewhere. 

Improbabilities  always  have  great  weight  with  a  jury :  and  if  you  cross- 
examine  for  these  in  a  witness  who  tells  a  story  partly  true  and  partly  false, 
you  may  succeed  in  detecting  some.  .  .  .  The  story  told  by  this  witness  would 
resemble  a  neatly  papered  wall.  On  a  general  glance,  such  as  an  ordinary 
spectator  would  give,  it  would  appear  perfect ;  but  a  critical  examiner  would 
discover  that  the  pattern  was  broken  here  and  there  to  meet  the  requirements 
or  shape  of  the  wall,  notwithstanding  that  considerable  skill  had  been  em- 
ployed to  make  the  broken  portions  fit  in  so  as  to  deceive  the  eye.  As  a 
whole,  it  looks  complete ;  examined  in  detail,  the  patchwork  is  apparent ; 
the  pattern  is  not  preserved  in  an  integral  condition.  .  .  . 

The  Positive  Witness.  There  is  another  class  of  witness  which  maybe  men- 
tioned, and  that  is  the  positive  witness  (generally  a  female  or  of  female 
tendencies).  It  is  usually  very  difficult  to  make  the  witness  unsay  any- 
thing she  has  said,  however  mistaken  she  may  be ;  but  you  may  sometimes 
lead  her  by  .small  degrees  to  modify  her  statements,  or  induce  her  to  say  a 
great  deal  more  in  her  positive  way  ;  and  the  great  deal  more  may  be  capable 
of  contradiction,  or  may  itself  contradict  what  has  been  said  before  by  the 
same  witness.  If  you  deal  with  her  skillfully,  she  will  in  all  probability  be 
equally  positive  about  two  or  three  matters  which  cannot  exist  together. 
She  is  the  worst  witness  to  unsay  anything,  but  the  best  to  lead  into  a  con- 
tradiction of  what  she  has  said. 

Her  idea  of  an  oath  is  not  that  it  should  be  a  restraint  upon  her  mendacity, 
but  that  it  should  give  force  to  her  positive  assertions  —  a  stamp  of  genuine- 
ness like  the  Queen's  head  on  a  bad  shilling.  She  would  unhesitatingly 
have  sworn  that  Al)el  struck  the  first  blow  if  she  had  been  called  on  the  side 
of  Cain.  She  always  stands  up  for  what  she  calls  "her  own  side."  Be- 
ware how  you  try  to  convince  her  that  she  must  be  wrong.  Such  questions 
as  "  How  can  that  be  ?  "  will  only  draw  the  answer,  "  I  don't  know  how  it  can 
be,  but  I  knf)w  it  is."  You  might  just  as  well  try  to  convince  a  street  mongrel 
that  barking  is  done  away  with,  as  to  attempt  to  persuade  her  that  she 
ought  not  to  l)e  quite  so  positive. 

The  Awkward  Witness  — Mr.  Growles.  "  Better  let  me  take  this  witness," 
says  the  leader;  "  he's  rather  awkward."  The  learned  counsel  knows  him, 
I   should    think.     Examined   liim   before,  perhaps,  and  lost   his   case.     An 


No.  276.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  535 

"awkward"  witness  to  examine,  chiefly  because  his  instinct  is  to  contradict 
"  everybody  and  everything."  His  neighbors  would  tell  you  that  he  is  "  the 
contrariest  man  that  ever  was  bornd."  Unless  by  sheer  force  of  circum- 
stances he  would  never  agree  with  anybody  upon  any  subject  whatever. 
If  you  were  to  say,  "A  fine  morning,  Mr.  Growles,"  he  would  answer  in  a 
tone  by  no  means  conciliatory,  "//'//  rain  afore  long."  Suggest  in  the  most 
friendly  manner  that  it  is  rather  warm,  he'll  sneeringly  reply  that  "it's  a 
great  coo-at  colder  'an  it  was  yesterday.'"  So  you  cannot  tell  where  to  have 
him.  No  wonder  the  leader  takes  him  in  hand ;  he  reciuires  masterful 
treatment.  The  "instructions"  seem  to  refer  to  a  watercourse,  respecting 
which  I  suppose  there  is  a  dispute  between  riparian  owners ;  or  it  may  be 
some  Genii,  who  live  at  the  bottom,  and  the  parish  authorities.  Perhaps 
we  shall  find  out  from  the  examination  of  the  witness. 

He  clambers  into  the  box  with  a  clatter  of  hobnails  and  appears  at  the 
top  with  a  very  big,  red,  flat  face,  and  a  small  sharp  nose.  He  stares  all 
round  the  court  as  though  he  were  looking  after  somebody  with  whom  he 
meant  to  have  a  row,  and  then  stares  at  the  judge  as  if  he  were  a  good-sized 
ghost  in  his  best  clothes.  Presently  he  hears  a  soft  sad  voice  appealing 
to  him  in  these  terms  : 

"  I  think  you  have  known  this  watercourse  for  a  good  many  years,  haven't 
you,  Mr.  Growles  ?  "  It  is  the  voice  of  the  leader.  There  is  a  pathos  in  the 
tone  which  is  irresistibly  persuasive,  and  there  is  a  smile  upon  the  leader's 
face  which  is  almost  angelic  —  not  quite.  At  this  soft  wooing,  Mr.  Growles 
looks  up,  and  in  a  voice  which  sounds  the  more  loudly  and  gruffly  by  contrast, 
exclaims,  striking  the  ledge  of  the  witness  box  with  his  fist  — 

"No,  I  ain't!" 

Then  he  turns  half  round  towards  the  jury,  as  much  as  to  say,  "  I  had  un 
there!"  This  supposed  observation  is  concluded  with  another  supposed 
remark  to  the  learned  leader  in  this  form  : 

"You  mornt  try  none  o'  them  ere  geames  on  wi'  me,  I  can  tell  ee  !" 

"I  thought  you  had,"  says  the  leader,  meekly,  his  face  beaming  with 
blushes. 

Leader  then  turns  over  a  sheet  of  his  brief,  and  whispers  behind  his  hand 
to  the  solicitor  who  is  instructing  him  — 

"This  is  Growles,  isn't  it?" 

Solicitor  in  great  excitement  jumps  up;  twists  round,  and  exclaims,  with 
fearful  rapidity  — 

"  Yes,  yes ;  this  the  one ;  very  careful  ?  told  you  awkward,  awfully  queer ; 
gently  as  ever  you  can ;   careful,  only  witness  —  " 

"  Hush  !  don't  be  so  excited,  Mr.  Miles,"  says  the  counsel. 

Then  the  leader,  satisfied  himself  that  it  is  Mr.  Growles,  has  to  satisfy 
Mr.  Growles  of  that  fact ;   so  he  says  to  him  : 

"You  are  Mr.  Growles  ?" 

"Be  I?  "  says  Growles,  not  quite  convinced. 

"Well,  ARE  you?"  asks  the  leader,  this  time  somewhat  facetiously,  for 
the  court  is  roaring  with  laughter,  although  there  is  nothing  to  laugh  at ; 
but  the  judge  began  it. 

"  Suppose  I  he  —  what  then?  " 

"  Come,  get  on,"  says  the  learned  judge  ;  "  we  are  a  long  way  off  from  the 
issue  yet." 


536  PART   II.      TESTIMONIAL   EVIDENCE  No.  276. 

"  Well,  now,  come,  Mr.  Growle.s ;  I  dare  say  we  shall  understand  one  an- 
other presently."  This  is  said  in  the  most  insinuating  manner  you  can 
imagine  —  a  manner  that  the  learned  counsel  was  accustomed  to  years  and 
years  ago  in  other  and  sweeter  scenes. 

"/  be  raulii,"  says  the  witness,  clutcliing  tlie  ledge  of  the  witness  box  as 
though  the  next  shot  might  dislodge  him. 

"You've  known  this  watercourse  for  some  time,  haven't  you?" 

"  Xot  all  on  hir,  I  ain't." 

"All  on  her?"  repeats  the  leader. 

The  learned  judge  explains.  "You  see,  Mr.  Smiles,  the  witness  is  a 
particularly  accurate  witness,  and  when  you  ask  him  if  he  knows  the  water- 
course he  naturally  thinks  you  mean  all  the  watercourse,  and  so  he  says, 
'Xo,  I  don't ;   I  know  a  part  of  it.'" 

At  this  Growles  nods  and  grins  triumphantly. 

"Well,  now,  then,  !Mr.  Growles,  such  part  as  you  have  known  you  have 
known  for  a  great  number  of  years,  haven't  you  ?  " 

"  No,  I  aint,"  says  Growles  ;  "  I've  knowed  her  on  and  off  for  a  matter  o' 
two-and-twenty  'ear  come  Candlemas,  ever  since  I  worn't  no  'igher  'an  that." 

"  Well,  well,"  says  the  leader,  with  renewed  hope,  "  that's  something.  We 
shall  get  on  now." 

"/  doan't  know  so  much  about  that,"  replies  the  witness.  "/  he  here  V 
spak  the  truth." 

"  Very  well,  Mr.  Growles,  have  \ou  ever  known  it  take  any  other  course 
than  the  one  it  now  flows  in  ?" 

"  Yes,  I  hare."  This  is  uttered  very  loudly,  and  with  another  nod.  Counsel 
on  the  other  side  of  course  laugh  and  shake  their  heads  as  much  as  to  say, 
"You  see  the  case  urve  got." 

("  I  told  you  he  was  awkward,"  whispers  the  solicitor.) 

"Pray,  pray,  sir,  don't  interrupt,"  remonstrates  the  leader.  "This  is 
really  too  bad."  Then,  stooping  down,  "Why  did  you  bring  such  a  witness 
as  this  ?  he's  selling  us.  Where  have  you  known  it  take  a  different  course  ?  " 
he  asks  the  witness. 

"  Where?  "  repeats  Growles. 

"  Yes,  where,  sir  ?  Don't  fence  with  me,  sir,  but  answer.  You  are  here 
to  speak  the  truth,  and  the  trutli  I'll  have."  Leader  seems  to  bewarming 
up  a  bit. 

"  I'll  spaken  out,"  says  Growles. 

"He's  your  own  witness,"  murmurs  the  opposite  leader. 

"  Where  have  you  known  the  water  flow  in  a  ditt'erent  course,  sir  ?" 

"I've  knowed  her  goo  down  athirt  an'  across  Squire  Stookey's  field,  till 
t'  scjuire  turned  her  off  down  l)y  t'  lane  close  up  gin  Fairmile  Corner,  and 
sent  her  through  Hog's  Moor  and  away  down  — " 

"Oh,  <lear,  dear,"  says  Smiles;  "that's  miles  and  miles  awav,  my  good 
fellow." 

"  I  can't  help  uii,  sir  ;   it's  true,  and  I'll  spak  t'  truth  :   I  bean't  asheamed." 

"  Hut,  pray  attend,  sir.  Close  by  the  plaintiff's  garden  did  not  this  water- 
Cf)urse  always  run  in  the  same  place?" 

Objected  to  as  a  leading  (piestion  —  a  slip  by  the  learned  counsel,  who 
was  just  the  merest  trifle  irritated  at  the  crookedness  of  the  witness. 

"Where  did  it  run,  man?     I'll  have  an  an.swer  if  I  stand  here  all  day. 


No.  277.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  537 

You  have  come  to  tell  the  court,  and  you  must  do  so,  and  not  trifle  with  us 
in  this  way.     Did  it  run  as  it  does  now  or  in  some  other  direction  ?" 

"Allays,  as  fur's  ever  I  know'd,  she  did." 

"Stand  down,  sir,"  says  the  leader.  .  .  . 

And  there's  the  end  of  his  evidence  —  no  more  loads  to  push  up  hill  that 
day.  Well  may  the  leader  observe  to  his  solicitor,  "  What  on  earth  did  you 
call  that  witness  for  ?  —  he  has  lost  the  case." 


Topic  4.     Confessions  of  Guilt 

277.  Hans  Gross.  Criminal  Psychology.  (transl.Kallen.  1911.  §8,  p.  31.) 
The  confession  is  a  very  extraordinary  psychological  problem.  In  many 
cases  the  reasons  for  confession  are  very  obvious.  The  criminal  sees 
that  the  evidence  is  so  complete  that  he  is  soon  to  be  convicted  and  seeks  a 
mitigation  of  the  sentence  by  confession,  or  he  hopes  through  a  more  honest 
narration  of  the  crime  to  throw  a  great  degree  of  the  guilt  on  another.  In 
addition  there  is  a  thread  of  vanity  in  confession  —  as  among  young  peas- 
ants who  confess  to  a  greater  share  in  a  burglary  than  the,y  actually  had 
(easily  discoverable  by  the  magniloquent  manner  of  describing  their  actual 
crime).  Then  there  are  confessions  made  for  the  sake  of  care  and  winter 
lodgings  :  the  confession  arising  from  "firm  conviction"  (as  among  political 
criminals  and  others).  There  are  even  confessions  arising  from  nobility, 
from  the  wish  to  save  an  intimate,  and  confessions  intended  to  deceive,  and 
such  as  occur  especially  in  conspiracy  and  are  made  to  gain  time  (either  for 
the  flight  of  the  real  criminal  or  for  the  destruction  of  compromising  objects). 
Generally,  in  the  latter  case,  guilt  is  admitted  only  until  the  plan  for  which 
it  was  made  has  succeeded  ;  then  the  judge  is  surprised  with  a  well-founded, 
regular,  and  successful  establishment  of  an  alibi.  Not  infrequently  confes- 
sion of  small  crimes  is  made  to  establish  an  alibi  for  a  greater  one.  And 
finally  there  are  the  confessions  Catholics  are  required  to  make  in  confes- 
sional, and  the  death-bed  confessions.  The  first  are  distinguished  by  the 
fact  that  they  are  made  freely  and  that  the  confessee  does  not  try  to  mitigate 
his  crime,  but  is  aiming  to  make  amends,  even  when  he  finds  it  hard ;  and 
desires  even  a  definite  penance.  Death-bed  confessions  may  indeed  have 
religious  grounds,  or  the  desire  to  prevent  the  punishment  or  the  further 
punishment  of  an  innocent  person. 

Although  this  list  of  explicable  confession  types  is  long,  it  is  in  no  way 
exhaustive.  It  is  only  a  small  portion  of  all  the  confessions  that  we  receive  ; 
of  these  the  greater  part  remain  more  or  less  unexplained.  ...  A  number 
of  cases  may  perhaps  be  explained  through  pressure  of  conscience,  especially 
where  there  are  involved  hysterical  or  nervous  persons  who  are  plagued  with 
vengeful  images  in  which  the  ghost  of  their  victim  woidd  appear,  or  in  whose 
ear  the  unendurable  clang  of  the  stolen  money  never  ceases,  etc.  If  the 
confessor  only  intends  to  free  himself  from  these  disturbing  images  and  the 
consequent  punishment  by  means  of  confession,  we  are  not  dealing  with 
what  is  properly  called  conscience,  but  more  or  less  with  disease,  with  an 
abnormally  excited  imagination.  But  where  such  hallucinations  are  lack- 
ing, and  religious  influences  are  absent,  and  the  confession  is  made  freely 
in  reponse  to  mere  pressure,  we  have  a  case  of  conscience,  —  another  of 


53S  PART    II.      TESTIMONIAL    EVIDENCE  No.  277. 

those  terms  which  need  explanation.  I  know  of  no  analogy  in  the  inner 
nature  of  man,  in  which  anybody  with  open  eyes  does  himself  exclusive 
harm  without  any  contingent  use  being  apparent,  as  is  the  case  in  this  class 
of  confession.  There  is  always  considerable  difficulty  in  explaining  these 
cases.  Oneway  of  explaining  them  is  to  say  that  their  source  is  mere  stupid- 
ity and  impulsiveness,  or  simply  to  deny  their  occurrence.  But  the  theory  of 
stupidity  does  not  appeal  to  the  practitioner ;  for  even  if  we  agree  that  a 
man  foolishly  makes  a  confession  and  later,  when  he  perceives  his  mistake, 
bitterly  regrets  tolling  it,  we  still  find  many  confessions  that  are  not  regretted 
and  the  makers  of  which  can  in  nowise  be  accused  of  defective  intelligence. 
To  deny  that  there  are  such  is  comfortable  but  wrong,  because  we  each 
know  collections  of  cases  in  which  no  effort  could  bring  to  light  a  motive  for 
the  confession.  The  confession  was  made  because  the  confessor  wanted  to 
make  it,  and  that's  the  whole  story. 

The  making  of  a  confession,  according  to  laymen,  ends  the  matter  ;  but 
really,  the  judge's  work  begins  with  it.  As  a  matter  of  caution  all  statutes 
approve  confessions  as  evidence  only  Avhen  they  agree  completely  with  the 
other  evidence.  Confession  is  a  means  of  proof,  and  not  proof.  Some  ob- 
jective, evidentially  concurrent  support  and  confirmation  of  the  confession 
is  required.  But  the  same  legal  requirement  necessitates  that  the  value  of 
the  concurrent  evidence  shall  depend  on  its  having  been  arrived  at  and  estab- 
lished independently.  The  existence  of  a  confession  contains  powerful 
suggestive  influences  for  judge,  witness,  expert,  for  all  concerned  in  the  case. 
If  a  confession  is  made,  all  that  is  perceived  in  the  case  may  be  seen  in  the 
light  of  it,  and  experience  teaches  well  enough  how  that  alters  the  situa- 
tion. ...  It  fits.  So  does  the  autopsy,  so  do  the  depositions  of  the 
witnesses.  Everything  fits.  There  have  indeed  been  difficulties,  but  they 
have  been  set  aside,  they  are  attributed  to  inaccnrate  observation  and  the 
like,  —  the  point  is,  —  that  the  evidence  is  against  A.  Now,  suppose  that 
soon  after  B  confesses  the  crime ;  this  event  is  so  significant  that  it  sets 
aside  at  once  all  the  earlier  reasons  for  suspecting  A,  and  the  theory  of  the 
crime  involves  B.  Naturally  the  whole  material  must  now  be  applied  to 
B,  and  in  spite  of  the  fact  that  it  at  first  fitted  A,  it  does  now  fit  B.  Here 
again  difficulties  arise,  but  they  are  to  be  aside  set  just  as  before.  Now  if 
this  is  possible  with  evidence,  written  and  thereby  unalterable,  how  much 
more  easily  can  it  be  done  with  testimony  about  to  be  taken,  which  may 
readily  be  colored  by  the  already  presented  confession.  The  educational 
conditions  involve  now  the  judge  and  his  assistants  on  the  one  hand,  and 
the  witnesses  on  the  other. 

Concerning  himself,  the  judge  must  continually  remember  that  his  busi- 
ness is  not  to  fit  all  testimony  to  the  already  furnished  confession,  allowing 
the  evidence  to  serve  as  mere  decoration  to  the  latter,  but  that  it  is  his 
business  to  establish  his  proof  by  means  of  the  confession,  and  by  means  of 
the  other  evidence,  independently.  The  legislators  of  contemporary  civiliza- 
tion have  started  with  the  proper  assumption  that  also  false  confessions  are 
made,  —  and  wlut  of  us  has  not  heard  such?  Confessions,  for  whatever 
reason,  —  because  the  coidessor  wants  to  die,  because  he  is  diseased,  be- 
cause he  wants  to  free  the  real  criminal,  —  can  be  discovered  as  false  only 
by  showing  their  contradiction  with  the  other  evidence.  If,  however,  the 
judge  only  fits  the  evidence,  he  abandons  this  means  of  getting  the  truth. 


No.  278.  II.      TESTIMONIAL   PROCESS.       C.    NARRATION  539 

...  I  repeat :  the  suggestive  power  of  a  confession  is  great  and  it  is  hence 
really  not  easy  to  exclude  its  influence  and  to  consider  the  balance  of  the 
evidence  on  its  merits,  —  but  this  must  be  done  if  one  is  not  to  deceive 
one's  self.  Dealing  with  the  witness  is  still  more  ticklish,  inasmuch  as  to  the 
difficulties  with  them,  is  added  the  difficulties  with  one's  self.  ...  In  this 
regard  it  cannot  be  sufficiently  demonstrated  that  the  coloring  of  a  true  bill 
comes  much  less  from  the  witness  than  from  the  judge.  The  most  e.xcited 
witness  can  be  brought  by  the  judge  to  a  sober  and  useful  point  of  view,  and 
conversely,  the  most  calm  witness  may  utter  the  most  misleading  testimony 
if  the  judge  abandons  in  any  way  the  safe  bottom  of  the  indubitably  estab- 
lished fact. 

It  happens  comparatively  seldom  that  untrue  confessions  are  discovered  ; 
but  once  this  does  occur,  and  the  trouble  is  taken  to  subject  the  given  evi- 
dence to  a  critical  comparison,  the  manner  of  adaptation  of  the  evidence 
to  the  confession  may  easily  be  discovered.  The  witnesses  were  altogether 
unwilling  to  tell  any  falsehood  and  the  judge  was  equally  eager  to  establish 
the  truth,  nevertheless  the  issue  must  have  received  considerable  perversion 
in  order  to  fix  the  guilt  on  the  confessor.  Such  examinations  are  so  instruc- 
tive that  the  opportunity  to  make  them  should  never  be  missed.  .  .  . 


278.  Daniel  Webster,  Argument  for  the  Prosecution  in  Common- 
wealth V.  KxAPP.  (Great  Speeches  and  Orations  of  Daniel  Webster,  ed. 
Whipple,  1899,  p.  192.)  [Mr.  White,  a  highly  respectable  and  wealthy 
citizen  of  Salem,  about  eighty  years  of  age,  was  found,  on  the  morning  of 
the  7th  of  April,  1830,  in  his  bed,  murdered,  under  such  circumstances  as 
to  create  a  strong  sensation  in  that  town  and  throughout  the  community. 
Richard  Crowninshield,  George  Crowninshield,  Joseph  J.  Knapp,  and  John 
F.  Knapp  were,  a  few  weeks  after,  arrested  on  a  charge  of  having  per- 
petrated the  murder,  and  committed  for  trial.  Joseph  J.  Knapp,  soon 
after,  under  the  promise  of  favor  from  the  government,  made  a  full  confes- 
sion of  the  crime  and  the  circumstances  attending  it.  In  a  few  days 
after  this  disclosure  was  made,  Richard  Crowninshield,  who  was  sup- 
posed to  have  been  the  principal  assassin,  committed  suicide.  A  special 
session  of  the  Supreme  Court  was  ordered  by  the  legislature,  for  the  trial 
of  the  prisoners,  at  Salem,  as  printed  post  No.  392.  ...  At  the  request  of 
the  prosecuting  officers  of  the  government,  Mr.  Webster  appeared  as 
counsel,  and  assisted  in  the  trial.]  .  .  . 

Gentlemen,  —  it  is  a  most  extraordinary  case.  In  some  respects,  it  has 
hardly  a  precedent  anywhere ;  certainly  none  in  our  New  England  history. 
This  bloody  drama  exhibited  no  suddenly  excited,  ungovernable  rage.  .  .  . 
It  was  a  cool,  calculating,  money-making  murder.  .  .  .  An  aged  man,  with- 
out an  enemy  in  the  world,  in  his  own  house,  and  in  his  own  bed,  is  made  the 
victim  of  a  butcherly  murder,  for  mere  pay.  .  .  .  The  deed  was  executed 
with  a  degree  of  self-possession  and  steadiness  equal  to  the  wickedness  with 
which  it  was  planned. 

The  circumstances  now  clearly  in  evidence  spread  out  the  whole  scene 
before  us.  Deep  sleep  had  fallen  on  the  destined  victim,  and  on  all  beneath 
the  roof.  A  healthful  old  man,  to  whom  sleep  was  sweet,  the  first  sound 
slumbers  of  the  night  held  him  in  their  soft  but  strong  embrace.     The  as- 


540  PART    II.      TESTI.MOXI\L    EVIDENCE  No.  278. 

sassin  enters,  througli  the  window  already  prepared,  into  an  unoccupied 
apartment.  With  noiseless  foot  he  paces  the  lonely  hall,  half  lighted  by 
the  moon  ;  he  winds  up  the  ascent  of  the  stairs,  and  reaches  the  door  of  the 
cliaml)er.  Of  this,  he  moves  the  lock,  by  soft  and  contimied  pres.sure,  till 
it  turns  on  its  hinges  without  noise ;  and  he  enters,  and  beholds  his  victim 
before  him.  The  room  is  uncommonly  open  to  the  admission  of  light.  The 
face  of  the  innocent  sleeper  is  turned  from  the  murderer,  and  the  beams  of 
the  moon,  resting  on  tlie  gray  locks  of  his  aged  temple,  show  him  where  to 
strike.  The  fatal  blow  is  given  I  and  the  victim  passes,  without  a  struggle  or 
a  motion,  from  the  repose  of  sleep  to  the  repose  of  death  !  It  is  the  assassin's 
jnirpose  to  make  sure  work  ;  and  he  plies  the  dagger,  though  it  is  obvious  that 
life  has  l)een  destroyed  by  the  blow  of  the  bludgeon.  He  even  raises  the 
ageil  arm,  that  he  may  not  fail  in  his  aim  at  the  heart,  and  replaces  it  again 
over  the  wounds  of  the  poniard  I  To  finish  the  picture,  he  explores  the  wrist 
for  the  pulse  !  He  feels  for  it,  and  ascertains  that  it  beats  no  longer  !  It  is 
accomplished.     The  deed  is  done  ! 

He  retreats,  retraces  his  steps  to  the  window,  passes  out  through  it  as  he 
came  in,  and  escapes.  He  has  done  the  murder.  No  eye  has  seen  him,  no 
ear  has  heard  him.     The  secret  is  his  own,  and  it  is  safe  ! 

Ah  I  gentlemen,  that  was  a  dreadful  mistake.  Such  a  secret  can  be  safe 
noivhcrc.  The  whole  creation  of  God  has  neither  nook  nor  corner  where  the 
guilty  can  bestow  it,  and  say  "It  is  safe."  Not  to  speak  of  that  eye  which 
pierces  through  all  disguises,  and  beholds  everything  as  in  the  splendor  of 
noon,  such  secrets  of  guilt  are  never  safe  from  detection,  even  by  men.  True 
it  is,  generally  speaking,  that  "  murder  will  out."  True  it  is,  that  Providence 
hath  so  ordained,  and  doth  so  govern  things,  that  those  who  break  the  great 
law  of  Heaven  by  shedding  man's  blood  seldom  succeed  in  avoiding  dis- 
covery. Especially,  in  a  case  exciting  so  much  attention  as  this,  discovery 
must  come,  and  will  come,  sooner  or  later.  A  thousand  eyes  turn  at  once 
to  explore  every  man,  every  thing,  every  circumstance,  connected  with 
the  time  and  place ;  a  thousand  ears  catch  every  whisper ;  a  thousand 
excited  minds  intensely  dwell  on  the  scene,  shedding  all  their  light,  and  ready 
to  kindle  the  slightest  circumstance  into  a  blaze  of  discovery. 

Meantime  the  guilty  soul  cannot  keep  its  secret.  It  is  false  to  itself ;  or 
rather  it  feels  an  irresis'tible  impulse  of  conscience  to  be  true  to  itself.  It 
lal)ors  under  its  guilty  possession;  and  knows  not  what  to  do  with  it.  The 
human  heart  was  not  made  for  the  residence  of  such  an  inhabitant.  It 
finds  itself  preyed  on  by  a  torment,  which  it  dares  not  acknowledge  to  God 
or  man.  A  vulture  is  devouring  it,  and  it  can  ask  nosympathyor  assistance, 
either  from  heaven  or  earth.  The  secret  which  the  murderer  possesses  soon 
comes  to  possess  him  ;  and,  like  the  evil  spirits  of  which  we  read,  it  over- 
comes him,  and  leads  him  wiiithersoever  it  will.  He  feels  it  beating  at  his 
heart,  rising  to  his  throat,  and  demanding  disclosure.  He  thinks  the  whole 
world  .sees  it  in  his  face,  reads  it  in  his  eyes,  and  almost  hears  its  workings  in 
the  very  silence  of  his  thoughts.  It  has  become  his  master.  It  betrays 
his  fiiscrction,  it  Ijrcaks  down  his  courage,  it  conquers  his  prudence.  When 
suspicions  from  without  begin  to  embarrass  him,  and  the  net  of  circum- 
stances to  entangle  him,  the  fatal  secret  struggles  with  still  greater  vio- 
lence to  l)urst  forth.  It  nnif<f  he  confessed.  It  will  be  confessed.  There  is 
no  refuge  from  confession,  but  suicide,  —  and  suicide  is  confession. 


No.  279. 


II.      TESTIMONI.\L    PROCESS.      C.    NARRATION 


541 


279.    HoNORE  DE  Balzac.     Luci~ 
Last  Incarnation  of  Vautrin.      (c.  II 

[Lucien  de  Rubempre  was  a  sen- 
timental, fashionable  youth,  of  weak 
will,  who  had  fallen  completely 
under  the  control  of  the  Abbe 
Carlos  Herrera,  a  pretended  Span- 
ish priest  and  spy.  Herrera  was 
really  a  desperate  and  hardened 
criminal,  by  name  Jacques  Collin, 
nicknamed  Trompe-la-Mort.  He 
plotted  a  vast  scheme  to  secure  a 
rich  marriage  for  Lucien,  obtain 
for  him  high  official  position,  and 
thereby  amass  wealth.  Lucien  knew 
fully  Collin's  nefarious  character, 
and  entered  into  the  plot.  He 
accordingly  courted  Mile.  Clotilda 
de  Grandlieu,  a  noble  heiress. 
Meantime  he  prepared  to  give  up 
his  mistress,  Esther  Gobseck,  a 
beautiful  Jewess,  who  truly  loved 
him.  Esther  had  been  given  by  an 
aged  admirer.  Baron  de  Nucingen, 
the  sum  of  750,000  francs,  which  she 
kept  in  her  room.  In  despair  at 
her  impending  loss  of  Lucien, 
Esther  took  poison,  and  was  found 
dead  in  her  bed  by  the  servant^ ; 
who  immediately  absconded  with 
the  750,000  francs.  But  just  be- 
fore this,  unknown  to  Esther,  her 
grand-uncle,  the  usurer  Gobseck, 
had  died,  leaving  her  sole  heiress 
to  his  7,000,000  francs.  The  Baron 
had  hurried  to  Esther's  house,  to 
inform  her  of  the  inheritance  from 
her  uncle,  but  found  her  dead, 
and  his  own  gift  gone.  The  police 
and  the  coroner  came  to  investigate 
the  cause  of  Esther's  death.  LTnder 
her  pillow  they  found  her  will, 
leaving  all  her  property  to  Lucien. 
(The  will  had  in  fact  been  forged 
by  Jacques  Collin,  after  her  death, 
but  this  forgery  was  not  detected.) 
Her  sudden  death,  her  will  bequeath- 
ing all  to  Lucien,  and  the  disappear- 
ance of  the  Baron's  gift,  gave  rise 
immediately  to  the  suspicion  that 
Lucien  and  Collin  had  murdered 
her.  Warrants  were  issued  for  their 
arrest.  Collin  is  arrested.  Lucien 
is   pursued    by    the    police,    and    is 


■n  de  Rubempre.      (c.  XV)  ;  and  The 
,  Miss  Wormeley's  translation.) 
found    with    Mile,    de    Grandlieu, 
just  as  they  are  exchanging  pledges 
of  marriage.]  .  .  . 

The  gallop  of  several  horses  was 
heard,  and  in  a  moment  a  squad 
of  gendarmes  surrounded  the  little 
group,  much  to  the  astonishment 
of  the  two  ladies. 

"  What  do  you  mean  by  this  ? " 
said  Lucien,  with  the  arrogance  of  a 
fashionable  young  man. 

"  Are  you  Monsieur  Lucien  de 
Rubempre?"  asked  a  person  who 
was  the  public  prosecutor  of  Fon- 
tainebleau. 

."Yes,  monsieur." 

"You  will  sleep  to-night  in  La 
Force;  I  have  a  warrant  to  arrest 
you."  ... 

"Of  what  crime  is  monsieur  ac- 
cused?" asked  Clotilde,  whom  the 
duchess  was  entreating  to  get  into 
the  carriage. 

"Of  theft,  and  murder,"  replied 
the  corporal  of  gendarmes. 

Baptiste  lifted  Mademoiselle  de 
Grandlieu  in  a  dead  faint  into  the 
carriage.  At  midnight  Lucien  was 
locked  up  in  the  prison  of  La  Force, 
where  he  was  kept  in  solitary  con- 
finement. The  Abbe  Carlos  Herr- 
era had  been  brought  there  on  the 
previous  evening.   .   .   . 

Before  entering  into  the  terrible 
drama  of  a  criminal  examination, 
it  is  necessary  to  explain  the  normal 
process  of  a  case  of  this  kind,  so 
that  its  divers  phases  may  be  better 
understood.  ...  A  crime  is  com- 
mitted. If  detected  in  the  act,  the 
suspected  persons  are  taken  to  the 
nearest  guardhouse  and  put  in  the 
cell  called  in  popular  parlance 
"the  violin,"  probably  on  account 
of  the  music  —  of  cries  and  tears  — 
that  is  heard  there.  From  there 
they  are  taken  before  the  commissary 
of  police,  who  makes  a  preliminary 
inquiry  and  has  the  power  to 
release  them  if  a  mistake  has  been 
made ;  otherwise  they  are  next 
taken  to  the  depot,  or  guardhouse 


542 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  279. 


of  the  prefecture,  where  the  poHce 
lioUl  them  at  the  (Usposition  of  the 
prosecuting  officer  and  the  examin- 
ing judge,  who,  being  informed  of 
the  affair,  more  or  less  promptly 
according  to  the  gravity  of  the  case, 
come  to  .the  depot  and  ciuestion  the 
parties,  who  are  in  a  conihtion  of 
provisional  arrest.  According  to 
the  presumptive  nature  of  the  case 
the  examining  judge  issues  a  warrant 
and  orders  tlie  accused  person 
locked  up  in  a  house  of  correction.  . 
.  .  When  the  examination  ends  and 
the  judge  decides  that  the  accused 
persons  nuist  be  referred  to  a  court 
of  justice,  they  pass  to  the  condi- 
tion of  indicted  persons.  .  .  .  Few 
of  them  ever  dream  of  resisting  the 
situation  in  which  the  law  and  the 
police  of  Paris  place  accused  persons, 
—  especially  those  who,  like  Jacques 
Collin  and  Lucien,  are  in  solitary 
confinement. 

It  is  difficult  for  those  at  large  to 
imagine  what  this  sudden  isolation 
is  to  the  accused  person ;  the 
gendarmes  who  arrest  him,  those 
who  convey  him  to  the  lockup,  the 
turnkeys  who  place  him  in  what  is 
literally  a  dungeon,  tho.se  who  take 
him  l)y  the  arm  anil  make  him  mount 
the  step  into  the  police  van,  in 
short,  all  the  beings  who  surround 
him  from  the  time  of  his  arrest, 
are  mute,  and  notice  him  only  to 
make  a  record  of  his  words  for  the 
police  or  the  judge.  This  absolute 
separation,  .so  instantaneously  and 
easily  brought  about  between  the 
whole  world  and  the  accuscfl  person, 
causes  an  upset  of  all  his  faculties, 
an«l  a  fearful  prostration  f>f  mind  ; 
above  all,  when  the  person  happens 
to  be  one  not  familiar,  through  his 
antecedents,  with  the  ways  of  the 
law.  The  duel  between  the  accused 
man  and  the  examining  judge  is, 
therefore,  all  the  more  terrible 
becau.se  the  latter  has  for  auxiliary 
the  silence  of  the  walls,  and  the 
incorruptil>le  stolidity  of  the  agents 
of  the  law.    .    .    . 

Lucien 's  appearance  was  that  of  a 
broken-down      culprit ;      he     aban- 


doned himself  wholly  and  allowed 
them  to  do  what  they  pleased 
with  him.  From  the  moment  of 
his  arrest  at  Fontainebleau,  the  poet 
considered  himself  ruined ;  he  felt 
that  the  moment  of  expiation  had 
come.  Pale,  undone,  ignorant  of 
all  that  had  happened  as  to  Esther, 
he  knew  only  that  he  was  the  inti- 
mate companion  of  an  escaped 
galley  slave.  That  situation  was 
enough  to  make  him  foresee  catas- 
trophes that  were  worse  than  death. 
If  his  thoughts  turned  to  anything 
resembling  a  plan,  it  was  to  suicide. 
He  wanted  to  escape  at  any  price 
from  the  ignominy  which  he  saw 
before  him  like  a  dreadful  dream.  .  .  . 
He  was  placed  in  a  cell  adjoining 
the  Pistoles.  Most  persons  who 
have  never  had  anything  to  do  with 
criminal  justice  have  the  blackest 
ideas  about  solitary  confinement. 
They  hardly  separate  them  from  the 
old  ideas  of  torture,  unhealthiness 
of  dungeons,  cold  walls  sweating 
tears  of  dampness,  brutality  of 
jailers,  and  coarseness  of  food,  — 
accessories  required  for  the  drama. 
It  may  not  be  useless  to  say  here 
that  these  exaggerations  exist  only 
on  the  stage,  and  make  judges, 
lawyers,  officials,  and  all  who  visit 
prisons  either  out  of  curiosity  or  on 
errands,  laugh.  .  .  .  And  it  may  be 
said  that,  putting  aside  the  fearful 
mental  and  moral  tortures  of  persons 
of  the  upper  classes  who  find  them- 
selves in  the  grasp  of  the  law,  the 
action  of  this  new  power  is  of  a 
gentleness  and  simplicity  which 
seem  all  the  greater  because  unex- 
pected. Accused  persons  are  cer- 
tainly not  lodged  as  they  would 
be  in  their  own  homes,  but  all 
necessaries  are  found  in  the  prisons 
of  Paris.  It  is  not  the  body  that 
suffers ;  in  fact,  the  mind  is  in  so 
agitated  a  state  that  any  form  of 
being  ill  at  ease,  even  brutality 
if  it  were  met  with,  can  be  easily 
supported.  And  it  must  be  allowed 
that  the  innocent  are  quickly  set 
at  liberty,  especially  in  Paris.  Lucien 
found,  therefore,  in  his  cell  a  repro- 


iS'o.  279. 


II.      TESTIMONIAL    PROCESS.       C.    NARRATION 


543 


duction  of  the  first  room  he  hatl 
occupied  on  his  arrival  in  Paris.  A 
bed  Hke  those  in  the  poorest  furnished 
lodgings  of  the  Latin  quarter,  chairs 
with  straw  seats,  a  table  and  a 
few  utensils,  completed  the  furni- 
ture of  a  room  in  which  were  some- 
times confined  two  indicted  persons 
if  their  behavior  were  good  antl 
their  crimes  not  dangerous,  —  such, 
for  instance,  as  forging  and  swind- 
ling. This  resemblance  between  his 
point  of  departure,  bright  with 
innocence,  and  his  end  at  the  lowest 
step  of  shame  and  degradation,  was 
so  instantly  seized  by  a  last  flash 
of  his  poetic  nature  that  he  burst 
into  tears.  He  wept  for  four  hours, 
as  insensible  apparently  to  every- 
thing about  him  as  a  stone  image, 
but  suffering  anguish  from  his 
broken  hopes,  his  shattered  social 
vanities,  his  annihilated  pride ;  de- 
graded in  that  /  and  all  that  / 
represented  of  ambition,  adoration, 
luck,  of  the  poet,  the  Parisian,  the 
dandy,  the  man  of  pleasure,  and  of 
social  privilege  and  success  !  All 
"was  crushed  within  him  by  this 
Icarian  fall.   .   .   . 

To  be  in  the  secret  of  the  terrible 
scenes  which  are  enacted  in  the 
office  of  an  examining  judge ;  to 
fully  understand  the  respective  sit- 
uations of  the  two  antagonists,  — 
the  accused  person  and  the  magis- 
trate, —  the  object  of  whose  struggle 
is  the  secret  guarded  by  the  accused 
against  the  curiosity  of  the  judge 
(who  is  called,  in  prisoner's  slang, 
the  Curious),  we  must  never  forget 
that  the  accused  persons,  who  have 
been  in  solitary  confinement  from 
the  moment  of  their  arrest,  are  ig- 
norant of  all  that  the  public  says, 
all  that  the  police  and  the  judges 
know,  all  that  the  newspapers 
publish,  as  to  the  crime  of  which 
they  are  accused.  .  .  .  These  points 
once  explained,  the  least  emo- 
tional person  will  tremble  at  the 
effect  produced  by  three  causes  of 
terror,  —  isolation,  silence,  and  re- 
morse. .  .  . 

A  few  minutes  after  two  o'clock 


Monsieur  Camusot  saw  Lucien  de 
Rubempre  brought  to  his  office  — 
,pale,  limp,  undone,  his  eyes  red 
and  swollen,  in  a  state  of  pros- 
tration, which  enabled  him  to  com- 
pare nature  with  art,  — •  the  really 
fainting  man  with  the  fainting  actor. 
The  passage  from  the  Conciergerie 
to  the  judge's  room,  made  between 
two  gendarmes  preceded  by  an 
usher,  had  brought  despair  to  its 
acme  in  Lucien.  It  is  in  the 
nature  of  a  poet  to  prefer  death  to 
punishment.  Beholding  this  nature 
utterly  devoid  of  mental  courage,  — 
a  courage  so  powerfully  manifested 
in  the  other  prisoner,  —  Monsieur 
Camusot  felt  scorn  for  his  easy 
victory.  "Monsieur,"  said  the 
judge,  in  a  very  kindly  manner, 
"  it  is,  nevertheless,  difficult  to 
set  you  at  liberty  without  fulfilling 
certain  formalities,  and  putting  a 
few  questions  to  you.  It  is  almost 
as  a  witness  that  I  shall  now  require 
you  to  answer.  To  a  man  like 
you,  I  think  it  useless  to  remark  that 
the  oath  to  tell  the  truth  is  not  only 
an  appeal  to  your  conscience,  but  it 
is  also  a  necessity  of  your  position, 
which  has  been  for  a  short  time 
ambiguous.  The  truth,  no  matter 
what  it  is,  cannot  injure  you  ;  but 
falsehood  would  send  you  to  the 
court  of  assizes,  and  will  oblige  me 
now  to  send  you  back  to  the  Concier- 
gerie, whereas,  if  you  answer  frankly, 
you  will  sleep  at  home  to-night,  and 
you  shall  be  publicly  vindicated  in 
the  public  journals  by  the  following 
notice  :  '  Monsieur  de  Rubempre, 
arrested  yesterday  at  Fontaine- 
bleau,  was  immediately  released 
after  a  ^•ery  short  examination.'  .  .  . 
I  repeat,  you  have  been  suspected 
of  complicity  in  the  murder,  by 
poison,  of  the  Demoiselle  Esther. 
There  is,  however,  proof  of  her 
suicide,  and  that  ends  the  question 
of  murder.  But  a  sum  of  money 
has  been  taken  from  the  house,  — 
750,000  francs,  —  which  now  forms 
part  of  your  inheritance.  Here, 
unfortunately,  there  is  a  crime. 
The  crime  precedes  the  discovery  of 


544 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  279. 


the  will.  Now  the  law  has  reason 
to  think  that  a  person  who  loves 
you,  as  much  as  the  Demoiselle. 
Esther  loved  you,  has  been  guilty  of 
this  crime  for  your  sake.  .  .  . 
Abandon  the  false,  the  miserable 
point  of  honor  which  binds  accom- 
plices together,  and  tell  the  whole 
truth." 

Our  readers  must  have  already  ob- 
served the  extreme  disproportion  of 
weapons  existing  between  accused 
persons  and  examining  judges.  It 
is  true  that  denial,  cleverly  managed, 
has  on  its  side  completeness  of  form, 
and  it  is  sufficient  for  a  criminal's 
defense ;  but  for  all  that,  it  is  a  sort 
of  panoply  which  becomes  a  crushing 
weight  when  some  turn  in  the 
examination  fliscloses  a  rent  in 
it.  As  soon  as  denial  is  insufficient 
against  evident  facts,  the  accused 
person  is  absolutely  at  the  mercy 
of  the  judge.  ...  "  Now,"  said 
Camusot,  after  a  pause,  "what  is 
your  name  ?  Monsieur  Coquart,  at- 
tention!" he  said  to  the  clerk. 
"  Lucien    Chardon    de    Rubempre." 

"Where  born?"  "Angoulerne." 
And  Lucien  gave  the  day,  month, 
and  year. 

"  You  had  no  property  from  your 
father?"     "None." 

"You  did,  nevertheless,  during 
"your  first  residence  in  Paris,  live 
at  considerable  exi)ense,  compared 
with  your  small  means?"  "Yes, 
monsieur ;  but  I  had  at  that  time  a 
devoted  friend,  in  Mademoiselle 
C'oralie,  whom  I  liad  the  mis- 
fortune to  lose.  It  was  grief,  caused 
by  her  death,  which  took  me  l)ack 
to  my  former  home." 

"  Good,  monsieur,"  said  (  aiiuisot  ; 
"  I  commend  your  frankness ;  it 
will   be  appreciated." 

Lucien  was  entering,  as  we  see, 
upon  the  path  of  general  confession. 

..."  Lately,  in  the  hope  of  marry- 
ing Mademoiselle  de  Grandlieu, 
you  l)()ught  the  remains  of  the 
chat«"aii  de  Rubempre,  to  whicli 
you  lia\e  adder]  lauds  worth  about  a 
million.  You  told  the  Grandlieu 
familv  that  vour  sister  and  brother- 


in-law  had  lately  inherited  a  large 
fortune  and  that  you  owed  the  sum 
for  the  payment  of  your  purchase 
to  their  liberality.  Did  you  say 
that,  monsieur,  to  the  Grandlieu 
family?"     "Yes,  monsieur." 

"  You  are  ignorant  of  the  reasons 
whv  vour  marriage  was  broken 
oft"?"  '  "Entirely." 

"Well,  the  Grandlieu  family  sent 
one  of  the  most  trusty  lawyers  in 
Paris  to  your  brother-in-law,  in 
order  to  obtain  the  information. 
This  lawyer  learned  at  Angoulerne, 
from  the  statements  of  your  sister 
and  your  brother-in-law,  not  only 
that  they  had  lent  you  nothing, 
but  that  their  inheritance  was 
chiefly  in  land,  and  that  the  per- 
sonal property  amounted  to  little 
more  than  200,000  francs.  You  can- 
not think  it  strange  that  a  family 
like  that  of  Grandlieu  should  draw 
back  when  they  find  your  fortune 
sucli  that  you  dare  not  explain  its 
origin." 

Lucien  was  struck  dumb  b}'  this 
revelation  ;  and  the  little  strength  of 
mind  he  still  retained  abandoned 
him. 

"  The  police  and  the  legal  authori- 
ties know  all  they  wish  to  know, 
remember  that,"  said  Camusot. 
"Now,"  he  resumed,  after  a  pause, 
thinking  of  the  abbe's  claim  to  be 
Lucien's  father,  "do  you  know  who 
this  so-called  Carlos  Herrera  is?" 
"  Yes,  monsieur ;  but  I  knew  it  too 
late." 

"  Too  late  ?  how  do  you  mean  ? 
Explain  yourself."  "He  is  not  a 
priest,  he  is  not  a  Spaniard,  he  is  —  " 

"An  escaped  convict?"  said  the 
judge,  quickly.  "Yes,"  replied 
Lucien.  "  But  when  the  fatal  secret 
was  revealed  to  me  I  was  already 
under  obligations  to  him.  I  thought 
I  had  allied  myself  with  a  respectable 
ecclesiastic  — " 

"  Jacques  Collin  —  "  said  the  judge, 
l)egimiing  a  sentence.  "Jacques 
Collin,"  said  Lucien,  interrupting 
liim,  yes,   that  is  his  name." 

"Good.  Jacques  Collin,"  re- 
sumed Camusot,  "has  just  been  rec- 


No.  279. 


II.      TESTIMONIAL   PROCESS.      C.    NARRATION 


545 


ognized  here  by  two  persons ;  but 
he  still  denies  his  identity  —  in 
your  interests,  I  think.  ..." 

Instantly  Lucien  felt  as  if  hot  irons 
were  plunged  into  him. 

"Are  you  ignorant,"  continued 
the  judge,  "  that  he  pretends  to  be 
your  father,  to  explain  the  extraordi- 
nary relation  in  which  you  stand  to 
him?"  "He!  my  father!  Oh, 
monsieur,  did  he  say  that?" 

"Have  you  suspected  where  the 
sums  of  money  which  he  gave  you 
came  from?  ..."  "Ah!  mon- 
sieur, it  is  you  who  must  tell  me," 
cried  Lucien,  "where  convicts  get 
their  money  —  Jacques  Collin  my 
father  !     Oh  !  my  poor  mother  I" 

And  he  burst  into  tears. 

"Clerk,  read  that  part  of  the 
examination  in  which  the  pretended 
Carlos  Herrera  declares  himself  the 
father  of  Lucien  de  Rubempre." 
The  poet  listened  to  the  reading  in 
silence  and  with  a  countenance  it  was 
painful  to  witness.  "I  am  lost!" 
he  cried. 

"No  man  is  lost  in  the  path  of 
truth  and  honor,"  said  the  judge. 
"  But  you  will  send  Jacques  Collin 
to  the  assizes,"  said  Lucien. 

"  Undoubtedly,"  replied  Camusot, 
who  wished  to  make  Lucien  say 
more.  "  Continue ;  say  what  you 
think." 

But  in  spite  of  the  efforts 
and  remonstrances  of  the  judge, 
Lucien  no  longer  answered.  Re- 
flection had  come,  —  too  late,  as  it 
does  in  all  men  who  are  slaves  to 
feeling.  .  .  .  Lucien  sat  pale  and 
dumb ;  he  saw  himself  at  the  bot- 
tom of  the  precipice  down  which  the 
judge  had  rolled  him,  while  he, 
the  poet,  had  let  himself  be  trapped 
by  apparent  kindness.  He  had 
betrayed,  not  his  benefactor,  but  his 
accomplice,  —  him,  who  had  de- 
fended their  position  with  the 
courage  of  a  lion  and  an  ability 
without  a  flaw.  Just  there,  where 
Jacques  Collin  had  saved  Lucien 
by  his  audacity,  Lucien,  the  man 
of  mind,  had  lost  all  by  his  want  of 
intelligence  and  his  lack  of  reflection. 


The  infamous  lie,  which  had  so 
shocked  him,  was  the  screen  of  a 
truth,  for  him  more  infamous. 
Confounded  by  the  subtlety  of  the 
judge,  terrified  by  his  cruel  clever- 
ness, by  the  rapidity  of  the  blows 
given,  by  the  exposure  of  the  faults 
of  all  his  life  thus  brought  to  light 
like  so  many  grapnels  to  drag  his 
conscience,  Lucien  was  like  an 
animal  which  the  club  of  the 
slaughterhouse  has  missed.  Free 
and  innocent  in  the  eyes  of  the  law 
when  he  entered  that  room,  in  one 
hour  he  saw  himself  a  criminal  by 
his  own  confession.  .  .  . 

Monsieur  Camusot  enjoyed  his 
triumph.  He  held  two  guilty  men ; 
with  the  hand  of  the  law  he  had 
struck  down  an  idol  of  fashionable 
society,  and  he  had  found  the 
hitherto  unfindable  Jacques  Collin. 
He  would,  undoubtedly,  be  con- 
sidered one  of  the  ablest  of  examin- 
ing judges.  So  he  let  the  unhappy 
prisoner  keep  silence ;  but  he 
studied  that  silence  of  consterna- 
tion ;  he  saw  the  drops  of  sweat 
accumulating  on  that  anguished 
face,  swelling  and  rolling  down 
to  mingle  with  two  streams  of  tears. 
.  .  .  Lucien  put  Esther's  letter  and 
the  miniature  it  inclosed  upon  his 
heart.  Then  he  bowed  haughtily  to 
Monsieur  Camusot,  and  walked 
with  a  firm  step  through  the  corri- 
dors between  two  gendarmes. 

"  That  is  an  utter  scoundrel  ! "  said 
the  judge  to  his  clerk,  as  the  door 
closed  on  Lucien.  "He  thought 
to  save  himself  by  sacrificing  his  ac- 
complice." 

"Of  the  two,"  replied  Coquart, 
timidly,  "the  convict  is  the  better 
man."  .  .  . 

During  the  time  the  turnkey  took 
in  obtaining  and  bringing  up  to 
Lucien  the  things  he  had  asked  for, 
the  unfortunate  young  man,  to 
whom  the  idea  of  being  confronted 
with  Jacques  Collin,  was  intolerable, 
fell  into  one  of  those  meditations 
in  which  the  idea  of  suicide,  to  whicja 
he  had  already  yielded  without 
accomplishment,   attains  to  mania. 


546 


PAKT    II.      TESTIMOiNIAL    EVIDENCE 


No.  279. 


According  to  some  great  alienists, 
suicide  in  certain  organizations  is 
the  termination  of  a  mental  aliena- 
tion. Since  his  ariest  Lucien  had 
fastened  on  that  idea.  .  .  .  Cer- 
tainly it  would  have  l)een  tiifficult  to 
act  with  more  dignity  in  the  false 
position  to  which  infamy  had 
l)rought  Lucien.  He  saved  his  own 
memory,  and  he  repaired  the  wrong 
done  to  his  accomplice,  so  far  as 
the  mind  of  the  man  of  the  w^orld 
could  annul  the  effects  of  his 
actions.  .  .  .  By  mounting  on  the 
table,  Lucien  could  reach  the  glazed 
portion  of  the  window,  and,  by 
removing  or  breaking  two  panes, 
he  could  use  the  strong  crossbar 
between  them  as  his  point  of 
support.  He  resolved  to  do  this : 
to  pass  his  cravat  around  the  bar, 
making  a  turn  about  his  own  neck 
and  fastening  the  end  securely,  and 
then  to  knock  away  the  table  from 
under  him  with  his  feet.  He  moved 
the  tal)le  to  tlie  window  noiselessly, 
took  ott'  his  coat  and  waistcoat,  and 
mounted  the  tal)le  without  the  least 
hesitation,  to  remove  the  panes 
above  and  below  the  first  crossbar. 
[Then  he  hung  himself.]  .  .  . 

•Jacques  Collin,  nicknamed 
Trompe-la-Mort,  in  the  world  of 
the  galleys  and  to  whom  we  shall 
henceforth  give  no  other  name  than 
his  own,  had  been,  from  the  moment 
of  his  reincarceration  by  Camusot's 
orders,  in  the  grasp  of  an  anxiety 
lie  had  never  l)efore  known  in  the 
course  of  a  life  marked  by  many 
crimes,  by  three  escapes  from  the 
galleys,  and  two  .sentences  in  the 
court  of  assizes.  .  .  .  When  re- 
turned to  his  solitary  cell,  Jacques 
('ollin's  thought  was:  "They  are 
questioning  the  young  one  I" 

He  shuddered,  —  he  who  could 
strike  as  another  man  drinks.  "  Has 
he  seen  those  women  ?  Will  they 
warn  him  ?  .  .  .  Have  they  stopped 
the  examination  ?  Has  Lucien  re- 
ceived my  letter?  If  fate  wills 
♦hat  he  be  examined,  how  will 
he  carry  himself?  .\h,  poor  boy! 
it  is   I   who  have  brought   him   to 


this!"  .  .  .  And  so  the  monologue 
went  on  for  three  hours.  The  agony 
was  so  great  that  it  got  the  better 
of  that  creature  of  iron  and  vitriol. 
Jacques  Collin,  whose  brain  was 
fired  almost  to  madness,  felt  such 
devouring  thirst  that  he  drank,  with- 
out observing  that  he  did  so,  all 
the  water  contained  in  two  buckets, 
which,  with  a  wooden  bedstead, 
form  the  whole  furniture  of  a  soli- 
tary cell.  .  .  . 

At  this  moment  the  director  .  .  . 
left  the  cell  to  get  it  (the  letter 
written  by  Lucien  to  Jacques  Collin 
for  transmi.ssion  to  the  latter), 
leaving  the  doctor  with  the  prisoner, 
in  charge  of  the  jailer. 

"Monsieur,"  said  Jacques  Collin 
to  the  doctor,  ...  "I  shouldn't 
consider  a  matter  of  30,000  francs,  if 
I  could  be  enabled  to  send  five  lines 
to  Lucien  de  Rubempre."  "I  will 
not  steal  your  money,"  replied  the 
doctor.  "No  one  on  earth  can 
communicate  with  that  young  man." 

"No  one?"  said  Jacques  Collin, 
bewildered.  "Why  not?"  "Be- 
cau.se  he  hanged  himself."  .  .  . 

Collin  dropped  back  upon  the 
camp  bed,  saying,  "Oh  !  my  son  !" 

"Poor  man  !"  exclaimed  the  doc- 
tor, moved  by  this  terrible  struggle 
of  nature.  .  .  .  Jacques  Collin,  ex- 
hausted by  the  violence  of  that 
explosion  of  grief,  seemed  to  calm 
himself.   ... 

"IMay  I  see  him  with  my  own 
eyes  ?"  asked  Jacques  Collin,  timidly. 
"Will  you  give  a  father  freedom 
to  mourn  his  son?"  .  .  .  The 
prisoner's  eyes,  devoid  of  warmth 
and  life,  moved  slowly  from  the 
director  to  the  doctor.  .  .  . 

"If  you  wish  to  see  the  body," 
said  the  doctor,  "you  have  no  time 
to  lose.  It  is  to  be  removed  to- 
night." .  .  .  Jacques  Collin,  ac- 
companied by  the  jailer,  who  took 
him  by  the  arm,  preceded  by  the 
director  and  followed  by  the  doctor, 
was  only  a  few  moments  in  reaching 
the  cell  where  Lucien  lay.  They 
had  placed  him  on  a  bed.  At  the 
sight,  the  convict  fell  upon  the  body. 


No.  280. 


TESTIMONIAL   PROCESS.       C.    NARRATION 


547 


clinging  to  it  with  a  grip  of  despair, 
the  strength  and  passionate  move- 
ment of  which  made  the  three  specta- 
tors shudder.  ...  At  one  o'clock 
in  the  morning,  when  they  came 
to  remove  the  body,  Jacques  Collin 
was  found  kneeling  beside  Lucien's 
bed.  .  .  .  The  miserable  man  was 
still  holding  the  stiffened  hand  of 
him  he  had  loved  so  well ;  he  held 
it  pressed  between  his  own  clasped 
hands,  and  was  praying  God.  When 
they  saw  him  thus,  the  jailers 
stopped  for  an  instant ;  he  resembled 
one  of  those  stone  figures  kneeling 
for  eternity  on  the  tombs  of  the 
middle  ages.  .  .  .  Looking  once 
more  at  Lucien  with  the  eyes  of  a 
mother  from  whom  they  are  rend- 
ing her  son,  Jacques  Collin  sank 
back  upon  himself.  As  he  watched 
them  take  the  body,  so  dreadful  a 
moan  escaped  his  breast  that  the 
porters  hastened  to  be  gone.  The 
secretary  of  the  attorney-general 
and  the  director  of  the  prison  had 
already  withdrawn  from  the  painful 
sight.  What  had  become  of  that 
iron  nature  in  which  decision  and 
resolution  equalled  the  glance  of 
those  eyes  in  rapidity ;  in  whom 
thought  and  action  sprang  forth 
with  a  single  flash ;  whose  nerves, 
inured  by  three  escapes,  three 
periods  at  the  galleys,  had  attained 
to  the  metallic  strength  of  the  nerves 
of  savages  ? 

Iron  yields  to  reiterated  striking, 


or  to  a  certain  continuance  of 
pressure ;  its  impenetrable  mole- 
cules, purified  by  man  and  made 
homogeneous,  segregate,  and,  with- 
out being  in  fusion,  the  metal  has 
not  the  same  power  of  resistance. 
Blacksmiths,  locksmiths,  tool 
makers,  all  men  who  work  con- 
stantly in  this  metal,  express  that 
condition  by  a  technical  word. 
"The  iron  is  retted,"  they  say, 
appropriating  a  term  which  belongs 
properly  to  flax  or  hemp,  the  fiber 
of  which  is  disintegrated  by  retting. 
Well,  the  human  soul,  or,  if  you 
choose  to  say  so,  the  triple  energy 
of  body,  heart,  and  mind,  is  found 
in  a  condition  analogous  to  that  of 
iron  as  the  result  of  repeated 
shocks.  It  is  then  with  men  as  it  is 
with  flax  or  iron  :  they  are  "retted." 
...  It  is  in  this  state  that  con- 
fessors and  examining  judges  often 
find  great  criminals.  The  terrible 
emotions  caused  by  the  court  of 
assizes  and  by  the  "toilette"  al- 
most always  bring  even  the  strong- 
est natures  to  what  may  be  called  a 
dislocation  of  the  nervous  sj'stem. 
Confessions  escape  the  lips  till  then 
most  firmly  closed ;  the  stoutest 
hearts  give  way,  and  this  — -  strange 
fact !  —  at  the  moment  when  con- 
fession becomes  useless,  —  when  this 
sudden  weakness  merely  tears  from 
the  guilty  man  the  mask  of  inno- 
cence by  which  he  disturbs  the 
mind  of  justice. 


280.    Allan  PiNKERTON.    Bank  Robbers  and  Detectives.    (1882.    p.  231.) 


[A  bank  was  robbed  of  some 
$65,000.  A  clerk  of  a  store  in  the 
same  building,  one  Sloane,  was 
suspected.  For  nearly  a  year  he 
was  shadowed,  but  without  result. 
Finally,  he  was  found  to  be  planning 
to  sell  some  securities  in  a  distant 
town.  The  detectives  then  ar- 
ranged to  arrest  him  and  his  chum 
in  that  place.] 

.  .  .  Wright  reported  that  Sloane 
and  Patterson  intended  taking 
the  eight  o'clock  train  in  the 
morning  and  would  return  by  way 


of  Troydon,  as  they  had  come ; 
Patterson  having  found  it  impossible 
to  induce  Sloane  to  return  by  the 
way  of  Ryan.  Mr.  Warner  im- 
mediately telegraphed  me  the  state 
of  affairs,  asking  wdiat  should  be 
done.  To  this  I  replied  that  I 
would  be  at  Elliott  on  arrival  of 
the  designated  train  from  Portville, 
and  would  meet  him  there.  I  then 
telegraphed  Mr.  Somers  to  start 
immediately  for  Ryan  and  carry 
out  the  program  already  con- 
veyed him  by  one  of  my  detectives. 


548 


PAHT    II.      TESTIMONIAL    EVIDEN'CE 


No.  280. 


In  the  afternoon  Sloane  had  sold 
to  ^Messrs.  Race  &  Co.  two  thousand 
doUars*  worth  of  compound  interest 
notes,  many  of  them  mildewed  and 
worn  like  the  one  handed  Patterson, 
and  the  entire  niniiber  l)earing 
evidence  of  having  been  for  a  long 
time  secreted  in  some  damp  place 
or  receptacle.  At  ten  o'clock  of  the 
evening  of  the  same  day,  I  left 
Chicago  for  Elliott.  The  time  had 
come  when  a  little  wholesome  force 
could  be  used  to  advantage;  and 
as  some  exceptional  responsibility 
might  attach  to  this,  I  proposed 
to  conduct  the  affair  in  person. 

As  the  express  train  from  Portville 
rolled  into  the  depot  at  Elliott, 
the  next  day  at  noon,  Mr.  Warner  and 
myself  stood  on  the  platform,  vigi- 
lant and  ready  for  action.  Mr. 
Warner,  who  had  come  on  by  the 
preceding  train,  had  brought  me 
the  two  thousand  dollars  in  com- 
pound-interest notes,  with  the  grat- 
ifying intelligence  that,  at  last 
accounts,  Sloane  had  expended  none 
of  the  money  paid  him  for  the 
same,  but  carried  all  of  it  upon  his 
person.  Everything  was  therefore 
ripe  for  my  purpose.  .  .  .  Patter- 
son [the  disguised  detective]  and 
Sloane  appeared  on  the  platform, 
and,  with  arms  interlocked,  pro- 
ceeded to  follow  the  retreating  crowd. 
It  was  but  the  work  of  an  instant 
to  ru.sh  in  between  them,  thrust 
Patterson  violently  aside,  seize 
Sloane  rudely  by  the  wrist  and  say 
to  him,  in  a  voice  of  suppressed 
passion  : 

"I  want  you.  Come  this  wa^^ !" 
In  the  same  breath  I  shouted  to 
Wright :  "  Officer  I  bring  that  man 
along;   no  parleying  now  I" 

"  What  does  this  mean  ?  this  is 
an  outrage  I"  began  Patterson.  We 
could  hear  no  more,  for  Wright 
grasped  his  prisoner  by  the  collar, 
taking  in  his  grip  shirt,  collar,  and 
all,  and  fairly  drove  him  into  the 
baggage  car,  while  Patterson  was 
seemingly  rendered  speechless  from 
choking.  As  for  Sloane,  no  such 
angry  demonstrations    were    neces- 


sary. He  turned  deathly- pale  the 
instant  he  recognized  me,  and 
began  trembling  violently  from  head 
to  foot.  So  completely  did  his 
courage  desert  him  that  I  had  rather 
to  support,  than  force,  him  into  the 
same  car  with  Patterson.  .  .  . 

"I  know  what  this  is  for!" 
faltered  Sloane,  as  he  threw  himself 
on  a  trunk  and  buried  his  face  in 
his  hands,  a  picture  of  abject 
despondency. 

"  What  do  you  suppose  it  is  for  ?  " 
I  inquired,  ironically,  drawing  a 
pair  of  handcuffs  from  my  pocket 
and  preparing  to  fasten  them  upon 
his  wrists.  "Let's  hear  what  it  is 
for?"  "The  bank  robbery,"  he 
gasped. 

The  twenty  minutes'  stoppage  had 
expired,  the  bell  rang,  and  we  were 
on  our  way,  not  to  Troydon,  but 
to  Ryan. 

"Don't  put  those  things  on  me, 
please!"  stammered  Sloane,  in  a 
supplicating  way.  "I  give  you  my 
word  I  will  make  no  effort  to  escape. 
I  have  no  reason  to  do  so,"  he 
added,  gathering  courage  as  he 
spoke,  "for  I  am  not  guilty." 

"Don't  try  to  play  that  game  on 
me,  young  man,"  I  said  sternly, 
and  m-aking  the  handcuffs  secure. 
"I  know^  all  about  whether  you  are 
guilty  or  not.  If  you  begin  by 
lying,  I  promise  I  will  show  you 
no  mercy." 

"Won't  you  trust  me?"  he 
pleaded.  "I  will  tell  you  the  whole 
truth  whenever  you  wish  to  know  it. 
I  will  go  with  you  peaceably  any- 
where, but  I  cannot  bear  to  be 
manacled  in  this  way."  ...  I  then 
searched  my  prisoner  thoroughly, 
emptying  his  pockets  of  their  entire 
contents,  and  .  .  .  the  fruits  of 
this  search  were  a  bunch  of  keys, 
some  Masonic  emblems,  a  watch 
and  chain,  two  pocketbooks,  and 
lastly,  three  thousand  dollars  in 
compound-interest  notes,  and 
twenty-three  hundred  and  eighty  dol- 
lars in  greenback  currency.  "  Ah  !  " 
I  exclaimed,  as  this  booty  fell 
into    my    possession ;     "  no    doubt 


Xo.  280. 


II.      TESTIMONIAL    PROCESS.       C.    NARRATION 


.549 


you  will  be  able  to  account  for 
this  trifling  amount  of  pocket- 
money."  Sloane  shook  his  head  in 
a  fluU,  dejected  way,  and  for  a 
moment  made  no  reply.  He  was 
completely  unmanned,  and  I  felt 
pretty  certain  that  I  should  have 
but  little  further  trouble  with  him. 
Presently,  after  a  visible  effort  to 
regain  his  self-possession,  he  an- 
swered :  "  I  hope  to  do  so,  sir. 
I  came  by  it  honestly."  .  .  . 

The  county  sheriff  and  a  con- 
stable were  at  the  depot  on  the  ar- 
rival of  our  train  at  Ryan.  I 
turned  my  prisoners  over  to  their 
care,  giving  strict  injunctions  in 
Sloane's  hearing  that  on  no  account 
were  they  to  be  allowed  to  communi- 
cate with  one  another.  Sloane  now 
had  two  or  three  hours  for  private 
meditation  in  his  cell,  during  which 
time,  Mr.  Somers,  Mr.  Warner, 
Patterson,  and  myself  discussed  the 
good  fare  of  the  Mansion  House, 
and  the  now  pleasant  condition 
of  our  operation.  .  .  . 

Late  in  the  afternoon,  in  a  private 
room  which  the  jailer  had  placed 
at  my  service,  Sloane  was  brought 
before  me.  I  will  not  weary  the 
reader  with  a  full  account  of  what 
transpired  at  this  interview.  It 
lasted  over  two  hours,  during  the 
greater  part  of  which  time  Sloane 
doggedly  asserted  his  innocence 
of  the  robbery  itself,  and  attempted 
to  deceive  me  with  the  foolish 
invention  that  he  had  found  a 
package  of  fi\e  thousand  dollars 
of  compound-interest  notes  on  the 
Sunday  morning  following  the  bur- 
glary, in  his  store,  near  the  \Yillow 
street  door,  where  he  presumed  the 
robbers  had  dropped  it  in  their 
flight.  I  made  use  of  every  argu- 
ment and  instrumentality  I  could 
think  of  to  drive  him  from  this  story, 
and  impel  him  to  a  full  confession ; 
but  for  a  long  time  all  was  in  vain. 
It  was  necessary  to  screen  my  de- 
tective at  all  hazards.  I  was, 
therefore,  driven  to  the  use  of  in- 
formation, only,  that  I  might  have 
reached     through    other    channels. 


Still,  with  these  resources  alone,  I 
was  able  to  astound  Sloane  by  ref- 
erence to  matters  pointing  to  his 
guilt.  He  would  show  his  affright 
and  surprise  by  involuntary  starts 
and  exclamations,  but  he  would 
not  budge  from  his  story.  I  gave 
him  to  understand  that  Mr  ISIarston 
had  engaged  me  to  track  Barnes, 
and  that  I  had  abandoned  the  case 
after  bringing  it  to  the  point  of 
success,  because  Mr.  Marston  in- 
sisted upon  compromising ;  a  pro- 
ceeding to  which  I  was  unalterably 
opposed.  This  explanation  was 
offered  incidentally,  as  a  cover  to 
Patterson,  but  chiefly  to  show  that 
I  had  been  for  a  long  time  on  their 
joint  trail,  and  to  impress  upon 
Sloane  the  conviction  that  full 
restitution  was  the  only  basis  on 
which  he  could  treat  with  me.  It 
had  been  constantly  reported  to 
me  that  Sloane  was  a  man  of  good 
domestic  habits,  devoted  to  his 
wife,  and  seemingly  appreciative 
of  home  comforts.  So,  after  all 
other  attempts  had  proven  futile,  I 
strove  to  reach  him  through  the 
medium  of  his  affections.  I  pictured 
to  him  as  best  I  might,  and  at 
great  length,  the  distress  that  this 
affair  would  cause  his  friends  and 
relatives,  and  most  of  all,  his  wife ; 
and  lastly,  I  spoke  of  the  danger  of 
his  exposure  in  her  then  delicate 
condition,  for,  as  I  understood,  he 
expected  to  be  shortly  a  father. 
Xo  sooner  had  I  made  this  reference, 
than  Sloane,  who  up  to  that  time 
had  maintained  his  old,  impassable 
demeanor,  burst  into  a  flood  of 
tears  and  cried  out : 

"  Stop,  stop  I  I  beg  of  you  ;  — 
I  shall  go  mad.  ISIy  poor  wife ! 
]My  dear,  innocent,  trusting  wife ! 
Oh,  heavens!  this  will  kill  her!" 
Completely  overcome,  after  giving 
vent  to  this  wail,  he  buried  his 
face  in  his  handkerchief  and  rocked 
himself  from  side  to  side  in  an  agony 
of  remorse. 

I  confess  that  this  spasmodic  out- 
burst quite  astonished  me.  I  was 
far  from  believing  him  to  be  a  man 


550 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  281. 


of  SO  deep  feeling.  When  he  had 
recovered  from  the  violence  of  this 
outbreak,  1  took  up  my  talk  where 
it  had  been  l)roken  off,  hoping  to 
finil  the  criminal  in  a  more  pliable 
mood.  It  seemed,  however,  that 
this  man  was  to  disappoint  me  con- 
.tinually.  His  tears  and  emotional 
excitement  proved  to  be  the  begin- 
ning and  ending  of  his  weakness. 
"  I  pray  you  desist,  Mr.  Pinkerton," 
he  said,  with  considerable  firmness 
and  dignity,  "  I  have  nothing  to 
tell  you  beyond  what  you  already 
know.  It  is  useless  to  cjuestion  me 
further  I " 

Remembering  the  fear  which 
Sloane  had  e.xhibited  at  the  time  of 
his  arrest,  and  hoping  that  he  would 
prove  a  moral,  as  well  as  a  physical, 
coward,  I  resolved  to  play  my  last 
card.  "  It  is  as  you  say,"  I  replied, 
"  utterly  useless  to  cjuestion  you 
further,  but  not  for  the  reason  you 
imagine."  Then,  summoning  all 
the  sternness  of  demeanor  I  could 
command,  I  drew  closer  to  him, 
anrl  proceeded  : 

"  Henry  Sloane,  you  sit  before 
me  this  moment  a  self-convicted 
burglar  !  You  have  admitted  -the 
taking  of  five  thousand  dollars  that 
you  knew  belonged  to  the  bank. 
That,  in  itself,  constitutes  the  crime 
of  robbery,  and,  for  this  alone,  you 
are  liable  to  every  penalty  of  the 
law,  just  the  same  as  if  you   had 


broken  into  the  bank  vault  your- 
self. Out  with  the  whole  truth 
now,  or,  by  all  that's  good,  I'll 
make  you  regret  this  day  to  the 
end  of  your  life  ! " 

"You  —  you  have  no  proof  that 
—  that  I  admitted  that,"  he  dared 
to  stammer  forth. 

"  Young  man,"  I  rejoined,  "  I 
have  proof  enough  to  send  you  to 
the  penitentiary  for  the  rest  of  your 
natural  life,  and  there  you  will  go 
with  your  accomplice,  if  you  do  not 
confess  everything  before  leaving 
this  room  I     Mr.  Somers  !" 

Never  was  a  man  more  startled 
and  appalled  than  was  Sloane  when 
he  heard  this  call,  and  instantly 
saw  Mr.  Somers  [the  bank  officer] 
at  his  elbow\  With  a  great  bound 
he  sprang  from  his  chair,  and  then 
as  quickly  sank  back  again,  from 
the  very  inability  of  his  muscles 
to  support  him. 

"I  confess,"  he  cried,  "it  was  I 
who  did  it,  and  I  alone  !  I  have 
the  money  hidden  away  !  I  will 
show  you  where  it  is  ! —  tell  you  the 
whole  truth.  Oh,  my  God  !  gentle- 
men, for  others'  sake  than  my  own 
be  merciful  ! " 

The  battle  was  won  ! 

Without  loss  of  time  Sloane  told 
the  true  story  of  the  robbery.  His 
recital  was  very  long,  and  covered 
much  with  which  the  reader  is 
alreadv  familiar. 


281.  Intekn.\tional  Associ.\tion  of  Chiefs  of  Police.  (17th  Annual 
Session,  1910.  Proceedings,  p.  54.)  Major  Sylvester,  of  Washington, 
D.C.  (President  of  the  Association).  .  .  .  While  there  was  a  cessation  of 
visitations  of  the  criminal  classes  to  our  shores  during  the  War  of  the  Rev- 
olution, yet  eighty  years  later,  in  the  War  of  the  Rebellion,  at  a  time  when 
our  pojjulation  had  grown  to  tremendous  proportions,  and  our  commercial- 
ism extended  from  ocean  to  ocean,  the  disruption  demanded  extraordinary 
military  and  civil  police  activity.  The  marauder,  the  bank  robber,  and 
highwayman,  thieves  and  criminals  of  every  kind,  took  advantage  of  the 
exciting  times  to  engage  in  their  nefarious  undertakings.  At  the  close  of 
the  conflict,  during  the  period  of  reconstruction,  soldiers  and  the  police 
were  requirefl  to  meet  unusual  conditions  in  the  cities.  Many  of  those 
arrested,  criminals  and  suspects,  were  subjected  to  many  kinds  of  inquisi- 
tif)n  and  torture  prior  to  court  trials,  in  order  that  convicting  confessions, 
implicating  them.selves  or  otiiers  in  the  commission  of  violations,  might 


No.  281.  11.      TESTIMONIAL    PROCESS.       C.    NARRATION  551 

be  had.  It  was  clearly  following  upon  these  exciting  times  that  the  prac- 
tical "  sweat  box"  was  described.  As  pictured,  it  was  a  cell  adjoining  which 
in  close  proximity  was  a  high  iron  stove  of  drum  formation.  The  subject 
indisposed  to  disclose  information  securely  locked  within  his  bosom,  would 
be  confined  within  the  cell ;  a  scorching  fire  would  be  encouraged  in  the 
monster  stove  adjoining,  into  which  vegetable  matter,  old  bones,  pieces  of 
rubber  shoes,  and  kindred  trophies  would  be  thrown  ;  all  to  make  a  terrible 
heat,  offensive  as  it  was  hot,  to  at  last  become  so  torturous  and  terrible  as 
to  cause  the  sickened  and  perspiring  object  of  punishment  to  reveal  the 
innermost  secrets  he  possessed,  as  the  compensation  for  release  from  the 
"sweat  box."  This  is  the  origin  of  the  torrid  appellation  which  has  been 
so  much  discussed  within  the  past  few  and  preceding  years.  The  existence 
of  any  such  character  of  contrivance  in  these  enlightened  days  would  be 
followed  by  raid  and  suppression.  On  the  other  hand,  the  criminal  and 
those  who  would  use  the  criminal  vernacular,  apply  the  effervescent  term 
to  the  office,  or  room  adjacent,  at  a  Detective  Headquarters,  where  consul- 
tation may  be  had  or  questions  be  asked  in  secrecy  of  prisoners  under 
investigation.  .  .  . 

^Ye  have  heard  of  the  other  vulgarity,  "Third  Degree."  Some  of  us  have 
taken  the  genuine  article.  In  police  and  criminal  procedure  and  practice 
the  officer  of  the  law  administers  the  "  First  Degree,"  so  called,  when  he 
makes  the  arrest.  When  taken  to  the  place  of  confinement,  there  is  the  "  Sec- 
ond Degree."  When  the  prisoner  is  taken  into  private  quarters  and  there 
interrogated  as  to  his  goings  and  comings,  or  asked  to  explain  what  he  may 
be  doing  with  Mr.  Brown's  broken  and  dismantled  jewelry  in  his  possession, 
to  take  off  a  rubber-heeled  shoe  he  may  be  wearing  in  order  to  compare  it 
with  a  footprint  in  a  burglarized  premises,  or  even  to  explain  the  blood  stains 
on  his  hands  and  clothing,  that,  hypothetically,  illustrates  what  would  be 
called  the  "Third  Degree."  The  prisoner  is  cautioned  by  the  reputable 
officer  to-day  that  he  need  not  incriminate  himself,  and,  in  some  places,  the 
authorities  have  blank  forms  in  use  stipulating  that  what  a  prisoner  states  is 
of  his  own  volition  and  without  coercion.  In  the  pursuit  of  their  investiga- 
tions, there  is  no  law  to  prevent  the  officers  of  the  law  questioning  any  person 
who,  in  their  opinion,  may  be  able  to  give  information  which  may  enable 
them  to  discover  the  perpetrator  of  a  crime.  It  becomes  the  bounden  duty 
of  the  police  to  locate  the  violater.  There  is  no  justification  for  personal 
violence,  inhuman  or  unfair  conduct,  in  order  to  extort  confessions.  The 
officer  who  understands  his  position  will  offer  admissions  obtained  from  pris- 
oners in  no  other  manner  than  that  which  is  sanctioned  by  the  law.  If 
a  confession,  preceded  by  the  customary  caution,  obtained  through  remorse 
or  a  desire  to  make  reparation  for  a  crime,  is  advanced  by  a  prisoner,  it 
surely  should  not  be  regarded  as  unfair.  .  .  .  Volunteer  confessions  and 
admissions  made  after  a  prisoner  has  been  cautioned  that  what  he  states  may 
be  used  against  him,  are  all  there  is  to  the  so-called  "Third  Degree."  .  .  . 

Chief  CoRRiSTON,  of  Minneapolis.  .  .  .  The  "third  degree"  as 
understood  by  the  public  is  a  very  difFerent  thing  from  the  "third  degree" 
as  known  by  a  police  official.  .  .  .  This  body  of  men  should  by  every 
means  in  their  power  refute  the  sensational  idea  the  public  has  of  the  so- 
called  "third  degree."  ...  In  making  an  investigation  as  to  who  is  re- 
sponsible for  committing  an  offense,  it  is  often  necessary  to  have  several 


552  PAKT    II.       TESTIMONIAL   EVIDENCE  No.  281. 

talks  with  the  persons  suspected,  and  their  statements  as  to  their  where- 
abouts and  conduct  at  the  time  in  question  are  important  links  in  unraveling 
a  mystery.  These  investigations  by  the  police  have  no  doubt  cleared  the 
record  of  many  an  innocent  suspect.  The  object  is  to  ascertain  the  truth, 
not,  as  the  public  seem  to  think,  fasten  the  commission  of  a  crime  upon 
some  one  —  whether  guilty  or  innocent. 

Within  the  last  year  or  two  probably  all  have  seen  an  exemplification  upon 
the  stage  of  "The  Third  Degree."  One  connected  with  the  police  depart- 
ment cannot  witness  this  play  without  being  thoroughly  impressed  with  the 
thought  that  the  audience  only  gets  a  portion  of  the  author's  idea  —  the 
reputed  methods  of  the  police.  .  .  .  No  true  and  sincere  police  officer  who 
has  witnessed  this  play  of  "The  Third  Degree"  will  disagree  with  me  that  it 
does  a  gross  injustice  to  that  hard-working  body  of  men  who  preserve  the 
peace  and  dignity  of  the  various  municipalities  of  this  countr}^  and  an  en- 
deavor should  be  made  to  correct  the  false  impressions  given  the  public  of 
police  officials  and  police  methods  by  this  play.  .  .  .  No  police  official 
would  take  this  play  seriously,  but  the  public  will.   .   .   . 

There  may  have  l)een  individual  cases  where  police  officials  have  used  im- 
proper and  unfair  methods  to  obtain  results,  but  the  "Third  Degree"  is  and 
always  should  be  simply  a  battle  of  wits,  the  only  object  being  to  get  at  the 
truth.  There  can  be  no  set  rules  for  gaining  information  from  a  person 
suspected,  but  brute  force  to  accomplish  the  result  should  never  be  resorted 
to,  and  any  police  official  should  be  promptly  dismissed  who  employs  harsh 
measures  to  obtain  statements.  The  methods  of  acquiring  information 
depend  upon  the  circumstances  of  each  case  and  the  disposition  and  mental 
faculties  of  the  person  under  suspicion.  ...  A  crime  has  been  committed. 
It  is  reported  to  the  police  ;  facts  may  come  slowly  or  quickly.  On  the  spur 
of  the  moment  the  head  of  the  detective  bureau  must  evolve  a  theory  — 
what  was  the  motive  for  the  crime  —  who  may  have  had  an  object  in  com- 
mitting it  ?  Some  one  is  suspected,  brought  in  and  questioned.  The  one 
object  is  to  get  the  truth.  A  searching  examination  is  made,  call  it  the 
"third  degree"  or  whatever  you  may;  a  great  deal  depends  upon  it.  It 
may  send  out  from  police  headquarters  a  suspect  with  his  reputation  good 
before  the  world  ;  it  may  be  the  means  of  bringing  a  felon  to  justice.  If  the 
suspect  is  innocent,  his  story  can  generally  be  quickly  checked  up  and  proved, 
and  the  "third  degree"  is  then  the  means  of  working  to  the  advantage  of 
the  suspect  and  society.  .  .  . 

Chief  J.\.\ssE.\,  of  Milwaukee.  ...  I  think  that  future  historians 
will  write  of  the  present  time  as  the  age  of  yellow  journalism  and  the  age  of 
yellow  statesmanship.  This  "Third  Degree"  is  brought  about  in  this  man- 
ner. .\  man  is  arrested  charged  with  an  offense.  An  investigation  is  set  on 
foot,  and  the  prisoner  is  asked  certain  questions  in  order  to  ascertain  his 
defen.se  or  any  excuse  he  may  have  in  regard  to  certain  suspicious  circum- 
stances that  may  surround  him.  AVhen  he  finds  he  cannot  get  around  those 
circumstances  he  tells  the  truth  and  admits  the  crime.  Why  ?  First,  a 
cowardly  conscience  ;  second,  that  he  ivauf.s  to  tell  .somebody  about  it ;  and 
third,  that  lie  may  escape  the  maximum  penalty  prescribed  for  the  oflFense 
with  whicli  lie  may  be  cliarged.  What  happens  next  ?  He  goes  to  court  and 
waives  examituition,  and  is  bound  over  for  trial,  and  he  is  sent  to  jail  to 
await  that  trial.     Now  the  shyster  lawyer  comes  around,  one  who  hangs 


No.  2S1.  II.       TESTIMONIAL    PROCESS.       C.    NARRATION  553 

around  the  courthouse,  or  has  been  sent  by  a  friend  or  accomplice  of  the 
man  who  is  under  arrest,  and  the  first  thing  he  asks  is,  "What  have  you  done  ?" 
And  the  answer  is,  "I  have  talked  with  the  Chief  of  Police"  (or  to  the  De- 
tectives of  the  Police  Department).  His  reply  is,  "Why,  you  fool,  what 
did  you  do  that  for ;  I  can't  do  anything  for  you  unless  you  find  some  excuse 
for  making  that  statement;  what  did  they  say  to  you?"  and  the  prisoner 
answers  that  they  said  this  and  that,  and  the  lawyer  asks,  "  What  did  they 
do  ?"  and  he  tells  something,  and  with  this  the  prisoner  goes  on,  the  lawyer 
always  suggesting,  until  the  prisoner  finally  gets  the  idea  that  he  has  made 
a  mistake  in  making  a  statement  to  the  police  officer.  The  case  of  this 
man  goes  to  trial,  and  the  lawyer  begins  before  the  jury  and  tells  about  the 
violence  that  has  been  practiced  on  the  prisoner,  about  the  terrible  strain  he 
was  placed  under  by  the  police  in  order  to  get  this  confession,  and  the  poor 
creature  who  stands  at  the  bar  for  trial  is  the  victim  of  police  persecution. 
The  press  is  represented,  and  in  a  sensational  manner  starts  to  vilify  the 
police.  .  .  .  This  is  why  you  hear  so  much  about  this  "third  degree," 
caused  by  the  vile,  unrestrained,  unwarranted  attacks  published  in  the 
daily  press,  brought  about  by  the  action  of  these  shyster  lawyers  and  the 
prisoners  themselves  in  misrepresenting  what  really  did  happen  when  they 
were  questioned  by  the  police.  .  .  . 

Chief  Davis,  of  Memphis.  .  .  .  Many  people  have  a  wrong  impres- 
sion regarding  what  is  generally  designated  as  the  "Third  Degree."  Simply 
sweating  a  prisoner,  which  we  all  know  means  only  to  interrogate  him,  is 
considered  by  many  as  a  "  Third  Degree  "  act.  If  police  officials  were  simply 
allowed  to  take  the  statement  of  a  prisoner  (when  I  say  prisoner,  I  refer  to  a 
thief  or  murderer),  and  not  attempt  to  contradict  him  in  any  manner,  shape, 
or  form,  there  would  be  few  convictions  of  criminals.  The  intelligent 
police  officer  generally  knows  when  he  has  a  guilty  man  under  arrest. 

Now  I  wish  to  relate  an  incident  that  occurred  during  my  career  as  Chief 
of  Police  of  the  city  of  Memphis,  seventeen  years  ago.  It  was  at  the  time 
that  George  T.  O'Haver,  then  a  Captain  of  Police,  now  the  Principal  of  a 
Detective  Agency  bearing  his  name,  and  who  is  an  honored  member  of 
this  Association,  was  the  chief  actor  in  the  case  which  I  think  will  clearly 
show  the  necessity  for  action  at  critical  times.  As  I  remember  the  incident 
referred  to,  it  was  on  one  dark  rainy  night,  in  the  city  of  Memphis,  that  the 
residence  of  C.  C.  Graham  on  Shelby  street  was  entered  by  two  thieves. 
In  ransacking  the  house  they  entered  the  bedroom  of  Mr.  Graham,  who  upon 
being  awakened  saw  two  men  at  his  door.  Seizing  a  pistol,  he  rushed  into 
the  hall,  where  he  was  fired  upon  by  one  of  the  burglars.  He  returned  the 
fire,  but  unfortunately  missed  his  man.  One  of  the  thieves  ran  down  the 
front  steps  and  out  of  the  front  door ;  the  other  thief  broke  through  the  rear 
window  and  escaped  by  means  of  the  roof,  jumping  to  the  ground  below. 
Police  Officer  T.  B.  Gwartney,  who  is  still  a  member  of  the  Memphis  police 
force,  was  on  duty  near  the  Graham  residence.  He  saw  a  man  come  running 
out  of  the  yard  bareheaded.  I  forgot  to  mention  that  the  thief  who  ran 
down  the  front  stairs  after  firing  at  Mr.  Graham  dropped  his  hat.  Hearing 
the  shots  and  seeing  the  man  running,  convinced  the  officer  that  a  crime  had 
either  been  committed  or  attempted.  Concealed  behind  a  large  tree  and 
with  the  man  running  towards  him.  Officer  Gwartney  remained  secreted 
until  the  man  was  abreast  of  him  and  stepping  out  from  behind  the  tree  with 


5')-t  PAKT    II.      TESTIMONIAL    EVIDENCE  No.  282. 

pistol  pointed,  he  ordered  the  man  to  hold  up  his  hands.  Taken  by  surprise 
the  thief  did  so,  regartlless  of  the  fact  that  he  had  a  pistol  in  his  pocket. 
The  police  officer  iiaving  him  thus  covered,  took  the  weapon  from  him  and 
forced  him  to  walk  in  front  until  the  Graham  mansion  was  reached.  By 
this  time  tlie  whole  house  was  lighted  up  and  a  few  neighbors  came  upon  the 
scene  attracted  by  the  shooting.  The  prisoner  was  securely  handcufl'ed, 
and  after  learning  the  details  of  the  attempted  robbery  and  murder, 
Officer  Gwartney   brought  his  prisoner  to  Central  Station. 

Captain  O'Haver  was  on  duty  that  night,  it  being  just  after  midnight. 
When  brought  in,  Captain  O'Haver  quickly  identified  the  overcoat  worn  by 
the  thief  as  one  that  was  stolen  from  the  residence  of  Mr.  Abe  Frank,  on 
Poplar  Avenue  only  two  nights  previous,  and  in  his  pocket  was  found  a 
wallet  with  the  name  of  another  citizen  whose  residence  had  been  robbed 
the  previous  night ;  thus  he  was  convinced,  beyond  a  doubt,  that  he  not  only 
had  a  thief,  but  a  would-be  murderer  in  custody.  On  hearing  the  officer's 
statement,  he  began  questioning  the  man,  who  refused  to  divulge  his  name, 
where  he  was  from,  where  he  roomed,  or  who  his  confederate  was  that  was 
seen  with  him  in  the  Graham  residence.  He  was  very  abusive  to  CapUiin 
O'Haver,  so  I  was  informed  the  next  day,  and  that  officer,  finally  concluding 
that  the  Police  Station  proper  was  too  public  a  place  for  him  to  further 
question  the  thief,  took  him  downstairs  into  the  cellar.  What  followed  I 
don't  know.  But  Captain  O'Haver  reported  the  next  day  that  he  finally  suc- 
ceeded in  getting  from  him  where  he  roomed,  the  description  of  his  partner, 
and  also  that  it  was  understood  by  them  in  the  event  they  became  separated 
they  were  to  meet  at  the  Tennessee  House,  which  is  in  the  southern  portion  of 
the  city  of  ^Memphis.  Repairing  there  with  a  full  description  of  the  man 
wanted,  his  arrest  quickly  followed,  as  he  was  found  just  as  the  thief  re- 
ported to  Captain  O'Haver.  It  was  afterwards  learned  that  their  names 
were  Richard  Lawrence  and  James  Johnson,  and  they  were  escaped  con- 
victs from  the  ^Michigan  penitentiary.  They  were  convicted  and  each  sen- 
tenced to  ten  years  in  the  Tennessee  Penitentiary. 

Xow  /  don't  Icnoiv  what  Captain  O'Haver  did  to  secure  the  information 
he  desired.  He  is  here  himself  among  you,  probably  he  will  tell.  But  I 
want  to  say  this  to  the  Association,  as  I  said  to  Captain  O'Haver  the  next 
morning,  whatever  you  did  was  right.  You  acted  (as  you  said)  the  same  as 
you  would  had  you  had  a  rattlesnake  in  your  power  that  could  talk  and 
would  not,  to  make  it  tell  where  its  companion  was,  who  had  attempted  to 
rob  and  murder  an  honored  citizen  of  Memphis.  It  is  just  possible  that  the 
"tiiird  degree"  in  all  its  severity  was  exercised  in  this  particular  case. 
And  I  would  like  to  see  the  member  of  this  Association  who  would  gainsay 
that  Captain  O'Haver  was  not  fully  justified  in  any  measure  he  resorted  to  to 
gain  the  information  he  so  desired.  I  simply  recite  this  case  to  show  that 
at  times  herf)ic  methods  must  be  resorted  to  to  gain  desired  ends.  You  may 
call  it  whatever  you  please,  the  "third  degree"  or  any  other  kind  of  degree, 
i)Ut  it  had  the  desired  effect.  N«)  innocent  man  suffered  and  the  guilty 
parties  were  i>nriish('d. 

282.  AiniiiK  TuAix.  Court.s,  Criminals,  and  the  Camorra.  (1912. 
p.  20.)  .\<>  doubt  the  methods  of  the  inquisition  are  in  vogue  the  world 
over,  under  similar  conditions.      Everybofly  knows  that  a  statement  by 


No.  283.  II.       TESTIMONIAL    PROCESS.       C.    NARRATION  555 

the  accused  immediately  upcn  his  arrest  is  usually  the  most  important 
evidence  that  can  be  secured  in  any  case.  It  is  a  police  officer's  duty  to 
secure  one,  if  he  can  do  so,  by  legitimate  means.  It  is  his  custom  to  secure 
one  by  any  means  in  his  power.  .  .  .  When  it  comes  to  the  more  im- 
portant cases  the  accused  is  usually  put  through  some  sort  of  an  inquisi- 
torial process  by  the  captain  at  the  station  house.  If  he  is  not  very 
successful  at  getting  anything  out  of  the  prisoner,  the  latter  is  turned 
over  to  the  sergeant  and  a  couple  of  officers  who  can  use  methods  of  a 
more  urgent  character.  If  the  prisoner  is  arrested  by  headquarters 
detectives,  various  efficient  devices  to  compel  him  to  "  give  up  what  he 
knows  "  may  be  used  —  such  as  depriving  him  of  food  and  sleep,  placing 
him  in  a  cell  with  a  "  stool-pigeon  "  who  will  try  to  worm  a  confession 
out  of  him,  and  the  usual  moral  suasion  of  a  heart-to-heart  ( ! )  talk  in 
the  back  room  with  the  inspector. 

This  is  the  darker  side  of  the  picture  of  practical  government.  .  .  . 
But  the  writer  is  free  to  confess  that,  save  in  exceptional  cases,  he  be- 
lieves the  rigors  of  the  so-called  "third  degree"  to  be  greatly  exaggerated. 
Frequently,  in  dealing  with  rough  men  rough  methods  are  used.  But  con- 
sidering the  multitude  of  offenders,  and  the  thousands  of  police  officers, 
none  of  whom  have  been  trained  in  a  school  of  gentleness,  it  is  surprising 
that  severer  treatment  is  not  met  with  on  the  part  of  those  who  run  foul 
of  the  criminal  law.  The  ordinary  "  cop  "  tries  to  do  his  duty  as  effec- 
tively as  he  can.  With  the  average  citizen  gruffness  and  roughness  go  a 
long  way  in  the  assertion  of  authority.  Policemen  cannot  have  the 
manners  of  dancing-masters. 

The  writer  is  not  quarreling  with  the  conduct  of  police  officers.  On 
the  contrary,  the  point  he  is  trying  to  make  is  that  in  the  task  of  polic- 
ing a  big  city,  the  rights  of  the  individual  must  indubitably  suffer  to  a 
certain  extent,  if  the  rights  of  the  multitude  are  to  be  properly  protected. 
We  can  make  too  much  of  small  injustices  and  petty  incivilities.  Police 
business  is  not  gentle  business.  The  officers  are  trying  to  prevent  you 
and  me  from  being  knocked  on  the  head  some  dark  night  or  from  being 
chloroformed  in  our  beds.  Ten  thousand  men  are  trying  to  do  a  thirty- 
thousand-man  job. 


283.  W.  M.  Best.  The  Principles  of  the  Law  of  Evidence.  (3d  Amer. 
ed.  1908.  §§.560-573,  in  part.)  All  false  self-criminative  statements  are 
divisible  into  two  classes,  —  those  which  are  the  result  of  mistake  on  the 
part  of  the  confessionalist,  and  those  which  are  made  by  him  in  expecta- 
tion of  benefit.  And  the  former  are  twofold,  —  mistakes  of  fact  and  mis- 
takes of  laiv. 

First,  of  mistakes  oifact.  A  man  may  believe  himself  guilty  of  a  crime  either 
when  none  has  been  committed,  or  where  a  crime  has  been  committed,  but 
by  another  person.  Mental  aberration  is  the  obvious  origin  of  many  such 
confessions.  But  the  actors  in  a  tragedy  may  be  deceived  by  surrounding 
circumstances,  as  well  as  the  spectators.  A  case  has  been  cited  in  a  former 
part  of  this  work  where  a  girl  died  in  convulsions  while  her  father  was  in  the 
act  of  chastising  her  very  severely  for  theft,  and  he  fully  believed  that  she 
died  of  the  beating ;  but  it  afterwards  turned  out  that  she  had  taken  poison 


556  PART    II.      TESTIMONIAL    EVIDENCE  No.  283. 

on  finding  her  crime  detected.  If  the  surgeon  had  not  made  a  post-mortem 
examination,  that  man  would  have  been  indicted  for  homicide,  and  most 
probably  would  have  pleaded  guilty  to  manslaughter,  at  least.   .   .   . 

Next,  as  to  mistakes  of  law.  It  should  never  be  forgotten  that  all  con- 
fessions avowing  delinquency  in  general  terms  are,  more  or  less,  "  confessiones 
juris";  and  this  will  in  a  great  degree  explain  what  to  unreflecting  minds 
seems  so  anomalous,  —  the  caution  exercised  by  British  judges  in  receiving 
a  plea  of  guilty.  The  same  observation  of  course  applies  to  all  extrajudicial 
statements  which  are  not  mere  relations  of  facts.  And  here  one  great  cause 
of  error  is  ignorance  of  the  meaning  of  forensic  terms ;  especially  where  the 
accused,  conscious  of  moral,  is  unaware  that  he  has  not  incurred  Iryal  guilt. 
Thus  a  man  really  guilty  of  fraud  or  larceny  might  plead  guilty  to  a  charge 
of  rol)l)ery,  through  ignorance  that,  in  legal  signification,  the  latter  means 
a  taking  of  property  accompanied  with  violence  to  the  person,  though  it 
is  popularly  used  to  designate  any  act  of  barefaced  dishonesty.  .  .  . 

In  the  other  class  of  false  self-criminative  statements,  the  statement  is 
known  by  the  confessionalist  to  be  false,  and  is  made  in  expectation  of  some 
real  ur  supposed  benefit.  It  is  obviously  impossible  to  enumerate  the  motives 
which  may  sway  the  minds  of  men  to  make  false  statements  of  this  kind. 
First,  many  are  made  for  ease,  and  to  avoid  vexation  arising  out  of  the 
charge ;  and  in  some  of  these  cases  the  cause  of  the  false  statement  is  ap- 
parent ;  viz.  v.hen  it  is  made  to  escape  torture,  either  physical  or  moral. 
In  others  it  is  less  obvious.  Weak  or  timorous  persons,  confounded  at 
finding  themselves  in  the  power  of  the  law,  or  alarmed  at  the  testimony  of 
false  witnesses,  or  the  circumstantial  evidence  against  them  or  distrustful 
of  the  honesty  or  capacity  of  their  judges,  hope  by  an  avowal  of  guilt  to 
obtain  leniency  at  their  hands.  .  .  . 

But  false  self-criminative  statements  also  arise  from  objects  wholly 
collateral,  relating  either  to  the  party  himself  or  to  others.  With  respect 
to  the  first  of  these.  (1)  A  false  confession  of  an  offense  may  be  made  with 
the  view  of  stifling  inquiry  into  other  matters ;  as,  for  instance,  some  more 
serious  offense  of  which  the  confessionalist  is  as  yet  unsuspected.  (2)  The 
most  fantastic  shape  of  this  anomaly  springs  from  the  state  of  mental 
unsoundness  which  is  known  by  the  name  of  "  tsedium  vitse."  Several 
instances  are  to  be  found,  where  persons  tired  of  life  have  falsely  accused 
them.selves  of  capital  crimes,  which  were  either  purely  fictitious,  or  were 
committed  by  others.  In  such  cases  the  maxim  of  the  continental  lawyers, 
"Nemo  auditur  perire  volens"  may  be  applied  with  advantage.  (3)  "In 
the  relation  between  the  .sexes,"  says  Bentham,  when  treating  of  the  subject 
of  false  confessions,  "  may  be  found  the  source  of  the  most  natural  exempli- 
fications of  this,  as  of  .so  many  other  eccentric  flights.  ..."  And  so  sensible 
was  the  canon  law  of  this  country  of  the  danger  of  false  confessions  from  this 
source  that,  as  we  have  seen,  it  would  not  allow  adultery  to  be  proved  (at 
least  for  the  purpose  of  divorce  "a  vinculo  matrimonii  " )  by  the  unsupported 
confession,  judicial  or  extrajudicial  of  the  wife  ...  (4)  "  Vanity,"  ob- 
serves the  jurist  above  quoted,  "  without  the  aid  of  any  other  motive,  has 
been  known  (the  force  of  the  moral  sanction  being  in  these  cases  divided 
against  it.scif)  to  afford  an  interest  strong  enough  to  engage  a  man  to  sink 
himself  in  the  good  oijinion  of  one  part  of  mankind,  under  the  notion  of 
raising  liiiiiscif  in  il,:,t  of  another.  ..."  False  statements  of  this  kind  are 


No.  283.  II.       TESTIMONIAL    PROCESS.       C.    NARRATION  557 

sometimes  the  offspring  of  a  morbid  love  of  notoriety  at  any  price.  The 
motive  that  inckiced  the  adventurous  youth  to  burn  the  temple  of  Ephesus 
would  surely  have  been  strong  enough  to  induce  him  to  declare  himself, 
however  innocent,  the  author  of  the  mischief,  had  it  occurred  accidentally. 
(5)  Instances  may  be  found  of  false  confessions  made  with  a  view  to  some 
specific  collateral  end.  The  Amalekite  who  falsely  accused  himself  of  having 
slain  Saul  presents  an  early  and  authentic  instance.  .  .  .  And  whether 
from  such  morbid  love  of  notoriety,  or  mere  weak-mindedness,  or  a  love  of 
mischief,  it  is  almost  invariably  the  case  that  murders  of  a  specially  horrible 
kind  —  as,  for  instance,  the  Whitechapel  murders  of  prostitutes  in  1888 
and  1889  —  are  followed  by  a  series  of  false  confessions.  .  .  . 

Hitherto  we  have  been  considering  cases  where  the  false  confession  is 
made  with  the  view  of  benefiting  the  confessionalist  himself.  We  now 
proceed  to  those  in  which  other  parties  are  involved.  (1)  The  strongest 
illustrations  of  this  are  where  the  person  who  makes  the  false  confession  is 
desirous  of  hcnrfiting  others;  as,  for  instance,  to  save  the  life,  fortune,  or 
reputation  of,  or  to  avert  suffering  from,  a  party  whose  interests  are  dearer 
to  him  than  his  own.  A  singular  instance  of  this  is  said  to  have  taken 
place  at  Nuremberg,  in  1787,  where  two  women  in  great  distress,  in  order 
to  obtain  for  the  children  of  one  of  them  the  provisions  secured  to  orphans 
by  the  law  of  that  country,  falsely  charged  themselves  with  a  capital  crime. 
They  were  convicted  ;  and  one  was  executed,  but  the  other  died  on  the  scaf- 
fold, through  excitement  and  grief  at  witnessing  the  death  of  her  friend.  .  .  . 
The  less  exalted  motive  of  getting  money  has  sometimes  had  the  same  effect. 
After  the  publication  of  the  third  edition  of  his  work,  the  author  received 
a  letter  on  this  subject  from  Mr.  T.  T.  Meadows,  British  Consul  at  New- 
chwang,  Northern  China.to  the  effect  that  in  China  the  personation  of  crimi- 
nals, and  that  in  cases  involving  capital  punishment,  is  a  well-known  fact. 
"  The  inducement,"  observes  Mr.  Meadows,  "is  not  always  money.  Juniors 
in  families  have  been  known  to  personate  their  criminal  seniors,  and  even 
domestic  slaves  or  serfs  their  guilty  masters  to  whom  they  were  attached." 
The  custom  supplies  the  chief  incident  in  Mr.  James  Payn's  novel  "By 
Proxy."  (2)  The  desire  of  injuring  others  has  occasionally  led  to  the  like 
consequence.  Persons  reckless  of  their  own  fate  have  sought  to  work  the 
ruin  of  their  enemies  by  making  false  confessions  of  crimes  and  describing 
them  as  participators.  We  shall  feel  little  surprise  at  this  when  we  recollect 
how  often  persons  have  inflicted  grievous  wounds  on  themselves,  and  even 
in  some  instances,  it  is  said,  committed  suicide,  in  order  to  bring  down 
suspicion  of  intended  or  actual  murder  on  detested  individuals. 

The  anomaly  of  false  confession  is  not  confined  to  cases  where  there  might 
have  been  a  criminal,  or  corpus  delicti.  Instances  are  to  be  found  in  the  judi- 
cial histories  of  most  countries  where  persons,  with  the  certainty  of  incurring 
capital  punishment,  have  acknowledged  crimes  now  generally  recognized 
as  impossible.  We  allude  chiefly  to  the  prosecutions  for  witchcraft  and 
visible  communion  with  evil  spirits  which,  in  former  ages,  and  especially 
in  the  seventeenth  century,  disgraced  the  tribunals  of  these  realms.  Some  of 
them  present  the  extraordinary  spectacle  of  individuals,  not  only  freely 
(so  far  as  the  absence  of  physical  torture  constitutes  freedom)  confessing 
themselves  guilty  of  these  imaginary  offenses,  with  the  minutest  details 
of  time  and  place,  but  even  charging  themselves  with  having,  through  the 


55S  PART    II.      TESTIMONIAL    EVIDENCE  No.  284. 

demoniacal    aid    thus    a\owed,    committed    repeated    murders    and   other 
heinous  crimes.^ 

The  above  causes  affect,  more  or  less,  every  species  of  confessorial  evi- 
dence. But  extra-judicial,  confessorial  statements,  especially  when  not 
plenary,  are  subject  to  additional  infirmative  hypotheses,  which  are  some- 
times overlooked  in  practice.  These  are  mendacity  in  the  report,  misinter- 
pretation of  the  language  used,  and  incompleteness  of  the  statement.  (1) 
Mendacity.  The  supposed  confessorial  statement  may  be  either  wholly  or 
in  part  a  fabrication  of  the  deposing  witnesses.  And  here  it  should  not  be 
forgotten  that,  of  all  sorts  of  evidence,  that  which  we  are  now  considering  is 
the  most  easy  to  fabricate,  and  however  false,  the  most  difficult  to  confront 
and  expose  by  any  sort  of  counter-evidence,  direct  or  circumstantial.  (2) 
Misifiterpretation.  No  act  or  word  of  man,  however  innocent  or  even 
laudal)le,  is  exempt  from  this.  .  ,  .  Unfounded  inferences  are  sometimes 
drawn  from  words  supposed  to  be  confessorial,  but  which  were  used  with 
reference  to  an  act  not  identical  with  the  subject  of  accusation  or  suspicion  ; 
as  where  a  man  who  has  robbed  or  beaten  another,  hearing  that  he  has  since 
died,  utters  an  exclamation  of  regret  for  having  ill-treated  him.  ...  (3)  The 
remaining  cause  of  error  in  confessorial  evidence  of  this  nature  is  "incom- 
pleteness "  ;  i.e.  where  words,  though  not  misunderstood  in  themselves, 
convey  a  false  impression  for  want  of  some  explanation  which  the  speaker 
either  neglected  to  give,  or  was  prevented  by  interruption  from  giving,  or 
which  has  been  lost  in  consequence  of  the  deafness  or  inattention  of  the 
hearers.  "Ill  hearing  makes  ill  rehearsing,"  said  our  ancestors.  Ex- 
pressions may  have  l)een  forgotten  or  unheeded  in  consequence  of  witnesses 
not  being  aware  of  their  importance  ;  e.g.  a  man  suspected  of  larceny  acknowl- 
edges that  he  took  the  goods  against  the  will  of  the  owner,  adding  that  he 
did  so  because  he  thought  they  were  his  own.  Many  a  bystander,  ignorant 
that  this  latter  circumstance  constitutes  a  legal  defense,  would  remember 
only  the  first  part  of  the  statement. 

284.  THE  HERMIONE  CASE.  (John  Paget.  Judicial  Puzzles. 
]S7(J.   p.  64.) 

Dr.  Southwood  Smith,  in  his  "Lee-  ship  into  an  enemy's  port,  having 
tures  on  Forensic  Medicine,"  after  murdered  the  captain  and  many  of 
observing  how  common  false  self-  the  officers  under  circumstances  of 
inculpative  evidence  is,  gives  some  extreme  barbarity.  One  midship- 
remarkable  instances  in  which  it  man  escaped,  by  whom  many  of 
has  occurred.'  Of  these  the  follow-  the  criminals,  who  were  afterwards 
ing  is  perhaps  the  most  striking:  taken  and  delivered  over  to  justice 
In  the  war  of  the  French  Revolu-  one  by  one,  were  identified.  Mr. 
tion  the  "Hermione"  frigate  was  Finlaison,  the  Government  actuary, 
conunanded  by  Captain  Pigot,  a  who  at  that  time  held  an  official 
harsh  man  and  a  severe  commander,  situation  at  the  Admiralty,  states  : 
His  crew  mutinied,  and  carried  the  "  In    my    own    experience    I    have 

'  See  the  eases  of  Mary  Smith.  2  How.  St.  Tr.  1049  ;  and  of  the  Three  Devon  Witches, 
8  How.  St.  Tr.  1017 ;  the  note  to  the  case  of  the  Bury  St.  Edmond's  Witches,  6  How.  St. 
Tr.  047  ;  and  the  case  of  the  Essex  Witches,  4  How.  St.  Tr.  817,  the  latter  especially.  The 
confessions  of  Anne  Cate,  4  How.  St.  Tr.  S.56,  of  Rebecca  West,  id.  840,  of  Rose  Hally- 
bread.  id.  8.52,  of  Joyce  Boanes,  id.  8.5.3,  and  of  Rebecca  Jones,  id.  854,  arc  among  the 
most  reniarkabh;.  *- 

*  London  Medical  Gazette,  January,  1838, 


No.  285. 


II.       TESTIMONIAL   PROCESS.       C.    NARRATION 


559 


known,  on  separate  occasions,  more 
than  six  sailors  who  vokintarily 
confessed  to  having  struck  the  first 
blow  at  Captain  Pigot.  These  men 
detailed  all  the  horrid  circumstances 
of  the  mutiny  with  extreme  minute- 
ness and  perfect  accuracy ;  never- 
theless, not  one  of  them  had  ever 
been  in  the  ship,  nor  had  so  much  as 
seen  Captain  Pigot  in  their  Jives. 
They  had  obtained,  by  tradition, 
from  their  messmates,  the  particu- 
lars of  the  storv.     When  long  on  a 


foreign  station,  hungering  and  thirst- 
ing for  home,  their  minds  became 
enfeebled ;  at  length  they  actually 
believed  themselves  guilty  of  the 
crime  over  which  they  had  so  long 
brooded,  and  submitted  with  a 
gloomy  pleasure  to  being  sent  to 
England  in  irons  for  judgment. 
At  the  Admiralty  we  were  always 
able  to  detect  and  establish  their 
innocence,  in  defiance  of  their  own 
solemn  asseverations." 


285.    THE   GLOUCESTER  CHILD-MURDER. 

No.  110.1 


[Printed  ante,  as 


286.  THE  CASE  OF  THE  BOORNS.      (American  Criminal  Reports. 
ed.  John  F.  Geeting.     Vol.  XII,  p.  221 ;  Vol.  XV,  p.  223.)^ 


On  the  19th  of  May,  1813, 
Stephen  and  Jesse  Boorn,  with 
Russell  Colvin  and  Lewis  Colvin, 
his  son,  were  seen  in  the  morning, 
by  a  neighbor,  one  Thomas  John- 
son, in  Manchester,  Vermont,  pick- 
ing up  stones  in  a  field.  They  were 
seemingly  in  a  quarrel.  Johnson 
had  a  full  view  of  them,  but  was 
concealed  from  their  sight.  In  the 
course  of  the  quarrel,  according  to 
the  testimony  of  Lewis,  Colvin  first 
struck  Stephen,  who  then  knocked 
the  former  down  with  a  club.  The 
blow  brought  no  blood.  Lewis  ran 
off.  and  neither  he  nor  Johnson  saw 
Colvin  again. 

The  sudden  departure  of  Colvin 
excited  at  the  time  some  inquiry 
as  to  what  had  become  of  him.  As 
he  was,  however,  in  the  habit  of 
mysteriously  absenting  himself, 
sometimes  for  months  together, 
being  occasionally  in  a  state  of 
mental  derangement,  it  was  sup- 
posed by  his  friends  and  neighbors 
that  he  would  shortly  return.  There 
were,  however,  some  vague  sus- 
picions that  this  time  he  had  been 
murdered.  They  arose  from  the 
fact  of  the  quarrel,  and  from  contra- 
dictory declarations  by  the  Boorns 
in  regard    to  his   disappearance   or 


death.  These  circumstances  were 
not  deemed  sufficient,  however,  to 
warrant  their  arrest.  They  both 
remained  unmolested  in  the  village 
until  1818,  when  Stephen  removed 
to  Denmark,  in  New  York,  making 
a  visit  to  Manchester  in  the  winter 
of  1818-1819. 

Probably  these  men  would  never 
have  been  brought  to  trial,  if  an 
uncle  of  theirs  had  not,  sometime  in 
1819,  dreamed  that  Colvin  came  to 
his  bedside  and  declared  that  he  had 
been  murdered,  and  that  the  uncle 
must  follow  the  ghost,  who  would 
lead  him  to  the  spot  where  the  body 
lay.  This  dream  being  repeated  three 
times,  was  finally  attended  to. 
Search  was  made  in  the  place  indi- 
cated, being  where  a  house  had 
formerly  stood.  Under  the  house 
was  a  hole  about  four  feet  sciuare, 
made  for  the  purpose  of  burying 
potatoes,  but  filled  up  at  the  time 
of  the  search.  The  pit  was  opened, 
and  only  a  large  knife,  a  penknife, 
and  a  button  found  in  it.  Mrs. 
Colvin  accurately  described  these 
articles  previously  to  their  being 
shown  to  her ;  and  having  seen 
them,  declared  the  large  knife  and 
the  button  to  have  belonged  to  her 
husband.     This    wonderful    dream. 


1  The  citations  of  the'  original  accounts  of  this  case  are  fully  given  in  Mr.  Geeting's 
notes.  —  Ed. 


563 


PAUT    II.      TESTIMONIAL   EVIDENCE 


No.  2SG. 


as  near  as  we  can  learn,  took  place 
in  April,  1819.  It  created  a  great 
sensation  in  the  neighborhood,  and 
was  deemed  by  many  as  a  providen- 
tial interference  for  the  detection 
of  the  murdered.  Immediate  search 
was  thereupon  made  for  the  body 
of  Colvin,  concerning  whose  nuirder 
by  the  Boorns  no  doubt  now  existed. 
Toward  the  end  of  April,  1819,  on 
the  strength  of  this  dream,  Jesse 
Boom  \Yas  arrested  in  Manchester. 
His  examination  was  commenced 
on  the  27th  of  April,  during  which 
day,  as  well  as  on  the  three  following, 
search  was  unsuccessfully  made 
for  the  body  of  Colvin.  The  ghost 
had  played  them  false.  It  was  not 
to  be  found  in  the  pit  indicated,  nor 
in  any  other  place  ingenuity  could 
assign.  Still,  so  strong  was  popular 
belief  in  the  honesty  of  their  myste- 
rious informant,  that  no  one  ques- 
tioned his  truth.  Two  pieces  of 
bone  were  found  in  a  hollow  stump, 
which  were  pronounced  to  be  the 
nails  of  a  human  toe  —  a  cluster  of 
bones  was  found  in  the  same  place. 
Several  physicians  thought  them 
human  —  only  one  thought  other- 
wise. In  order  to  determine  this 
matter  conclusively,  they  dug  up 
a  leg,  which  had  been  amputated 
from  a  man  about  four  years  pre- 
viously, and  upon  comparing  the 
two  sets  of  bones,  it  was  unan- 
imously determined  that  the  set  first 
found  did  not  belong  to  the  hunum 
race. 

But  peoj)le  would  not  admit  the 
fallibility  of  their  ghost,  especially 
as  the  ijones  first  found  were  dis- 
covered by  the  agency  of  a  dog,  in 
the  most  approved  mode  of  canine 
sagacity.  It  was  therefore  sur- 
miserl  that  the  body  had  been 
burnt,  and  some  parts  not  consinned 
cast  into  the  stump  and  other  boiu^s 
put  amongst  them  for  decei)ti()ii. 
This  surmise  gained  strength  from 
the  fact  that  shortly  after  the  dis- 
appearance of  Colvin,  a  barn  belong- 
ing to  the  dreamer  was  accidentally 
consumed  by  fire,  and  al)out  the 
same  time  a  log  heaj)  was  burnt   l)y 


the  Boorns  near  the  place  where  the 
ghost  said  the  body  was  to  be  found. 

l^pon  the  examination  of  Jesse, 
the  magistrate  allowed  none  of  this 
stuff  to  be  given  in  evidence.  The 
facts  relied  on  were,  the  disappear- 
ance and  continued  absence  of  Col- 
vin, the  quarrel,  and  the  contradic- 
tions and  observations  before  alluded 
to.  These  circumstances  were 
deemed  insufficient  to  warrant  his 
detention.  He  was  accordingly  on 
the  eve  of  being  discharged  when 
he  stated  to  some  of  the  myrmidons 
of  the  jail,  "that  the  first  time  he 
had  an  idea  that  his  brother  Stephen 
had  murdered  Colvin,  was  when  he 
was  here  last  winter ;  he  then  stated 
that  he  and  Russell  were  hoeing 
in  the  Glazier  lot ;  that  there  was  a 
quarrel  between  them  ;  that  Colvin 
attempted  to  run  away;  that  he 
struck  him  with  a  club  or  stone  on 
the  back  part  of  his  head  or  neck, 
and  had  fractured  his  skull,  and 
supposed  he  was  dead.  That  he 
could  not  tell  what  had  become 
of  the  body."  He  mentioned  many 
places  where  it  might  be  found. 
Search  was  accordingly  made,  but 
to  no  purpose. 

A  warrant  was  immediately  issued 
for  the  apprehension  of  Stephen, 
who  was  committed  to  jail  on  the 
15th  of  May.  He  strongly  as- 
serted his  innocence,  and  was  severe 
upon  Jesse  for  making  the  confes- 
sion. The  latter,  after  an  inter- 
view with  Stephen,  retracted  all  he 
had  said,  declaring  the  whole  to  be 
false.  They  were,  however,  com- 
mitted to  take  their  trial  before  the 
Supreme  Court  of  Vermont,  to  be 
holden  in  Manchester,  in  September, 
1819.  During  the  time  of  their 
imprisonment,  before  the  trial,  they 
were  frequently  visited  by  a  clergy- 
man. "They  evinced  no  contri- 
tion," but  persisted  in  solemnly 
declaring  their  innocence.  At 
length,  in  October,  1819,  they  were 
brought  to  trial,  but  such  was  the 
excitement  against  them  that  it 
was  difficult  to  get  a  panel,  almost 
every   one    in    the    vicinity   having 


No.  2S6. 


II.       TESTIMONIAL    PROCESS.       C.    NARRATION 


561 


expressed  his  opinion  against  the 
prisoners. 

Upon  the  trial,  about  fifty  wit- 
nesses were  examined  ;  the  principal 
testimony  was  as  follows  : 

Thomas  Johnson,  sworn.  I  was 
a  neighbor  to  the  Boorns  and  Colvin. 
In  the  early  part  of  the  month  of 
May,  seven  years  ago,  last  spring, 
I  saw  one  morning,  Stephen  Boorn, 
Jesse  Boorn,  Russell  Colvin,  and  his 
son  Lewis  Colvin,  picking  up  stones. 
They  appeared  to  be  in  a  quarrel. 
I  had  a  full  view  of  them,  al- 
though they  could  not  see  me. 
I  have  never  seen  Russell  Colvin 
since.  Stephen  said  he  was  not 
in  the  field  picking  stones  at  the 
time  Russell  went  off,  but  that  he 
went  oiT  at  that  time.  Jesse,  while 
in  imprisonment,  told  me  that  he 
was  assisting  in  shoeing  an  horse, 
when  Russell  went  oflF.  Stephen 
said  the  woodchuck  they  had  for 
dinner  the  day  Russell  went  off 
was  killed  by  him,  when  mending 
fence  for  a  Mr.  Hammond.  Having 
purchased  the  land  where  this 
quarrel  took  place,  the  children 
found  and  brought  home  an  old 
moldy  rotten  hat  —  I  knew  it  to  be 
the  hat  of  Russell  Colvin.  In  the 
cellar  hole  stood  a  thrifty  apple 
tree  about  three  feet  high,  which  was 
taken  away  the  season  after  I 
noticed  it. 

Lewis  Colvin  (son  of  Russell  Col- 
vin), sworn.  He  said  that  at  the 
time  Russell  went  off,  he  was  pick- 
ing stones  with  him,  and  Stephen 
and  Jesse  Boorn  —  that  a  quarrel 
arose  between  Stephen  and  Russell 

—  that  Russell  struck  Stephen  first 

—  that  Stephen  knocked  Russell 
down  with  a  club,  and  that  he  (the 
witness)  ran  away,  and  saw  no 
blood  —  that  Stephen  told  him  not 
to  tell  that  he  struck  Russell  —  that 
he  had  never  seen  Russell  since. 

It  appeared  from  the  testimony 
of  many  witnesses  that  a  jackknife 
and  a  button  was  found  in  the  old 
cellar  hole  which  were  recognized 
as  having  once  belonged  to  Russell 
Colvin  —  that  he  had  occasionallv 


absented  himself  from  his  family, 
and  was  at  times  in  a  state  of  mental 
derangement  —  that  bones  had  been 
found,  which  by  some  were  sup- 
posed to  be  human  bones,  but  which 
appeared,  from  the  most  conclusive 
evidence,  not  to  be  human  bones. 

Truman  Hill,  sworn.  He  stated 
that  he  had  the  keys  of  the  prison 
in  which  the  Boorns  were  im- 
prisoned —  that  he  exhorted  Jesse 
to  tell  the  truth,  and  that  if  he  told 
a  falsehood  it  would  increase  his 
trouble  —  that  he  confessed  that 
he  was  afraid  that  Stephen  had  mur- 
dered Colvin,  and  that  he  believed 
he  knew  very  near  where  the  body 
was  buried  —  that  when  the  knife 
and  the  hat  of  Colvin  were  shown 
him,  he  was  much  agitated.  He 
said  he  urged  Jesse  to  confess  noth- 
ing but  the  truth. 

Sally  Colvin  (wife  of  Russell  Col- 
vin, and  sister  to  the  Boorns) 
stated  that  about  four  years  since 
Stephen  said  I  could  swear  the 
child  with  which  I  was  pregnant, 
for  he  knew  that  Colvin  was  dead. 
Jesse  also  said  that  I  could  swear  it. 

Daniel  D.  Bcddicin,  and  Mrs. 
Baldwin  to  the  same  effect  said 
that  about  three  years  since,  Stephen 
told  them  that  Colvin  went  off  in 
a  strange  manner  into  the  woods 
at  the  time  he,  Jesse,  Colvin,  and 
Lewis  were  picking  stones  —  that 
Lewis  had  gone  for  drink,  and  when 
he  asked  them  where  Colvin  was 
gone  ?  one  answered,  gone  to  hell ; 
the  other  that  they  had  put  him 
where  potatoes  would  not  freeze. 

Numerous  witnesses  testified  to 
the  contradictory  declarations  of 
the  Boorns  in  regard  to  the  disap- 
pearance or  death  of  Colvin.  The 
testimony  of  Silas  Merrill  to  the 
confession  of  Jesse  Boorn  was  as 
follows  : 

Silas  Merrill,  sworn.  Testified 
that  as  Jesse  was  returned  to  prison 
from  time  to  time  from  the  court  of 
inquiry,  that  he  had  been  urged  to 
confess  ;  that  one  night  in  the  prison 
we  got  up,  and  Jesse  said  that 
Stephen  knocked  Colvin  down  twice, 


562 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  286. 


broke  his  skull,  and  the  hlood 
crushed  out ;  that  his  father  came 
up  there  several  times,  and  asked 
if  he  was  dead,  and  said,  damn  him  ; 
that  all  three  of  us  took  the  body 
and  put  it  into  the  old  cellar,  where 
father  cut  his  throat ;  that  he  knew 
the  jackknife  to  be  Colvin's;  that 
Stephen  wore  Colvin's  shoes ;  that 
about  a  year  and  an  half  after, 
they  took  up  the  bones ;  put  them 
under  a  barn  that  was  burned ; 
then  pounded  them  up  and  tinuj; 
them  into  the  river;  that  father 
put  some  of  them  into  a  stump,  etc. 

The  following  written  confession 
of  Stephen,  made  Aug.  27,  1S19, 
was  rejected  by  the  Court ;  but  as 
its  contents  were  alluded  to  by  oral 
testimony,  it  was  introduced  by  the 
prisoner's  counsel. 

Stephen  Boom.  "May  the  10th, 
1812,  I,  about  9  or  10  o'clock, 
went  down  to  David  Glazier's 
bridge  and  fished,  ilown  below 
Uncle  Xathanial  Boom's,  and  then 
went  up  across  their  farms,  where 
Lewis  and  Russell  was,  being  the 
nighest  way,  and  set  down  and 
began  to  talk,  and  Russell  told  me 
how  many  dollars  benefit  he  had 
been  to  father,  and  1  told  him  he 
was  a  damned  fool ;  and  he  was  mad, 
and  jumped  up,  and  we  sat  down 
close  together,  and  I  told  him  to  sit 
down,  you  little  tory ;  and  there 
was  a  piece  of  beech  limb  about  two 
feet  long,  and  he  catched  it  up  and 
struck  at  my  head  as  I  sat  down ; 
and  I  jumped  up,  iind  it  struck  me 
oil  one  shoulder,  and  I  catched  it 
out  of  his  hand,  an;!  struck  him  a 
back-handed  1)1()W,  I  being  on  the 
north  side  of  him ;  and  there  was 
a  knot  on  it  about  one  inch  long. 
As  I  struck  him,  I  did  think  I  hit 
him  on  his  back ;  and  he  stooped 
down ;  and  that  knot  was  broken 
off  sharp,  and  it  hit  him  on  the  l)ack 
of  the  neck,  dose  in  his  hair ;  and 
it  went  in  about  half  of  an  inch  on 
that  great  cord;  and  he  fill  down; 
and  then  I  told  the  boy  to  go  down, 
and  come  up  with  his  uncle  John; 
and    he   asked    me    if    I    had    killed 


Russell,  and  I  told  him  no,  but  he 
must  not  tell  we  struck  one  another. 
And  I  told  him  when  he  got  away 
down,  Russell  was  gone  away ; 
and  I  went  back  and  he  was  dead ; 
and  then  I  went  and  took  him  and 
put  him  in  the  corner  of  the  fence 
by  the  cellar  hole,  and  put  briers 
over  him  and  went  home,  and  went 
down  to  the  barn  and  got  some 
boards,  and  when  it  was  dark  I 
went  down  and  took  a  hoe  and 
boards  and  dug  a  grave  as  well  as 
1  could,  and  took  out  of  his  pocket 
a  little  Barlow  knife,  with  about 
half  of  a  blade,  and  cut  some 
bushes,  and  put  on  his  face  and  the 
boards,  and  put  in  the  grave  and 
put  him  in,  four  boards  on  the  bot- 
tom and  on  the  top,  and  t'other 
two  on  the  sides,  and  then  covered 
him  up,  and  went  home,  crying 
along,  but  I  warn't  afraid  as  I 
know  on.  x\nd  when  I  lived  to 
William  Boom's  I  planted  some 
potatoes ;  and  when  I  dug  them  I 
went  there,  and  something  I  thought 
had  been  there,  and  I  took  up  his 
bones  and  put  them  in  a  basket, 
and  took  the  boards  and  put  on 
my  potato  hole,  took  the  basket 
and  my  hoe,  and  went  down  and 
pulled  up  a  plank  in  the  stable 
floor,  and  then  dug  a  hole,  and  then 
covered  him  up,  and  went  into  the 
house  and  told  them  I  hatl  done 
with  the  basket ;  and  took  back  the 
shovel,  and  covered  up  my  potatoes 
that  evening.  And  then,  when  I 
lived  under  the  West  mountain, 
Lewis  came  and  told  me  that 
father's  bam  was  burnt  up ;  the 
next  day,  or  the  next  day  but  one,  I 
came  down  and  went  to  the  barn, 
and  there  was  a  few  bones ;  and 
when  they  was  to  dinner,  I  told 
them  I  did  not  want  any  dinner,  and 
went  and  took  them,  and  they 
warn't  only  a  few  of  the  biggest  of 
the  bones,  and  throwed  them  in  the 
river  above  Wy man's,  and  then 
went  back,  and  it  was  done  quick 
too,  and  then  was  hungry  by  that 
time,  and  then  went  home,  and  the 
next    Sunday    I    came    down    after 


No.  2S6. 


II. 


TESTIMONIAL    PROCESS.       C.    NARRATION 


563 


money  to  pay  the  boot  that  I  gave 
to  boot  between  oxens ;  and  went 
out  there  and  scraped  up  them  Httle 
things  that  was  under  the  stump 
there,  and  told  them  I  was  going 
to  fishing,  and  went,  and  there  was 
a  hole,  and  I  dropped  them  in,  and 
kicked  over  the  stuff,  and  that  is  the 
first  anybody  knew  it,  either  friends 
or  foes,  even  my  wife.  All  these  I 
acknowledge  before  the  world." 

The  body  of  Colvin  was  not 
found,  nor  anything  approaching 
nearer  to  it  than  the  toenails.  The 
confessions  had  been  the  result  of 
much  solicitation.  Jesse  was  told 
that  if  he  would  confess  the  facts, 
it  would  probably  be  the  means  of 
clearing  him.  It  appeared  in  evi- 
dence that  several  had  promised 
to  sign  for  their  pardon  if  they 
would  confess ;  at  the  same  time 
telling  them  that  there  was  no  doubt 
they  would  be  convicted  upon  the 
testimony  that  was  then  against 
them.  The  jury,  after  a  trial  oc- 
cupying five  days,  a  "short,  judi- 
cious and  impressive  charge"  from 
Mr.  Justice  Doolittle,  and  a 
"lengthy  and  appropriate  one" 
from  Mr.  Chief  Justice  Chase, 
rendered  a  verdict  of  guilty  against 
both  the  prisoners.  They  were 
accordingl}^  sentenced  to  be  executed 
on  the  2Sth  of  January,  1820. 

So  much  distress  was  manifested 
by  these  men  upon  learning  their 
fate,  that  the  usual  reaction  almost 
immediately  took  place  in  the  public 
mind.  Notwithstanding  their  con- 
fessions, they  now  vehemently  as- 
serted their  innocence.  A  petition 
was  presented  to  the  legislature 
for  a  commutation  of  punishment, 
which  was  granted  to  Jesse,  but 
refused  to  Stephen.  The  former 
was  accordingly  carried  to  the  State 
prison  on  the  29th  of  October. 
Stephen  remained  in  the  "inner 
dungeon"  of  the  jail  with  "heavy 
chains  on  his  hands  and  legs,  being 
also  chained  to  the  floor."  During 
his  confinement  his  agony  is  de- 
scribed as  extreme.  He  was  un- 
willing to  die,  both  on  his  own  and 


his  family's  account,  and  vehemently 
protested  his  entire  innocence. 

A  clergyman,  Lemuel  Haynes, 
who  visited  him  in  prison,  reported  : 
"  I  visited  him  frequently  with 
sympathy  and  grief,  and  endeavored 
to  turn  his  mind  on  the  things  of 
another  world ;  telling  him  that 
as  all  human  means  failed,  he  must 
look  to  God  as  the  only  way  of 
deliverance.  I  advised  him  to  read 
the  holy  scriptures,  to  which  he  con- 
sented, if  he  could  be  allowed  a 
candle,  as  his  cell  was  dark ;  this 
request  was  granted ;  and  I  often 
found  him  reading.  He  was  at 
times  calm ;  and  again  impatient. 
The  interview  I  had  with  him  a  few 
days  before  the  news  came  that  it 
was  likely  that  Colvin  was  alive, 
was  very  affecting.  He  says  to  me, 
'  Mr.  Haynes,  I  see  no  way  but  I 
must  die  ;  everything  works  against 
me ;  but  I  am  an  innocent  man ; 
this  you  will  know  after  I  am  dead.' 
He  burst  into  a  flood  of  tears,  and 
said,  'What  will  become  of  my 
poor  wife  and  children ;  they  are 
in  needy  circumstances,  and  I  love 
them  better  than  life  itself.'  I  told 
him  God  would  take  care  of  them. 
He  replied  :  '  I  don't  want  to  die.  I 
wish  they  would  let  me  live  even 
in  this  situation,  some  longer ; 
perhaps  something  will  take  place 
that  will  convince  people  that  I 
am  innocent.'  " 

Whatever  may  have  been  public 
opinion  on  their  conviction,  it  was 
shortly  changed,  for  on  the  22d  of 
December,  1819,  the  murdered  man 
was  brought  alive  to  Manchester! 
The  reaction  in  favor  of  the  Boorns 
was  now  excessive.  Stephen,  sen- 
tenced to  be  hung,  was  released 
amidst  the  congratulations  of  the 
crowd  and  the  peal  of  artillery. 
Jesse,  then  at  hard  labor  in  the 
State  prison,  was  forced  to  wait 
the  slower  process  of  a  regular  dis- 
charge. Both  became  the  heroes 
of  the  moment,  and  enjoyed,  as  a 
slight  recompense  for  their  months 
of  agony,  the  sympathy  of  their 
former    persecutors. 


564 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  287. 


It  appeared  that  when  Colvin 
left  his  native  town,  he  went  to 
Dover,  in  New  Jersey,  and  resided 
in  a  state  of  harmless  mental  de- 
ran<rement  in  the  family  of  a  Mr. 
Poliianuis,  durinji  the  whole  time 
of  his  al)sence.  The  brother-in-law 
of  Mr.  Polhamus,  a  Mr.  Chadwick, 
who  lived  at  a  distance  of  forty 
miles  from  Dover,  seeing  an  account 
of  the  trial  of  the  Boorns  in  the 
"  Evening  Post."  which  paper  he  was 
not  in  the  hahit  of  reading,  and  had 
iaiccn  up  at  that  time  by  the  merest 
apparent  accident,  had  an  idea  that 
the  resident  in  Mr.  P.'s  house  was 
the  man  for  whose  supposed  mur- 
der the  Boorns  were  indicted. 
Under  this  impression  he  puhlished 
a  letter,  in  which,  as  we  suppose  — 
for  we  have  never  seen  the  letter 


nor  any  intimation  of  its  contents  — 
he  stated  his  suspicions  that  his 
hrother-in-law's  guest  was  the 
supposed  murdered  man.  This  sus- 
picion was  communicated  to  a  Mr. 
Wlielpley,  of  INew  York,  formerly 
of  Manchester,  and  well  acquainted 
with  Colvin.  Mr.  Whclpley  went 
to  New  Jersey  in  quest  of  Colvin, 
and  being  convinced  of  his  identity 
brought  him  to  Manchester.  Thus, 
by  what  may  be  considered  almost 
a  direct  interposition  of  Divine 
Providence,  two  innocent  men  were 
restored  to  society ;  and,  at  least 
in  one  instance,  it  was  satisfactorily 
proved,  that  law^yers  may  under- 
take the  defense  of  "atrocious 
criminals"  against  the  clearest  con- 
viction of  the  people,  with  truth, 
honesty,  and  justice  on  their  side. 


287.    MRS.  MORRIS'S  CASE. 

the  Autohiugraphy  of  a  Police  Magistr 

. . .  One  day,  just  as  I  w'as  about 
to  leave  the  Court,  a  charge  was 
brought  in  of  larceny  from 
"Whiteley's  shop,  in  the  Westbourne 
Grove.  The  accused  was  a  young 
girl,  slight  and  graceful,  and  daintily 
dressed.  Her  face  was  buried  in 
her  hands,  and  she  was  evidently 
deeply  distressed.  A  detective 
officer  stepped  into  the  witness  box 
and  quickly  informed  me  that  the 
prisoner  hafl  been  seen  to  put  some 
shoes  into  her  pocket  without  paying 
for  them,  and  that  she  had  been 
arrested  as  she  left  the  shop.  The 
shoes  were  of  small  value,  but  there 
seemed  little  d()ul)t  tliat  they  had 
been  feloniously  taken.  I  granted 
a  remand,  admitting  the  prisoner 
to  bail,  but  it  was  many  w-eeks  be- 
fore she  w^as  able  to  attend  the 
court.  When  she  did  appear  her 
counsel  explained  that  she  had  been 
seriously  ill  from  shock,  and  suifered 
acutely.  With  regard  to  the  charge, 
she  had  no  (h-fcnse  to  olVer,  and  could 
only  throw  herself  on  the  mercy  of 
the  Court.  It  was  not  diflicult  to 
be  merciful  in  such  a  case;  indeed, 
to  be  merciful   was   to  be  just.     I 


(A.  C.  Plow'DEN.  Grain  or  Chaff; 
ate.  1903.  p.  269.) 
felt  she  had  been  punished  enough, 
and  I  allow^ed  her  to  be  discharged 
on  her  recognizances  to  come  up 
for  judgment  if  required. 

Four  years  after,  I  noticed  sitting 
in  the  court  a  young  woman, 
charmingly  dressed,  whom  I  had 
no  difficulty  in  recognizing  as  the 
same  who  had  stolen  the  things 
from  Whiteley's.  She  was  seated 
so  as  to  be  almost  opposite  to  me, 
and  she  appeared  desirous  of  at- 
tracting my  attention.  Presently 
a  letter  was  handed  up  to  me,  in 
Avhich,  after  recalling  herself  to 
my  memory,  she  went  on  to  say 
that  I  had  saved  her  life  by  not 
sending  her  to  prison.  She  was 
sure,  therefore,  I  would  not  refuse 
the  small  favor  she  wished  to  ask, 
which  was  that  she  might  attend 
the  court  daily  in  the  hope  of  being 
of  some  service  to  any  of  her  sex 
who  might  be  in  trouble.  Now 
that  she  knew  w'hat  it  was  to  stand 
in  a  dock  charged  with  crime,  her 
heart  went  out  to  any  woman  in 
the  same  position,  and  she  longed 
to  be  of  use.  I  readily  acceded  to 
her  request,   and  for  a  few  weeks 


No.  287. 


II.       TESTIMONI.A.L    PROCESS.       C.    NARRATION 


5G5 


the  graceful  little  figure  brightened 
the  court  with  her  presence,  like 
a  sunbeam.  She  appeared  very 
busy  with  her  notes,  and  seemed  to 
take  an  intelligent  interest  in  the 
work  she  had  undertaken.  .  .  . 

[After  a  while,  she  ceased  to  at- 
tend the  coiu't.]  \Yithin  a  fort- 
night the  poor  girl  had  committed 
suicide  by  throwing  herself  out  of 
a  window.  From  a  report  which 
I  had  read  in  the  newspapers  it 
appeared  that  she  had  been  taken 
ill  with  influenza,  which  had  affected 
her  brain  —  never,  I  imagine,  too 
strong.  And  so  ended  her  tragic 
little  life.  She  was  not  strong 
enough,  poor  child,  to  fight  the 
world's   battle   alone.  .  .  . 

Mrs.  Morris,  for  that  was  her  name 
(she  was  a  widow,  and  not  the  young 
girl  I  supposed),  possessed  very 
decided  traits  of  character.  I  am 
indebted  to  Mr.  W.  T.  Stead,  who 
knew  her  perhaps  better  than  any 
one  else,  for  particulars  of  her  life 
and  history,  which  have  interested 
me  greatly.  She  appears  to  have 
been  intelligent,  brave,  and  self- 
willed,  with  a  full  share  of  the  vanity 
of  her  sex.  Her  personal  courage 
amounted  almost  to  heroism.  I 
am  told  that  in  her  crusading  zeal 
for  philanthropic  causes  which  she 
had  at  heart,  she  would  venture 
into  the  worst  slums  of  the  East 
End,  by  night  as  well  as  by  day, 
quite  careless  of  any  personal  risk 
that  she  might  run.  The  death 
of  her  husband  left  her  heartbroken, 
and  was  followed  by  a  complete 
breakdown  of  her  health,  attended 
by  morbid  symptoms  which  prob- 
ably had  much  to  say  to  her  sub- 
sequent suicide.  Nevertheless,  she 
was  able  to  leave  behind  her  an  un- 
published autobiography,  written 
with  great  vivacity  and  frankness. 
The  incident  which  brought  her 
into  the  Marylebone  Police  Court 
evidently  aft'ected  her  whole  life. 
The  shock  of  the  accusation  was 
followed  by  an  illness  of  which 
catalepsy  was  only  one  of  the  symp- 
toms,  and    which  brought    her  to 


death's  door.  She  was  affectionately 
nursed  by  kind  friends,  and  on  her  re- 
covery was  persuaded  to  accept  an 
offer  of  marriage  from  a  young  and 
impressionable  doctor  who  had  at- 
tended her  throughout  with  no  less 
devotion  than  skill.  But  she  was 
never  able  to  get  out  of  her  mind  the 
horror  and  disgrace  of  being  regarded 
as  a  thief.  It  colored  her  thoughts 
incessantly,  whether  she  was  raving 
with  delirium  or  struggling  towards 
convalescence.  As  the  day  ap- 
proached when  she  would  have  to  ap- 
pear in  Court  she  determined  on  sui- 
cide in  one  form  or  another  rather 
than  demean  herself  by  going  before 
the  magistrate.  Finally,  when  the 
terrible  trial  was  over,  and  happiness 
seemed  to  be  within  her  reach,  an  un- 
guarded remark  by  her  lover,  reflect- 
ing as  she  thought  on  her  character, 
stung  her  as  so  intolerable  that  she 
broke  off  the  engagement  and  com- 
mitted suicide,  leaving  a  letter  behind 
her  to  explain  her  conduct.  .  .  . 

I  have  taken  the  following  ex- 
tracts from  her  "Life":  "I  then 
left  the  shop,  and  had  just  passed 
into  the  street,  and  was  thinking 
how  delightful  the  fresh  air  was 
and  how  frightfully  weak  and  tired 
I  felt,  when  a  shop  walker  caught 
hold  of  my  arm  and  asked  to  see  my 
bills.  I  showed  them  to  him,  but  he 
did  not  seem  satisfied,  and  he  asked 
me  if  I  would  step  into  the  manager's 
room.  'Certainly,  if  you  wish  it,' 
I  answered.  Then  they  took  all 
my  things  away  from  me,  and  I, 
too  weary  and  headachy  to  care 
what  they  did,  sank  down  on  the 
nearest  chair  almost  exhausted.  I 
noticed  that  they  spread  the  bills 
out  on  the  table,  and  compared 
each  article  with  them,  and  calling 
in  several  men,  had  a  discussion  in 
an  undertone,  which  I  either  did 
not  hear,  or  do  not  remember. 
But  very  shortly  one  of  them  turned 
to  me  and  said, 

" '  Where  did  you  get  this  pair  of 
shoes  ? ' 

'"I  brought  them  in  to  change,'  I 
said. 


566 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  2S7. 


"'Xo,'  lie  said,  'you  stole  them  I' 
" '  I  stole  them  ! '  I  repeated  after 
him,  with  wide-open  eyes ;  '  what 
do  you  mean?'  these  awful  words 
quite  takinj;  away  my  headache 
for    the    instant. 

"'Yes,'    he    repeated;     'you    de- 
liberately stole  them.     Mr. saw 

you  put  them  into  your  l)afi,  and 
you  wrapped  this  pair,'  pointing 
to  a  tiny  pair  of  .satin  ones  without 
any  heels,  and  marked  one  shilling. 
The  same  man  then  asked  me  my 
name  and  address,  while  the  others 
all  seemed  to  be  laughing,  as  if  a 
great  joke  were  going  on.  I  was 
bewildered  to  madness,  all  that  I 
know  is  that  I  refused  to  give  it, 
telling  them  '  it  was  no  ))usiness 
of  theirs.  If  they  had  anything 
against  me  they  could  punish  me 
as  much  as  ever  they  liked,  but  I 
would  not  allow  them  to  bring  dis- 
grace or  discredit  on  the  people  I 
loved  —  the  sweet  mother  and  sis- 
ters who  had  been  so  good  to  me.' 
They  say  I  added  in  an  undertone, 
'You  may  send  me  to  prison,  kill 
me  if  you  like,  life  is  not  worth 
living ;  but  you  shall  not  bring  dis- 
credit on  my  people.'  Then  I 
dimly  recollect  half  a  dozen  cruel 
looking  men  saying,  'She  won't 
give  her  name,  won't  she  ?  that  looks 
fishy  I  You'd  better  search  her,' 
said  the  ringleader  of  my  tormen- 
tors. So  they  either  turned  out 
my  pockets,  or  made  me  do  so,  but 
they  only  discovered  a  handkerchief, 
my  notebook  —  chiefly  full  of  my 
own  poetry,  which  they  must  have 
kept,  for  I  never  saw  it  again  —  and 
a  paper  bag  containing  several 
greengages  which  was  marked 
'So\ithend,'  from  which  they  con- 
cluded that  I  lived  down  there,  for 
they  talked  a  great  deal  aliout  it. 
After  that  I  <lo  not  remember  any- 
thing, for  a  dreamy  sense  of  the  un- 
reality of  life  beset  me,  anfl  my  mind, 
as  regards  anything  that  really 
happened,  is  a  perfect  blank.  To 
make  my  whole  story  understood,  I 
must  now  tell  it,  not  from  my  own 
memory,  but  from  what  1  liave  since 


been  told  by  kind  friends,  and  what 
I  have  gathered  from  newspaper 
accounts. 

"  It  seems  that  Mr.  Whiteley's  as- 
sistants, after  thoroughly  convincing 
themselves  that  I  was  a  'thief,'  in 
spite  of  my  offering  them  eight 
pounds  for  the  shoes,  and  seeing  that 
I  then  possessed  thirty  shillings  in 
my  purse,  which  would  have  en- 
abletl  me  to  buy  them  several  times 
o\er  had  I  wished  to  do  so,  sent  for 
a  policeman  and  gave  me  in  charge. 
They  say  I  did  not  raise  the  slightest 
objection,  until  he  proposed  to  put 
handcuffs  on  me,  then  I  began  to 
rave  and  storm,  until  quite  suddenly 
my  whole  manner  changed,  and  as 
the  policeman  subsequently  told  me, 
I  became  as  meek  as  a  lamb.  .  .  . 
On  my  arrival  at  Marylebone  Police 
Court,  I  was  told  that  I  should  be 
locked  up  in  a  dark  cell,  until  I  gave 
my  name  and  address.  .  .  . 

"They  then  took  me  before  a 
magistrate,  and  charged  me  with 
stealing  two  pairs  of  shoes  valued 
one  at  ten  shillings  and  the  other  at 
a  shilling.  He  then  asked  me  if  I 
pleaded  guilty.  It  is  recorded  —  for 
I  remember  nothing  of  all  this  — 
that  I  answered  in  a  very  excited 
voice  and  manner,  trembling  so 
violently  all  the  while  that  I  shook 
the  dock.  '  If  they  said  I  had  taken 
them,  it  must  be  so,  although  I 
knew  nothing  of  it.  If  so,  I  suppose 
I  must  have  done  it  on  a  sudden 
impulse,  for  I  certainly  did  not  want 
the  shoes,  they  did  not  fit  me,  and  I 
had  numbers  of  pairs  at  home,  and 
never  meant  to  steal  them.'  I  then 
added,  '  Send  me  to  prison  —  give 
me  three  years'  penal  servitude  — ; 
but  don't  bring  disgrace  on  my 
friends  —  don't  tell  them  you  think 
me  a  thief  ! '  Now  it  seems  to  me 
most  unlikely  that  I  stole  those 
shoes  on  a  sudden  impulse.  For, 
had  it  been  so,  I  should  surely  have 
had  some  recollection  of  the  im- 
pulse. And  why,  I  ask  myself, 
should  I  ever  have  had  an  impulse 
to  steal  shoes  which  I  did  not  want, 
and,  even  if  I   had  wanted   them, 


No.  287. 


II.       TESTIMONIAL    PROCESS.       C.    NARRATION 


567 


would  not  have  fitted  me,  being  sev- 
eral sizes  too  small  ?  Some  unchari- 
tably minded  persons  may  remark 
that  I  might  have  wished  to  pawn 
them.  But  I  ask  that  person  why  I 
should  begin  to  pawn  things  thus, 
when  I  had  plenty  of  money,  and  no 
unsatisfied  needs,  when  I  never  did 
so  when  I  was  hard  up,  nay  starv- 
ing !  I  don't  know  that  it's  wrong 
to  pawn  your  things,  but  I  do  know 
that  I  have  never  pawned  a  single 
thing  in  my  whole  life.  .  .  .  They 
tell  me,  that  at  six  o'clock,  when  the 
van  came  which  was  to  take  me  to 
the  jail,  laden  with  its  crowd  of 
erring  flesh,  I  gave  one  long,  bitter 
cry,  then  fell  to  the  ground  in  a  dead 
faint.  So  they  fetched  a  four- 
wheeler,  and  laying  me  flat  on  one 
seat,  a  policeman  mounted  guard 
over  me  on  the  other.  When  I 
ultimately  arrived,  the  authorities 
stated  that  they  had  seldom  seen 
a  more  miserable  object.  ...  [I 
was  then  taken  to  the  hospital.] 
All  that  night  I  was  delirious, 
talking  wildly,  and  keeping  every 
one  awake  by  shrieking  and  laugh- 
ing, and  refusing  to  stop  in  bed. 
But  next  morning  I  was  so  exhausted 
that  I  lay  all  day  in  a  state  of  dead 
catalepsy,  and  for  days  I  remained  in 
this  state,  seeing  nothing,  knowing 
no  one,  and  being  fed  artificially. 
At  last  came  a  time  when  no  one 
thought  I  could  live  through  the 
night.  My  friends  all  prayed  for 
me ;  I  know  not  if  their  prayers 
were  answered,  but  I  did  not  die, 
and  from  that  time  the  sickness 
left  me,  and  by  very  slow  degrees  I 
got  better.  Gradually  I  began  to 
know  my  friends  again,  then  I  sat 
up  for  a  few  minutes ;  then  after 
many  days  the}^  robed  me  in  a 
white  dressing  gown,  not  more 
white  than  my  face,  and  the  doctor 
carried  me  to  an  easy  chair  in  front 
of  the  low  French  window.  Well 
do  I  remember  that  day  —  it  seemed 
to  me  like  the  first  dawn  of  summer, 
I  had  been  taken  ill  on  the  first  of 
July,  now  it  was  nearing  the  end  of 
September.     But  soon  exhausted  I 


was  put  back  to  bed,  then  I  remem- 
ber I  was  alone  with  the  dear  doctor 
who  had  always  been  so  good  to 
me.  .  .  . 

'"Ethel,  dear,'  he  said,  oh  so 
gently,  'will  you  tell  me  everything 
that  happened  just  before  you  were 
taken  ill  ? ' 

"'Yes,  poor  Edwin  died,'  I  said. 

'"Yes,  but  that  was  some  time 
before.  Don't  you  remember,  for 
instance,  spending  the  day  with  me 
at  Southend  ?  ' 

"'Yes,  I  remember  something 
about  it.  I  felt  very  seasick  on  the 
boat.  I  suppose  that  was  what 
brought  on  all  this  sickness  I've 
had  ever  since.' 

"'But  next  day,  what  did  you 
then  ? '  he  asked. 

" '  I  had  an  awful  headache,  but  I 
went  out  soon  after  breakfast  and 
bought  Maude  a  hat.  I  hope  she 
got  it  all  right.  Poor  little  thing,  I 
expect  she  trimmed  it  herself,  and 
she  does  make  them  look  such  guys  ! ' 
and  I  laughed  long  and  merrily  at  by- 
gone recollections  of  Maude's  hats. 

"  But  he  refused  to  share  my 
amusement,  looking  as  serious  as 
the  grave,  and  continued  blushing,  I 
noticed,  up  to  the  roots  of  his  hair. 

"'Did  you  buy  any  shoes  that 
morning  ? ' 

" '  No,  but  I  think  I  changed  some. 
But  somehow,  dear,  that  seems  to 
have  been  mixed  up  with  my  dreams 
—  I  have  everlastingly  dreamed  of 
shoes  all  the  time  I've  been  ill. 
Silly  — isn't  it?' 

"  '  But  —  my  darling,  tell  me,  tell 
me,  what  did  you  dream  about 
them  ?'  he  persisted. 

"  ■  I  don't  know  :  it's  all  confused 
and  muddled,  and  something  differ- 
ent every  night,'  I  answered. 

"Coming  still  nearer,  and  taking 
my  face  between  his  two  hands,  he 
looked  deep  into  my  eyes  as  if  he 
would  fain  read  my  soul,  and  said  in 
a  voice  broken  and  husky  with 
emotion  — 

"'Did  you  ever  dream  that  you 
stole  a  pair  of  shoes  ? ' 

"I  did  not  speak,  neither  did  I 


56S                                        PART   II.      TESTIMONIAL   EVIDENCE  No.  2SS. 

move.     Truths  always  seem  to  force  There  is  much  more  to  the  same 

themselves    on    me  'like    flashes    of  effect  that  I  could  quote, 

lightning,  so  there  is  nothing  gradual  What   is   the   impression   that   is 

in  the  process.     And  after  that  in-  left  ?     Aye  or  No  —  did  she  steal 

stant  there  was  no  need  for  him  to  the  shoes  ? 

tell    me   that    I    was   wanted   as   a  On   the   one   hand,    there   is   her 

thief.      I   knew    it.      The  scene  at  plea    of    "Guilty"    in    the    Police 

Whiteley's  —  the   confusion   of   the  Court.     Against    it,    there    is    the 

bills,    the    men    who    had    amused  knowledge  of  all  that  she  said,  and 

themselves  at  my  expense,  the  police-  did,    and    suffered  —  the    strenuous 

man   who  hatl   wished   to  handcuff  protest   of  all   her  subsequent   life, 

me  and  drag  me  through  the  streets.  There  is  also  the  improl)ability  that 

it  all  came  back,  not  as  idle  dreams,  had  she  been  guilty  she  would  have 

but  as  the  realities  of  life.     For  a  taken  the  matter  so  much  to  hearts 

few  brief  seconds  no  torture  in  hell  as  she  did.     Remorse  cuts  deep,  but 

could   have  been  greater.     Then   I  nothing  stings  like   a   false   accusa- 

dropped  my  head  into  my  hands  and  tion.     Only  perhaps  this  is  certain, 

knew  no  more."  that  she  paid  a  heavy  penalty. 


288.  Hugo  Munsterberg.  On  the  Witness  Stand.  (1909.  p.  77.)  .  .  , 
The  study  of  the  association  of  ideas  has  attracted  the  students  of  the 
human  mind  since  the  days  of  Aristotle  ;  but  only  in  the  last  century  have 
we  come  to  inquire  systematically  into  the  laws  and  causes  of  these  mental 
connections.  .  .  .  The  school  of  associationists  began  to  explain  our  men- 
tal life  as  essentially  the  interplay  of  such  associations.  .  .  . 

One  aspect  dominates  in  importance :  I  can  measure  the  time  of  this  con- 
nection of  ideas.  Suppose  that  both  my  subject  and  I  have  little  electrical 
instruments  between  the  lips,  which,  by  the  least  movement  of  speaking, 
make  or  break  an  electric  current  passing  through  an  electric  clockwork 
whose  index  moves  around  a  dial  ten  times  in  every  second.  One  revolu- 
tion of  the  index  thus  means  the  tenth  part  of  a  second,  and,  as  the  whole 
dial  is  divided  into  one  hundred  parts,  every  division  indicates  the  thou- 
sandth part  of  a  second.  My  index  stands  quietly  till  I  move  my  lips  to 
make,  for  instance,  the  word  "dog."  In  that  moment  the  electric  current 
causes  the  pointer  to  revolve.  My  subject,  as  soon  as  he  hears  the  word, 
is  to  speak  out  as  quickly  as  possible  the  first  association  which  comes  to 
his  mind.  He  perhaps  shouts  "cat,"  and  the  movement  of  his  lips  breaks 
the  current,  stops  the  pointer,  and  thus  allows  me  to  read  from  the  clock- 
work in  thousandth  parts  of  a  second  the  time  which  passed  between  my 
speaking  the  word  and  his  naming  the  association.  ...  I  may  find  out 
how  long  it  takes  if  my  subject  does  not  associate  anything,  but  simply 
repeats  the  word  I  give  him.  If  the  mere  repetition  of  the  word  "dog" 
takes  him  32.')  thou.sandths  of  a  second,  while  the  bringing  up  of  the  word 
"cat"  took  97')  thousandths,  I  conclude  that  the  difference  of  050  thou- 
.sandths was  necessary  for  the  process  of  associating  "cat"  and  "dog."  In 
this  way,  during  the  last  twenty  years,  there  has  developed  an  exact  and 
subtle  study  of  mental  associations,  and  through  such  very  careful  observa- 
tion of  the  time-difference  between  associations  a  deep  insight  has  been 
won  into  the  whole  mental  mechanism.  The  slightest  changes  of  our 
p.sychical  comiections  can  be  discovered  and  traced  by  these  slight  varia- 


No.  288.  II.       TESTIMONIAL    PROCESS.       C.    NARRATION  569 

tions  of  time,  which  are,  of  course,  entirely  unnoticeable  so  long  as  no  exact 
measurements  are  introduced.  .  .  . 

Like  many  other  branches  of  experimental  psychology,  the  doctrine  of 
association  has  become  adjusted  to  the  practical  problems  of  education,  of 
medicine,  of  art,  of  commerce,  and  of  law.  It  is  the  last  which  chiefly 
concerns  us  here  —  a  kind  of  investigation  which  began  in  Germany  and 
has  since  been  developed  here  and  abroad. 

For  instance,  our  purpose  may  be  to  find  out  whether  a  suspected  person 
has  really  participated  in  a  certain  crime.  He  declares  that  he  is  innocent, 
that  he  was  not  present  when  the  outrage  occurred,  and  that  he  is  not  even 
familiar  with  the  locality.  An  innocent  man  will  not  object  to  our  proposing 
a  series  of  one  hvnidred  associations  to  demonstrate  his  innocence.  A 
guilty  man,  of  course,  will  not  object,  either,  as  a  declination  would  indicate 
a  fear  of  betraying  himself ;  he  cannot  refuse,  and  yet  affirm  his  innocence. 
Moreover,  he  will  feel  sure  that  no  questions  can  bring  out  any  facts  which 
he  wants  to  keep  hidden  in  his  soul ;  he  will  be  on  the  lookout.  As  long  as 
nothing  more  is  demanded  than  that  he  speak  the  first  word  which  comes  to 
his  mind,  when  another  word  is  spoken  to  him,  there  is  indeed  no  legal  and 
no  practical  reason  for  declining,  as  long  as  innocence  is  professed.  Such 
an  experiment  will  at  once  become  interesting  in  three  different  directions 
as  soon  as  we  mix  into  our  list  of  one  hundred  words  a  number,  perhaps 
thirty,  which  stand  in  more  or  less  close  connection  to  the  crime  in  question 
—  words  which  refer  to  the  details  of  the  locality,  or  to  the  persons  present 
at  the  crime,  or  to  the  probable  motive,  or  to  the  professed  alibi,  and  so  on. 

The  first  direction  of  our  interest  is  toward  the  choice  of  the  associations. 
Of  course,  every  one  believes  that  he  would  be  sure  to  admit  only  harmless 
words  to  his  lips  ;  but  the  conditions  of  the  experiment  quickly  destroy  that 
feeling  of  safety.  As  soon  as  a  dangerous  association  rushes  to  the  con- 
sciousness, it  tries  to  push  its  way  out.  It  may,  indeed,  need  some  skill 
to  discover  the  psychical  influence,  as  the  suspected  person  may  have  self- 
control  enough  not  to  give  away  the  dangerous  idea  directly ;  but  the  sup- 
pressed idea  remains  in  consciousness,  and  taints  the  next  association,  or 
perhaps  the  next  but  one,  without  his  knowledge.  He  has,  perhaps,  slain 
a  woman  in  her  room,  and  yet  protests  that  he  has  never  been  in  her  house. 
By  the  side  of  her  body  was  a  cage  with  a  canary  bird.  I  therefore  mix  into 
my  list  of  w^ords  also  "bird."  His  mind  is  full  of  the  gruesome  memory  of 
his  heinous  deed.  The  word  "  bird,"  therefore,  at  once  aw^akens  the  associa- 
tion "canary  bird"  in  his  consciousness;  yet  he  is  immediately  aware  that 
this  would  be  suspicious,  and  he  succeeds,  before  the  dangerous  word  comes 
to  his  lips,  in  substituting  the  harmless  word  "  sparrow."  Yet  my  next  word, 
or  perhaps  my  second  or  third  next,  is  "color,"  and  his  prompt  association 
is  "yellow"  :  the  canary  bird  is  still  in  his  mind,  and  shows  its  betraying 
influence.  The  preparation  of  the  list  of  words  to  be  called  thus  needs 
psychological  judgment  and  insight  if  a  man  with  quick  self-control  is  to  be 
trapped.  In  most  cases,  however,  there  is  hardly  any  need  of  relying  on  the 
next  and  following  words,  as  the  primary  associations  for  the  critical  words 
unveil  themselves  for  important  evidence  directly  enough. 

Yet  not  only  the  first  associations  are  interesting.  There  is  interest  in 
another  direction  in  the  associations  which  result  from  a  second  and  a  third 
repetition  of  the  series.     Perhaps  after  half  an  hour,  I  go  once  more  through 


570  PART    II.      TESTIMONIAL    EVIDENCE  No.  28S. 

the  whole  Hst.  The  subject  gives  once  more  his  hundred  replies.  An  analy- 
sis of  the  results  will  show  that  most  of  the  words  which  he  now  gives  are 
the  same  which  he  gave  the  first  time ;  pronouncing  the  words  has  merely 
accentuated  his  tendency  to  associate  them  in  the  same  connection  as  before. 
If  it  was  "house"  —  "window"  first,  then  it  will  probably  be  "house"  — 
"window"  again.  But  a  number  of  associations  have  been  changed,  and 
a  careful  analysis  will  show  that  these  are  first  of  all  the  suspicious  ones. 
Those  words  which  by  their  connection  with  the  crime  stir  up  deep  emo- 
tional complexes  of  ideas  will  throw  ever  new  associations  into  conscious- 
ness, while  the  indifferent  ones  will  link  themselves  in  a  superficial  way 
without  change.  To  a  certain  degree,  this  variation  of  the  dangerous  associ- 
ations is  reenforced  by  the  intentional  effort  of  the  suspected.  He  does  not 
feel  satisfied  with  his  first  words,  and  hopes  that  other  words  will  better 
hide  his  real  thoughts,  not  knowing  that  just  this  change  is  to  betray  him. 

Hut  most  important  is  the  third  direction  of  inciuiry  :  more  characteris- 
tic than  the  choice  and  the  constancy  of  the  associations  is  their  involuntary 
retardation  by  emotional  influence.  A  word  w^hich  stirs  emotional  memories 
will  show  an  association  time  twice  or  three  times  as  long  as  a  common- 
place idea.  .  .  .  The  retardation  is  not  always  confined  to  the  dangerous 
association  alone,  but  often  comes  in  a  still  more  pregnant  way  in  the  follow- 
ing or  the  next  following  association,  which  on  the  surface  looks  entirely 
harmless.  The  emotional  shock  has  perturbed  the  working  of  the  mechanism, 
and  the  path  for  all  associations  is  blocked.  The  analysis  of  these  secondary 
time  retardations  is  the  factorwhich  demands  the  greatest  psychological  skill. 

A  few  illustrations  from  practical  life  may  make  the  whole  method  clearer. 

An  educated  young  man  of  eighteen  lived  in  the  house  of  an  uncle.  The 
old  gentleman  went  to  consult  a  nerve  specialist  in  regard  to  some  slight 
nervous  trouble  of  the  younger  friend.  On  that  occasion  he  confided  his 
recent  susi)ici<)n  that  the  young  man  might  be  a  thief.  Money  had  re- 
peatedly been  taken  from  a  drawer  and  from  a  trunk ;  until  lately  he  had 
had  suspicions  only  of  the  servants  ;  he  had  notified  the  police,  and  detectives 
had  watched  them.  He  w-as  most  anxious  to  find  out  whether  his  new 
suspicion  was  true,  as  he  wanted,  in  that  case,  to  keep  the  matter  out  of 
court,  in  the  interest  of  the  family.  The  physician,  Dr.  Jung,  in  Zurich, 
arranged  that  the  young  man  come  for  an  examination  of  his  nerves.  He 
then  proposed  to  him  a  list  of  a  hundred  associations  as  part  of  the  medical 
inspection.  The  physician  said  "head,"  the  patient  associated  "nose"; 
then  "green"  —  "blue,"  "water"  —  "air,"  "long"  —  "short,"  "five" 
—  "  six,"  "  wool  "  —  "  cloth,"  and  so  on,  the  average  time  of  these  common- 
place connections  being  1.(5  seconds.  But  there  w^ere  thirty-seven  dan- 
gerous words  scattered  among  the  hundred  —  words  that  had  to  do  with 
the  things  in  the  room  from  which  the  money  was  abstracted,  or  with  the 
theft  and  its  i)unishment,  or  with  some  possilile  motives.  There  appeared, 
for  instance,  the  word  "thief."  The  association  "burglar"  seemed  quite 
natural,  but  it  took  the  boy  suddenly  4.6  seconds  to  reach  it.  In  the  same 
way  "police"  —  "theft"  took  'A.i)  seconds,  "jail"  —  "penitentiary"  4.2 
seconds.  In  other  cases  the  dangerous  word  itself  came  with  normal  auto- 
matic {piickness,  but  the  emotional  disturbance  became  evident  in  the 
retardation  of  the  next  word.  For  instance,  "key"  —  "false  key"  took 
only  1.0  seconds,  but  the  following  trivial  association  "stupid"  —  "clever" 


No.  289.  II.       TESTIMONIAL   PROCESS.       C.    NARRATION  571 

grew  to  3.0  seconds.  "Crime"  —  "theft"  came  again  promptly  in  1.8, 
but  the  inner  shock  was  so  strong  that  the  commonplace  word  "cook"  was 
entirely  inhibited  and  did  not  produce  an  association  at  all  in  20  seconds. 
In  the  same  way  "bread"  —  "water"  rushed  forward  in  1.6  seconds,  but 
this  characteristic  choice,  the  supposed  diet  of  the  jail,  stopped  the  associative 
mechanism  again  for  the  following  trivial  word.  It  would  lead  too  far  to 
go  further  into  the  analysis  of  the  case,  but  it  may  be  added  that  a  repeti- 
tion of  the  same  series  showed  the  characteristic  variations  in  the  region  of 
the  suspicious  words.  While  "crime"  had  brought  "theft"  the  first  time, 
it  was  the  second  time  replaced  by  "murder";  "discover"  brought  the 
first  time  "wrong,"  the  second  time  "grasp."  In  the  harmless  words  there 
was  hardly  any  change  at  all.  But,  finally,  a  subtle  analysis  of  the  selection 
of  words  and  of  the  retardations  pointed  to  sufficient  details  to  make  a  clear 
diagnosis.  The  physician  told  the  young  man  that  he  had  stolen ;  the  boy 
protested  vehemently.  Then  the  physician  gave  him  the  subtle  points 
unveiled  by  the  associations  —  how  he  had  bought  a  watch  with  the  money 
and  had  given  presents  to  his  sister ;  and  the  boy  confessed  everything,  and 
was  saved  from  jail  by  the  early  discovery.  ... 

Our  chief  interest  belongs  to  the  legal  aspect  of  this  method.  Carried 
out  with  the  skill  which  only  long  laboratory  training  can  give,  it  has  be- 
come, indeed,  a  magnifying  glass  for  the  most  subtle  mental  mechanism, 
and  by  it  the  secrets  of  the  criminal  mind  may  be  unveiled.  All  this  has, 
of  course,  no  legal  standing  to-day,  and  there  is  probably  no  one  who  desires 
to  increase  th:?  number  of  "experts"  in  our  criminal  courts.  But  justice 
demands  that  truth  and  lies  be  disentangled.  .  .  .  The  "third  degree" 
may  brutalize  the  mind  and  force  either  correct  or  falsified  secrets  to  light ; 
the  time-measurement  of  associations  is  swifter  and  cleaner,  more  scientific, 
more  humane,  and  more  reliable  in  bringing  out  the  truth  which  justice 
demands.  Of  course,  we  are  only  at  the  beginning  of  its  development ; 
the  new  method  is  still  in  many  ways  imperfect,  and  if  clumsily  applied  it 
may  be  misleading ;  moreover,  there  exists  no  hard  and  fast  rule  which  fits 
every  case  mechanically.  But  all  this  indicates  only  that,  just  as  the  bodily 
facts  have  to  be  examined  by  the  chemist  or  the  physiologist,  the  mental 
facts  must  be  examined  also,  not  by  the  layman,  but  by  the  scientific  psy- 
chologist, with  the  training  of  a  psychological  laboratory. 

289.  John  H.  Wigmore.  The  Psychology  of  Testimony.  (Illinois  Law 
Review.  1909.  Vol.  Ill,  p.  410,)  .  .  .  The  method  of  guilt-diagnosis  by 
psychic  associations  was  first  publicly  announced  by  Wertheimer  and  Klein 
in  1904,  in  the  Austrian  "  Archiv  fur  Kriminal-Anthropologie,"  edited  by 
Hans  Gross  (their  master,  and  professor  of  criminal  law  at  Graz),  and  im- 
mediately taken  up  by  Alfred  Gross,  at  Prag.  Meanwhile  Jung,  at  Zurich, 
a  psychologist,  quite  independently  had  been  making  similar  applications, 
which  first  saw  the  light  in  1905.  Thereafter  these  two  sets  of  researches 
were  widely  discussed  in  the  same  technical  journals,  from  1905  onwards. 
.  .  .  But  the  method  is  as  yet  in  its  infancy.  Such  statements  as  the  fol- 
lowing are  significant  —  for  example,  by  Loeffler,  professor  at  Vienna,  in 
1906: 

"Before  we  dare  to  rely  on  it  in  a  real  criminal  case,  it  must  be  first  studied  in 
thousands  of  laboratory  experiments ;  " 


572  PART    II.      TESTIMONIAL    EVIDENCE  No.  289. 

by  Gottschalk,  advocate  at  Berlin,  in  190G, 

'•This  method  is  so  far  in  such  mere  beginnings  tliat  one  cannot  speak  of  it  as 
having  practical  utility;   it  can  therefore  be  here  ignored ;  " 

by  Lederer,  of  Prag,  in  190G, 

"The  danger  of  this  method  is  certainly  an  adequate  reason  for  rejecting  it. 

.  Where  it  is  not  dangerous,  it  is  usually  quite  fruitless.  .  .  .  We  may  posi- 
tively say  that  criminal  investigation  has  in  the  new  method,  either  as  hitherto 
put  forward  or  as  later  to  be  unproved,  nothing  useful  to  expect ;  " 

or  by  Hoegel,  chief  State's  attorney  at  Vienna,  in  1907, 

"I  regard  it  as  inconceivable  to  expect  the  State  and  the  officers  intrusted  with  the 
administration  of  justice  to  make  use  of  an  instrument  so  doubtful  as  this  diagnostic 
against  accused  persons,  even  with  their  consent."  .  .  . 

Let  us  take  the  psychologists  themselves.      Listen,  for  example,  to  Freud, 
lecturing  to  the  law  students  at  Vienna  in  1906. 

"In  the  laboratory  experiments  you  will  never  be  able  to  reproduce  the  identical 
situation  of  the  real  accused  person.  ...  It  should  be  your  right,  and  even  your 
duty,  to  carry  on  investigations  for  a  series  of  years  with  suitable  accused  persons  — 
but  without  letting  the  results  have  any  influence  on  the  decision  of  the  magistrate, 
or  better  still,  without  his  having  any  knowledge  of  the  results  reached  as  to  a  par- 
ticular ])erson's  guilt.  After  years  and  years  of  acciunulation  and  comparison  of  such 
data,  all  doubt  of  the  utility  of  this  psychological  method  would  certainly  be  dis- 
sipated." .  .  . 

Jung  himself,  after  the  first  publication  and  critical  reception  of  his  re- 
sults, frankly  admitted,  as  late  as  1906,  in  view  of  Stern's  doubts  and 
Krauss'  critique, 

"To  this  doubtl  must  fully  agree;  the  discrimination  between  the  guilty  and  the 
innocent  thus  is  difficult.  I  agree  with  Krauss  in  ai)prehending  great  difficulties 
ill  tlie  ajjplication  of  the  experiments  to  judicial  practice.  ...  I  shall  not  quarrel 
with  any  one  wiio  says  that  he  is  unconvinced  by  the  method.  I  do  not  desire  to 
pour  cold  water  on  it,  but  I  am  not  reluctant  to  warn  against  an  unjustifiable  o])ti- 
mism.  I  do  this  in  the  interest  of  the  method  itself,  which  can  easily  be  discredited 
by  striking  instances  of  misuse.  It  is  a  delicate  instrument.  ...  In  its  present 
state  one  must  not  expect  too  much  from  it,  though  it  has  an  undeniable  capacity  for 
development." 

and   finally,  in  replying  to  Lederer's  searching  criticisms  (aliove  quoted), 
Jung  again  frankly  declares  in  1906, 

"I  am  of  Lederer's  opinion,  that  the  psychological  diagnostic,  at  least  as  yet,  is  thor- 
oughly unjiuitable  for  criminal  practice."  .  .  . 

In  short,  on  the  Continent  the  new  method  appears  to  have  met  with 
a  large,  if  not  overwhelming,  measure  of  hesitation,  doubt,  and  opposition 
among  jurists  and  even  psychologists,  in  that  the  proposal  of  its  practical 
u.se  is  regarded  as  quite  premature  at  least.  .  .  . 

Now,  as  we  read  four  centuries  ago,  in  one  of  the  earliest  books  on  Evidence, 
"Pripsumitur  contra  eum  c|ui  vellet  innovare;"  to  which  is  the  proviso, 
"nisi  ista  novitas  esset  utilis."  So  that  the  question  here  really  is.  Is  this 
novelty  useful  and  practicable  ?  To  this  end  let  us  ask,  (1)  Does  the  method 
indicate  guilt  ?  (2)  Are  its  indications  exact  ?  (3)  Are  its  conditions  prac- 
tical ?     .And  first, 


No.  2SJ.  II.       TESTIMONIAL    PROCESS.       C.    NARRATION  573 

(1)  Docs  this  method  indicate  guilff  Is  not  the  most  that  is  claimed  by 
its  adherents  this  much,  that  they  can  diagnose  whether  the  person  knows 
about  the  facts  ?  And  that  how  he  came  to  know  them  —  whether  as  a 
guilty  doer  or  a  mere  spectator  or  even  a  disinterested  witness  or  a  news- 
paper reader  — cannot  be  discriminated.  For  example,  Alfred  Gross  himself 
plainly  says, 

"In  those  persons  to  whom  the  sought  facts  are  known  we  can  diagnose  with  pas- 
sable certainty  their  guilt  or  at  least  their  strong  suspicion  or  knowledge  of  the  facts. 
.  .  .  Our  task  has  been  thus  far  no  more  than  to  answer  the  question  whether  a 
person  knows  of  a  certain  fact  or  not."  .  .  . 

So  that  the  method,  even  at  these  highest  claims  for  it,  does  not  indicate 
in  any  way  whether  the  person's  knowledge  is  guilty  or  innocent.  .  .  . 

(2)  Are  its  indications  exact  f  In  other  words,  are  they  not  subject  to  so 
many  possible  interpretations  as  to  be  too  loose  for  any  practical  use  ?  .  .  . 
Let  us  first  take,  as  an  example,  the  detailed  report  of  Loeffler,  professor 
of  criminal  law  at  Vienna.  His  experiment  was  on  an  assistant  State's 
attorney,  supposed  to  be  arrested  in  a  foreign  country  on  suspicion  of  crime, 
and  trying  to  pass  himself  off  there  as  a  bookkeeper.  One  hundred  reactions 
were  taken  ;  let  us  look  at  some  of  them,  (a)  In  the  first  eight,  the  reaction- 
time  of  six  of  them  is  1.4  to  1.8  seconds,  but  the  fifth,  being  2  seconds,  is 
"Service-Forenoon,"  which  the  observer  calls  a  "self-betrayal"  as  attorney. 
Now,  apart  from  this  queer  interpretation,  look  at  the  seventh  reaction, 
which  is  the  largest  of  the  eight,  2.6  seconds,  and  reads  "Write-Bill,"  and 
note  that  this  "  self -betray  al "  as  bookkeeper  is  quite  ignored  by  the  ob- 
server. (6)  In  the  next  group,  reaction  No.  11  is  2.6  seconds,  and  is  called 
a  "betrayal"  because  Nos.  12  and  13,  which  are  7.4  and  3.4  seconds, 
are  so  much  longer,  though  colorless  in  their  words,  (c)  In  another  series, 
the  reaction  of  No.  4,  in  4.6  seconds,  "Private-party,"  is  triumphantly 
taken  as  a  "betrayal"  because  of  the  length  of  time  —  though  it  is  hard  to 
see  why  a  State's  attorney  thinks  of  "private  parties."  (rf)  In  the  same 
group,  with  reaction  words  "press-seen,"  after  "copy-made,"  the  observer 
complacently  says  of  the  former  :  "  No  bookkeeper  would  ever  have  reacted 
in  this  way  !"  and  quite  ignores  the  "copy-made." 

Now  we  do  not  lay  stress  on  the  radical  lack  of  scientific  method  here; 
I  mean  that  those  who  boast  of  testing  everything  by  experiment  should  not 
affirm  that  "no  bookkeeper  would  have  reacted  thus"  without  finding  by 
experiment  whether  bookkeepers  do  thus  react.  What  I  desire  to  note  is 
the  delightful  adaptability  of  this  method  to  a  judge's  whims,  in  allowing 
him  to  prove  whatever  he  is  hoping  to  prove.  For,  observe  the  method  as 
thus  used  :  If  the  reaction-it'orr/  is  one  essentially  relevant  to  the  accused's 
supposed  occupation,  it  is  a  "betrayal"  ;  if  the  word  itself  is  colorless,  but 
its  reaction-/ imt'  is  long,  it  is  also  a  "  betrayal"  ;  if  it  is  colorless,  and  its  own 
reaction-time  is  normal,  but  the  ensuing  reaction-time  is  long,  it  is  again 
a  betrayal ;  and  if  the  word  indicates  some  innocent  occupation,  it  is  ignored 
entirely.  Now  after  reckoning  these  four  possibilities,  there  will  remain 
only  a  few  reactions,  so  that  the  zealous  magistrate  is  sure  to  "  get  his  man"  ; 
there  is  no  failure ;  he  can  always  find  guilt  —  if  he  wishes  to.  Might  not 
any  one  whosoever  be  convicted  on  the  above  interpretations  ? 

This  whimsicality  and  arbitrariness  of  interpretation  are  constantly  to 
be  seen  in  the  records  of  these  experiments.     For  example,  in  Jung's  own 


574  PART    II.      TESTIMONIAL   EVIDENCE  No.  289. 

primal  experiment,  by  which  he  is  said  to  have  detected  an  actual  thief, 
lie  found  a  so-called  "betrayal"  in  the  reaction  "stranger-look,"  by  inter- 
preting it  thus  :  "  Tlie  young  thief  thought  that  some  one  had  looked  when 
he  was  stealing,  and  had  informed  on  him,  so  that  I,  a  stranger,  now  knew  of 
it."  Such  interpretations  will  to  many  seem  merely  amusing ;  I  will  not  call 
them  "wild  feats  of  jugglery,"  as  one  of  the  German  lawyers  does.  Nor 
will  I  press  analogous  defects  —  the  danger  of  trusting  to  the  whims  of  all 
sorts  of  magistrates  in  using  this  method  —  the  probability  that  a  clever 
rascal  could  counterfeit  a  normal  reaction-time  —  the  lack  of  clear  indica- 
tion of  different  occupations,  etc.,  as  found  by  observed  reaction-times  — 
the  fallacy  of  the  assumption  that  a  guilty  person  knows  all  the  details  of  his 
crime,  and  the  correspontling  fallacy  of  fixing  beforehand  as  criteria  of  guilt 
the  reaction-words  which  the  magistrate  supposes  to  belong  to  the  crime  — 
the  error  of  method  in  assuming,  in  our  present  state  of  knowledge,  that  there 
are  any  uniform  associations  with  certain  so-called  "key-words"  which 
are  valid  for  every  indifvidual's  experience.  .  .  . 

(3)  Are  its  eondifions  practical  f  I  will  not  here  dwell  on  the  impractical 
length  of  time  required  for  adequate  tests ;  nor  on  the  relative  cumbrous- 
ness  of  the  method  to  other  ordinary  ones  which  would  at  least  secure  as  much 
result ;  nor  on  the  circumstance  that  it  could  (in  this  country)  only  be  done 
either  by  trained  psychologists,  who  would  doubtless  differ  in  their  inter- 
pretations and  thus  introduce  a  new  mass  of  disputed  expert  testimony, 
or  by  the  police,  who  presumably  would  be  too  subject  to  bias  to  give  great 
weight  to  their  interpretation.  I  will  simply  point  out  that  all  the  investiga- 
tors do  not  frankly  state  that  the  willingness  of  the  accused  to  submit  to 
the  test  is  assumed.  So  that,  obviously,  the  accused  cannot  be  put  to  it 
unless  he  waives  his  constitutional  privilege  against  self-incrimination. 
And  if  he  refuses,  claiming  his  privilege,  no  inference  can  be  drawn  as  to  his 
guilt,  under  our  law  ;  for  we  cannot  say,  as  a  German  or  Austrian  magistrate 
might  say,  "If  he  refuses,  he  would  presumably  find  himself  deemed  guilty.'* 
And  since  the  most  experienced  men  at  our  bar  accept  it  as  a  solid  maxim, 
"  If  the  client  is  guilty,  never  let  him  enter  the  witness-box,"  no  guilty 
man  would  in  an  important  case  probably  ever  consent  after  the  method 
became  generally  known.  After  all,  then,  since  with  us  the  method  is  not 
practicable  at  all  unless  the  accused  consents,  it  is  hardly  worth  while  to 
offer  it  to  our  bar  as  something  that  would  play  an  important  part  in  or- 
dinary criminal  practice. 


TITLE  III:  THE  IXTEBrRETATIOX  OF  SPECIFIC 
TESTIMONY,  TO  ESTABLISH  THE  EXTENT  AND 
SOURCES     or    ERROR 


SUBTITLE    A:     EXTENT     OF    LATENT    ERROR     IN     THE     NORMAL 
TESTIMONIAL    PROCESS 


290.  Guy  M.  Whipple.  Manual  of  Mental  and  PhysicalTests.  (1910.  p. 
286.)^  Tests  of  Description  and  Report.  The  two  tests  which  are  described 
in  this  chapter  have  certain  features  in  common  which  demarcate  them  on 
the  one  hand  from  the  tests  of  perception  and  attention  of  the  previous 
chapter,  and  on  the  other  hand  from  the  memory  tests  of  the  succeeding 
chapter,  though,  in  many  other  respects,  they  resemble  these  tests.  The  es- 
sential idea  in  both  of  the  present  tests  is  to  determine  capacity,  not 
merely  to  attend  and  observe,  or  to  recall  what  has  been  observed,  but  to  put 
the  results  of  this  observation  into  linguistic  form.  (If  the  observer  gives 
his  account  of  the  experience  at  the  time  of  his  observation,  this  consti- 
tutes "description";  if  at  some  time  subsequent  to  his  observation,  this 
constitutes  "report.") 

It  is  evident  that  this  giving  of  an  account  of  an  experience,  particularly 
if  the  experience  be  somewhat  complicated  in  form,  is  a  more  complex 
psychical  process  than  those  under  discussion  in  the  tests  of  attention  and 
perception.  This  greater  complexity  makes  the  reduction  of  the  observer's 
performance  to  exact  quantitative  terms  a  matter  of  greater  difficulty,  but, 
on  the  other  hand,  the  activity  called  forth  is  more  akin  to  that  demanded 
in  everyday  life,  and  it  is  for  this  reason  that  these  tests  have  been  felt  to 
possess  a  peculiar  value,  particularly  in  the  study  of  individual  differences 
in  mental  constitution  and  mental  efficiency.  Again,  language  occupies 
so  strikingly  prominent  a  place  in  our  mental  economy  that  tests  which 
seek  to  bring  out  the  observer's  ability  to  cast  experience  into  linguistic 
form  are,  on  that  account,  well  worth  while.  This  is  particularly  the  case 
in  the  second  form  of  test,  that  of  the  report,  which,  in  connection  with  the 
"psychology  of  testimony,"  has  of  late  had  a  prominent  place  in  psycho- 
logical research. 

Test  32.  Fidelity  of  Report  ("Aussage"  test).  Capacity  to  observe,  or 
range  of  observation,  may  be  tested  by  methods  previously  described 
(Tests  25  and  31) ;  native  retentiveness  or  capacity  for  recall  may  be  tested 
by  methods  such  as  those  that  are  described  in  subsequent  sections ; 
capacity  to  describe  what  is  seen  may  be  tested  as  has  been  indicated  in 
Test  31.      But  there  exists  also  a  type  of  activity,  that  of  reporting  a  pre- 

'  Published  at  Baltimore,  by  the  Warwick  &  Yorke  Co. 
575 


576  PART   II.      TESTIMONIAL   EVIDENCE  No.  290. 

vious  experience,  which  in  a  way  combines  these  several  activities,  in  that 
it  demands  both  attentive  observation,  retention,  recall,  "and  an  ability 
to  marshal  and  forimilate  the  items  of  experience  in  a  verbal  report  ("  Aus- 
sage  ").  In  studyini:  the  "psychology  of  testimony,"  interest  has  been 
developed  of  late  in  the  direct  examination  by  experimental  methods  of  the 
capacity  to  report,  itself,  and  it  has  been  found  that  reports  may  exhibit 
varying  degrees  of  fidelity  or  reliability,  more  or  less  independently  of  the 
capacity  that  the  reporters  possess  to  observe  or  to  retain  experience.  In 
other  words,  discrepancies  or  inadequacies  may  appear  in  reports,  which  are 
due,  not  only  to  mistlirected  attention,  malobservation  and  errors  of  memory, 
but  also  to  lack  of  caution  or  of  zeal  for  accurate  statement,  to  scanty 
vocabulary,  to  injudicious  phraseology,  or,  of  course,  to  deliberate  intent  to 
mislead.   .  .   . 

Method.  1.  Choice  of  material.  Of  the  several  types  of  material 
that  have  been  elaborated  for  the  study  of  the  report,  e.g.,  the  picture  test, 
the  event  test,  the  rumor  test,  etc.,  the  first  mentioned  has  many  ad- 
vantages for  our  present  purposes.  ...  2.  Choice  of  exposure  time.  For 
pictures,  times  ranging  from  .5  sec.  to  7  min.  have  been  used,  though  45-60 
sec.  is  most  usual.  The  principle  which  has  controlled  the  choice  of  ex- 
posure time  for  the  two  tests  that  follow  is  to  select  such  a  period  as  will 
permit  an  average  S^  to  examine  each  detail  of  the  object  once.  3.  Choice 
of  time  interval.  For  the  sake  of  brevity,  the  instructions  that  follow 
prescribe  a  report  directly  after  the  exposure.  If  circumstances  permit,  E^ 
will  find  it  of  interest  to  extend  the  interval  to  several  minutes,  or  even 
hours  or  weeks.  The  effect  of  a  lengthening  time  interval  has  not  as 
yet  been  satisfactorily  determined.  4.  Choice  of  form  of  report.  There 
are  two  distinct  forms  of  report.  (1)  The  "narrative  '  ("Bericht," 
"recit"),  (2)  the  "interrogatory"  ("  Verhor"  of  Stern,  "Priifung"  of  Wres- 
chner,  "interrogatoire"  of  Borst,  "forage  de  memoire"  or  "questionnaire" 
of  Binet).  The  narrative  is  a  free  account,  delivered  by  S,  either  orally  or 
in  writing,  without  comment,  question,  or  suggestion  by  E,  The  inter- 
rogatory is  a  series  of  prearranged  questions ;  the  replies  to  these  questions 
constitute  the  deposition  ("  Verhorsprodukt").  The  constituent  parts  of 
the  narrative  or  the  deposition  may  be  termed  "statements"  or  "items." 
Each  form  of  report  has  its  advantages ;  both  should  be  employed  when- 
ever possible.  5.  Choice  of  form  of  interrogatory.  An  interrogatory  is 
"complete"  when  its  questions  cover  all  features  of  the  experience  ex- 
haustively, and  are  propounded  to  all  S's  in  the  same  order  and  manner: 
an  interrogatory  is  "  mcomplete"  when  its  questions  are  restricted  to  such  as 
refer  only  to  those  items  not  mentioned  by  S  in  his  narrative.  ...  6.  Choice 
of  (juestions.  The  form  of  questioning  very  materially  affects  S's  deposi- 
tion, particularly  if  the  questions  are  of  the  type  known  as  "leading"  or 
"suggestive"  (juestions.  If  we  follow  Stern,  at  least  six  types  of  questions 
may  be  framed,  viz. :  determinative,  completely  disjunctive,  incompletely 
disjunctive,  expectative,  and  consecutive.  A  completely  disjunctive 
question  is  one  that  forces  the  reporter  to  choose  between  two  specified 
alternatives,  e.g.  "Is  tliere  a  dog  in  the  Picture?"  An  incompletely  dis- 
junctive (|Ucsti()M  i-oiic  that  offers  the  reporter  a  choice  between  two  alter- 

'  [.S  =  thc  person  who  is  the;  subject  of  the  experiment;  E  =  the  person  managing  the  ex- 
periment. —  Ed.) 


No.  290.  III.       TESTIMONIAL   INTERPRETATION.       A.    IN    GENERAL  577 

natives,  but  does  not  entirely  preclude  a  third  possibility,  e.g.  "Is  the  dog 
white  or  black  ?". . .  An  expectative  question  is  one  that  arouses  a  moderately 
strong  suggestion  of  the  answer,  e.g.  "  Was  there  not  a  dog  in  the  picture  ?  " 
(This  is  the  form  used  by  Binet  to  induce  moderate  suggestion.)  An  im- 
plicative question  is  one  that  assumes  or  at  least  implies  the  presence  of  a 
feature  that  was  not  really  present  in  the  experience,  e.g.  "What  color  is 
the  cat  ? "  .  .  .  The  consecutive  question  is  any  form  of  question  that  is 
used  to  augment  a  suggestion  that  has  been  developed  by  previous  ques- 
tions. 7.  Choice  of  method  of  grading.  Treatment  of  data.  In  general, 
the  adequacy  of  a  report  depends  both  upon  its  quantity  and  its  quality  : 
quantity  is  measured  by  the  number  of  items  mentioned  or  the  number 
of  questions  answered  (in  absolute  or  in  relative  terms)  and  is  referred  to  as 
the  range  of  report  ("Umfang,"  "etendue")  :  quality  is  measured  by  the 
fidelity  of  the  statements  made,  and  is  referred  to  as  the  accuracy  of  report 
("Treue,"  "fldelite"). 

We  have  also  at  our  command  useful  indications  of  the  positiveness  or 
degree  of  assurance  that  S  places  in  his  report.  Besides  (1)  complete  un- 
certainty ("I  don't  know  "  or  "I  have  forgotten"),  we  may  distinguish 
(2)  hesitancy  ("I  think"  or  "I  believe"),  (3)  positive  statement  or  assur- 
ance of  ordinary  degree,  and  (4)  attestation  or  attestable  assurance,  i.e. 
the  highest  degree  of  assurance,  as  indicated  by  S's  willingness  to  take  his 
oath  that  the  statement  is  correct.  ... 

A.  Report  Test  with  a  Card  of  Objeets.  Method.  Give  S  the  following 
instructions  :  "  I  want  to  try  an  experiment  with  you  to  see  how  good  your 
memory  is.  I  am  going  to  show  you  a  large  card  with  a  number  of  things 
fastened  on  it.  You  will  have  just  half  a  minute  to  look  at  it.  Half  a 
minute  is  a  pretty  short  time,  so  you  must  look  very  carefully,  because 
afterwards  I  shall  want  you  to  tell  me  what  you  have  seen,  and  I  shall  ask 
you  qviestions  about  many  little  details,  and  I  want  you  to  answer  these 
questions  exactly,  if  you  can.  Do  you  understand?"  Place  the  card 
directly  before  S  in  a  good  light.  At  the  end  of  30  sec,  remove  it  and  keep 
it  well  concealed.  Direct  S  at  once :  "  Now  tell  me  everything  you  saw  : 
describe  it  so  clearly  that  if  I  had  never  seen  the  card  I  should  know  all  about 
what  was  on  it."  The  narrative  is  given  orally  by  S,  and  recorded  verbatim 
by  E,  without  comment,  query,  or  suggestion.  Reread  the  report  to  S,  and 
ask  him  to  indicate  what  statements  he  is  so  sure  of  that  he  would  swear 
to  their  accuracy.  Underline  these  statements.  Proceed  next  with  the 
interrogatory.  If  possible,  ask  S  the  following  questions  in  the  order  given. 
Record  his  replies  by  number,  verbatim,  and  underline  all  attested  replies. 

B.  Report  Test  with  a  Colored  Picture.  Materials.  Set  of  four  colored 
pictures  :  "Australians,"  "A  Disputed  Case,"  "  W^ashington  and  Sally,"  and 
"The  Orphan's  Prayer."  Watch.  .  .  .  Suggestions  for  interrogatories 
for  two  of    the  pictures  follow. 

Interrogator ij  for  "A  Disputed  CV/^c."  Ml)  How  wide  is  the  picture 
(horizontally)  ?  (2)  How  high  is  the  picture  (vertically)  ?  (3)  Is  there 
any  border :  if  so,  what  color  ?     (4)  How  many  persons  are  there  in  the 

'  [This  picture  is  recommended  to  be  used  by  law  school  instructors  in  collating  results 
of  uniform  experiments  on  this  subject.  It  can  be  obtained  from  the  Taber-Prang  Art 
Co.,  Springfield,  Mass.,  at  50^  per  copy,  post  paid;  the  order  number  is  1235,  color  print, 
14|"xi6i".— Ed.J 


578  PART    II.      TESTIMONIAL    EVIDENCE  No.  290 

picture  ?  Take  the  person  on  your  right :  (5)  Is  he  young,  middle-aged, 
or  old  ?  (6)  What  is  his  posture,  —  sitting,  standing,  or  lying  down  ? 
(7)  What  is  he  doing?  (S)  What  is  his  facial  expression?  (9)  Is  he 
bald  or  has  he  abundant  hair?  (10)  What  color  is  his  hair?  (11)  Is 
he  smooth-faced  or  has  he  a  mustache  or  a  beard  ?  (12)  What  color 
is  his  beard  ?  (13)  Does  his  mustache  conceal  his  mouth  ?  (14)  Does 
he  wear  eyeglasses  or  spectacles  ?  (lo)  Has  he  a  hat  on  ?  What  kind  ? 
What  color  ?  (16)  Where  is  his  right  hand  ?  (17)  Where  is  his  left  hand  ? 
(IS)  What  color  is  his  coat?  (19)  What  color  is  his  shirt?  (20)  Has  he 
a  collar  on  ?  (21)  What  color  is  his  necktie  ?  (22)  What  color  is  his  vest  ? 
(23)  What  color  are  his  trousers  ?  (24)  Does  he  wear  slippers  or  shoes  or 
boots  ?  Take  the  person  on  your  left :  (25-44)  Repeat  questions  5-24. 
(45)  What  kind  of  light  or  lamp  is  used  ?  (46)  Where  is  it  placed  ? 
(47)  Where  is  the  inkwell?  (48)  Is  there  not  a  pen  in  it?  (49)  What 
color  is  the  dog?  (50)  Is  there  a  table  or  a  bench?  (51)  How  long  is  it 
really  ?  (52)  What  color  is  the  tablecloth  or  covering  ?  (53)  Is  the 
fringe  of  the  same  or  a  different  color?  (54)  Name  the  objects  on  the 
table.  (55)  How  many  chairs  are  there  in  the  room  ?  (56)  Is  the  rocking- 
chair  on  your  left  or  your  right  ?  (57)  Is  there  an  umbrella  ?  (58)  Do 
you  think  it  is  jet-black  or  dark  blue  ?  (59)  In  what  position  is  it  ? 
(60)  Name  the  pbjects  in  front  of  the  table  on  the  floor.  (61)  Is  there 
a  satchel  or  dress-suit  case  in  the  room  ?  Which  ?  (62)  Is  it  open 
or  shut  ?  (63)  What  do  the  pictures  on  the  wall  represent  ?  (64)  How 
many  windows  are  visible  ?  (65)  Can  you  see  any  detail  of  outdoor  scenery 
through  them  ?  (66)  How  many  hats  are  there  in  the  room  ?  (67)  De- 
scribe and  locate  them.  (68)  Can  you  recall  the  time  indicated  by  the  clock 
on  the  wall  ?  (69)  What  object  is  on  your  extreme  right  ?  (70)  Are  there 
any  books  in  this  part  of  the  room  ?  (71)  What  color  is  the  wall  ? 
(72)  Where  is  the  newspaper  ?     (73)  How  long  did  you  see  the  picture  ?  .  .  . 

Typical  Rcsulis.  The  following  narrative  by  a  college  senior,  a  man  of 
varied  experience,  mature,  much  traveled,  and  well  trained,  though  of 
mediocre  native  ability,  shows  clearly  the  tendency  of  an  adult  S  to  describe 
a  situation,  a  meaningful  whole,  rather  than  merely  to  enumerate  details, 
as  do  many  children.  Indeed  the  detail  here  is  distinctly  subordinated  to 
the  interpretative  rendering.  The  narrative  tells  what  the  picture  is  about 
rather  than  what  it  is.  "The  picture,  about  10X10  inches,  represents  a 
.scene  that  would  be  typical  of  a  rural  justice  of  the  peace  and  a  man  who 
has  come  to  ask  his  advice  on  some  subject.  The  justice  sits  before  his 
desk,  an  old  manuscript  before  him,  one  hand  on  his  head  as  if  he  had  not 
yet  given  his  decision.  The  office  is  filled  with  books  and  on  one  of  them 
in  the  left  of  the  i)icture  rests  his  top  hat.  The  visitor  seems  to  be  troubled 
very  much.  His  clothing  denotes  that  he  is  of  a  different  station  in  life. 
He  has  placed  his  carpetbag  on  the  floor  and  his  hat  near  it,  as  a  sign  of  great 
mental  strain,  which  .seems  to  increase  as  he  awaits  the  decision.  On  the 
wall  to  the  right  is  a  doultle  map  of  the  world,  showing,  perhaps,  that  the 
justice  is  a  man  of  wisdom  and  a  source  of  information  to  his  neighbors. 
The  room,  furniture,  the  manner  of  dress  would  have  denoted  a  time  long 
before  ours.     The  men  seem  to  be  about  65  or  70  years  of  age." 

In  his  (Ii'po.sifion,  this  student  renflered  an  unusually  full  list  of  answers: 
the  reply  —  "I  don't  know"  —  is  given  only  twice  (Questions  34  and  72). 


No.  290.  Ill,       TESTIMONIAL    INTERPRETATION.       A.    IN    GENERAL  57^ 

The  range  of  report  is,  therefore,  large,  but  the  fidehty  is  relatively  small^ 
since  the  following  erroneous  statements  appear  (those  italicized  are  attested 
statements) :  "  The  picture  is  14  X 14  inches.  The  man  on  the  right  is  bald^ 
wears  spectacles,  has  his  right  hand  on  a  paper,  wears  a  collar,  a  purple  tie, 
black  trousers,  and  slippers.  The  man  on  the  left  is  thinking  hard,  has  a 
troubled  expression,  wears  a  sandy  mustache :  he  has  his  right  hand 
in  his  pocket,  his  left  on.  his  knee :  he  wears  a  light-colored  vest  and  brown 
trousers.  The  room  is  lighted  by  a  candle  which  stands  on  the  pile  of  books. 
There  is  a  pen  in  the  inkwell.  The  table  is  fourteen  feet  long,  has  a  light- 
colored  cloth  top  with  fringe  of  a  different  color.  There  are  three  chairs  in 
the  room,  the  rocker  being  at  the  left.  The  umbrella  is  dark  blue  in  color 
and  lies  on  the  floor.  There  is  a  coat  on  the  floor  in  front  of  the  table ;  there 
is  a  basket  on  the  table.  The  satchel  is  shut.  One  window  is  visible.  There 
is  a  chair  at  the  extreme  right  of  the  picture.  The  wall  is  white.  (The 
cuspidor  and  the  newspaper  are  not  recalled.)" 

General  Results  of  Tests  of  Report.  (1)  Accuracy.  The  chief  single  result 
of  the  "Aussage"  psychology  is  that  an  errorless  report  is  not  the  rule,  but 
the  exception,  even  when  the  report  is  made  by  a  competent  S  under  favor- 
able conditions.  Thus  in  240  reports.  Miss  Borst  found  only  2  per  cent 
errorless  narratives  and  0.5  per  cent  errorless  depositions.  The  average  S, 
when  no  suggestive  questions  are  employed,  exhibits  a  coefficient  of  accuracy 
of  approximately  75  per  cent.  (2)  Range  and  accuracy.  There  is  no  general 
relation  of  range  to  accuracy,  though,  for  a  given  S,  it  is  doubtless  true  that 
there  is  an  inverse  relation  between  these  two  coefficients.^  ...  (4)  Accuracy 
and  attestation.  Generally  speaking,  attestation  does  not  guarantee  accu- 
racy :  on  the  contrary,  though  the  number  of  errors  is  nearly  twice  as 
great  in  unsworn  as  in  sworn  testimony  (according  to  Stern,  1.82  times, 
according  to  Borst,  1.89  times  as  great),  there  still  remains  as  high  as  10  per 
cent  error  in  sworn  testimony.  These  relations  are  shown  clearly  in  Table 
44.  (5)  Dependence  on  sex.  In  all  of  Stern's  work,  both  in  narratives  and 
depositions,  with  pictures,  or  events,  or  estimations  of  times  and  distances, 
whether  under  oath  or  not,  the  reports  of  men  have  been  more  accurate  (by 
from  20  to  33  per  cent),  though  less  extended,  than  those  of  women,  and  a 
similar  sex  difference  has  appeared  in  tests  of  school  children.  This  superior 
accuracy  of  boys  becomes  more  evident  when  the  report  is  difficult  to  make. 
Stern's  conclusions  have,  however,  been  criticized  by  both  Wreschner  and 
Miss  Borst.  Wreschner  found  that  among  adults  women  did  better  than 
men.  Miss  Borst  likewise  found  women  superior  to  men  in  accuracy 
and  range,  but  inspection  of  her  results  shows  that  the  superiority  of  women 
consisted  in  the  fact  that  they  returned  a  larger  number  of  correct  statements, 
and  that  the  men  did  not  make  less  accurate  statements  in  their  more  limited 
reports.  (6)  Dependence  on  age.  The  reports  of  children  are  in  every  way  infe- 
rior to  those  of  adults  :  the  range  is  small,  the  inaccuracy  large,  and,  since  the 
assurance  is  high,  the  warranted  assurance  and  reliability  of  assurance  are 
both  very  low.  During  the  ages  7  to  18  years,  the  range,  especially  the 
range  of  knowledge,  increases  as  much  as  50  per  cent,  but  the  accuracy, 

1  The  reason  for  this  lack  of  general  relation  between  range  and  accuracy  is  presumably 
that  there  are  two  kinds  of  good  witnesses  —  the  one  possesses  good  capacity  of  observa- 
tion, recall  and  report,  and  hence  exhil)its  a  large  range  and  a  high  degree  of  accuracy; 
the  other  is  cautious,  and  therefore  restricts  his  range,  which  may  be  poor  at  best. 


5S0  PART    II.      TESTIMONIAL    EVIDEN'CE  No.  290. 

save  in  the  depo.sition,  does  not  increase  as  rapidly  (20  per  cent).  This 
development  of  capacity  to  report  is  not  continuous,  but  is  characterized  by 
rapid  modification  at  the  age  of  puberty.  The  one  factor  that  more  than 
any  other  is  responsible  for  the  poor  reports  of  children  is  their  excessive 
sujjf;estil)ility,  especially  in  the  years  before  puberty.  (7)  Dependence  on 
intiU'njcncc.  We  have  as  yet  no  conclusive  experiments  upon  the  relation 
between  accuracy  of  report  and  general  intelligence.  (8)  Dcfrdiirs.  The 
reports  of  defectives,  paralytics,  epileptics,  the  insane,  etc.,  show,  as  one  might 
expect,  a  very  high  degree  of  inaccuracy,  even  when  the  pathological  con- 
dition is  not  seriously  developed.  vSuch  persons  are  also  highly  suggestible 
(de  Placzek).  (9)  Deprndcnce  on  time  interval.  Lengthening  of  the  time 
interval  between  experience  and  report  exerts,  as  one  might  expect,  a  gener- 
ally unfavorable  influence,  but  there  is  nothing  like  the  loss  in  efficiency 
shown  in  curves  of  memory  for  nonsense  syllables,  as  in  the  familiar  tests  of 
Ebl)ing]iaus  :  indeed,  for  some  S's  the  report  seems  to  be  somewhat  improved 
after  several  days  have  elapsed,  and,  in  general,  the  conditions  are  so  com- 
plex as  to  demand  further  special  investigation.  (10)  Dependence  on  contents 
or  features.  Not  all  the  features  of  the  original  experience  are  reported  with 
the  same  frequency  or  with  the  same  accuracy :  there  is  rather  a  process  of 
selection,  both  in  the  process  of  observation,  and  also,  probably  in  memory 
and  in  the  formulation  of  the  report.  In  general,  we  may  say,  that  persons 
and  their  acts,  objects,  things,  and  spatial  relations  are  reported  with  con- 
siderable accuracy  (85-90  per  cent),  w'hereas  secondary  features,  especially 
fjuantities  and  colors,  are  reported  with  considerable  inaccuracy  (reports  on 
color  have  an  error  of  from  40  to  50  per  cent).^  .  .  .  (13)  Dependence  on 
the  ideational  ti/pe  of  the  reporter.  The  best  reports  are  given  by  obser\ers 
of  a  mixed  ideational  type,  e.g.  acoustic  motor  or  visual  motor  (Borst) : 
even  in  a  picture  test,  the  purely  visual-minded  observer  is  inferior,  though 
less  open  to  suggestion  (Lobsien).  A  characteristic  analysis  of  reports,  for 
the  purpose  of  classifying  reporters  into  ideational  types  has  been  given  in 
the  de.scription-of-an-object  test  (No.  31),  in  which  B!net  distinguishes  four 
types  of  reporter  —  the  observer,  the  describer,  the  emotionally  minded,  and 
the  erudite.  .  .  .  (14)  The  effect  of  repeating  a  report.  When  S  is  called 
upon  to  make  his  report  several  times,  the  effect  of  this  repetition  is  complex, 
for  (a)  it  tends  in  part  to  establish  in  mind  the  items  reported,  w^hether 
they  be  true  or  false,  and  (6)  it  tends  also  to  induce  some  departure  in  the 
later  reports,  because  these  are  based  more  upon  the  memory  of  the  verbal 
statements  of  the  earlier  reports  than  upon  the  original  experience  itself, 
i.e.  the  later  reports  undergo  distortion  on  account  of  the  flexil)ility  of  verbal 
expression.  (15)  The  ejfret  of  practice.  Simple  practice  in  reporting,  even 
without  special  training  or  conscious  efi"ort  to  improve,  facilitates  and  betters 
the  report,  as  is  shown  in  Table  47,  from  Miss  Borst.  It  will  be  noted  that 
the  tendency  to  attestation  and  oath  are  both  particularly  improved  by 
practice,  and  that  there  is  also  an  appreciable  improvement  in  range,  ac- 
curacy, warranted  assurance,  and  relial)ility  of  assurance,  whereas  assurance 
and  accuracy  of  assurance  are  scarcely  affected.  Similar  practice  effects 
may  be  discerned  in  the  deposition.  From  these  results,  it  is  clear  that  the 
several  coefficients  of  report  may  vary  more  or  less  independently. 

'  [For  tho  sunimarios  hero  numberorl  11  and  12,  dealing  with  the  effect  of  suggestive  in- 
terrogatories, see  ante,  No.  257.  —  Ed] 


No.  291. 


III.       TESTIMONIAL    INTERPRETATION.       A.    IN    GENERAL 


5.S1 


291.    KANSAS  UNIVERSITY  EXPERIMENT.    (Wm.  A.  M'Keever. 


Psychology  in  relation  to  Testimony. 
1911.     p.  113.) 

As  a  means  of  testing  the  actual 
worth  of  eyewitnesses  to  a  tragic 
act,  I  recently  planned  to  stage  a  lit- 
tle drama  of  one  act  in  the  presence 
of  a  class  of  twenty-five  junior  and 
senior  psychology  students.  It  was 
arranged  that  at  a  given  moment, 
without  any  warning  to  the  members 
of  the  class,  three  men  should  burst 
into  the  room  and  go  through  the 
movements  of  a  "holdup,"  of  a  run- 
ning fight.  The  act  had  been  care- 
fully rehearsed  under  my  personal 
direction,  and  I  am  satisfied  that  each 
actor  carried  out  his  part  very  ac- 
curately. The  parts  enacted  and  the 
personal  "makeup"  of  each  one  was 
carefully  recorded  in  a  notel)Ook. 

The  participants  in  the  act  rushed 
into  the  room  to  a  distance  of  2.5  or 
30  feet,  then,  pausing  for  a  moment, 
ran  out.  Jones,  the  first  to  enter, 
was  to  have  the  appearance  of  being 
hotly  pursued  by  Smith  and  White. 
As  they  left  the  room  the  pursuers 
changed  the  order  of  their  places. 
While  all  were,  of  course,  acting  at 
the  same  time,  each  of  the  three  and 
the  instructor  as  well  had  time  to 
recite  his  oral  part  in  succession. 
After  the  players  had  left  the  room 
I  turned  immediately  to  the  class, 
the  most  of  whom  were  visiblv  ex- 


Kansas  Bar  A.ssociation  Proceedings. 

cited,  and  enjoined  silence  while  the 
paper  was  passed  and  their  written 
testimonies  were  asked  for  under  the 
headings  given  below.  From  the 
twenty-five  papers  I  copied  verbatim 
the  many  inaccuracies  given  in  the 
accounts  printed  with  this.  The 
correct  statements  were  much  fewer 
than  the  incorrect  ones. 

In  an  actual  criminal  trial  the 
testimony  would  perhaps  be  most 
unfair  and  damaging  in  the  case  of 
Smith.  Although  entirely  unarmed, 
and  inoffensive  in  his  statements, 
yet  three  witnesses  testified  that  he 
carried  a  revolver,  snapped  it  several 
times  at  Jones,  or  that  he  cried, 
"Stop,  or  I'll  shoot!"  White,  on 
the  other  hand,  who  carried  a  re- 
volver minus  the  cylinder,  was  little 
noticed.  There  was  even  more  con- 
fusion of  the  testimony  as  to  the 
wearing  apparel  of  the  participants, 
as  is  clearly  indicated. 

Whatever  may  be  said  as  to  the 
results  of  this  little  experiment,  it 
is  my  opinion  that  it  represented 
very  satisfactorily  a  true  and  natural 
situation,  and  that  the  testimonies  of 
the  eyewitnesses  were  no  less  and 
no  more  accurate  than  if  the  scene 
had  been  enacted  upon  the  stage  of 
real  life. 


VARIATIONS    OF   THE    STUDENTS     TESTIMONY 


Jones'  Appearance 
Tall  man ;  hat  on ;  black  mask 
over  eyes,  nose,  and  mouth ;  gray 
raincoat ;  salt  bag  half  full  of  nails 
in  left  hand ;  small  monkey  wrench 
in  right  hand ;  streak  of  red  paint 
across  left  cheek. 


Testimony 
Black  coat ;  light-colored  mask. 
Red  mask ;  cheeks  painted  red. 
Black  coat ;  mouth  painted  red. 
Carried  pistol. 

5  Cheeks  more  than  natural  red- 

ness ;  club  in  his  hand  dark  suit. 

6  Dark  suit. 

7  Dark  suit. 

8  Black  clothes. 

9  Red  mask  on ;  black  clothes. 

10  Hatless. 

11  Dressed  in  blue  suit  and  hand- 

kerchief    around     his     neck. 
Medium  sized ;  bare-headed. 

12  Red  mask. 


582 


PAKT    II.      TESTIMONIAL    EVIDENCE 


No.  291. 


Jones'  Conduct 

Rushed  in  ahead,  turned  inside  of 
door,  pointed  wreneh  at  pursuers, 
and  exclaimed,  "Stay  back,  or  I'll 
shoot  I  "  Run  across  room,  fell  to 
knees,  dropped  bag,  .sayinir,  "There 
it  is,  take  it  !  "  and  rushed  out. 


Smith's  Appearance 

Medium  size  and  weight ;  wore 
hat  and  black  coat  borrowed  from 
White. 


Testimony 

1  Pointed    his    finger    at    Smith  ; 

said,  "Get  out  of  here,  Ed." 

2  The  whole  class  was   paralyzed 

with  fear,  says  a  witness. 

3  Pointed  a  revolver. 

4  Pointed     imaginary    pistol    and 

said,    "  I    dare   you    to   come 
further." 

5  The  other   jerked   him   up  and 

started  him  toward  the  door. 

6  Pointed  heavy  object  at  others 

as  he  went  out. 

7  Came  in    after   the  others.     (I 

was  too  afraid  to  look  up.) 

8  Held  a  revolver  in  hand  ;  wore 

dark    suit.     (Witness    recog- 
nized Jones. 

9  Had  something  like  a  revolver. 

Testimony 

1  Wore  a  gray  suit. 

2  Husky  si.x-footer. 

3  Dark  gray  suit. 

4  Bare-headed. 

5  Blue  suit  on. 


Smith's  Conduct 

Rushed  in  close  after  Jones,  ex- 
claimed, "Give  it  up,  you  scoun- 
drel ! "  Grabbed  bag  which  Jones 
dropped,  and  ran  out  behind  other 


White's  Appearance 

Short  and  stout ;  wore  cap  and 
blue  serge  coat,  borrowed  from 
Smith.     Came  in  third. 


White's  Conduct 

Came  in  last,  went  out  .second; 
carried  small  revolver  with  cylinder 
removed.  Yelled,  "Take  it  from 
him,  Eddie;  he  wf)n't  hurt  you  !  " 


Testimony 

1  Carried    pistol    and    snapped    it 

several  times. 

2  Came  in  last,  went  out  second, 

said,  "Get  out  of  here  !  " 

3  Carried  pistol,  snapped  it  several 

times,    cried,    "Stop,    or    I'll 
shoot !  "  aiming  at  Jones. 

4  Dropped  umbrella  on  floor. 

5  A  witness,  "So  excited  I  didn't 

know  what  it  was." 

6  Snapped  gun. 

7  Came    in    last,    stayed    behind ; 

"  Catch  that  man  !  "  he  yelled. 

Testimony 

1  Dark  suit  and  raincoat. 

2  Bareheaded. 

3  (Was  scarcely  observed  by  any 

of  the  witnesses.) 

Testimony 

1  Had  a  club  of  some  kind. 

2  Yelled,  "Get  out  of  here  !  " 


No.  292. 


III.       TESTIMONIAL    INTERPRETATION.       A.    IN    GENERAL 


583 


Instructor's  Appearance  and  Conduct 

Probably  showed  some  agitation  ; 
rose  from  chair  and  exclaimed, 
"Men,  what  are  you  up  to  here?" 


Testimony 

1  Looked  very  much   astonished ; 

.said,  "What's  all  this?" 

2  Said,     "What     does     all     this 

mean  ? 

3  Said,  "  Here  !  " 

4  Said,    "  Here,    what's    going    on 

here  ?  " 

5  Showed  signs   of  great  surprise 

and  said,  "Well  !"     (Witness 
was  rather  frightened.) 

6  Grew  pale,  said,  "Here  !  " 

7  Said,  "Who  are  those  men  ?  " 

8  Seemed  badly  scared. 

9  Looked  scared. 


292.  Arno  Gunther.  A  Dramatic  Incident  as  reported  by  Witnesses 
and  Reconstructed  by  a  Jury.  (Beitrage  zur  Psychologie  der  Aussage.  2d 
Series,  1905-1906,  pt.  4,  p.  33.) 


[In  March,  1905,  the  author  con- 
ducted a  testimonial  experiment. 
The  scene  was  a  lecture  room,  where 
on  Sunday  a  lecture  was  being  de- 
livered. Ten  persons,  four  men  and 
six  women,  were  present,  but  with 
nd  warning  that  any  testimony  was 
expected.  The  testimony  was  taken 
down  on  the  succeeding  Friday  and 
Saturday,  with  certain  precautions 
designed  to  make  the  proceeding  a 
fair  test  of  their  accuracy  in  report- 
ing an  incident  not  known  to  them 
at  the  time  of  its  occurrence  to  be 
the  subject  of  future  investigations, 
nor  at  the  time  of  their  testimony  to 
be  a  mere  experiment. 

The  incident  began  with  the 
entry  of  a  man  into  the  lecture 
room  ;  and  the  various  features  of 
the  incident  were  subdivided  into 
points,  as  follows:  (1)  The  time 
was  3.45  P.M.  (2)  The  man  was 
medium  height,  medium  large.  (3) 
His  hair  was  brown.  (4)  He  had  a 
small    brown    mustache,    no   beard. 

(5)  He  wore  glasses,  i.e.  spectacles. 

(6)  He  had  on  an  overcoat,  of  black 
cloth,  and  buttoned.  (7)  He  had 
on  a  dark  suit.  (8)  A  soft  hat, 
dark  brown.  (9)  No  gloves:  (10) 
In  his  hands  he  carried  cane,  hat, 
and  a  letter ;  the  cane  was  brown, 
with  a  black  handle.  (11)  His  cravat 
was  dark  red.     (12)    The  man  was 


21|  years  old.  (13)  On  entering 
he  did  not  knock.  (14)  After 
entering,  he  said :  "  Excuse  me, 
Mr.  G,  may  I  speak  with  you  a 
moment?"  (15)  Mr.  G  replied, 
"Certainly.  Come  in."  (16)  The 
visitor  stepped  forward  and  handed  a 
letter,  (17)  saying,  "I  have  here  a 
letter  to  be  handed  to  you."  (18) 
Mr.  G  was  standing  at  his  desk, 
(19)  and  replied,  "Thank  you. 
W^on't  you  sit  down?"  but  the 
visitor  did  not  do  so.  (20)  Mr.  G 
then  perused  the  letter,  (21)  with 
some  emotion,  (22)  first  saying, 
"  Excuse  me  a  moment."  (23)  The 
visitor  meanwhile  carelessly  turned 
over  the  leaves  of  some  books  lying 
on  the  table.  (24)  There  were  6 
books.  (25)  The  visitor  asked  Mr. 
G,  during  his  perusal,  "May  I 
look  at  these  books  more  particu- 
larly?" and  Mr.  G  replied,  "Cer- 
tainly"; whereon  the  visitor  sat 
down  and  read  in  the  books  (26) 
Mr.  G,  after  perusing  the  letter,  pro- 
ceeded fruitlessly  to  stick  it  into  his 
pocket,  and  finally  placed  it  on  the 
desk.  (27)  He  then  continued  the 
delivery  of  his  lecture.  (28)  The 
visitor  then  turned,  and  said,  "May 
I  take  this "  (holding  up  a  book) 
"into  the  next  room?"  Mr.  G 
consenting,  the  visitor  went  out, 
(29)  carrying  his  hat,  his  cane,  and 


584 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  292. 


2  books ;  one  of  them  was  red,  the 
other  bkie.  The  visitor  did  not 
stop  in  the  next  room.  (30)  The 
whole  incident  occupied  3  minutes. 
On  the  basis  of  points,  a  vakia- 
tion  was  made  of  testimonial  cor- 
rectness and  of  verdict  correctness. 
The  accounts  are  here  much  ab- 
breviated  for   the  former.] 

I.  Tcsfimonial  Correctness.  (1) 
Description  of  the  visitor's  person. 
The  average  correctness  of  the 
testimony  was  80.G  per  cent ;  for 
the  men,  84.2  per  cent;  for  the 
women,  76  per  cent.  The  best 
single  testimony  reached  100  per 
cent,  by  a  man ;  the  best  by  a 
woman  was  90.5  per  cent.  The 
poorest  by  a  woman  was  37.5  per 
cent ;  by  a  man  73.3  per  cent.  .  .  . 
(2)  Description  of  the  action  of  the 
parties.  The  average  correctness  of 
the  testimony  was  79.7  per  cent ; 
for  the  men,  80.8  per  cent;  for  the 
women,  78.9  per  cent.  The  best 
single  testimony  reached  96.2  per 
cent,  by  a  woman ;  the  best  by  a 
man  was  85.7  per  cent.  The  poorest 
by  a  woman  was  60  per  cent ;  by  a 
man,  71  per  cent. 

(3)  Thus  the  averages  for  the 
whole  incident  were:  men,  81.8  per 
cent ;  women,  78.4  per  cent ;  total 
persons,  79.9  per  cent.  The  best 
single  testimony  averaged  :  a  man, 
87.8  per  cent ;  a  woman,  94.6  per 
cent.  The  poorest  averaged :  a 
man,  77.5  per  cent ;  a  woman,  58.7 
per  cent.  .  .  . 

II.  Verdict  Correctness.  The  writ- 
ten testimonial  reports  were  sub- 
mitted separately  to  T,  a  lawyer, 
and  D,  an  assistant  judge,  with  the 
request  to  make  special  findings  on 
the  facts  of  the  incident  as  therein 
disclosed.  Their  finding  was  valued 
by  the  same  system  of  points  used 
in  valuing  the  testimony.  The 
result  was  as  follows  :   .   .   . 

(1)  Description  of  the  visitor's 
person.  It  is  pleasing  to  note  that, 
in  spite  of  the  great  diil'ercnces  of 
c(jrrectne.ss  in  the  individual  testi- 
monies, a  correct  finding  was  made. 
Both  jurors  marie  a  finding  100  per 


cent  correct  (though  the  average  for 
the  testimony  was  only  80.6  per 
cent).  .  .  . 

(2)  Description  of  the  action  of 
the  parties.  Here  the  finding  of  T 
was  86.5  per  cent  correct,  and  that 
of  D  82.4  correct  (the  witnesses 
averaging  only  79.7  per  cent). 

T's  narrative  reconstruction  was 
as  follows:  "The  visitor,  who  ex- 
hibited some  restlessness,  handed 
to  the  lecturer  a  sealed  letter,  with 
some  such  remark  as  '  Excuse  me.' 
The  lecturer  opened  the  letter  and 
read  it,  exhibiting  some  marks  of 
emotion.  The  lecturer  had  risen 
from  his  chair  and  stood  in  front  of 
it  while  reading,  and  then  stuck  the 
letter  in  his  pocket  and  continued 
his  lecture ;  the  statement  of  one  of 
the  witnesses  that  the  lecturer  laid 
the  letter  on  his  desk  is  contradicted 
by  the  other  witnesses  and  appears 
to  be  an  error.  The  visitor  took  a 
seat  without  further  remark,  and 
the  lecturer  while  reading  the  letter 
stood  at  a  table  to  the  left  of  the 
desk.  On  the  table  were  some  books 
(how  many  the  witnesses  do  not 
agree),  of  which  the  visitor  turned 
the  leaves.  He  then  asked  the  lec- 
turer's permission  to  take  one  of 
the  books,  antl  went  off  after  getting 
this  permission.  Whether  he  took 
one  or  two  books  was  not  clearly 
proved."  Here  we  observe  an 
error  of  half  a  point  in  finding  "  Ex- 
cuse me"  as  the  visitor's  second 
remark.  The  actual  words  were : 
"  I  have  here  a  letter  to  be  handed  to 
you."  How  T  could  make  such  a 
finding  is  inexplicable ;  for  five  of  the 
witnesses  testified  that  the  visitor 
said  nothing,  four  that  they  did  not 
know  whether  he  said  anything, 
and  one  that  he  had  said  something 
which  the  witness  could  not  recall. 
T's  second  error  is  interesting, 
in  that  he  refused  to  trust  the  one 
witness  who  was  right  in  saying  that 
the  lecturer  placed  the  letter  on  the 
tal)le.  On  the  most  important 
item  in  the  whole  experiment,  viz. 
how  many  books  the  visitor  took  off 
with    him,    T's   report   is   that   the 


Ko.  293. 


III.      TESTIMONIAL   INTERPRETATION.      A.    IN    GENERAL 


585 


visitor  asked  permission  for  one 
book  only,  but  that  the  number 
actually  taken  is  doubtful.  Yet  a 
comparison  of  the  testimonies  re- 
veals the  curious  fact  that  there  was 
no  basis  for  this  discrimination  on 
his  part ;  the  witnesses  differed  no 
less  radically  on  the  one  item  than 
on  the  other.  .  .  . 

D's  narrative  reconstruction  was 
as  follows  :  "  The  visitor  knocked, 
entered,  and  asked  if  he  might  speak 
with  Mr.  X.  The  lecturer  said  that 
he  was  that  person ;  whereon  the 
visitor  entered  and  handed  over  the 
letter.  The  lecturer  took  it,  cut  it 
open,  and  read  it,  after  asking  the 
audience  to  excuse  him  and  re- 
questing the  visitor  to  take  a  seat. 
The  visitor  remained  standing  a 
moment,  then  approached  the  table, 
on  which  lay  4  books,  and  asked  if 
he  might  look  at  them ;  and  on 
being  told  'Certainly,'  he  sat  down 
at  the  table  and  turned  over  the 
pages.  The  lecturer  meanwhile 
read  the  letter,  glancing  occasion- 
ally at  the  visitor.  While  reading, 
the  lecturer  was  noticeably  pale. 
After  finishing  its  perusal,  he  stuck 
it  in  his  pocket  and  went  on  with 
the  lecture.  The  visitor  continued 
reading  a  short  while  ;  then  he  asked 
permission  to  take  away  to  the  next 
room  two  books,  which  he  had  been 


looking  at.  Permission  was  granted, 
and  the  visitor  then  went  out,  carry- 
ing his  cane  and  the  two  books." 
D  reports  that  the  visitor  knocked 
before  entering ;  here  he  was  in- 
correct, but  followed  the  majority  of 
the  testimonies.  A  more  important 
point  is  his  finding  that  the  visitor 
asked  "if  he  might  speak  with  Mr. 
X."  The  actual  words  were  :  "Ex- 
cuse me,  IVIr.  G,  may  I  speak  with 
you  a  moment?"  .  .  .  This  part 
of  D's  finding,  covering  both  re- 
marks of  the  visitor,  was  debited 
with  two  errors.  ...  D  also  er- 
roneously found  that  the  lecturer 
put  the  letter,  after  reading  it, 
into  his  pocket.  Moreover,  he 
makes  the  error  of  finding  that  the 
visitor,  not  only  took  off,  but  asked 
consent  to  take,  two  books. 

(3)  On  the  ivholc  incident,  the 
percentage  of  correctness  for  T's 
finding  was  90.6  (24  correct  points, 
and  2|  incorrect),  and  for  D's 
finding  87.4  (41|  correct  and  6  in- 
correct) ;  the  two  averaging  88.5. 
The  average  correctness  of  the  testi- 
monies, 79.9  per  cent,  was  thus 
10.7  per  cent  below  T,  and  7.5  per 
cent  below  D.  Put  in  another  way, 
the  average  percentage  of  error  in 
the  testimonies  was  about  twice  as 
great  as  in  the  findings.  .  .  . 


293.  NORTHWESTERN  UNIVERSITY  EXPERIMENTS.  Tes- 
timonial AND  Verdict  Experiments  at  Northwestern  University 
Law  School.      1905,  1911.^ 


April  11,1 905.  A .  The  Dramatic 
Incident  as  agreed  upon  beforehand. 
[The  scene  is  an  ordinary  lecture 
room,  about  30'X60',  having  10 
rows  of  narrow  note-tables,  with  2 
seats  at  each ;  there  are  in  each 
row  4  tables,  each  3'  long,  with  2 
aisles  between.  The  floor  is  tiered, 
rising  10'  at  the  back.  The  four 
student  participants  sit  near  to- 
gether in  the  7th  and  8th  rows. 
The  lecturer   is    on  a  small    raised 


platform  at  the  front.  About  60 
students  are  in  the  class.]  The 
lecturer  will  open  the  lecture  by 
saying  :  "  Mr.  Candee,  please  state 
the  case  of  Smith  v.  Jones."  Mr. 
Candee  will  say  nothing ;  but  Mr. 
Brothers  will  slowly  and  promptly 
say,  "  Mr.  Stowe  is  a  cad,  and  I  can 
prove  it."  Mr.  Stowe  will  then 
rise  and  shout,  "That  is  an  insult, 
and  I  shall  here  resent  it."  Then 
Mr.    Candee   will    strike   the    table 


1  [These  experiments  are  not  supposed  to  have  any  scientific  value  ;  but  are  here  printed, 
for  lack  of  better  material.to  illustrate  the  possibilities  of  correction  of  testimonial  errors 
in  the  verdict.  —  Ed.] 


586 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  29a 


with  two  sticks,  immediately  and 
very  loud.  Mr.  Dickinson  will  then 
promptly  rise,  turn,  and  throw  a  book 
at  the  door  of  Mr.  Woodward's  office, 
next  south  of  the  lecture  room ; 
immediately  Mr.  Brothers  will  start 
forward  across  the  benches  to  grap- 
ple with  Mr.  Stowe.  Mr.  Candee 
will  try  to  hold  back  Mr.  Brothers, 
iSIr.  Stowe  will  start  towards  Mr. 
Brothers,  and  Mr.  Dickinson  will 
try  to  hold  back  Mr.  Stowe.  Messrs. 
Stowe  and  Brothers  will  not  touch. 
All  will  make  as  much  noise  as  pos- 
sible. In  the  meantime  Mr.  Cross- 
ley,  in  Mr.  Woodward's  room  at  the 
rear  of  the  lecture  room,  will  break  a 
piece  of  glass,  enter  the  lecture  room 
from  Mr.  Woodward's  door,  and 
exclaim,  "  Who  broke  my  window  ?  " 
Then  the  lecturer  will  pound  on  the 
desk  with  a  stick ;  and  all  will  stop. 
B.  The  Trsiimony.  [Immediately 
an  adjournment  took  place  to  the 
school  court  room  ;  a  jury  of  six  was 
in  waiting,  selected  from  members 
of  other  law  classes.  Thirteen  wit- 
nesses were  arbitrarily  selected  from 
those  present  at  the  drama.  The 
following  questions  were  put  to  each  : 

1.  What  was  the   first  incident  ? 

2.  Who  spoke  first  ? 

3.  What  did  he  say  ? 

4.  Who  spoke  next  ? 

5.  What  did  he  say  ? 

6.  Who  first  used  any  weapon  or 
missile,  and  of  what  sort  ? 

7.  Who  was  struck  or  assailed 
with  it  ? 

8.  Who  else  participated,  and 
what  did  he  do  ? 

9.  Who  else  was  struck  or  in- 
jured by  any  one  ? 

The  stenographic  report  of  the  an- 
swers was  as  follows  :] 

Ansirrrs. 

First  Wifiirss,  Mr.  Krause  (who 
.sat  four  or  five  rows  in  front  of  the 
actors). 

1.  I  turned  around  and  saw  Mr. 
Brothers  on  top  of  twf)  other  gen- 
tlemen. 

2.  I  don't  remember,  I  could  not 
distinguish  whose  voice  it  was.  I 
heard   soiiiclxxK-   hallo  "Scab.  " 


3.  I  don't  remember. 

4.  I  don't  remember. 

5.  I  don't  remember. 

().    I  did  not  see  any  weapon. 

7.  I  did  not  see  anybody. 

8.  When  the  noise  was  at  its 
height,  I  saw  Mr.  Crossley  put  his 
head  through  the  rear  door. 

9.  I  don't  know. 

S('C07id  JVitness,    Mr.    Thomason. 

1.  I  turned  round  and  saw  Mr. 
Candee  move  towards  Mr.  Stowe 
and  Mr.  Dickinson. 

2.  ]Mr.  Candee. 

3.  Mr.  Stowe  is  a  cad  and  I  can 
prove  it. 

4.  I  don't  know. 

5.  I  don't  know. 

6.  I  didn't  see  any. 

7.  I  didn't  see  any. 

8.  I  saw  Mr.  Crossley,  and  heard, 
at  the  same  time  I  saw  him,  the 
crash  of  some  glass. 

9.  I    did  not    see  any    one  else. 
Third  Witness,  IVIr.   Moore  (who 

sat  about  two  rows  in  front  and  to 
the  right  of  the  actors). 

1.  I  looked  back  of  me  and  saw 
Mr.  Candee,  who  seemed  to  be  hold- 
ing someone.  They  had  their  arms 
around  each  other.  I  think  Mr. 
Brothers  was  one. 

2.  I  don't  know. 

3.  Mr.  Somebody  is  a  cad  and  I 
can  prove  it ;  but  I  did  not  hear  the 
name. 

4.  I  don't  know. 

5.  I  don't  know. 

6.  I  didn't  see  any  weapon. 

7.  I  don't  know. 

8.  My  attention  was  called  to  the 
front  of  the  room,  and  I  did  not  see 
anything  else   after   that. 

9.  I  don't  know. 

Fourth  Witness,  IMr.  Gannon 
(who  sat  straight  in  front  of  the 
actors). 

1.  I  heard  some  noise  and  looked 
around,  and  several  of  the  men  were 
in  a  scuffle,  and  I  heard  a  crash  of 
glass. 

2.  I  do  not  remember  who  spoke 
first. 

3.  I  did  not  distinguish  any 
sjieech. 


No.  293. 


III.       TESTIMONIAL    INTERPRETATION.       A.    IN    GENERAL 


587 


4.  I  did  not  hear. 

5.  I  did  not  hear. 

6.  I  did  not  see  any  weapon  or 
missile. 

7.  I  did  not  see  any. 

8.  I  did  not  distinguish. 

9.  I  did  not  distinguish. 

Fifth  WHnes^,  ISIr.  Shultis  (who 
was  sitting  the  row  in  front). 

1.  I  heard  ]\Ir.  ^Yigmore  state  a 
certain  case. 

2.  Mr.  Candee. 

3.  Mr.  Stowe,  you  are  a  cad  and  I 
can  prove  it. 

4.  No  one  spoke. 

5.  No  one  spoke. 

6.  The  only  weapon  I  could  see 
was  a  stick  in  the  hand  of  Mr. 
AYigmore. 

7.  The  desk. 

8.  I  saw  Mr.  Brothers,  Mr.  Stowe, 
and  Mr.  Candee  in  a  scuffle. 

9.  I  did  not  see  any  one  struck. 
Sixth      ]]'itness,       Mr.      Strause 

(who  sat  down  in  the  front,  about 
the  3d  row). 

1.  I    heard    somebody   speaking. 

2.  Mr.  Brothers. 

3.  Mr.  Stowe  is  a  cad  and  I  can 
prove  it. 

4.  I  didn't  hear  any  one  else. 

5.  I  heard  nothing. 

6.  I  saw  none. 

7.  I  saw  none. 

8.  I  saw  no  one  in  connection  with 
it  until  the  affray  was  over.  Then 
I  saw  Mr.  Dickinson.  I  saw  no 
one  participating,  when  I  saw 
him. 

9.  I  saw  Mr.  Candee  force  Mr. 
Brothers  down  in  the  seat. 

Seventh  Witness,  Mr.  Nordhold 
(who  was  sitting  four  or  five  rows  in 
front  of  the  actors). 

1.  I  saw  Mr.  Brothers. 

2.  I  do  not  know  who  was  the 
first  one  to  speak. 

3.  Mr.  Stowe  is  a  cat. 

4.  I  do  not  remember. 

5.  I  do  not  know. 

6.  I  do  not  know  of  any. 

7.  I  do  not  know  of  any. 

8.  ]Mr.  Candee  was  wrestling  with 
ISIr.  Brothers.  Mr.  Stowe  was 
among  the  rest  of  them.     He  came 


towards  Mr.  Brothers,  and  that  is 
all  I  saw. 

9.  I  do  not  know  of  any  one  else 
being  struck. 

FAghth  Witness,  Mr.  Anderson 
(who  sat  directly  in  front  of  the 
actors,  in  the  very  front  row). 

1.  I  saw  Mr.  Candee  hold  Mr. 
Brothers  in  his  chair. 

2.  Mr.  Candee  spoke  first. 

3.  Stowe  is  a  cad. 

4.  I  did  not  hear  any  one  speak 
after  that. 

5.  I  heard  nothing. 

6.  I  did  not  see  anyone  throw  any 
missile. 

7.  I  saw  none. 

8.  The  same  instant  I  heard  a 
crash  and  saw  Mr.  Crossley  walking 
out  of  the  back  door. 

9.  I  did  not  see  any  one  else 
participating. 

Ninth  Witness,  Mr.  Milchrist 
(who  sat  in  the  same  row  with  Mr. 
Stowe  on  the  left,  and  one  row  in 
front  of  Mr.  Candee  and  Mr. 
Brothers). 

1.  I  heard  Mr.  Brothers  say  to 
Mr.  Stowe,  "You  are  a  cad."  Mr. 
Brothers  had  something  in  his  hand. 
Mr.  Stowe  jumped  up  from  his  seat. 

2.  Mr.  Brothers. 

3.  Mr.  Stowe,  you  are  a  cad  and 
I  can  prove  it. 

4.  I  saw  Mr.  Stowe  get  up. 

5.  I  do  not  know. 

6.  I  did  not  see  any  weapon  or 
missile. 

7.  I  saw  none. 

8.  I  saw  Mr.  Candee  and  Mr. 
Dickinson  appear  to  be  holding 
Mr.  Brothers  to  keep  him  away  from 
Mr.  Stowe. 

9.  I  did  not  see  him  do  anything 
but  jump  up. 

Tenth  Witness,  IMr.  Haight  (who 
sat  about  15  feet  from  the  actors, 
to  the  left  and  in  front). 

1.  The  first  I  saw  was  that  Mr. 
Otjen  and  Mr.  Brothers  were  stand- 
ing up  in  the  rear  of  the  room. 

2.  Mr.  Wigmore  was  the  first  one 
to  speak. 

3.  Mr.  Stowe,  will  you  state  the 
case  of  Smith  r.  Jones  ? 


588 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  293. 


4.    I  am  not  po.sitive,  but  I  think 
Mr.  Brothers  did  not. 
o.    Stowe  is  a  cad. 

6.  I  did  not  see  any  weapon  or 
missile  used  and  chd  not  hear  any, 
but  I  heard  some  glass  fall. 

7.  I  tlid  not  see  any  one  struck  or 
assailed. 

8.  I  saw  Mr.  Candee  and  Mr. 
Stowe. 

0.  Xo  one  that  I  saw. 
FJririifh      Witness,     Mr.      Stein- 

brecher  (who  was  sitting  in  the 
same  row  with  Mr.  Brothers,  to  the 
left  across  the  aisle). 

1.  I  heard  Mr.  Wigmore  call  on 
Mr.  Candee  for  a  case. 

2.  Then  Mr.  Brothers  said,  You 
are  a  cat. 

3.  As  above. 

4.  I  heard  no  one  speak  after- 
wards. 

5.  Nothing. 

G.  ]Mr.  Dickinson  jumped  for- 
ward slightly,  and  it  was  a  yellow 
brown  book  which  Mr.  Dickinson 
aimed  at  Mr.  Brothers,  and  just  at 
that  moment  there  followed  a  crash. 

7.  Xo  one  was  struck.  I  saw  the 
book  thrown,  but  did  not  see  the 
result,  until  Mr.  Crossley  opened 
the  door  and  said,  "  Who  struck  at 
my  window '!" 

S.    As  above. 

9.  I  saw  no  particular  person 
struck  or  injured. 

Twelfth  Witness,  Mr.  Romans 
(who  was  sitting  two  rows  ahead, 
next  to  the  wall  on  the  left). 

1.  I  heard  the  declaration  and 
immediately   turned    around. 

2.  Mr.  Candee  started  to  state 
his  case. 

'.].    I  flon't  know. 

4.  Mr.  Brothers. 

5.  He  shook  Mr.  Stowe  and  said, 
Stowe,  you  are  a  cad. 

().  I  was  impressed  with  the  fac-t 
that  Mr.  Dickinson  stuck  a  small 
parcel  at  Mr.  ("andoe.  I  do  not 
know  whether  it  left  liis  hand  or  not. 

7.    Mr.  Candee. 

S.  I  tliiiik  I  have  iianied  all  the 
men  I  have  .seen  in  the  fray. 


9.   Nobody. 

Thirteenth  Witness,  Mr.  Otjen 
(who  was  sitting  directly  in  the  rear 
of  Mr.  Stowe  and  to  the  right  of  Mr. 
Brothers). 

1 .  Tlie  calling  of  the  case  from 
tlie  chair. 

2.  Mr.  Brothers. 

3.  He  struck  the  desk  in  front  of 
him,  and  said,  "Mr  Stowe,  you  are 
a  cad  and  I  can  prove." 

4.  I  could  not  distinguish  any- 
thing next.  There  was  a  roar. 
]\Ir.  Stowe  made  an  exclamation. 
The  roar  came  from  Mr.  Stowe. 
The  exclamation  was  more  like  a 
roar. 

5.  I  did  not  distinguish  anything 
else. 

().    ]Mr.  Dickinson  threw  a  book. 

7.  I  don't  think  any  one  was 
struck.  It  was  aimed  at  ^Slr.  Can- 
dee, but  did  not  strike  any  one. 

8.  I  did  not  see  it  hit  any  one. 

9.  No  one  else  was  struck  or  in- 
jured. 

C.  The  Verdict  of  the  Jury.  [The 
jurors  then  retired,  without  the 
stenographic  report,  and  after  de- 
liberation, brought  in  the  following 
verdict :]  Mr.  Wigmore  called  on 
Mr.  Candee  for  a  case.  Mr. 
Brothers  created  a  disturbance  by 
rising  and  calling  ]Mr.  Stowe  a  cad, 
saying,  "  Mr.  Stowe  is  a  cad  and  I 
can  prove  it."  Mr.  Stowe  started  to- 
wards Mr.  Brothers.  Mr.  Candee 
took  hold  of  Mr.  Brothers  and  tried 
to  hold  him  down.  Mr.  Dickinson 
threw  a  book  at  Mr.  ( 'andee  and 
missed  him,  and  it  lit  near  the 
window.  There  was  a  crash,  as 
though  the  book  went  through  the 
window,  but  it  did  not.  Nobody 
was  hit  and  nobody  injured. 

Mr.  Crossley  put  his  head  in  at  the 
back  door,  and  said,  "Who  threw  at 
my  window  ?"  Mr.  Wigmore  struck 
the  desk  with  a  shingle.     (Signed.) 

C.  W.  Whitcomb,  Foreman ; 
Geo.  A.  Finley,  C.  C.  Colton, 
Frederick  Secord,  J,  A.  Bugee,  W. 
Capron,  Jr. 


No.  293. 


III. 


TESTIMONIAL    INTERPRETATION.       A.    IN    GENERAL 


589 


November,  1011.  .1.  The  Dra- 
matic Incident  agreed  upon  before- 
hand. [Scene  the  same  as  before.] 
At  10.55  A.M.,  the  lecture  being  in 
progress,  Mr.  Keedy  enters  the 
lecture  room  from  the  south  door  at 
the  rear.  The  lecturer  says  "  Stop  " 
to  iSIr.  Keedy,  strikes  a  table  twice 
with  a  ruler,  antl  says  :  "  I  showed 
a  cup  of  coffee,  and  then  an  exam- 
ination broke  loose.  Why  not  give 
them  poison  ?"  He  then  sits  down, 
but  goes  out  after  the  others  cease 
speaking.  At  the  close  of  his  speech, 
Mr.  Grubb  and  Mr.  Luther,  students 
sitting  in  the  second  row  from  the 
front,  rise  and  say  together  :  "  Gom- 
pers  has  geology.  Where  is  the 
breed  ?  Next  time  you  will  not 
throw  a  pistol  at  the  bread." 
Charles  Caldwell,  the  janitor,  then 
enters  from  the  side  (east)  door, 
walks  up  to  Mr.  Richie,  sitting  in 
the  front  row,  taps  him  on  the  shoul- 
der ;  Mr.  Richie  follows  Charles  out 
of  the  front  (north)  door.  Mr. 
Grubb  and  Mr.  Luther  follow  them 
out.  The  lecturer  during  this  latter 
stage  exclaims :  "  Do  not  give  up 
the  ship.  Taft  and  Bryan  forever." 
The  class  then  adjourns  to  Hoyne 
Hall,  at  the  lecturer's  recjuest. 

B.  The  Testimony.  [Immediately 
upon  adjournment  to  the  court 
room,  a  jury  of  six,  made  up  from 
members  of  other  classes,  is  in  wait- 
ing. A  stenographic  report  is  taken 
of  the  answers  to  the  following 
questions  : 

L   Who  came  in  first? 

2.  What  did  he  do  ? 

3.  What  did  he  say  ? 

4.  What  became  of  him  ? 

5.  Who  was  the  second  man  to 
speak  ? 

6.  What  did  he  say  ? 

7.  Who  was  the  third  man  to 
speak  ? 

8.  What  did  he  sav  ? 

9.  What  did  Charlie  do  ? 

10.  W^hat  did  Charlie  say  ? 

11.  W^hat  became  of  the  second 
man  ? 

12.  What  became  of  the  third 
man  ? 


13.  What  did  Mr.  Wigmore 
do? 

The  actors  being  all  at  the  front 
of  the  room,  except  one  who  was  at 
the  extreme  rear,  the  precise  posi- 
tion of  each  witness  was  not  noted. 
Six  witnesses  were  arbitrarily  se- 
lected from  those  present.] 

Arisicers. 

G.  Fowler.  — 1.  I  never  saw  any 
one  enter. 

2.  Mr.  Keedy  rapped  on  the 
desk. 

3.  He  said,  "  I  would  like  a  cup 
of  coffee." 

4.  He  sat  down. 

5.  I  do  not  know  his  name. 
He  was  a  student. 

6.  His  words  were  not  audible 
to  me. 

7.  I  don't  know. 

8.  I  could  not  tell  you. 

9.  He  walked  up  and  touched 
Mr.  Richie. 

10.  He  did  not  open  his  mouth. 

11.  He  rushed  toward  the  door.     - 

12.  I  don't  know. 

13.  He  said  to  retire  to  Hoyne 
Hall. 

B.  L.  Goldberg.  —  1.  I  don't 
know. 

2.  I  don't  remember. 

3.  I  am  not  sure.  I  don't 
remember. 

4.  I  don't  know. 

5.  Mr.  Grubb. 

6.  I  don't  know. 

7.  Mr.  Luther. 

8.  I  don't  know. 

9.  He  walked  in  front  of  the 
desk,    and   went   out  other  door. 

10.  I    think   he    said    nothing. 

11.  He  walked  out  ahead  of 
Charlie. 

12.  He  did  the  same  thing  as 
Mr.  Grubb. 

13.  He  said  to  adjourn  to 
Hovne  Hall. 

A.  H.  Marshall.  —  1.    Mr.  Keedy. 

2.  He  jumped  up  and  made 
several  statements,  to  create  a  com- 
motion. 

3.  I  don't  know. 

4.  I  don't  know. 

5.  Mr.  Grubb. 


590 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  293. 


6.  "Coffee."  "Toast,"  ami 
"Outrage." 

7.  rsir.  LutluT. 

8.  I  believe  he  said  the  same 
thing. 

9.  He  entered  by  one  door, 
and  tapped  a  gentleman  on  the 
shoulder,  and  walked  out  of  the 
room,  and  this  gentleman  followed 
him. 

10.  Nothing. 

11.  He     walked    out    the    north 
door. 

12.  He    did    the   same    as    Mr. 
Grubb. 

13.  He    was    standing    up,    but 
said  nothing. 

R.  Fernald.  —  1.    Mr.  Keedy. 

2.  He  made  a  racket  with 
something. 

3.  Quite  a  few  words  I  could 
not  understand.  Some  were,  "Ex- 
amination papers."  "Why  not 
poison  them  't " 

4.  I  don't  know. 

o.    I  don't  remember  his  name. 
G.    "  I  protest.      I  protest,"  and 
other  words. 

7.  I    don't    know    his    name. 

8.  He  tried  to  follow  directly 
after  the  first  man,  then  continued 
in  chorus  to  say  the  same  thing. 

9.  He  came  into  the  east  door, 
and  walked  along  the  front  of  the 
room,  tapped  a  man  in  the  front 
row,  Mr.  Richie,  and  he  went  out 
with  him. 

10.  Nothing. 

11.  He  went  out  the  north  door. 

12.  He  went  out  the  north  door. 

13.  Nothing,    except    to    appear 
surpri.sed. 

iV.  .S.  Blumhrrg. —  1.    Mr.  Keedy. 

2.  He  .slammcfl  a  book  on  a 
desk,  and  sat  down  in  the  last  seat. 

.).  1  rould  not  get  all  he  said, 
but  I  distinguished  "examination 
papers"  and  "poi.son." 

4.  He  sat  down  in  the  first 
chair  in  last  row  on  left-hand  side, 
near  the  door. 

5.  Mr.  (irul)b. 

G.  "  I  protest.  I  protest,  the 
coffee  .spillerl  over  the  bread."  I 
believe  this  is  all  he  said. 


McKimiey.  —  1.     Mr. 


7.  Mr.  Luther. 

8.  Both  said  the  same  thing, 
at  the  same  time. 

9.  He  walked  in  from  east  door, 
and  placed  his  hand  on  the  desk 
where  Mr.  Richie  was  sitting,  and 
walked  out,  after  ]\Ir.  Luther  and 
Mr.  Grubb,  through  the  north  door. 

11.  Mr.  Grubb  walked  out  by  the 
north  door. 

12.  Mr.  Luther  also  walked  out 
by  the  north  door. 

13.  When  Mr.  Keedy  came  in 
Mr.  Wigmore  was  astonished,  and 
when  Mr.  Grubb  and  Mr.  Luther 
spoke,  he  said  "This  is  an  out- 
rage." 

T.      M. 
Keedy. 

2.  He  slammed  something  which  I 
could  not  see  on  the  desk  ;  evidently 
lifted  a  chair  and  placed  it  down 
rather  abruptly. 

3.  I  distinguished  the  word 
"poison." 

4.  He  immediately  left  the  room, 
back  through  the  north  door. 

5.  Mr.  Grubb. 

6.  "Gompers  has  geology. 
Where  is  the  thread  (or  bread)." 
Something  relative,  I  think,  to  a 
pistol. 

7.  ]\Ir.  Luther. 

8.  I  do  not  know. 

9.  He  simply  walked  in  the 
east  door,  and  tapping  Mr.  Richie  on 
shoulder,  Mr.  R.  followed  him  out 
of  the  room,  through  north  door. 

10.  Nothing. 

11.  I  don't  recall. 

12.  I  don't  recall. 

13.  He  stood  there  and  gazed 
on.  Said  "  this  is  a  most  extraordi- 
nary proceeding." 

C.  The  i'crdict.  [The  jurors  im- 
mediately retired  and  deliberated, 
without  the  stenographic  report. 
They  brought  in  a  verdict  in  the 
form  of  answers  to  the  specific  ques- 
tions put  to  the  witnesses ;  as  fol- 
lows :] 

1.  Mr.  Keedy,  through  the  south 
door. 

2.  He  slammed  a  book  on  the 
desk,  and  made  a  noise  with  a  chair. 


No.  294.  III.       TESTIMONIAL    INTERPRETATION.       A.    IN    GENERAL  591 

3.  Examination    papers.      Why      tapped  ]\Ir.  Richie  on  the  shoulder, 
not  poison  then  ?  and  walked  out  by  the  nortli  door, 

4.  He  sat  down  in   a   chair   at      followed  by  Mr.  Richie. 

the   rear   of   the   room,    in   the   last  10.    Charlie    walked    out    at    the 

row  center  section  nearest  the  left  north  door,  followed  by  Mr.  Richie, 

aisle.  See  answer  to  No.  9. 

5.  Mr.  Grubb.  11.    He  walked  out  at  the  north 

6.  I    protest,     I    protest ;      the  door. 

coffee  spilled  over  the  bread.  12.    He  walked  out  at  the  north 

7.  Mr.  Luther.  door. 

8.  The  same  as  Mr.  Grubb.  13.    He    seemed    astonished,    and 

9.  He  came  in  by  the  east  door,  said,  "This  is  an  outrage." 

294.  John  H.  WiG.MORE.  The  Psi/cholngy  of  Testimony.  (1909.  Illinois  Law 
Review.  Ill,  426.)  .  .  .  The  question  has  been  asked  whether  the  alleged 
percentages  of  testimonial  error,  as  found  in  the  laboratory  experiments,  do 
really,  in  trials,  produce  misleading  results  in  the  verdicts.  The  way  to 
answer  this  is  to  include  a  jury  (or  judge  of  facts)  in  the  experiment,  and 
observe  whether  the  findings  of  fact  follow  the  testimonial  errors  or  whether 
they  succeed  in  avoiding  them  and  in  reaching  the  actual  facts.  In  some  of 
the  experiments  this  method  has  been  used,  and  the  results  are  enlightening. 
For  example,  in'Radbruch's  experiment  at  Heidelberg  (the  subject  being  a 
dialogue  of  two  persons  L  and  E,  about  a  telegram,  with  nine  witnesses), 
one  of  the  judges  made  two  errors  of  finding  —  that  L  did  not  take  his  hat 
off,  and  that  E  had  not  reproved  L  for  omitting  to  knock  on  the  door  — 
while  the  other  judge  "  gave  a  finding  substantially  without  error  —  which 
was  not  the  case  with  the  witnesses  on  whom  he  relied."  Again,  in  Zavad- 
ski's  experiment,  "  The  findings  were  much  more  harmonious  than  the 
testimony ;  they  unanimously  avoided  the  grossest  errors  of  the  witness ; 
and  their  average  error,  20.6  per  cent,  was  not  so  high  as  the  witnesses' 
average,  27  per  cent ;  .  .  .  moreover,  they  all  picked  out  the  very  same 
witness  as  the  most  trustworthy,  and  this  witness  was  in  fact  the  best  one." 
Again  in  Detmold's  experiment,  he  found  that  "  in  spite  of  the  numerous 
omissions  and  errors  in  the  testimony,  it  is  possible  by  comparison  of  a  num- 
ber of  them  to  put  together  a  correct  picture  of  the  occurrence,  at  least  in 
its  essentials."  And  finally,  in  Gunther's  experiment,  he  reports,  "It  is 
very  satisfactory  to  note  that,  in  the  identification  of  the  person  charged, 
in  spite  of  the  great  inconsistencies  of  the  testimony,  the  correct  result  was 
found ;  for  both  findings  were  100  per  cent  correct,  though  the  average 
correctness  of  the  witnesses  was  only  80.6  per  cent.  .  .  .  The  average  for 
correctness  of  the  entire  finding  was  90.6  per  cent  for  one  judge,  and  87.4  per 
cent  for  the  other,  though  the  average  of  correctness  for  the  witnesses  was 
only  79.9  per  cent."  Is  it  not  safe  to  say  that  neither  the  absolute  nor  the 
relative  inefficiency  or  untrustworthiness  of  a  jury's  or  judge's  finding  of 
fact  ought  to  be  positively  asserted  until  after  an  extended  series  of  experi- 
ments in  which  such  a  finding  has  been  included  ? 

The  few  such  experiments  hitherto  niade  give  some  ground  for  assuming 
that  the  testimonial  errors,  as  detected  in  the  experiments,  are  to  a  greater 
or  less  extent  without  influence  on  the  verdict. 


TITLE  III  {continued):   TESTIMONIAL  INTERFBETATION 

SUBTITLE   B:   EXTENT    AND    SOURCES    OF    ERROR    AS    INDICATED 
BY    SOME    COMMON    TESTIMONIAL    INCIDENTS 

Topic  1.     Defective  Basis  of  Perception 


296.    ELIZABETH  CANNING'S  TRIAL.      (1754.     Howell's  State 


Trials.      XIX,  570.) 

[One  of  the  facts  in  issue  was 
■whether  the  woman  Squires,  alleged 
to  have  kidnaped  Canning  and 
imprisoned  her  near  London,  was 
at  the  very  time  more  than  a  hun- 
dred miles  distant,  at  Enfield.  Can- 
ning is  here  tried  for  perjury  in 
having  accused  Squires  of  the  kid- 
naping.] 

Hannah  Fcnsham  sworn  [for  the 
prosecution.] 

Mr.  Williams.  —  Where  do  you 
live  ?  —  I   live   at  Enfield. 

Are  you  a  married  woman  ?  —  I 
am ;  my  husband's  name  is  John 
Fensham  ;    he  is  a  gardener. 

How  long  have  you  lived  at 
Enfield  ?  —  Fifteen  or  sixteen  years. 

Look  at  that  old  woman,  take  a 
full  view  of  her.  —  I  know  her ;  I 
have  seen  her  before. 

When?  —  On  the  lOth  of  Janu- 
ary, 1753, 1  mean  after  New  Christ- 
ma.s-day,  I  saw  her  in  Trotts-walk, 
on  the  side  of  Madam  T'row's  garden, 
in  Enfield,  pretty  near  the  highway. 

What  was  she  doing  ?  —  I  met  her 
in  the  walk. 

What  time  of  the  day?  —  In  the 
fore  part  of  the  day. 

What  day  of  the  week  ?  —  I  can't 
recollect  what  day  of  the  week.   .   .   . 

Did  you  see  her  often  between  the 
Ifjth  of  January  and  Ist  of  Febru- 
ary ?  —  I   did   divers   times. 

I)i<l  you  see  her  after  she  was 
taken  up  ?  —  I  did  in  Newgate,  and 
I  recollected  her  then. 


Look  at  her  again  ;  are  you  cer- 
tain this  is  the  same  person  ?  —  Yes, 
Sir,  I  am  certain  of  that. 

What  may  be  your  reason  for 
recollecting  the  16th  of  January  ?  — 
There  was  a  snow  on  the  15th  at 
night,  and  the  16th  it  was  wet;  and 
walking  along,  I  had  like  to  have  fell, 
as  my  pattens  were  on  ;  she  stopped 
and  looked  at  me,  and  I  at  her ; 
when  I  came  home,  my  neighbors 
said,  this  snow  is  come  in  the  right 
season,  yesterday  was  the  15th ; 
then  I  said,  this  must  be  the  16th; 
and  not  only  that,  but  I  went  to  the 
almanac,  and  looked  that  very  day. 

Did  she  speak  to  you  ?  —  No,  nor 
I  to  her ;  but  her  person  is  so  par- 
ticular, that  I  can  swear  she  is  the 
same. 

What  did  she  appear  to  he  ?  —  A 
gypsy,  which  I  had  heard  of  before ; 
I  was  asked,  if  I  had  seen  the  gypsy, 
because  she  went  up  and  down  tell- 
ing fortunes.  .  .  . 

By  :Mr.   ir///r.s-   [for   the  defense]. 

Did  you  look  directly  to  the  al- 
manac ?  —  No,  Sir,  not  till  the  16th 
at  night. 

Are  you  very  well  skilled  in  al- 
manacs ?  —  Why  not  ?  I  can  read 
and  write  a  little. 

Do  you  know  what  day  of  the 
week  it  is  by  the  almanac  ?  —  I  can, 
I  think  so ;  my  head  is  good  enough 
for  that. 

Look  in  this  almanac,  and  tell 
me  what  day  of  the  week  it  is  ?  — 


592 


No.  297.       111.    TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      593 


(She  takes  it  in  her  hand,  which  was 
a  common  sheet  almanac,  folded 
up  into  a  book.)  I  can't  see  by  this, 
it  is  so  small. 

Look  at  it  again,  and  take  your 
time.  —  I  cannot  see  without  my 
spectacles  (she  puts  them  on) ;  you 
shall  not  fool  me  so. 

Tell  me  by  this  the  day  of  the 
week  for  the  14th  of  December.  — 
This  is  not  such  an  almanac  as  I 
look  in  ;  I  look  in  a  sheet  almanac  ; 
I  cannot  tell  by  this. 

Give  it  me  again,  if  you  cannot 
tell.     All   the   reason   vou   have   to 


fix  it  is,  that  the  snow  fell  on  that 
day  upon  which  you  refer  to  your 
almanac  ;  and  now  you  have  shown 
your  skill  in  almanacs. 

By  Mr.  ]]'illiams  — 

How  long  was  it  after  New  Christ- 
mas ?  Was  it  a  fortnight,  or  three 
weeks,  or  a  month  ?  —  It  was  not 
much  above  a  fortnight  after. 

Do  you  know  which  is  Sunday  in 
the  almanac  ?  (She  takes  it  again.) 
Look  in  the  month  of  January. 
(She  tells  down  from  the  1st  to  the 
7th  day,  and  said  that  was  Sunday, 
which   happened    to    be   Tuesday.) 


297.   HEATH'S  TRIAL.   (1774. 

[Mrs.  Cole  had  testified  to  the 
presence  of  Mrs.  Heath,  another 
witness,  on  an  important  occasion ;] 
cross-examined  :  "  Madam,  do  you 
remember  that  Mrs.  Heath  came  to 
awaken  your  mother?"  "I  do  re- 
member that  she  came."  —  "Was 
there  a  light  in  the  room  ?  "  "  There 
was  not."  —  "Had  Mrs.  Heath  a 
light  with  her?"  "She  might  have 
had  a  candle  in  her  hand."  —  "Was 
there  light  or  not?"     "There  was 


Howell's  StatcTriah.  XVIII,  65.) . . . 
not ;  I  believe  there  might  be  a 
fire."  —  "Had  she  a  candle  in  her 
hand?"  "Indeed,  I  cannot  tell." 
.  .  .  —  "  The  reason  of  the  question 
is  this ;  look  at  that  woman ;  will 
you  swear  positively  that  that  is 
the  woman  that  came  into  the  room 
to  call  your  mother?"  "Mrs. 
Heath  was  the  person,  and  I  believe 
that  is  the  same."  —  "How  can 
you  tell  it  was  her  when  there  was 
no  light  ?"     "I  knew  her  voice." 


29S.    BROOK'S  CASE.    (W.  Wills.    Circumstantial  Evidence.    Amer. 


ed.  1905.      p.  160.) 

In  a  case  of  burglary  before  the 
Special  Commission  at  York,  Janu- 
ary, 1813,  a  witness  stated  that  a 
man  came  into  his  room  in  the  night, 
and  caused  a  light  by  striking  on  the 
stone  floor  with  something  like  a 
sword,  which  produced  a  flash  near 
his  face,  and  enabled  him  to  observe 
that  his  forehead  and  cheeks  were 
blacked  over  in  streaks,  that  he  had 
on  a  dark-colored  topcoat  and  a 
dark-colored  handkerchief,  and  was 
a  large  man,  from  which  circum- 
stances and  from  his  voice,  he  be- 
lieved the  prisoner  to  be  the  same 
man.  (Rex  v.  Brook,  3 1  St.  Tr.  1 1 35, 
1137.)  But  see  "TraitedelaPreuve," 
par  Desquiron,  274,  where  it  is  stated 
that  .  after  the  condemnation  of  a 
man  for  murder,  on  the  testimony  of 
two    witnesses,    who    deposed    that 


they  recognized  him  by  the  light 
from  the  discharge  of  a  gun,  experi- 
ments were  made,  from  which  it 
appeared  that  such  recognition  was 
impossible. 

The  late  learned  Recorder  of 
Birmingham  (M.  D.  Hill,  Esq., 
Q.C.)  gave  the  Editor  the  particu- 
lars of  a  remarkable  case,  in  which  he 
was  retained  as  counsel  for  a  prisoner 
accused  of  shooting  at  a  young 
woman,  and  in  which  the  intended 
victim  was  prepared  to  swear  that 
she  recognized  the  prisoner  by  the 
flash  of  the  gun  which  was  fired  at 
her.  The  trial,  which  was  to  have 
taken  place  at  the  Derby  Spring 
Assizes,  1840,  was  prevented  by  the 
suicide  of  the  prisoner,  after  the 
business  of  the  Assizes  had  begun  ; 
but  Mr.  Hill  was  present  at  a  series 


594 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  299. 


of  experiments  made  with  a  view  to 
test  the  possibiUty  of  the  alleged 
recognition,  and  the  conclusion  he 
drew  was  "  that  all  stories  of  rec- 
ognition from  the  flash  of  gun  or 
pistol  must  he  founded  upon  a  fall- 
acy." There  were  many  circiuii- 
stances  in  the  case  calculated  to 
produce  a  strong  impression  on  the 
young  woman's  mind  that  the  pris- 
oner was  her  assailant,  and  she 
doubtless    mistook    the    impression 


so  created  for  ocular  demonstration. 
On  the  other  hand,  it  is  asserted 
in  Tavlor's"  Medical  Jurisprudence  " 
(4th  ed.  1894,  Vol.  I,  p.  729)  that 
from  information  which  the  author 
was  able  to  collect  on  this  point, 
there  appears  to  be  no  doubt  that 
an  assailant  may  be  thus  occasion- 
ally identified.  No  doubt  it  de- 
pends largely  upon  the  quickness 
of  individual  sight. 


299.    CAL  ARMSTRONG'S    CASE.      [Printed  post,  as  No.  339.] 


300.    THE  BEER-WAGON  CASE.    (Amos  C.  Miller.    Examination 


of  ]]'itn(\ss(^-.  Illinois  Law  Review. 
I  remember  two  cases  in  my  own 
experience,  both  of  which  have 
always  been  very  interesting  to  me, 
as  they  illustrate  how  easy  it  is  for 
one  to  be  mistaken  as  to  the  real  facts 
in  a  case  which  he  has  studied  well. 
The  first  one  was  a  personal  injury 
suit  where  a  l)oy  about  twelve  years 
of  age  was  suing  for  the  loss  of  a  leg, 
claiming  to  have  been  carelessly  run 
down  by  the  driver  of  a  brewer's 
wagon  while  crossing  South  Hal- 
stead  street  upon  a  crosswalk.  In 
preparing  the  defense  of  this  case  I 
several  times  talked  with  the  driver 
of  the  wagon  which  was  alleged  to 
have  caused  the  injury.  He  ap- 
peared perfectly  honest,  but  in- 
sisted that  he  knew  nothing  of  the 
accident,  and  that  he  did  not  run 
over  anybody.  He  was  a  purely 
negative  witness,  and  in  the  pres- 
ence of  anything  like  a  strong  ar- 
ray of  positive  evidence,  his  testi- 
mony would  manifestly  amount  to 
nothing.  Just  before  the  trial,  he 
came  in  with  a  new  idea  ;  ourevidence 
showed  that  the  accident  had  hap- 
pened at  3.30  P.M.  on  the  17th  of 
December,  ISOO,  one  of  the  shortest 
days  of  the  year.  This  driver  said 
that  he  had  discovered  and  could 
prove  by  other  witnesses  in  the  em- 
ploy of  the  defendant  that  while  he 
ordinarily  passed  the  point  of  the 
accident  at  3.30  o'clock  p.m.,  on 
this    particular    da\'    he    went    to    a 


1907.  Vol.  II,  p.  247.) 
funeral  and  left  the  brewery  an 
hour  late,  which  brought  him  to  the 
point  of  the  accident  at  4.30  p.m., 
an  hour  after  the  accident.  I  re- 
plied, "Then  your  story  is  that  on 
364  days  of  that  year  you  passed 
the  point  of  the  accident  at  the  hour 
of  the  accident,  but  on  the  365th 
day  you  passed  there  an  hour  later." 
He  said  that  was  right.  I  did  not 
believe  it ;  and  my  fear  that  we 
were  in  the  WTong  was  strengthened 
by  this  apparent  willingness  of  the 
person  charged  with  the  delin- 
quency to  put  forward  an  unbeliev- 
able story  ;  and  I  went  into  the  trial 
not  very  hopeful. 

What  then  was  my  surprise  to 
hear  the  plaintiff's  counsel,  an  able 
and  well-known  trial  lawyer,  state 
to  the  jury  in  his  opening  state- 
ment that  he  would  prove  that  the 
accident  happened  at  4.30  p.m. 
That  he  would  show  out  of  the 
mouths  of  the  defendant's  witnesses 
that  this  driver,  while  he  ordinar- 
ily pa.s.sed  that  point  at  3.30  p.m. 
was  late  and  did  not  get  there  until 
4.30  P.M.  As  a  matter  of  fact, 
that  driver  had  told  me  the  truth, 
and  the  plaintitt"s  counsel  by  a  care- 
ful investigation  had  learned  that  it 
was  the  truth,  and  had  therefore 
shaped  his  other  testimony  to  meet 
it. 

I  lost  no  time  in  shifting  my  own 
course  to  suit  this  sudden  develop- 


No.  301.      III.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      595 


ment.  As  luck  would  have  it,  this 
trial  began  on  the  15th  of  December, 
1899,  three  years  after  the  accident, 
lacking  two  days.  In  my  opening 
statement  I  said  nothing  about  the 
time  of  the  accident ;  but  in  cross- 
examining  the  large  number  of 
plaintiff's  witnesses  I  incidentally 
brought  out  the  fact  that  it  was 
broad  daylight  at  the  time  of  the 
accident  and  for  more  than  a  half- 
hour  thereafter,  and  that  the  wit- 
nesses had  read  the  name  upon  the 
wagon  and  the  number  of  the  tele- 
phone, and  had  recognized  the  driver 
when  the  wagon  was  almost  a  block 
away.  The  plaintiff's  counsel  put 
upon  the  stand  the  driver  of  the 
wagon,  and  showed  by  him  that  he 
had  left  the  brewerv  an  hour  late. 


On  the  17th  day  of  December  at 
4.30  o'clock,  just  three  years  to  a 
minute  from  the  time  the  defend- 
ant's wagon  was  at  the  scene  of  the 
accident,  I  arose  and  interrupted  the 
proceedings  and  called  the  attention 
of  the  court  and  the  jury  to  the 
clock  upon  the  wall  recording  the 
hour  of  4.30,  and  then  to  the  looks 
of  things  outdoors.  Every  one,  of 
course,  looked  out  of  the  windows. 
The  sun  had  set  long  since,  a  heavy 
snow  was  falling,  and  it  was  as 
dark  as  the  blackest  midnight. 

The  facts  were  so  clear  that  there 
M^as  scarcely  room  for  argument. 
The  boy  had  been  run  over,  by  a 
wagon,  but  7iot  by  our  wagon,  and 
the  driver  had  been  telling  me  the 
exact  truth. 


301.    THE  BOTTOMRY  BOND  CASE.     (Boston  "Transcript,"  July 
15,  1910;  reprinted  from  the  "National  Magazine.") 


The  master  of  a  vessel  in  a  port  in 
the  Gulf  of  jSIexico  being  in  need  of 
money  borrowed  it  and  to  secure  its 
repayment  executed  what  is  called  a 
bottomry  bond.  By  this  bond  it 
was  agreed  that  if  the  money  was 
not  paid  within  so  many  days  after 
the  vessel  arrived  at  New  York  pro- 
ceedings might  be  taken  to  have  the 
vessel  sold  and  the  debt  paid  out  of 
the  proceeds.  The  money  was  not 
paid  and  I  was  retained  to  enforce 
the  bond  and  began  a  suit.  Some 
one  interested  in  the  vessel  appeared 
in  the  suit  and  denied  that  the  bond 
had  been  executed  by  the  master, 
as  had  been  alleged. 

It  became  necessary  to  take  the 
testimony  on  this  point  of  a  sailor 
whose  name  was  subscribed  to  the 
bond  as  having  witnessed  its  execu- 
tion. In  answer  to  my  questions  the 
sailor  said  that  the  captain  called 
him  into  the  vessel's  cabin  and  asked 
him  to  be  a  witness  to  the  bond,  and 
he  signed  his  name  to  it  as  a  witness, 
and  he  spoke  of  the  paper  as  the 
bottomry  bond.  The  opposing  coun- 
sel in  a  sharp  cross-examination 
asked  him  how  he  knew  it  was  a 
bottomry    bond,    and    the    witness 


answered  that  he  read  enough  of  it 
to  know"  what  it  was.  Some  other 
skillful  questions  brought  out  the 
fact  that  when  the  sailor  came  into 
the  cabin  the  captain  was  sitting  on 
the  other  side  of  a  table  with  the 
paper  before  him  and  the  sailor  sat 
down  at  the  side  of  the  table  facing 
the  captain,  so  that  the  paper  was 
between  them  ;  that  the  paper  was 
not  read  to  him,  that  the  captain 
turned  over  the  first  leaf  of  the  paper 
and  signed  his  name  at  the  end  of  it, 
and  told  the  sailor  where  to  sign  his 
name,  which  he  did  and  then  left  the 
cabin. 

My  heart  sank,  for  I  saw  that  it 
was  open  to  the  other  side  to  say 
that  the  document  lay  on  the  table 
upside  down  to  the  sailor,  and  that 
his  statement  that  he  read  enough 
of  the  document  to  know  it  was  a 
bottomry  bond  was  false,  because, 
of  course,  he  could  not  read  writing 
which  was  upside  down,  and,  there- 
fore, his  whole  evidence  should  be 
disbelieved.  The  lawyer  opposed  to 
me  saw  the  point  also  ;  but,  instead  of 
leaving  the  matter  where  it  was,  he 
concluded  to  clinch  it,  and  taking 
the  document  he  laid  it  down  on  the 


59(5 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  302. 


table  l)ef(iiT  tlie  witness  upside  down, 
and  sail!  to  him,  "  Let  us  see  you 
read  the  paper  now."  To  my  great 
surprise  and  rehef  the  witness  read 
ihc  icrUinfi,  upside  down  as  it  was, 
with  nearly  as  much  fluency  as  if  it 
hafl  been  right  side  up. 


That  ended  the  contest  over  the 
execution  of  the  bond.  This  sailor's 
ability  to  read  writing  when  it  was 
upside  down  was  a  curious  instance 
of  the  many  curious  things  which 
sailors  do  to  occupy  their  time  during 
idle  watches  on  long  voyages. 


302.   THE  POISONED  COFFEE 

of  Lawsuits.      2d  ed.      1912.      §  403.) 

We  add  some  illustrations.  A 
master  one  morning  at  breakfast 
suspected  that  there  was  poison 
in  his  coflee,  and  he  immediately 
accused  his  cook.  The  negro  was 
thought  to  evince  manifest  signs 
of  guilt.  The  whole  family  showed 
alarming  symptoms,  and  the  master 
in  his  rage  made  the  cook  drink  all 
the  remaining  coffee.  She  fell  into 
convulsions.  Of  course  it  was  poi- 
son. They  all  saw  in  the  coffee 
grounds  fragments  of  the  fatal  buck- 
eye. The  doomed  slave  was  hurried 
through  an  examination.  A  lawyer, 
whose  heart  went  out  in  yearning 
love  to  the  poorest  and  lowliest 
in  distress,  inquired  into  her  case 
and  quietly  learned  all  of  the  testi- 
mony against  her.  E\-ery  one  who 
had  drunk  the  coffee  had  sworn  to 
its  unusually  bitter  taste.  It  chanced 
that  our  lawyer  had  been  lately 
prescribed  by  his  dentist  a  decoc- 
tion of  buckeye  for  toothache,  and 
he  knew  that  its  taste  was  sweet  and 
not  bitter.  He  was  too  prudent  to 
proclaim  his  dissent,  for,  the  infuri- 
ated family  learning,  the  mob  might 
have  balked  him.  He  waited  until 
the  trial,  wlicn  he  volunteered  to 
defend  the  friendless  woman.  The 
court  of  course  assigned  liim  to  her 
as  counsel.  He  made  all  of  the  wit- 
nesses for  the  State  dilate  upon  the 
bitterness  which  they  had  testified  to 
at  the  examination  ;  he  almost  made 
them  (juarrel  with  him  l)y  appearing 
to  doubt  what  they  said  on  this 
point  :  bitter  tasted  the  coffee  was  ; 
they  had  never  tasted  anything  so 
bitter.  His  only  exidcnce  was  a 
glass  of  fluid,  proven  by  the  dentist 
—  a  man  well  kii.)\vn  to  the  jury  — 


CASE.      (John  C.  Reed.      Conduct 

to  be  a  decoction  of  buckeye.  The 
glass  was  handed  to  the  judge ;  he 
tasted  ;  then  to  the  jury,  and  all  of 
them  took  a  timid  sip ;  and  in  a  few 
minutes  there  was  an  acquittal.  The 
bitterness  had  no  doubt  been  the  re- 
sult of  negligence  with  the  coffeepot, 
and  fright  had  caused  the  convul- 
sions of  the  cook.  Witches  how- 
ever have  been  burnt,  and  other 
women  both  bond  and  free  have  been 
convicted  on  evidence  less  satisfac- 
tory than  that  produced  against 
this  slave  before  the  magistrate, 
and,  with  sadness  be  it  said,  exe- 
cuted. This  great  advocate  [Alex- 
ander H.  Stephens]  had  often  de- 
livered prisoners  from  the  dread 
penalty,  and  his  name  w^as  in  all 
men's  mouths  for  his  matchless  tact 
and  unrivaled  eloquence.  But  to 
liis  immortal  honor  be  it  told  that 
he  ever  counted  his  unfeed  and  un- 
ostentatious defense  of  this  help- 
less slave  among  the  proudest  of 
his  victories. 

The  following  is  related  by  David 
Paul  Brown :  A  young  and  inter- 
esting girl,  of  respectable  position, 
had  trusted  and  been  betrayed. 
She  became  a  mother.  At  the  age 
of  three  weeks  the  child  died  some- 
what suddenly.  A  post-mortem 
examination  took  place.  The  death 
was  said  to  have  been  produced  by 
arsenic,  and  the  medical  witnesses 
strengthened  that  opinion  by  testi- 
mony. The  mother  was  indicted 
for  murder,  and  was  tried  before 
Judge  Symser,  of  Montgomery 
County,  a  humane  and  inilustrious 
and  eminent  judge.  In  addition 
to  the  scientific  evidence  and  in 
strong   corroboration    of    it,    it   was 


No.  303.       III.       TESTIMONIAL   INTERPRETATION.      B.    COMMON    INCIDENTS      597 


shown  that  a  day  or  two  before 
the  death  of  her  infant  the  motKer 
had  sent  for  half  an  ounce  of  arsenic 
to  a  grocer's ;  that  after  the  death 
the  arsenic  was  taken  to  the  grocer's 
and  weighed,  and  had  lost  twenty- 
four  grains  in  weight.  The  circum- 
stance, togetlier  with  the  opinion  of 
the  chemist,  presented  a  strong  case. 
Neither  was  sufficient  in  itself,  but 
together  they  were  dangerous.  Of 
course  the  cross-examination  as  to 
the  weight  was  very  rigid  and  severe. 
Upon  this  particular  point  it  ran 
thus :  "  When  the  arsenic  was  pur- 
chased, how  did  you  weigh  it  ? " 
"I  weighed  it  with  shot."  "How 
many  shot?"  "Six."  "Of  what 
description?"  "No.  8."  "When  it 
was  returned  to  you,  did  you  weigh 
it  in  the  same  scales?"  "Yes." 
"Did  you  weigh  it  with  the  same 
shot?"  "I  weighed  it  with  shot  of 
the  same  number,  for  I  had  no  other 
number."  "How  much  less  did 
it  weigh?"  "Twenty-four  grains 
less."  It  was  plain  that  the  testi- 
mony bore  hard  upon  the  prisoner, 
but  at  this  stage  of  the  case  the 
court  adjourned.  Immediately  my 
colleague  (Mr.  Boyd)  and  myself 
visited  the  stores  of  all  the  grocers 
and  took  from  various  uncut  bags 
of  No.  S  the  requisite  number  of  shot, 
subjected  them  to  weight  in  the 
most  accurate  scales,  and  found  that 
the  same  number  of  these  different 
parcels  of  shot  varied  more  in  weight 
than  the  difference  referred  to  as 
detected  in  the  arsenic  at  the 
time  of  its  return.  The  shot,  the 
gi'ocers,  the  apothecary,  the  scales, 
were  all  brought  before  the  court. 
They  clearly  established  the  facts 
stated.   .   .  . 

W^e  give  another  example  from 
the  practice  of  a  celebrated  lawyer. 
Action  for  a  cargo  of  goods  sold  on 
credit.  Plea,  that  plaintiff  had 
represented    the  goods  to    be   mer- 


chantable, and  that  defendant,  rely- 
ing on  the  representation,  had 
bought  and  shipped  the  goods  to  a 
foreign  market,  where  he  suffered 
great  damage  because  they  proved 
to  be  unmerchantable.  The  main 
witness  for  the  defense  appeared  to 
be  reliable.  He  had  been  employed 
in  the  ship  that  carried  the  goods, 
he  explained  how  they  were  made 
of  bad  material,  not  fit  for  use,  and 
he  alone  testified  to  the  false  repre- 
sentation alleged.  The  counsel 
who  had  brought  the  action  and 
prepared  the  case  said  to  Choate, 
whom  he  had  called  in  at  the  last 
moment,  that  the  witness  was 
inventing.  "No,"  replied  the 
leader,  "he  is  truthful,  but  mis- 
taken." He  began  his  cross-exami- 
nation by  establishing  a  friendly 
understanding.  He  made  the  wit- 
ness report  the  appearance  of  the 
seller  of  the  goods  as  to  size,  dress, 
complexion,  and  whiskers.  The  pic- 
ture given  was  so  unlike  the  plain- 
tiff that  it  became  manifest  he  had 
a  different  person  in  mind.  When 
he  was  made  to  name  the  ship, 
the  plaintiff  easily  proved  that  his 
goods  were  sold  two  weeks  later 
and  shipped  in  another  vessel ; 
whereupon  the  defense  collapsed. 
At  the  beginning  of  the  trial, 
Choate,  noticing  the  indignation 
which  the  defense  excited  in  the 
plaintiflF,  said  of  him  to  his  associate, 
"  He  is  honest,  and  we  shall  find  our 
way  out  of  the  scrape."  The  cer- 
tainty with  which  he  discerned  the 
honesty  of  the  plaintiff  and  the 
witness  at  the  first  glance  made  him 
see  that  the  only  possible  explana- 
tion of  their  apparent  conflict  was 
that  the  latter  had  mistaken  a  seller 
of  other  goods  for  the  former.  —  a 
solution  which  had  not  occurred  to 
the  associate,  who  had  had  sole 
charge  of  the  plaintiff's  case  until 
the  trial. 


303.    LADY  IVY'S  TRIAL.      [Printed  post,  as  No.  348] 


598 


PART   II.      TESTIMONIAL   EVIDENCE 


No.  301 


304.    CAPTAIN  BAILLIE'S  TRIAL 
XXI,  216.) 

[Captain  Baillie,  Lieutenant  Gov- 
ernor of  the  Greenwich  Royal 
Hospital  for  Seamen,  had  pul)lished 
a  pamphlet  exposing  the  al)uses  in 
its  management,  due  to  political 
spoilsmen  on  the  Board  of  Directors. 
After  a  prosecution  for  libel  against 
Captain  Baillie  had  fallen  through, 
the  House  of  Lords  undertook  an 
investigation  into  the  abuses.  One 
of  the  charges  was  that  "in  many 
parts  of  the  clothing,  such  as  shoes, 
stockings,  linen,  beds,  washing,  etc., 
there  are  great  abuses."]  .  .  . 

Thursday,  March  25,  1779. 

Captain  BaiJIic  called  in. 

Whether  there  have  been  any 
abuses  in  the  linen  in  Greenwich 
Hospital? — There  have  been  many 
complaints  made  to  me  by  the  pen- 
sioners of  Greenwich  Hospital,  that 
the  quality  of  the  linen  has  been  very 
dili'erent  from  what  it  used  to  be, 
that  it  has  decreased  in  size  as  well 
as  in  goodness. 

Inform  the  House  whether  you 
made  any  experiments,  to  know 
whether  it  was  decreased  in  size?  — 
In  consequence  of  that  information, 
I  sent  the  proper  people,  as  I  thought 
they  were,  the  boatswains  and 
nurses,  into  the  different  quarters  of 
the  hospital,  to  measure  the  linen 
throughout  the  hospital,  in  particu- 
lar in  the  infirmary,  where  I  thought 
it  was  of  the  most  consequence ; 
the  persons  wiio  measured  the  linen 
there,  brought  reports  to  me  that 
all  the  men's  sheets,  upon  an  aver- 
age, were  deficient  in  half  a  yard  in 
every  pair,  one  with  the  other  ;  some 
wanted  a  yard,  some  three  quarters 
of  a  yard,  and  the  average  about 
half  a  yard  upon  the  whole,  gener- 
ally throughout  the  hospital. 

Is  there  anybody  here  that  can 
.speak  to  that  ?  —  There  are  the  people 
here  who  measured  it ;  they  like- 
wise measured  the  shirts;  Thomas 
Field  measured  them.  .  .   . 

Thoma.'i  Field,  one  of  the  boat- 
swains, called  in. 


(1778.     Howell's  State  Trials. 


Did  you  measure  any  linen  be- 
longing to  the  hospital  at  any  time  ? 

—  Yes. 
How  much  did  you  measure? — I 

measured  388  pair  of  sheets  in  the 
infirmary. 

How    much    did    they    measure  ? 

—  They  measured  half  a  yard  short 
and  better  in  each  pair  of  sheets. 

Half  a  yard  of  what?  — Of  the 
cloth ;  I  had  been  told  by  the  lieu- 
tenant gf)vernor,  that  they  were  to 
be  two  yards  and  one  half  long,  five 
yards  in  each  sheet. 

Upon  an  a^■erage,  how  much  did 
they  measure  short  of  that  ?  —  Better 
than  half  a  yard. 

In  each  pair,  or  in  each  sheet  ? 

—  In  each  pair. 
Upon  what  number  of  sheets  did 

you  say  you  made  this  measure- 
ment ?  —  388  pair. 

And  upon  each  of  the  388  pair, 
if  I  understood  you  right,  there  was 
a  deficiency  of  half  a  yard  ?  —  There 
was  in  each  pair. 

Did  you  measure  any  other 
linen? — Yes,  all  the  boatswains  in 
the  House  had  orders  to  measure  the 
linen  that  belonged  to  the  pensioners 
that  were  in  their  division. 

Did  you  measure  them  ?  —  I  meas- 
ured the  linen  that  w'as  in  the  divi- 
sion that  I  belonged  to ;  they  run 
95  yards  short  upon  shirts  and 
sheets,  160  sheets  and  160  shirts. 

What  you  mentioned  before  re- 
lated to  the  infirmary  ?  —  Yes. 

What  you  speak  of  now  relates 
to  your  ward  ?  —  Yes. 

And  in  your  ward  how  much  did 
you  find  short  in  the  sheets  and 
shirts  ?  —  95  yards. 

W'hat  do  you  imagine  was  the 
allowance  for  shirts  ?  —  I  was  told 
three  yards  and  a  half. 

Did  you  measure  the  linen  in  any 
other  wards?  —  No,  none  at  all  but 
the  division  I  liclonged  to,  and  the 
infirmary  sheets.  (Thomas  Field 
withdrew.) 

Mr.  Godby,  the  Steward,  called  in. 


No.  304.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      599 


Is  there  any  allowance  made  in 
the  hospital  for  the  measure  of 
sheets  and  shirts  ?  —  Three  yards  and 
a  half  for  a  shirt,  and  five  yards  for 
a  sheet. 

Were  the  sheets  less  than  they 
used  to  be  the  last  time  they  were 
cut,  at  the  time  that  they  mention  ? 

—  I  believe  they  are  full  as  long  now 
as  ever  they  were,  and  are  made  in 
the  same  manner  in  cA'ery  respect. 

But  were  they  not  half  a  yard  less 
in  each  pair  of  sheets  than  before  ? 
-No. 

Are  you  positive  and  clear  in  that  ? 

—  Yes  ;  it  cannot  be ;  if  any  sheets 
are  shorter  than  the  standard,  it  is 
because  the  pieces  of  sheeting  run 
a  certain  length,  and  we  cut  them 
so  as  not  to  leave  any  remnants ; 
that  is  the  establishment  in  the 
hospital,  and  has  been  always  the 
practice ;  at  least  for  40  years  back 
to  Mr.  Bell's  time ;  I  have  pursued 
the  same  method,  and  employed  the 
same  people,  and  I  have  no  reason 
to  believe  that  they  have  made  away 
with  any  of  it. 

You  say  there  is  the  same  quantity 
now    in    the    sheets    as    formerly  ? 

—  The  same. 

How  could  it  happen,  that  the 
sheets,  when  measured,  appeared  to 
be  half  a  yard  less  ?  —  I  fancy  it  will 
not  appear  so,  when  your  lordships 
call  upon  the  clerk-of-the-check's 
clerk,  who  is  a  check  upon  my  office  ; 
he  receives  these  sheets,  and  is  a 
check  upon  them. 

You  are  positive  they  are  the 
same  size  as  usual  ? — Yes,  the  same 
size  as  usual. 

Whether  you  speak  absolutely 
from  having  measured  the  present 
sheets?  —  I  have  seen  a  great  many 
of  them  measured,  and  I  believe  all 
the  linen  is  accounted  for  very 
clearly ;  it  appears  so  to  me. 

I  wish  to  have  a  direct  answer ; 
have  you  measured  all  these  sheets 
yourself?  —  Not  all:  it  is  impossible 
I  can  measure  eight  or  nine  thousand 
pair  of  sheets ;  that  cannot  be  sup- 
posed, I  should  imagine ;  I  have 
seen  a  great  many  of  them  measured. 


.  .  .  W^hat  quantity  may  you  have 
measured  yourself?  —  When  there 
have  been  two  or  three  hundred 
pair  delivered  into  my  office,  I  have 
measured  three  or  four,  and  have 
been  satisfied.  If  I  have  found  a 
deficiency  in  any  respect,  I  have 
looked  farther  into  it. 

What  is  the  measure? — Of  the 
sheets  five  yards. 

Did  those  you  measured  measure 
five  yards?  —  They  measured  some- 
thing under,  because  we  cut  them  so 
as  not  to  make  any  remnants. 

I  ask  you  the  positive  measure  of 
what  you  measured  yourself  ?  — • 
Sometimes  a  nail  of  a  yard  short, 
sometimes  two  nails  short. 

But  none  of  them  were  positively 
five  yards  long?  —  Some  of  them 
were. 

Of  what  length  were  the  sheets 
that  you  did  measure  yourself  ? — 
Sometimes  a  full  length,  sometimes 
wanting  a  nail  of  a  yard,  at  other 
times  two  nails  perhaps.  But  then, 
when  I  came  to  inquire  into  the 
matter,  I  found  that  it  should  be  so. 
A  piece  of  sheeting,  if  it  runs  40 
yards,  would  make  five  pair  of  sheets, 
but  they  run  38  and  a  half,  and  39, 
and  39  and  a  half  ;  they  are  generally 
about  that  length,  and  then  we  make 
just  the  same  sheets  as  if  they  run 
40 ;  it  is  an  advantage  to  the  hospital, 
and  is  the  method  that  was  always 
adopted  by  the  former  stewards. 

Is  it  not  somebody's  province  to 
measure  all  the  sheets  ? — The  people 
in  my  office  measure  a  number  of 
them,  but  not  all  of  them,  I  dare  say. 

Whether  or  not  the  measuration 
you  have  taken  of  these  sheets  was 
before  or  after  the  complaint  was 
made  by  Captain  Baillie  ?  —  I  have 
measured  them  since  the  complaint, 
and  I  have  measured  them  before. 

Is  it  your  office  properly  to  measure 
this  linen? — -It  is,  with  the  clerk  of 
the  check,  never  without  him.   .   .   . 

Have  you  always  took  the  meas- 
ure upon  the  faith  of  the  contractor 
to  be  according  to  the  contract?  — 
No,  I  measure  here  and  there  a  piece  ; 
if  I  find  a  deficiency  of  a  yard;  or 


GOO 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  304. 


half  a  yard,  I  go  farther,  and  meas- 
ure more,  and  if  there  is  a  yard  de- 
ficient in  any  one  of  those  pieces, 
I  deduct  a  yard  from  every  one  of 
those  pieces  I  receive. 

If  from  the  number  of  sheets  you 
have  spoken  to,  you  had  found  a 
deficiency  of  half  a  yard  upon  every 
pair  of  sheets,  should  not  you  have 
thought  it  worth  your  while  to 
complain  to  somel)ody  of  the  hospi- 
tal, in  order  to  rectify  that  abuse  ? 

—  Certainly  not,  these  sheets  have 
been  delivered  out  of  my  care  a 
twelvemonth. 

If  in  the  measurement  of  the 
sheets  you  yourself  had  discovered 
a  deficiency,  whether  you  would 
not  have  thought  the  hospital 
greatly  defrauded  by  such  a  de- 
ficiency?—  It  could  not  happen  in 
my  office. 

But  I  ask  you  if  you  had  dis- 
covered a  deficiency?  —  If  so,  cer- 
tainly. 

If  again,  if  in  the  measurement  of 
38S  pair  of  sheets,  you  had  discovered, 
as  the  witness  discovered,  a  defi- 
ciency of  195  yards,  which  he  has 
sworn  to  upon  his  measurement, 
would  not  you  have  thought  that 
a  fraud  too?  —  Not  if  it  was  ac- 
coimted  for  some  other  way. 

I  ask  you,  if  upon  your  measure- 
ment you  had  found  the  deficiency  ? 

—  No  doubt  of  it ;  if  there  was  a 
deficiency  of  190  odd  yards,  there 
nmst  be  a  fraud  somewhere. 

Do  you  know  of  any  complaints 
being  made  to  the  council  of  a  de- 
fic-iency  in  the  linen?  —  None.   .   .  . 

How  far  is  your  rule  to  go  by, 
when  you  find  a  piece  short  of  its 
measure  ?  You  say  forty  yards 
ought   to  make  five  pair  of  sheets  ? 

—  Yes. 

Suppose  a  piece  of  linen  is  thirty- 
nine  yards  ?  —  Then  we  will  make  an 
allowance  accordingly,  we  divide 
it  erpially. 

Supjjosc  it   is  thirty-eight   yards? 

—  We  divided  it  accordingly;  but 
if  it  is  only  thirty-seven  or  thirty- 
seven  and  a  half,  so  that  we  think 
the  piece  would  Ik-  too  short  for  use, 


that  there  would  be  a  complaint, 
we  make  only  seven  sheets  and  lea\'e 
a  remnant. 

What  is  the  precise  rule  you  go  by 
to  term  the  piece  too  short,  whether 
it  is  thirty-seven  yards,  or  thirty- 
seven  yards  and  a  half  ?  —  It  is  left 
to  the  judgment  of  the  persons  that 
cut  them. 

Who  are  those  persons? — Two 
of  the  clerks'  wives  have  cut  them 
for  late  years  before  my  appoint- 
ment, and  before  my  predecessor's, 
I  believe.   .   .   . 

Mr.  Maulc  called  in. 

Whether  the  sheets  are  of  the 
right  length  at  present  ?  —  I  believe 
so. 

What  reason  have  you  to  think 
that  they  are  ?  —  I  have  known  the 
hospital  a  great  many  years,  and, 
till  very  lately,  I  never  heard  of  a 
complaint  at  all  of  the  kind. 

W'hat  reason  have  you  to  think 
that  they  are  not  shorter  than  they 
were  formerly?  —  I  don't  know  that 
they  are  shorter  than  they  were 
formerly. 

Did  you  never  hear  a  com- 
plaint of  the  kind  ?  —  Not  till  very 
lately.   .   .   . 

Are  the  pieces  of  linen  not  always 
of  the  same  length  ?  —  They  run 
from  37  to  37|,  38,  and  so  on  to 
39| ;  very  seldom  to  40. 

You  seldom  find  any  pieces  of  the 
full  length  ?  —  Very  seldom. 

Do  you  speak  from  your  certain 
knowledge,  that  the  sheets  are  not 
now  shorter  than  they  were  before  ? 

—  I  don't  say  that  they  are  at 
present. 

You  say  they  are  not  shorter  now  ; 
whether  they  were  not  shorter  be- 
fore the  complaint  was  made  by 
Captain  Baillie  ?  —  I  believe  they 
are  now  as  they  have  been  made 
for  many  years  past. 

Do  you  speak  from  your  certain 
knowletige  that  the  sheets  are  now 
no  shorter  than   they  were  before  ? 

—  I  never  heard  till  very  lately,  as 
I  said  before,  that  the  sheets  were 
shorter  now  than  they  were  formerly. 

x\nswer    that    question    directly ; 


No.  304.       III.       TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      601 


do  you  know  of  your  own  knowledge, 
that  the  sheets  are  now  of  the  same 
length  as  they  were  before  ?  —  All 
that  have  come  within  my  knowl- 
edge. 

How  man}'  have  come  within  your 
knowledge  ?  —  A  great  many. 

How  many  ?  —  I  suppose  100  pair 
or  more. 

Out  of  how  many  ?  —  Some  thou- 
sands. 

How  many  thousands  ?  —  Very 
likely  three  or  four  thousand. 

How  many  hundred  pair,  out  of 
these  three  or  four  thousand,  have 
you  measured  ?  —  I  suppose  an  hun- 
dred pair  I  have  seen  measured. 

And  were  those  equal  to  the  stand- 
ard ?  —  I  have  already  told  your 
lordships,  that  I  never  knew  that 
they  were  to  the  standard. 

What  rule  have  you  to  go  by  to 
say,  that  in  former  times  the  sheets 
were  shorter  than  the  standard  ? 
By  how  much  were  they  shorter  ?  — 
I  cannot  speak  particularly  to  that ; 
but  I  do,  from  my  own  knowledge, 
know  that  the  sheets  were  formerly 
made  as  they  are  now,  and  in  the 
same  manner,  and  by  the  same 
people. 

You  say  they  were  shorter,  but 
don't  know  by  how  much ;  I  desire 
you  will  say  then,  how  you  can  pos- 
sibly know  that  the  present  sheets 
are  not  shorter  than  those  were  ?  —  I 
said,  at  the  same  time,  that  though 
it  was  a  nominal  thing  that  the  sheets 
were  to  consist  of  five  yards,  yet  I 
believe  they  never  were  of  that 
quantity. 

But  how  much  were  they  shorter  ? 
—  I  cannot  particularly  say. 

If  you  don't  know  by  how  much 
they  were  shorter,  how  can  you  pos- 
sibly say,  that  you  don't  know  that 
they  are  now  shorter  than  they  were 
then  ?  —  I  never  heard  a  complaint. 

That  is  not  the  question ;  you 
say,  that  from  your  knowledge,  the 
hundred  sheets  you  measured  were 
the  same  length  as  those  before ; 
now  you  say,  you  don't  know  the 
exact  length  of  those  before;  how 
then  can  you  know  that  these  are  of 


the  same  measure  ?  —  I  have  meas- 
ured them  frequently  formerly, 
when  I  was  a  clerk  in  the  clerk  of 
the  cheque's  office  ;  and  I  have  seen 
them  measured  since  I  have  been  in 
the  present  office,  and  since  I  have 
been  clerk  of  the  cheque  myself  I 
have  often  seen  them  measured,  and 
I  don't  know  that  there  is  any  differ- 
ence between  those  made  formerly 
and  those  made  now. 

When  you  measured  the  sheets 
formerly,  of  what  length  were  they  ? 
— ...  I  believe  short  a  quarter  of  a 
yard  ;  I  have  seen  them  so  very  often. 

Have  you  measured  any  number 
of  sheets  latterly  ?  —  I  have  seen  a 
great  many  measured  lately. 

Have  you  made  any  computation, 
and  cast  it  into  an  average,  to  see 
how  much  they  were  short?  —  No; 
but  I  apprehend  they  were  not  more 
than  that  short ;  none  that  I  have 
measured  have  been  more  than  that 
short.  .  .  . 

Can  you  speak  to  an}^  certain 
number  that  you  have  seen  meas- 
ured, that  do  all  of  them  come 
within  a  quarter  of  a  yard  exactly, 
or  nearly  ? — No;  I  have  only  seen 
here  or  there  some  measured  when  a 
quantity  have  been  delivered  in.  .  .  . 

Whether  you  have  any  reason  to 
believe  that  the  measurement  that 
Mr.  Field  made  was  not  a  fair 
measurement  ?  — I  believe  a  fair  one. 
(Mr.   Maule  withdrew.)  .  .  . 

Captain  BaiUic  called  in. 

Whether  you  know  anything  of 
the  method  in  which  the  linen  is  cut 
out  in  Greenwich  Hospital  ?  ■ —  Do 
you  speak  of  sheets  or  shirts  ? 

The  sheeting. —  A  piece  of  sheeting 
is  generally  cut  into  sixteen  lengths, 
to  make  eight  sheets ;  each  length 
ought  to  consist  of  two  yards  and  a 
half ;  a  piece  of  Russia  sheeting  gen- 
erally contains  thirty-seven  yards 
and  a  half  ;  that  being  cut  into  sixteen 
lengths,  does  not  run  to  the  standard 
of  the  hospital ;  instead  of  sixteen 
lengths,  it  ought  to  be  cut  into  fif- 
teen only ;  by  which  means  two 
pieces  will  make  fifteen  sheets  ;  and 
by  cutting  four  pieces  in  that  man- 


602  PART    II.       TESTIMONIAL   EVIDENCE  No.  303. 

ner,  they  will  make  exactly  fifteen  Price ;    I  rlo  not  know  his  Christian 

pair  of  sheets ;   instead  of  which  the  name,  for  I  never  saw  him  before, 

practice  is,  to  cut  four  pieces  into  (Captain   Baillie  withdrew.)  .  .  . 

sixteen    pair    of    sheets,    by    which  I\Ir.    Price   was   therefore   called, 

means  there  is  a  pair  of  sheets  more  and  sworn  at  the  bar.     The  House 

than  there  ought  to  be  by  the  estab-  being   again   resolved   into   a   com- 

lishment.  .  .  .  mittee. 

\Vhether    the   pieces   of   linen    in  What    is   your  name  ?  —  Edward 

general  run  thirty-seven  yards  and  Price. 

a  half  ?  —  They  are  bought  for  thirty  Where   do  you  live?  —  I    live  in 

ells,    that    is    exactly    thirty-seven  Blackmoor  street,  Clare  market, 

yarils  and  a  half ;   and  if  you  search  Are  you  a  linen  draper  ?  —  I  am. 

Cheapside,    from    one    end    to    the  Do  you  deal  in  Russia  linen  ?  —  I 

other,  I  believe  it  will  be  found  to  do. 

be  the  length.  .  .  .    There  is  a  gen-  What  length  are  pieces  of  Russia 

tleman  I  have  seen  here  to-day,  who  sheeting,  upon    an  average? — The 

is   a   draper,   he  can    tell  the  exact  fabric  is  thirty  ells,  or  thirty-seven 

lengtli  of  tiie  pieces.  yards  and  a  half  each  piece,  seldom 

What  is  his  name?  —  His  name  is  more  or  less.     (Mr.  Price  withdrew.) 

30.3.    JAMES  BYRNE'S  TRIAL.     [Printed  post,  as  No.  350.] 

306.  Hans  Gross.  Criminal  Investigation,  (transl.  J.  and  J.  C.  Adam. 
1907.  p.  22.)  ...  A  thousand  mistakes  of  every  description  would  be 
avoided  if  people  did  not  base  their  conclusions  upon  premises  furnished 
by  others,  take  as  established  fact  what  is  only  possibility,  or  as  a  con- 
stantly recurring  incident  what  has  only  been  observed  but  once.  ...  I 
am  assuming  that  the  witness  is  really  desirous  of  speaking  the  truth  and  is 
merely  a  bad  observer. 

In  general,  the  matter  should  be  elucidated  by  experiment,  by  ocular 
demonstration.  Suppose  a  witness  affirms  that  he  was  beaten  by  H  for 
ten  minutes.  Let  a  watch  be  placed  before  him  and  ask  him  to  take  good 
note  of  how  long  ten  minutes  lasts  and  then  say  whether  it  was  really  ten 
minutes.  After  a  quarter  of  a  minute  he  will  exclaim,  "It  certainly  did  not 
last  longer  than  that."  .  .  .  Again,  a  witness  declares,  "When  once  I  see 
a  man  I  alway  recognize  him  again."  "Did  you  see  the  prisoner  who 
was  being  taken  out  as  you  came  in  ?  "  you  ask  him.  "  Certainly,  I  saw  him 
very  well,"  he  answers.  "All  right,  go  and  pick  him  out  from  ten  other 
persons."  A  witness  estimates  an  important  distance  at,  let  us  say,  200 
yards ;  let  him  be  I)rought  out  of  doors  and  say  how  far  might  be  100,  200, 
300,  400  yards ;  if  now  these  distances  be  measured,  one  can  easily  judge  if 
and  with  what  degree  of  accuracy,  the  witness  can  judge  distances.  .  .  . 
Such  checks  give  the  most  instructive  and  remarkable  results ;  whoever 
practices  them  will  soon  be  convinced  that  their  importance  cannot  be 
exaggerated.   .  .   . 

Topic  2.     Incomplete  Recollection 

308.  LANGHORN'S  TRIAL.  (1079.  Howell's  State  Trials.  VII, 
452.) 

[Gates,  the  informer,  had  testified  London  on  April  24,  and  that  he  had 
that    the    Popish    I'lottcrs    met    in      come  over  to  the  meeting  from  the 


No.  309.       III.      TESTIMONIAL    INTERPRETATION.       E.    COMMON    INCIDENTS       603 


Jesuit  College  at  St.  Omer  in  France 
with  Sir  John  Warner.  One  of  the 
Jesuit  attendants  was  put  on  by  the 
defense  to  prove  that  Warner  had 
not  left  the  College  at  that  time.] 
Witness:  "He  lived  there  all  that 
while." 

Mr.  J.  Pembrrton  :  "  Was  Sir  John 
Warner  there  all  June?"  Witness: 
"  My  lord,  I  cannot  tell  that ;  I 
only  speak  to  April  and  May." 

L.  C.  J.  Scroggs:  "Where  was 
Sir  John  Warner  in  June  and  July  ?  " 
Witness:    "I    cannot    tell." 

L.  C.  J.:  "You  were  gardener 
there  then?"  Witness:  "Yes,  I 
was." 

L.  C.  J. :  "  Why  cannot  you  as 
well  tell  me,  then,  where  he  was  in 
June    and    July,    as    in    April    and 


May?"  Witness:  "1  cannot  be 
certain." 

L.  C.  J.:  "Why  not  so  certain 
for  those  two  months  as  you  are  for 
the  other?"  Witness:  "Because 
I  did  not  take  so  much  notice. " 

L.  C.  J. :  "  How  came  you  to  take 
more  notice  of  the  one  than  the 
other?"  Witness:  "Because  the 
question  that  I  came  for,  my  lord, 
did  not  fall  upon  that  time." 

L.  C.  J. :  "  That,  without  all  ques- 
tion, is  a  plain  and  honest  answer." 

Mr.  J.  Dolben:  "Indeed,  he 
hath  forgot  his  lesson ;  you  should 
have  given  him  better  instructions." 

L.  C.  J. :  "  Now  that  does  shake 
all  that  was  said  before,  and  looks 
as  if  he  came  on  purpose  and  pre- 
pared for  those  months." 


309.    QUEEN  CAROLINE'S  TRIAL.   (1820.   Linn's  ed.   1,67,91,96.) 


[Among  the  various  charges  of 
adultery  and  improper  intimacy  be- 
tween the  Queen  (then  Princess) 
and  her  servant  Bergami  during  her 
tour  in  Germany,  Austria,  Italy, 
and  the  Mediterranean,  one  charge 
was  made  of  adultery  on  board  a 
polacca  during  a  sea  voyage  to 
Palestine.  The  witness  Majocchi, 
a  servant  in  her  suite  during  most 
of  her  journeys,  had  testified  speci- 
fically to  this  charge,  under  the 
following    questions    from] 

Mr.  Solicitor-General  Copley : 
"  Did  the  Princess  sleep  under  that 
tent  [placed  on  deck]  generally  on 
the  voyage  from  Jaffa  home?" 
Majocchi:  "She  slept  always  under 
that  tent  during  the  whole  voy- 
age from  Jaffa  to  the  time  she 
landed." 

Mr.  Sol. -Gen:  "Did  anybody 
sleep  under  the  same  tent?" 
Majocchi:     " Bartolomo  Bergami." 

Mr.  Sol. -Gen.:  "Did  this  take 
place  every  night?"  Majocchi: 
"Every  night."  .   .   . 

[On  cross-examination  Mr. 
Brougham  sought  to  test  his  trust- 
worthiness by  inquiring  as  to  other 


details  of  the  sleeping  arrangements 
of  the  suite]. ^ 

"  [On  this  voyage]  Where  did 
Hieronimus  sleep  in  general  ? " 
Majocchi:  "I  do  not  recollect 
[Non     mi    1-icordo]." 

Mr.  Brougham :  "Where  did 
Mr.  Howman  sleep?"  Majocchi: 
"I  do  not  recollect." 

Mr.  Brougham:  "Where  did 
William  Austin  sleep?"  Majocchi: 
"  I  do  not  remember." 

Mr.  Brougham:  "Where  did 
the  Countess  Oldi  sleep?"  Ma- 
jocchi:    "I  do  not  remember." 

Mr.  Brougham :  "  Where  did 
Camera  sleep?"  Majocchi:  "I 
do  not  know  where  he  slept." 

Mr.  Brougham:  "Where  did  the 
maids  sleep?"  Majocchi:  "I  do 
not  know." 

Mr.  Brougham:  "Where  did 
Captain  Flynn  sleep?"  Ma- 
jocchi: "I   do  not  know." 

Mr.  Brougham :  "Did  you  not, 
when  you  were  ill  during  the  voyage, 
sleep  below  [in  the  hold]  under  the 
deck  ?  "  Majocchi : "  Under  the  deck." 

Mr.  Brougham :  "  Did  those 
excellent  sailors  always  remain  be- 


'  These  questions  were  not  all  put  in  direct  sequence ;    a  few  intervening  questions  are 
here  omitted. 


G04 


PAhT    II.      TESTIMONIAL    EVIDENCE 


No.  310. 


low  in  the  holil  with  you?"  Ma- 
jocclii :  "This  I  cannot  remember 
if  they  slept  in  the  hold  during  the 
nighttime  or  went  up." 

Mr.  Brougham  :  "  Who  .slept  in  the 
place  where  you  used  to  sleep  down 
below  in  the  hold?"  Majocchi: 
"  1  know  very  well  that  I  slept  there, 
but  I  do  not  remember  who  else." 

Mr.  Brougham:  "Where  did 
the  livery  servants  of  the  suite 
sleep?"  Majocchi:  "This  I  do 
not  remember." 

Mr.  Brougham:  "Were  you 
not  yourself  a  livery  servant?" 
Majocch  i :  "  Yes . ' ' 

Mr.  Brougham:  "  AVhere  did  the 
Padroni  of  the  vessel  sleep  ?  "  Ma- 
jocchi:  "I    do    not    know." 

Mr.  Brougham:  "  When  her  Royal 


Highness  was  going  by  sea  on  her 
voyage  [at  another  time]  from 
Sicily  to  Tunis,  where  did  she 
sleep?"  Majocchi:  "This  I  can- 
not remember." 

Mr.  Brougham:  "W'hen  she  was 
afterwards  going  from  Tunis  to 
Constantinople  on  board  the  ship, 
where  did  her  Royal  Highness 
sleep?"  Majocchi:  "This  I  do  not 
remember." 

Mr.  Brougham:  "When  she 
was  going  from  Constantinople  to 
the  Holy  Land  on  board  the  ship, 
where  did  she  sleep  then?"  Ma- 
jocchi: "I  do  not  remember." 

IVIr.  Brougham :  "Where  did  Ber- 
gami  sleep  on  those  three  voyages  of 
which  you  have  just  been  speaking  ?  " 
Majocchi:  "This  I  do  not  know."  ^ 


310.  THE  DOCTOR'S  CASE. 
Brief,"  III,  lO.j 

One  of  the  neatest  efi'ects  ever 
witnessed  was  produced  by  a  single 
question  put  by  one  of  the  young 
leaders  at  our  bar  in  the  course  of 
an  inquiry  on  habeas  corpus  as  to 
the  sanity  of  an  interested  party. 
A  medical  expert  had  testified  to  his 
mental  unsoundness,  and  had  de- 
tailed with  great  clearness  the  tests 
he  applied  to  his  case,  and  the 
results  which  established  to  his 
satisfaction  an  advanced  stage  of 
paresis.  He  finished  his  direct  ex- 
amination one  afternoon,  and  next 
day  was  cro.s.s-examined  for  the 
purpo.se  of  eliciting  that  many  of  the 
conditions  he  described  could  be 
found  in  every  sane  person.     After 


(1900.     Hon.  J.  F.  Daly,  in  "  The 

being  questioned  as  to  the  first  in- 
dication of  mental  feebleness  he  had 
specified,  he  was  then  asked  what 
was  the  second  feature  of  the  cases  he 
had  mentioned  as  indicating  paresis. 
The  witness  was  unal)le  to  recall 
which  he  had  mentioned  second. 

"What,  Doctor,  you  can't  recall 
the  second  indication  of  progressive 
mental  decay  which  you  spoke  of 
yesterday  ?  "  —  "  No,  I  cannot,  I  con- 
fess." 

"Well,  that's  funny.  Your  sec- 
ond indication  was  'loss  of  memory 
of  recent  events' !" 

The  doctor  admitted  cheerfully 
that  he  had  the  symptoms  himself 
in  a  marked  degree. 


'Ml.  LORD  GEORGE  GORDON'S  TRIAL.  (1781.  UowEuJa  StaU- 
rrinl.s.      XXI,  .')11.) 

(Since  the  Revolution  of  1()S8,  under  serious  disabilities,  political 
Roman    Catholics    had    been    kept      and  religious ;   and  a  movement  was 

'(In  his  opcniiiK  inKlrcss  for  tho  defense  (II,  .3.3),  Mr.  Brougham  made  forcible  use  of 
these  .sinuifieaiit  aiiHwer.s  of  Mujoerhi,  prophesying  that  "as  long  as  the  words  'I  don't 
ri'inemher'  were  known  in  the  English  language,  the  image  of  Majocehi,  without  tho  man 
heing  nanierl.  w«)ul<l  forthwith  ari.se  to  the  imagination"  ;  and  his  iteration  of  that  betray- 
ing phra.ie  "  non  mi  rirnrdo"  has  indeed  become  an  indelil)lc  episode  of  forensic  history. 

Hut  the  notable  thing  is  that  the  main  assertion  of  Majocchi,  so  discredited  by  his  col- 
lateral failures  of  memory  as  to  the  tent  and  Bergami's  sleeping  thf  re,  was,  after  all,  correct. 
This  has  bien  pointed  out  by  Mr.  G.  Latliom  Browne,  in  his  "  Narratives  of  State  Trials, 
lhOl-18.30."     (1882.      Vol.  II,  p.  418.)  — Eu.] 


No.  311.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS       605 


begun  to  abolish  these  discrimina- 
tions. Popular  prejudice  against 
popery  was  thus  revived ;  and  a 
monster  petition  was  presented  to 
Parliament  to  dissuade  it  from  leg- 
islation. Lord  George  Gordon  was 
a  prime  mover  in  the  Protestant 
Association  formed  for  this  purpose. 
But  the  movement  was  believed  by 
many  to  tend  to  violence  and  the 
overthrow  of  government ;  and  in 
fact,  on  the'  night  when  the  petition 
was  taken  to  Parliament,  a  vast 
mob  formed,  burned  the  Fleet 
Prison,  and  other  places,  and  pil- 
laged the  city.  The  important  issue 
was  whether  Lord  George  Gordon's 
action  was  that  of  encouraging  this 
violence,  or  merely  of  presenting 
peaceably    a  lawful    petition.]  .  .  . 

William  Hay  sworn.  Examined 
by    Mr.    Solicitor-General. 

Do  you  know  the  prisoner.  Lord 
George  Gordon  ?  —  Yes. 

Do  you  remember  seeing  him  at 
any  time  at  Coachmaker's  hall  ?  —  I 
saw  the  prisoner  at  Coachmaker's 
hall  on  the  7th  of  January,   1780. 

Did  you  see  him  at  different  times 
at  that  meeting  between  the  7th  of 
January  and  the  2d  of  June,  the 
day  the  multitude  went  to  the 
House  of  Commons  ?  —  Five  or  six 
times,  but  not  at  that  place,  the 
association. 

^Yhat  association  ?  —  The  associa- 
tion, called  the  Protestant  Associa- 
tion, was  adjourned  from  place  to 
place.  It  was  adjourned  to  Green- 
wood's rooms,  in  the  Hay-market ; 
to  the  Old  Crown  and  Rolls,  in 
Chancery-lane  ;  to  the  London  tav- 
ern, in  Bishopsgate  street ;  and  to 
St.  Margaret's  hall,  in  the  borough 
of  Southwark. 

Did  you  see  the  prisoner  at  all  or 
any  of  those  places  ?  —  Not  at  all, 
but  at  most   of   them. 

Do  you  recollect  which  of  them 
you  saw  him  at?  —  I  saw  him  at  St. 
Margaret's  hall,  at  Greenwood's 
rooms,  at  the  Old  Crown  and  Rolls 
tavern,  Chancery-lane,  and  at 
Coachmaker's  hall. 

Do  you  remember  seeing  him  at 


Coachmaker's  hall,  at  the  last  meet- 
ing previous  to  their  going  up  to  the 
House  of  Commons? — I  remember 
it  very  well. 

Do  you  recollect  at  that  time  any- 
thing said  by  the  prisoner,  and  if 
you  do,  mention  what  it  was? — ^It 
was  on  the  29th  of  May  I  heard  the 
prisoner  announce  to  a  very  num- 
erous assembly,  the  hall  was 
crowded,  "That  the  Associated 
Protestants  (as  they  were  called) 
amounted  to  upwards  of  40,000  in 
number;  that  on  Friday  the  2d  of 
June,  it  was  resolved,  they  should 
meet,  at  ten  o'clock  in  the  morning, 
in  St.  George's  fields,  in  four  sep- 
arate divisions  or  columns,  arrayed 
or  dressed  in  their  best  clothes." 
.  .  .  His  lordship  gave  orders 
how  these  four  different  bodies 
should  take  their  ground,  and  what 
fields  they  should  assemble  in.  I 
cannot  charge  my  memory  exactly 
with  the  positions  of  those  four 
columns,  but  I  think  the  London 
division  were  to  go  to  the  field  on 
the  right  of  the  road. 

Did  you  go  to  the  meeting  in  St. 
George's  fields,  on  the  2d  of  June  ? — ■ 
I  went  there,  but  did  not  mix  among 
the  people. 

Did  you  see  a  multitude  of  people 
gathered  together  there  ?  —  A  vast 
multitude.  .  .  . 

Had  they  any  particular  marks  or 
badges  ?  —  They  had  all  cockades, 
and  there  were  banners. 

Was  anything  written  upon  the 
banners  or  the  cockades  ?  —  Nothing 
on  the  cockades  that  I  observed. 
On  the  banners  I  think  I  saw  Prot- 
estant Association  ;  and  one  banner 
I  believe  had  No  Popery  !  on  it.  .  . . 

Which  wa.v  did  this  multitude 
march  ?  —  I  can  say  nothing  of  their 
marching,  further  than  what  I  saw 
in  Fleet  street.  I  came  home  and 
saw  them  come  through  Fleet  street, 
and  march  by  St.  Dunstan's  church, 
in  their  Avay  to  the  House  of  Com- 
mons. 

Was  there  a  large  number  came 
that   way  ?  —  Yes. 

Had  they  the  same  cockades  and 


606 


PART   II.      TESTIMONIAL   EVIDENCE 


No.  311. 


banners  ?  —  Yes,  the  same  cockades, 
and  one  or  two  of  the  banners. 

Did  you  afterwards  on  that  day 
come  down  towards  the  House  of 
Commons  ?  —  1  did. 

Did  you  see  a  number  of  the  same 
people  about  the  house?  —  I  did; 
they  appeared  to  be  the  same  people. 

Had  they  the  same  cockades  and 
banners?  —  Yes,  they  had. 

Did  you  get  into  the  lobby  of  the 
House  of  Commons  ?  —  I  was  there 
about   three   hours. 

\Vas  that  filled  with  some  of 
this  multitude?  —  The  lobby  was 
crowded  with  them. 

What  was  their  behavior  ? — Very 
riotous.  The  noise  was  generally 
occasioned  by  chiming  of  Lord 
George    Gordon's    name.  .  .  . 

Do  you  remember  the  mob  cry- 
ing out  to  the  people  in  the  lobby  ? 

—  I  cannot  pretend  to  say,  there  was 
such  great  confusion  and  noise.  .  .  . 

Do  you  recollect  seeing  any  flags 
at  any  other  place  in  the  course  of 
the  mischief  which  followed  ?  —  I  saw 
one  of  the  flags  at  the  burning  of 
the  Fleet  Prison ;  that  flag  which 
had  the  words  No  Popery  !  on  it. 

Could  you  perceive  whether  the 
person  who  had  the  flag  at  the  Fleet 
Pri.son  was  one  you  had  seen  in  St. 
George's  fields,  or  about  the  House 
of  ("ommons  ?  —  I  am  very  clear  it 
was  the  same  man,  for  I  looked  at 
him. 

Where  was  it  you  had  before  seen 
that  man,  you  saw  with  the  flag  at 
the  P^leet  Prison  ?  —  I  saw  him  carry- 
ing that  flag  in  Fleet  street. 

Do  you  mean  at  the  time  when  the 
multitude  marched  to  the  House  of 
Commons?  —  Yes;  and  I  saw  that 
very    man    at   Westminster.  .  .  . 

What  was  the  cry  of  the  people 
who  were  employefl  in  that  business  ? 

—  It  generally  was,  Xo  Popery  ! .  . . 
Did  the  people  with  blue  cockades 

join  with  the  people  who  were 
crying  No  Popery  ? — It  was  while 
I  was  within  the  cIimjx'I,  I  heard  the 
cry  without  the  chapel.  The  person 
who  did  ;ili  the  mischief,  whom  I  saw 
in  the  chapel,  had  no  hat  on;   there 


were  about  five  or  six  people  in  the 
chapel,  but  that  man  was  the  most 
active.  .  .  . 

Cross-examined  by  Mr.  Kent/on. 

Pray  what  are  you  ? — By  trade, 
a  printer. 

Do  you  print  on  your  own  ac- 
count, or  are  you  a  servant  to  any 
person? — I  print  on  my  own  ac- 
count. 

I  believe  you  have  had  misfor- 
tunes in  the  world,  y6u  were  a 
bankrupt  ?  —  Yes. 

When  did  you  first  resort  to  these 
meetings  of  the  Protestant  Asso- 
ciation, as   they  called   themselves  ? 

—  I  said  on  the  evening  of  the  10th 
of  December. 

W' as   that  the  first   time  ?  —  Yes. 

And  you  went,  from  time  to  time, 
to  all  the  meetings  that  were  held 
afterwards  ?  —  Yes,  to  the  public 
meetings. 

You  were  at  several  places  where 
Lord  George  Gordon  did  not  attend  ? 

—  Yes. 

You  have  mentioned  one  place 
where  Lord  George  Gordon  was,  at 
Greenwood's  rooms ;  now  I  desire 
you  to  recollect,  and  say,  whether 
you  saw  him  at  Greenwood's  rooms  ? 

—  I  think  I  saw  my  lord  once  there, 
and  1  was  there  once  when  he  was 
not ;    I  was  there  twice. 

I  caution  you  to  be  upon  your 
guard.  —  I  will ;  it  is  a  very  serious 
matter ;  I  think  Lord  George  was 
once  at  Greenwood's  rooms,  and 
that  the  association  was  there  once 
without  his  lordship. 

Then  you  cannot  speak  with 
certainty  ?  —  Unless  I  look  at  some 
notes  I  cannot  tell  ;  I  have  some 
notes  here. 

Did  you  make  them  at  the  time? 

—  Yes,  I  generally  made  them  that 
evening. 

Court.  —  You  may  refresh  your 
memory  with  them.  (Looks  at  his 
notes.)  —  On  the  21st  of  January, 
Lord  George  Gordon  was  not,  I  find, 
present  at  Greenwood's. 

Then  you  were  mistaken  in  that 
part  of  your  evidence  ?  —  I  was 
mistaken. 


!<:o.  311.       III.     TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS       607 


How  came  you,  from  time  to 
time,  to  make  notes  of  what  passed 
at  these  several  meetings  ?  —  I  shall 
be  very  free  in  telling  you,  that  I  had 
an  idea  then,  that  this  would  be  the 
consequence  of  these  meetings,  I 
went  almost  purposely  to  take  notes 
of  them. 

And  you  went  on  that  account  to 
take  notes  of  what  passed  ?  —  A 
curiosity  first  led  me  there ;  but, 
when  I  saw  what  sort  of  people 
they  were,  I  was  willing  to  look 
farther  after  them,  for  I  dreaded  the 
consequence  of  their  meetings. 

How  soon  had  you  this  foresight 
of  what  would  happen  ?  In  the 
month  of  December  you  foresaw 
what  would  happen  ?  —  I  did  not,  I 
said  no  such  thing ;  I  foresaw  it  on 
the  20th   of   February. 

Then  the  first  time  you  foresaw 
it  was  on  the  20th  of  February  ?  —  I 
had  foreseen  the  evil  consequences^  as 
far  as  man  could,  before  that  time, 
but  on  the  20th  of  February  I  had 
even  written  my  thoughts  upon  it. 

Then  the  20th  of  February  was 
the  first  time  you  began  to  draw 
your   conclusions  ?  —  It   was. 

Then  how  came  your  notes  and 
memorandums  to  have  a  date  prior 
to  that,  you  have  notes  so  early  as 
the  21st  of  January?  —  Without 
those  notes,  I  could  not  come  to 
that  conclusion  in  my  own  mind 
about  the  consequences ;  I  took 
notes  on  the  10th  of  December. 

I  must  return  again  to  the  ques- 
tion I  asked  before ;  how  came  you 
first  to  take  notes  ?  —  I  never  go  to 
any  public  meeting  but  I  have  an 
errand ;  I  wished  to  learn  what 
those  gentlemen  would  be  at ;  I  put 
down  then  what  occurred,  and  then 
entered  it  down  after  I  came  home. 

That  is  your  constant  course  in 
all  occurrences  of  life  ?  —  Yes. 

Can  you  tell  us  any  one  occur- 
rence of  your  life,  where  you  have 
committed  to  writing  everything 
that  passed  ?  —  I  do  not  know  any 
one  meeting  of  that  kind,  but  I  have 
put  down  as  much  as  my  memory 
would  help  me  to. 


How  many  meetings  of  this  kind 
have  you  resorted  to  ?  —  I  never 
resorted  to  any  others  of  this  kind. 

You  said  you  never  attended  any 
meetings  respecting  this  kind  of 
business,  where  you  did  not  commit 
to  writing  what  passed  ;  now  I  want 
to  know,  what  other  meetings  be- 
sides the  Protestant  Association 
you  have  attended  ?  —  I  have  at- 
tended a  great  many  meetings,  but 
I  cannot  pretend  to  recite  them. 

Have  you,  upon  your  oath,  before 
God  and  your  country,  put  down 
everything,  that  passed  at  those 
meetings  ?  —  I  do  not  comprehend 
the  nature  of  your  question. 

Have  you  set  down  any  transac- 
tions at  any  other  meetings,  except 
those  of  the  Protestant  Association  ? 
—  I  have  many  times  undoubtedly. 

Tell  me  when  and  where  ?  —  The 
first  notes  I  made  in  my  life,  were 
in  the  general  assembly  of  the  church 
of  Scotland,  the  very  first  church  I 
was  ever  in,  in  my  life. 

How  long  is  that  ago  ?  —  Twenty- 
two  years  ago ;  so  early  as  that,  and 
in  1765  and  1766,  I  took  notes 
again. 

Did  you  do  that  because  you  had 
a  foresight  of  any  ill  consequences 
that  would  ensue  from  those  meet- 
ings ?  —  I  wished  to  know  what  was 
going  on  there,  or  to  oblige  a  friend 
to  inform  him  what  was  doing.   .   .   . 

You  say  you  were  in  the  lobby  of 
the  House  of  Commons  ?  —  I  was. 

Did  you  go  into  the  lobby  with 
persons  who  had  blue  cockades  in 
their  hats  ?  —  They  were  all  there 
long  before  me.  I  went  down  after 
I  had  dined.  .  .  . 

You  say  at  the  time  you  were  in 
the  lobby,  there  was  a  great  riot 
and  confusion,  and  you  could  not 
hear  what  passed  there  ?  —  I  heard 
exceeding  well.  ... 

The  lobby  is  not  a  very  large 
room.  Were  there  a  good  number  of 
people  of  the  same  description  as 
yourself,  that  were  there  merely 
from  curiosity  ?  —  I  saw  none  such, 
it  did  not  come  from  curiosity. 

Then  you  were  the  single  indi- 


608 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  bii. 


vidual,  that  stood  (listino;uishe(l 
from  all  the  rest  who  were  there? 

—  There  were  more  than  I  there ; 
there  was  that  man  M'Millan,  and 
an  apprentice  of  my  own,  I  took 
them  on   purpose  with  me. 

Tliat  they  mij;ht  be  of  what  use  ? 

—  I  wanted  to  inquire  after  some 
particular  friends  ;  I  was  afraid  they 
might  be  hurt,  I  was  afraid  of  my- 
self. 

Being  afraid  of  yourself,  you  who 
were  not  in  the  crowd  before,  nor 
in  danger  of  being  hurt,  under  ideas 
you  might  be  hurt  yon  went  in- 
to the  crowd  in  the  lobby  ?  —  I  was 
willing  to  see  what  they  were  about. 

Which  of  your  friends  did  you 
conceive  to  be  in  danger  ?  —  When 
an  alarm  of  that  kind  is  gone  out,  one 
cannot  but  have  some  friend  in 
danger;  I  cannot  charge  my  mem- 
ory with  any  particular  friend  .... 

In  St.  George's  fields,  you  were  a 
considerable  distance  from  Lord 
George ;  how  near  were  you  to  the 
persons  who  carried  the  two  flags  ?  — 
I  saw  one  of  the  flags  carried  by  a 
constable  on  my  left  hand ;  I  was 
in  the  road ;  I  did  not  go  into  the 
field.  ... 

By  what  good  luck  then  did  you 
happen  to  see  the  flag  in  Fleet 
street  ?  Where  is  your  house  ?  — 
Next  St.  Dunstan's  church  ;  I  went 
upon  the  leads  on  purpose  to  see 
them  with  this  Mr.  M'Millan. 

One  of  the  persons  you  saw  with  a 
flag  in  Fleet  street  you  saw  after- 
wards ?  —  Yes  ;  at  the  Fleet  Prison 
and  in  W'estminster. 

Can  you  describe  his  dress  ?  —  I 
cannot  charge  my  memory ;  it  was 
a  dress  not  worth  minding,  a  very 
common  dress. 

Had  he  his  own  hair  or  a  wig?  — 
If  I  recollect,  he  had  black  hair; 
shortish  hair  I  think. 

Was  there  something  reniarkal)le 
about  his  hair?  —  No  ;  I  do  not  re- 
member anything  renuirkable;  he 
was  a  coarse-looking  man ;  he  ap- 
pearefl  to  me  like  a  brewer's  ser- 
vant in   his   best   clothes. 

How  do  you  know  a  brewer's  ser- 


vant when  he  is  in  his  best  clothes 
from  another  man  ?  —  It  is  out  of  my 
power  to  describe  it  better  than  I 
do ;    he  appeared  to  me  to  be  such. 

I  ask  you  how,  by  what  mark,  do 
you  distinguish  a  brewer's  servant 
from  another  man  ?  —  There  is  some- 
thing in  a  brewer's  servant,  in  his 
condition  of  life,  dift'erent  from  other 
men. 

There  may  be,  for  what  I  know ; 
but  tell  me  how  you  distinguish  a 
brewer's  servant  from  another  man  ? 
—  Be  so  good  as  to  state  the  ques- 
tion again. 

If  there  can  be  a  doubt  what  the 
question  means  in  any  one  of  this 
audience,  you  shall  have  it  repeated  ; 
you  said  this  man  was  like  a  brewer's 
ser\ant ;  I  asked  you  by  what  mark 
you  are  able  to  distinguish  a  man 
to  be  a  brewer's  servant  rather  than 
of  any  other  trade  ?  —  I  think  a 
brewer's  servant's  breeches,  clothes, 
and  stockings  have  something  very 
distinguishing. 

Tell  me  what,  in  his  breeches,  and 
the  cut  of  his  coat  and  stockings,  it 
was  by  which  you  distinguished 
him  ?  —  I  cannot  swear  to  any  par- 
ticular mark. 

Then  you  had  no  reason  upon 
earth  to  use  that  word  which  came  so 
flippant  over  your  tongue,  that  he 
was  like  a  brewer's  servant  ?  —  I 
cannot  answer  that  question  if  you 
put  it  to  me  a  hundred  times.  .  .  . 

The  Hon.  Thomas  Erslcine  (for 
the  defense) : 

Gentlemen  of  the  jury :  Mr. 
Kenyon  having  informed  the  court 
that  we  propose  to  call  no  other 
witnesses,  it  is  now  my  duty  to 
address  myself  to  you,  as  counsel 
for  the  no1)le  prisoner  at  the  bar,  the 
whole  evidence  being  closed.  .  .  . 
The  first  witness  to  support  this 
prosecution  is  William  Hay  —  a 
l)ankrupt  '\n  fortune,  he  acknowledges 
himself  to  be,  and  I  am  afraid  he  is 
a  bankrupt  in  conscience.  Such  a 
scene  of  impudent,  ridiculous  incon- 
sistency, would  have  utterly  de- 
stroyed his  credibility,  in  the  r^o'-t 
trifling  civil  suit ;  and  I  am,  there 'ore, 


No.  311.      III.       TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS       609 


almost  ashamed  to  remind  you  of  his 
evidence,  when  I  reflect  that  you 
will  never  suft'er  it  to  glance  across 
your  minds  on  this  solemn  occasion. 
This  man  I  may  now,  without  of- 
fense or  slander,  point  out  to  you  as 
a  dark  Popish  spy,  who  attended  the 
meetings  of  the  London  Association, 
to  pervert  their  harmless  purposes. 
.  .  .  Attend  to  his  cross-examina- 
tion. He  was  sure  he  had  seen  Lord 
George  Gordon  at  Greenwood's  room 
in  January  ;  but  when  Mr.  Kenyon, 
who  knew  Lord  George  had  never 
been  there,  advised  him  to  recollect 
himself,  he  desired  to  consult  his 
notes.  First,  he  is  positively  sure, 
from  his  memory,  that  he  had  seen 
him  there ;  then  he  says  he  cannot 
trust  his  memory  without  referring 
to  his  papers ;  on  looking  at  them, 
they  contradict  him ;  and  he  then 
confesses,  that  he  never  saw  Lord 
George  Gordon  at  Greenwood's  room 
in  January,  when  his  note  was  taken, 
nor  at  any  other  time. 

But  why  did  he  take  notes  ?  He 
said  it  was  because  he  foresaw  what 
would  happen.  How  fortunate  the 
crown  is,  gentlemen,  to  have  such 
friends  to  collect  evidence  by  an- 
ticipation !  When  did  he  begin  to 
take  notes  ?  He  said  on  the  21st  of 
February,  which  was  the  first  time 
he  had  been  alarmed  at  what  he 
had  seen  and  heard,  although  not 
a  minute  before  he  had  been  reading 
a  note  taken  at  Greenwood's  room 
in  January,  and  had  sworn  that  he 
attended  their  meetings,  from  ap- 
prehensions of  consequences,  as  early 
as  December.  Mr.  Kenyon,  who 
now  saw  him  bewildered  in  a  maze 
of  falsehood,  and  suspecting  his 
notes  to  have  been  a  villainous 
fabrication  to  give  the  show  of 
correctness  to  his  evidence,  attacked 
him  with  a  shrewdness  for  which  he 
was  wholly  unprepared.  You  re- 
member the  witness  had  said,  that 
he  always  took  notes  when  he  at- 
tended any  meetings  where  he  ex- 
pected their  deliberations  might  be 
attended  with  dangerous  conse- 
quences.    "  Give    me  one  instance  " 


says  Mr.  Kenyon,  "  in  the  whole 
course  of  your  life,  where  vou  cht 
took  notes  before."  Poor  Mr.  Hay 
was  thunderstruck;  —  the  sweat  ran 
down  his  face,  and  his  countenance 
bespoke  despair,  —  not  recollection. 
"  Sir,  I  must  have  an  instance  ;  tell 
me  when  and  where  ?  "  Gentlemen, 
it  was  now  too  late ;  some  instance 
he  was  obliged  to  give,  and,  as  it 
was  evident  to  everybody  that  he 
had  one  still  to  choose,  I  think  he 
might  have  chosen  a  better.  He 
had  taken  notes  at  the  General  As- 
sembly of  the  church  of  Scotland  six 
and  twenty  years  before !  .  .  .  Mr. 
Hay  thought  it  of  moment  to  his 
own  credit  in  the  cause,  that  he 
himself  might  be  thought  a  Protes- 
tant, unconnected  with  Papists,  and 
not  a  Popish  spy. 

So  ambitious,  indeed,  was  the 
miscreant  of  being  useful  in  this 
odious  character,  through  every 
stage  of  the  cause,  that  after  staying 
a  little  in  St.  George's  fields,  he  ran 
home  to  his  own  house  in  St.  Dun- 
stan's  churchyard,  and  got  upon  the 
leads  where  he  swore  he  saw  the  very 
man  carrying  the  very  same  flag  he 
had  seen  in  the  fields.  Gentlemen, 
whether  the  petitioners  employed 
the  same  standard  man  through 
the  whole  course  of  their  peaceable 
procession  is  certainly  totally  im- 
material to  the  cause,  but  the  cir- 
cumstance is  material  to  show  the 
wickedness  of  the  man.  "  How," 
says  Mr.  Kenyon,  "  do  you  know 
that  it  was  the  same  person  you  saw 
in  the  fields  ?  Were  you  acquainted 
with  him  ?  "  —  "  No."  —  How  then  ? 
Why,  "  he  looked  like  a  brewer's 
servant."     Like  a  brewer's  servant! 

—  What,  were  they  not  all  in  their 
Sunday's  clothes  ?  —  "  Oh  !  yes,  they 
were  all  in  their  Sunday's  clothes." 

—  Was  the  man  with  the  flag  then 
alone  in  the  dress  of  his  trade  ?  — 
"No."  Then  how  do  you  know  he 
was  a  brewer's  servant  ?  Poor  Mr. 
Hay — 'nothing  but  sweat  and  confusion 
again.  At  last,  after  a  hesitation, 
which  everybody  thought,  would 
have   ended   in  his  running  out  of 


610 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  312. 


court,  he  said,  he  knew  him  to  be  a 
brewer's  servant,  because  there  was 
something  particular  in  the  cut  of  his 
coat,    the    cut    of   his    breeches,    and 

THE    CUT    OF    HIS    STOCKINGS.        YoU 

see,  gentlemen,  by  what  stranjie 
mean.s  villainy  is  sometimes  rietected  ; 
perhaps  he  mi<;ht  have  e.scape(l  from 
me,  but  he  simk  under  that  shrewd- 
ness and  sagacity,  which  ability,  with- 
out long  habit,  does  not  provide. 
Gentlemen,  you  will  not,  I  am  sure, 
forget,  whenever  you  see  a  man, 
about  whose  apparel  there  is  "any- 
thing particular,"  to  set  him  down 
for  a  l)rewer's  ser\ant  I 

Mr.  Hay  afterwards  went  to  the 
lobby  of  the  House  of  Commons. 
What  took  him  there  ?  He  thought 
himself  in  danger ;  and  therefore, 
says  Mr.  Kenyon,  you  thrust  your- 
self voluntarily  into  the  very  center 
of    danger  I     That    tcould    not    do. 


Then  he  had  a  particular  friend, 
whom  he  knew  to  be  in  the  lobby, 
and  whom  he  apprehended  to  be 
in  danger.  "  Sir,  who  was  that 
particular  friend  ?  Out  with  it : 
Give  us  his  name  instantly."  All 
in  confusion  again.  Not  a  word  to 
say  for  himself ;  and  the  name  of 
this  person,  who  had  the  honor  of  Mr. 
Hay's  friendship,  will  probably  remain 
a  secret  forever. 

It  may  be  asked,  Are  these  cir- 
cumstances material  ?  And  the  an- 
swer is  obvious :  they  are  ma- 
terial;  because,  when  you  see  a 
witness  running  into  every  hole  and 
corner  of  falsehood,  and  as  fast  as 
he  is  made  to  bolt  out  of  one,  taking 
cover  in  another,  you  will  never  give 
credit  to  what  that  man  relates,  as 
to  any  possible  matter  which  is  to 
att'ect  the  life  or  reputation  of  a 
fellow  citizen   accused    before   vou. 


312.    WILLIAM  WINTERBOTHAM'S  TRIAL.     (1793.     Howell's 


St  rite  Trials.      XXII,  87S.) 

[The  Rev.  ]\Ir.  Winterbotham  had 
attracted  attention  by  his  sermons 
with  liberal  political  bearings.  The 
French  Revolution  then  being  at 
its  height,  and  lil^eral  views  in  Eng- 
land being  much  suspected,  Mr. 
Winterbotham  was  charged  with 
seditious  utterances  in  one  of  his 
sermons.]   .   .   . 

Edward  Lyne  examined  })y  Mr. 
Sergeant  Lawrence. 

Were  you  at  the  meeting  in  How's 
lane  on  the  evening  of  the  ISth  of 
November  last  ?  —  Yes  ;  I  went  there 
with  Mr.  Darby,  in  consequence  of 
a  report  that  Mr.  Winterbotham  had 
preacherl  a  seditious  sermon  on  the 
5th  of  Xoveml)er. 

Were  you  there  Iiefore  the  defend- 
ant began  his  sermon  ?  —  Yes,  we 
were;    we  heard   him  begin. 

Do  you  recollect  the  text  he 
preached  from  ? —  Yes,  it  was  from 
Rom.  13th  ch.,  12  ver. :  "The  night 
is  far  spent,  the  day  is  at  hand,  let 
us  therefore  cast  ott"  the  works  of 
darkness,  and  let  us  put  on  the 
armor  of  light." 


How  did  he  treat  this  text  ?  — 
After  the  preamljle  to  his  sermon, 
he  said,  he  felt  himself  bound  by 
the  present  juncture  of  aiTairs,  to 
apply  the  text  politically.  We  were 
then  in  the  aisle,  but  on  Mr.  Winter- 
botham's  proposing  his  intention 
to  treat  his  subject  politically,  we 
went  into  a  pew  and  sat  down. 
He  then  repeated  the  words  of  his 
text,  and  said,  "Darkness  has  long 
cast  her  veil  over  the  land,  persecu- 
tion and  tyranny  have  carried  uni- 
versal sway."  He  then  expatiated 
on  that  head,  and  proceeded,  "Ma- 
gisterial powers  have  long  been  a 
scourge  to  the  liberties  and  rights  of 
the  people ;  it  does  not  matter  by 
what  names  these  usurped  powers 
were  known,  whether  by  king,  .senate, 
potentate,  or  stadtholder.  they  are  in 
either  sense  usurped."  This  he  en- 
deavored to  prove  by  the  following 
part  of  his  discourse,  which  I  do  not 
recollect.  He  then  adverted  to  the 
affairs  of  France,  and  said,  "The 
yoke  of  bondage  amongst  our  neigh- 
bors seems  now  to  be  pretty  well 


Xo.  312.       HI.      TESTIMONIAL   INTERPRETATION. 


B.    COMMON    INCIDENTS      611 


broken,  and  it  is  expected  the  same 
blessing  is  awaiting  us ;  when  per- 
secution and  tyranny  shall  be  no 
more,  when  enjoying  the  liberties 
of  a  free  people  we  shall  boast  of 
having  introduced  amongst  us  that 
equality  our  neighbors  have  ac- 
quired." He  then  immediately,  or 
soon  afterwards,  rejoined,  "  To  pos- 
sess such  an  acquisition,  we  were  to 
cast  off  the  works  of  darkness  and 
put  on  the  armor  of  light." 

Do  you  recollect  anything  more 
of  the  sermon  ?  —  There  is  no  other 
particular  passage  that  I  can  recol- 
lect the  words  of. 

Did  you  ever  take  minutes  of  what 
you  heard  ?  —  Immediately  on  leav- 
ing the  meeting,  with  those  observa- 
tions strongly  impressed  on  my 
mind,  I  went  home  to  my  lodgings, 
and  there  made  minutes ;  and  I  am 
sure  these  are  the  very  expressions 
the  defendant  used. 

Cross-examined  by  Mr.  Gibbs. 

Pray,  Mr.  Lyne,  how  came  you 
to  go  to  the  meeting  on  the  evening 
on  which  this  sermon  was  preached  ? 
—  I  went  with  Mr.  Darby,  in  conse- 
quence of  the  rumors  which  were 
circulated  respecting  the  former 
sermon. 

You  say  you  went  in  consequence 
of  certain  rumors  Avhich  had  been 
circulated  respecting  the  former 
sermon ;  I  would  ask  j^ou  if  you 
believed  those  rumors  ?  —  No  ;  I  dis- 
believed the  report. 

I  believe  you  are  not  one  of  Mr. 
Winterbotham's  congregation  ?  — 
No,  I  am  not. 

Then  as  you  are  not  in  the  habit  of 
attending  I\Ir.  Winterbotham,  and  as 
you  disbelieved  the  reports  in  circu- 
lation respecting  the  former  sermon,  I 
would  ask  you  what  were  the  motives 
with  M'hich  you  went  on  that  even- 
ing ?  —  I  went  as  the  friend  of  Mr. 
Winterbotham,  to  take  his  part,  that 
I  might  have  an  opportunity  to 
defend  him  against  the  accusations 
concerning  him. 

You  say  you  went  as  the  friend  of 
Mr.  Winterbotham,  that  you  might 
have    an    opportunity    to    take    his 


part ;  that  was  your  motive  for 
going?  —  Yes;  and  if  I  had  thought 
he  would  have  been  prosecuted  I 
would  not  have  gone. 

Then  it  was  your  general  Chris- 
tian philanthropy  that  led  you  to 
the  meeting  as  the  friend  of  Mr. 
Winterbotham  ?  —  Yes,  it  was  my 
general  Christian  philanthropy  that 
led  me  to  go  there. 

As  the  friend  of  Mr.  Winter- 
botham, I  would  ask  you,  what  is 
your  opinion  of  the  whole  of  the 
sermon  ?  —  I  considered  the  whole  of 
the  sermon  as  totally  seditious. 

Was  there  no  part  of  it  but  what 
was  seditious  ?  —  There  were  many 
moral  and  religious  sentiments,  but 
the  whole,  in  a  chain,  was  seditious. 

Pray  how  long  do  you  think  Mr. 
Winterbotham  was  in  preaching 
this  sermon  ?  —  About  three  quarters 
of  an  hour. 

And  though  you  went  to  the  meet- 
ing as  the  friend  of  Mr.  Winter- 
botham, and  though  Mr.  Winter- 
botham was  three  quarters  of  an 
hour  in  preaching,  you  do  not  recol- 
lect any  passage  in  the  discourse  but 
what  was  seditious?  —  At  that  time 
I  did  not  wish  to  recollect  any  that 
were  not  seditious. 

Though  you  were  the  friend  of  ]Mr. 
Winterbotham,  you  had  no  wish 
to  retain  any  passage  in  your  mem- 
ory but  those  you  thought  seditious  ? 

—  I  endeavored  to  retain  in  my  mind 
those  which  were  so  strong. 

But  you  don't  recollect  any  other 
.sentence  in  the  whole  sermon,  but 
those  you  have  given  in  evidence  ? 

—  I  can't  repeat  any  other  sentence. 
In  what  part  of  the  meeting  were 

you,  during  the  time  Mr.  Winter- 
botham was  preaching  ?  —  I  re- 
mained in  the  aisle  till  he  talked 
upon  politics,  and  then  I  sat  down 
in  a  pew. 

I  think  you  said,  if  you  had 
thought  Mr.  Winterbotham  would 
have  been  prosecuted  you  should 
not  have  attended ;  pray  how  came 
you  then  to  be  an  evidence  ?  —  When 
he  said  he  should  treat  his  subject 
politically,    I    then    determined    to 


812 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  312 


attend  to  what  he  said,  intending 
to  take  part  against  him  if  called 
upon. 

Pray  in  what  manner  did  Mr. 
Winterhotham  begin  his  sermon?  — 
He  gave  a  moral  exposition  of  the 
text  at  first ;  hut  I  don't  remember 
what  he  said,  neither  the  words 
nor  the  tenor  of  them. 

Then  there  was  nothing  seditious 
in  the  first  part  of  the  sermon  ?  —  I 
really  think  the  first  exposition  of 
the  text  was  such  as  any  clergyman 
might  have  used  in  any  place  of 
devotion. 

But  you  don't  remember  anything 
of  this  part  of  the  subject  which 
you  think  was  unexceptionable  ?  — 
I  cannot  repeat  any  sentence ;  I 
did  not  endeavor  to  &tore  in  my 
mind  any  part  of  it. 

Though  you  went  to  the  meeting 
as  the  friend  of  Mr.  Winterhotham, 
and  for  the  express  purpose  of  vin- 
dicating him  from  what  you  con- 
ceived to  be  false  accusations,  yet 
you  did  not  endeavor  to  store  in 
your  mind  any  sentence  of  that  part 
of  the  sermon  which  you  conceived 
to  be  unexceptional)le  ?  —  No,  I  did 
not. 

As  you  say  you  cannot  repeat  any 
sentence  that  Mr.  Winterhotham 
uttered  besides  those  you  have  given 
in  evidence,  I'll  endeavor  to  call  a 
few  passages  to  your  mind.  .  .  . 
Do  you  recollect  Mr.  Winterbotham's 
saying,  the  man  who  could  entertain 
an  idea  of  equality,  either  in  charac- 
ter or  property,  was  a  fool  or  a  mad- 
man, and  ought  to  i)e  dealt  with  as 
such  ?  —  If  such  arguments  had  been 
u.sed,  they  would  appear  (juite  incon- 
sistent ;  they  would  appear  (juite 
contrary  to  the  drift  of  the  sermon. 

Might  it  not  have  escaped  your 
notice? — I  do  not  know  whether 
it  could  or  not. 

I  think  Mr.  Winterhotham  in  his 
sermon  insisted  on  some  motives, 
which  ought  tf)  induce  persons  to 
obey  the  powers  ordained  ?  —  I  do 
not  know  whether  he  did  nor  not.  .  .  . 

Pray  did  not  Mr.  Winterhotham 
say  .something  in  his  .sermon  about 


the  Africans,  about  their  deliver- 
ance from  slavery  ?  —  I  have  some 
faint  idea  that  there  was  some- 
thing said  about  the  Africans,  but  I 
cannot  tell  what ;  I  do  not  recollect 
anything  of  the  sermon  but  what  I 
have  already  proved. 

You  say  you  don't  recollect  any- 
thing of  the  sermon  but  what  you 
have  already  proved ;  I'll  endeavor 
to  refresh  your  memory :  I  think 
Mr.  Winterhotham,  in  his  sermon, 
stated  the  absolute  necessity  of  a 
chief  magistrate,  whether  dignified 
with  the  title  of  emperor,  king, 
stadtholder,  doge,  president,  or  any 
other  ?  —  I  do  not  recollect.  .  .  . 

Did  you  see  Mr.  Darby  at  any 
time  afterwards  that  evening  ? — Yes, 
Mr.  Darby  came  to  me  the  same 
night. 

And  then  I  suppose  you  made 
minutes  ?  —  Mr.  Darby  did  not  then 
see  the  minutes  I  had  made. 

Has  he  ever  seen  them  since  ?  — 
Yes,  perhaps  in  the  space  of  ten 
days  after,  or  it  might  be  a  shorter 
space. 

Then  you  had  no  communication 
with  Mr.  Darby  that  night  about 
the  sermon  ?  you  did  not  say  any- 
thing to  him  that  you  had  made 
minutes  of  it  ?  —  I  had  no  communi- 
cation about  the  minutes ;  I  only 
expressed  mv  resentment  to  Mr. 
Darby.   .   .  / 

John  Darbij  sworn.  Examined  by 
Mr.  Fanshawc. 

W'ere  you  at  the  meeting  in  How's 

—  lane,  on  the  18th  of  November  ? 
Yes ;  I  went  there  with  Mr.  Lyne. 

Do  you  remember  who  preached  ? 

—  Yes,  Mr.  Winterhotham  preached  ; 
the  text  was  13th  Rom.,  8th  verse. 

And  what  did  he  say  about  the 
text  ?  —  He  made  some  observations 
which  I  did  not  attend  to,  and  then 
said,  at  this  juncture  it  was  neces- 
sary to  apply  it  politically ;  I  then 
paid  attention,  and  Mr.  Lyne  went 
into  a  pew,  and  sat  down,  but  I  re- 
mained in  the  aisle ;  Mr.  Winter- 
l)otham  then  proceeded:  "Darkness 
lias  long  cast  her  veil  over  the  land ; 
l)ersecution  and  tyranny  have  car- 


Xo.  312.       III.     TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS       613 


ried  universal  sway."  He  then 
expatiated  upon  that  head,  and  pro- 
ceeded :  "  Magisterial  powers  have 
long  been  a  scourge  to  the  liberties 
and  rights  of  the  people ;  it  does 
not  matter  by  what  means  these 
usurped  powers  are  known,  wliether 
by  king,  senate,  potentate,  or  stadt- 
holder,  they  are  in  either  sense 
usurped."  He  then  introduced  the 
former  part  of  his  text  —  "  the  night 
is  far  spent,  the  day  is  at  hand,"  and 
followed  it  up  with  this  observation  : 
"The  yoke  of  bondage  amongst  our 
neighbors  seems  now  to  be  pretty 
well  broken,  and  it  is  expected  the 
same  blessing  is  awaiting  us, 
when  persecution  and  tyranny  shall 
be  no  more ;  when  enjoying  the 
lilierties  of  a  free  people,  we  shall 
boast  of  having  introduced  amongst 
us  that  equality  our  neighbors  have 
acquired."  I  then  had  occasion  to 
leave  the  meeting :  I  afterwards 
returned,  and  found  the  service  done, 
and  Mr.  Lyne  gone. 

Are  you  certain  that  what  you 
have  given  in  evidence  are  the  de- 
fendant's exact  words?  —  I  am  cer- 
tain it  was  the  sense,  if  not  the 
exact  words. 

Cross-examined     by     Mr.     East. 

Did  you  make  any  minutes  of  what 
you  heard  ?  —  I  made  no  minutes  at 
that  time,  l)ut  have  done  it  since. 

Pray  was  what  you  have  given 
in  evidence  connected  together  in 
one  connected  sentence  ?  —  These  ex- 
pressions which  I  have  stated  did 
not  follow  each  other  immediately. 

How  long  was  it  before  you  took 
the  minutes? — The  day  after  I 
heard  the  sermon. 

When  did  you  see  Mr.  Lyne's 
notes  ? — The  next  day. 

Then  the  minutes  you  made  were 
copied  from  Mr.  Lyne's  ?  —  Mr. 
Lyne's  minutes  recalled  the  words 
to  my  recollection. 

How  came  you  by  Mr.  Lyne's 
minutes  ?  —  I  asked  him  for  them  ; 
that  which  I  recollected  I  copied 
merely  for  my  own  satisfaction. 

You  had  no  idea  then  that  you 
should  be  called  on  as  an  evidence  ? 


—  At  that  time  I  had  no  idea  of  a 
prosecution. 

Mr.  Gihhs.  —  As  you  only  copied 
from  Mr.  Lyne's  minutes  what  you 
recollected  to  have  been  spoken, 
those  words  must  at  the  time  of 
their  delivery  have  made  a  very 
deep  impression  on  your  mind?  —  I 
never  heard  a  sermon  that  struck  me 
so  forcibly. 

What  were  the  parts  that  made 
such  an  impression  ?  —  I  do  not  rec- 
ollect the  particular  parts. 

I  believe  there  were  no  particular 
parts  but  what  you  found  in  Mr. 
Lyne's  minutes  ?  —  There  was  a  part 
of  Mr.  Lyne's  minutes  I  did  not  copy, 
what  passed  after  I  left  the  meeting. 

You  copied  all  that  was  in  Mr. 
Lyne's  minutes  that  was  said  before 
you  left  the  meeting  ?  —  I  did  copy 
all  that  part. 

How  long  were  you  at  the  meet- 
ing ? —  About  twenty  minutes. 

And  you  take  upon  you  to  swear 
that  what  you  have  given  in  evi- 
dence were  Mr.  Winterbotham's 
identical  words  ?  —  I  do  not  say  the 
defendant  used  the  identical  words, 
but  only  words  to  that  tendency.  .  .  . 

Mr.  Gihbs  (arguing  for  the  de- 
fense).—  A  miracle  was  once  stated 
to  have  happened  relative  to  the 
translation  of  the  Septuagint. 
Seventy  old  men  were  put  into  differ- 
ent cells  to  translate  the  Testament, 
and  they  all  translated  it  in  the  same 
words.  It  is  necessary  for  the  jury 
to  believe  that  the  same  kind  of  a 
miracle  has  again  happened,  if  they 
think  that  the  two  witnesses  for  the 
crown  —  one  of  them  a  clerk  to  the 
collector  of  excise,  the  other  a  mid- 
shipman in  the  navy  —  could  both 
go  to  a  meeting  —  hear  a  sermon 
preached  which  lasted  three  quarters 
of  an  hour  —  come  out  again,  collect 
a  great  number  of  sentences  in  the 
sermon  —  retain  them  in  their  mem- 
ory —  and  come  here  nine  months 
afterwards,  and  repeat  them  pre- 
cisely in  the  same  words.  This  I 
have  not  stomach  to  digest.  One  ot 
the  witnesses  took  notes  of  the  par- 
ticular passages,  which  the  other  saw 


014 


PART    II.      TESTIAIONIAL    EVIDENCE 


No.  312. 


and  copied  ;  yet  he  said  he  did  not 
speak  from  tliem,  l)ut  from  his 
own  recollection  of  what  passed  at 
the  time.  If  that  witness  spoke 
from  what  he  copied  from  the  notes 
of  the  other,  all  his  evidence  is  to 
he  left  out  of  the  case  ;  and  the  jury 
are  either  to  believe  the  miracle  of 
the  Septuagint  to  he  again  realized  — 
they  are  to  l)eheve  that  those  two 
witnesses  recollected  exactly  the 
same  words  —  and  no  other ;  or 
they  must  lay  out  of  the  case  the 
evidence  of  the  last  witness.  .  .  . 
The  witnesses  for  the  prosecution  are 
both  young  men,  the  latter  at  least, 
not  very  likely  to  carry  off  in  his 
memory  such  a  string  of  sentences  as 
those  he  repeated.  On  the  credit 
of  those  witnesses,  I  shall  not  much 
trouble  the  jury. 

And  yet  ^Ir.  Lyne  (the  first  wit- 
ness) gave  such  an  account  that  I 
think  he  could  not  well  be  believed. 
...  He  told  the  jury  that  it  was  his 
"general  Christian  philanthropy" 
(those  were  his  words)  that  brought 
him  there,  thinking  Mr.  Winter- 
botham  would  not  again  preach  a 
seditious  sermon.  .  .  .  And  yet  he 
should  not  recollect  a  single  passage 
in  the  whole  sermon  but  what  had 
a  contrary  tendency  ?  He  went 
there  not  with  a  view  to  accuse,  but 
to  defend  :  his  attention  then  must 
have  been  to  those  points  of  the 
sermon  which  would  rather  excul- 
pate than  accuse  Mr.  Winterbotham. 
We  generally  attend  to  what  we 
wi.sh,  and  yet  the  witness  could  re- 
member no  one  passage  in  the  course 
of  the  defendant's  sermon,  but  those 
which  he  had  given  in  evidence  to 
criminate  him,  and  which  Mr. 
Darby  had  echoed  back  to  Mr.  Lyne 
again.  This  witness  has  said  he  did 
not  recollect  a  single  sentence  of  all 
those  passages  in  the  sermon  which 
I  asked  him  about ;  but  I  shall 
prove  that  those  passages  which  I 
questioned  the  witness  to  the  trutli 
of,  were  uttered  by  Mr.  Winter- 
bothaiu,  and  are  to  l)e  found  in 
Mr.  Wiiiterbotham's  sermon. 

The  line  of  defense  which  I  shall 


adopt   is,   that  the  words  used  by 
Mr.    WinterbothaPi    are    explained 
by  other  sentences  in  the   sermon, 
and  that  they  bear  quite  a  different 
sense  from  that  stated  by  the  wit- 
nesses for  the  crown,  which  is  in- 
consistent   with    the    context.  .  .  . 
It  is  true  that  Mr.  Winterbotham 
chose  the  text  which  they  have  men- 
tioned,  but  he  did  not  confine  his 
discourse    to    that    verse ;  he    went 
through  the  whole  of  the  chapter, 
and  the  sermon  was  a  running  com- 
mentary upon  it ;  he  explained  the 
former  part  of   the  chapter,  which 
breathed  nothing  but  loyalty,  and 
a  proper  subordination  to  govern- 
ment,   and    he    particularly    stated 
"  that  every  soul  was  to  be  subject 
to    the    higher    powers  —  that    the 
powers    that    be    are    ordained    of 
God";  yet  of  this  the  witness  does 
not  remember  a  single  passage.  .  .  . 
Mr.    Lyne   said   he   could   recollect 
nothing  in  the  sermon  that  recom- 
mended    obedience     to     the     civil 
magistrates,   nothing  of  subordina- 
tion,   when    every    passage    of    the 
chapter  was  explained.     And  yet  he 
went  as  the  friend  of  Mr.  Winter- 
botham !     He    could    not    recollect 
that  the  defendant  said,  the  magis- 
trate was  the  minister  of  God  for 
good  ;  that  the  good  was  mentioned, 
or  that  he  mentioned  any  motives 
for  obeying  the  magistrate  !     He  had 
no  recollection  that  the  former  words 
of  the  text  were  commented  upon.  . . . 
The  general  scheme  of  this  sermon,  I 
contend,  was  that  we  were  to  obey 
the  rulers  that  were  set  over  us  for 
good ;  and  that  this  was  the  duty  of 
Christians.  .  .  .     He    stated,    that 
the  power  of  government  could  only 
be  exercised  by  a  chief  magistrate, 
whether  emperor,  king,  stadtholder, 
dog*:-,  president,  or  any  other ;  and 
those  are  the  words  which  the  wit- 
nesses for  the  crown    have  so  mis- 
understood, and  who  supposed  the 
following  were  the  words:  "Magis- 
terial    powers     have    long     been    a 
scourge  to  the  liberties  and  rights 
of  the  people ;  it  does  not  matter 
by  what  names  these  usurped  powers 


No.  312.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      615 


are  known,  whether  by  king,  senate, 
potentate,  or  stadthohler,  they  are 
in  either  sense  usurped."  .  .  .  The 
witnesses  I  shall  call  are  used  to  at- 
tend to  the  sermons  of  Mr.  Winter- 
botham  ;  I  doubt  not  but  their  testi- 
mony will  gain  credit  with  candid, 
disinterested,  and  impartial  men.  .  .  . 

Mrs.  Jane  Fearer  was  sworn. 
Examined  by  Mr.  East. 

Were  you  at  the  meeting  in  How's 
lane  on  the  18th  of  November  last  ? 

—  Yes,  I  was. 

Were  you  there  when  Mr.  Winter- 
botham  preached  this  sermon?  —  I 
was. 

W'ere  you  there  the  whole  time  ? 

—  Yes ;  and  paid  attention  to  the 
sermon. 

I  would  ask  you  then  —  did  Mr. 
W^interbotham  utter  the  words  laid 
in  the  first  count  ?  —  No,  he  did  not ; 
nor  anything  like  them ;  he  said 
nothing  about  darkness  having  cast 
her  veil  over  the  land,  or  that  magis- 
terial powers  were  usurped.  .  .  . 

Then  Mr.  Winterbotham  did  not 
say  magisterial  powers  had  long  been 
a  scourge  to  the  liberties  and  rights 
of  the  people?  —  No,  he  said  "they 
wc-e  a  terror  to  evildoers,"  but  not 
to  others ;  he  on  the  contrary  said 
they  were  the  ministers  of  God  for 
good. 

Do  you  recollect  Mr.  Winter- 
botham's  saying  anything  about 
the  titles  and  dignities  by  which 
magistrates  are  known  or  distin- 
guished ?  —  He  said  there  must  be  a 
chief  magistrate,  whether  dignified 
with  the  title  of  emperor,  king, 
stadtholder,  doge,  president,  or  any 
other. 

He  said  there  must  be  a  chief 
magistrate,  did  he  ?  —  He  did,  under 
whatever  form  government  was  ad- 
ministered. 

Then  he  did  not  say  that  magis- 
terial powers  were  usurped  ?  —  If 
he  had  said  they  were  usurped,  it 
would  have  made  nonsense  of  what 
he  said  before  —  on  the  contrary,  he 
said  they  were  God's  ministers.  .  .  . 

Cross-examined  by  Mr.  Sergeant 
Rooke. 


Pray  how  comes  this  sermon  to  be 
so  very  fresh  in  your  memory  ?  —  Be- 
cause the  very  next  day  after  it  was 
preached,  I  l\eard  persons  had  said 
it  was  seditious. 

Did  you  ever  see  the  sermon  ?  — 
Yes,  three  or  four  days  after  it  was 
preached. 

Who  showed  it  to  you  ?  —  It  was 
lying  in  the  parlor  and  I  perused  it. 

Mr.  William  Pearee  sworn.  Ex- 
amined by  Mr.  Dampicr. 

Were  you  at  the  meeting  in  How's 
lane  on  the  evening  of  the  18th  of 
November  last  ?  —  I  was. 

Did    Mr.    Winterbotham    preach 


that 


evening 


He  did. 


Did  you  hear  the  whole  of  the 
sermon?  —  I  did,  and  heard  dis- 
tinctly. 

Did  Mr.  Winterbotham  utter 
the  words  laid  in  the  first  count  ? 
—  No,  he  did  not. 

Did  the  defendant  say  anything 
about  magisterial  power  ?  —  There 
was  some  part  of  his  sermon  about 
magisterial  powers ;  he  said  they 
were  of  God,  and  to  be  obeyed. 

Then  Mr.  Winterbotham  did  not 
say  they  were  a  scourge  to  the  liber- 
ties and  rights  of  the  people  —  did 
he?  —  No,  he  did  not;  he  said, 
"  magisterial  powers  were  a  terror 
to  evildoers,  and  a  protection  to 
the  good."  .  .  . 

Did  the  defendant  utter  the  words 
in  the  second  count?  —  No,  he  said 
nothing  similar  or  tending  that  way. 
I  attended  the  mayor  of  Plymouth 
a  few  days  after  the  sermon  was 
preached,  and  was  astonished  at  the 
time  to  hear  of  such  a  charge  against 
him.  .  .  . 

Had  the  sermon  any  seditious 
tendency? — The  whole  sermon  was 
as  contrary  to  sedition  as  light  differs 
from  darkness.  .  .  . 

Cross-examined  by  Mr.  Sergeant 
Lawrence. 

Pray  Mr.  Pearee,  how  can  you 
be  so  particular  in  remembering  this 
discourse  ?  —  .  .  .  I  heard  of  Mr. 
Lyne's  intention  to  prosecute,  and 
therefore  called  up  my  recollection, 
and  made  minutes  of  it.  .  .  , 


616 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  312 


Did  you  ever  see  the  sermon  ?  — 
Yes,  three  or  four  days  after  it  was 
preached.  I  can't  be  particuUir  — 
it  was  before  I  went  to  the  mayor, 
and  I  had  talked  it  over  with  Mr. 
Winterl)otliam.   .   .   . 

Mr.  Thomas  -Cox worthy.  Ex- 
amined by  Mr.  Dampicr. 

Were  you  at  the  meeting  in  How's 
lane  on  the  ISth  of  November  hist  ? 

—  I  was. 

Did   Mr.   ^Vinterbotham   preach  ? 

—  He  (Hd. 

Ditl  you  hear  the  whole  of  the 
sermon  ?  —  I  did. 

Did  Mr.  ^Vinterbotham  utter  the 
words  laid  in  the  first  count  ?  —  Some 
of  the  words  were  made  use  of  by 
him ;  the  others  are  entirely  per- 
verted ;  but  I  deny,  in  toto,  that 
^Ir.  Winterbotham  said  anything  in 
his  sermon,  in  the  sense  charged  in 
the  indictment. 

Did  Mr.  ^Vinterbotham  say  that 
magisterial  powers  had  been  a 
scourge  to  the  rights  and  liberties 
of  the  people  ?  —  No,  he  did  not,  nor 
anything  like  it. 

Did  he  say  that  those  powers  were 
usurped  ?  —  No,  he  did  not ;  he  incul- 
cated obedience  to  the  magisterial 
powers. 

Did  Mr.  Winterbotham  utter 
these  words,  "  darkness  has  long  cast 
her  veil  over  the  land"?  — No,  he 
spoke  of  a  night,  and  that  in  a  reli- 
gious sense ;  he  said  that  night  had 
overspread  the  world  before  the 
light  of  the  gospel.  .  .  . 

Cross-examined  by  Mr.  Claj>p. 

Do  you  constantly  attend  Mr. 
Winterbotham's  preaching  ?  —  Some- 
times I  attend  ^Ir.  Winterbotham, 
sometimes  others,  as  I  live  at  Dock. 

What  led  you  to  attend  this  meet- 
ing on  the  ISth  of  Novend^er  ?  — 
Nothing  particular  flrew  n*e  thither. 

Did  you  make  any  minutes  of  the 
sermon?  —  Yes,  I  did  make  minutes 
of  what  I  recoUecte*]. 

When  did  you  make  mimites; 
liow  lot)g  was  it  after  the  sermon  was 
pr«'a(hed  ? — I  beliexe  about  a  month 
afterwards. 

What  induced  vou  then  to  make 


minutes  of  it?  —  It  was  in  conse- 
quence of  the  various  opinions  about 
it. 

Pray  did  you  ever  see  the  defend- 
ant's sermon  ?  —  I  never  saw  or  read 
the  sermon. 

How  came  you  to  be  so  particular 
in  your  recollection  of  this  sermon  ? 
—  I  took  particular  notice  of  it  be- 
cause of  the  aspersions  thrown  on 
it  a  few  days  after  it  was  preached. 

jSIr.  Sergeant  Rookc  ha\ing  replied 
on  the  part  of  the  prosecution,  — 
Mr.  Baron  Perryn  proceeded  to  sum 
up  the  evidence :  he  stated  the 
words  laid  in  the  indictment,  and  ob- 
ser\ed,  that  two  witnesses  had  been 
called  forward  in  support  of  them, 
both  yoimg  men  ;  the  testimony  of 
one  of  these  witnesses  (Mr.  Darby), 
the  learned  judge  said,  they  must 
put  out  of  the  cjuestion  ;  for  though, 
he  observed,  ]Mr.  Lyne,  the  other 
witness,  had  said,  that  he  did  not 
communicate  his  notes  to  him  for 
se\eral  days,  j'et  Mr.  Darby  ac- 
knowledged that  he  copied  his  min- 
utes from  Mr.  Lyne's  on  the  next 
day  after  the  sermon  was  preached  ; 
and  this  is  farther  corroborated,  by 
his  having  given  his  evidence  in  Mr. 
Lyne's  words ;  he  said,  the  jury 
must  therefore  entirely  lay  aside 
his  testimony ;  and  the  support  of 
the  charges  would  then  rest  on  the 
testimony  of  one  youth.  The  learned 
judge  then  observed,  that  on  the 
part  of  the  defendant  many  respect- 
al)le  adult  persons  had  been  exam- 
ined, persons  who,  he  observed, 
were  in  the  constant  habit  of  at- 
tending on  the  defendant's  ministry, 
and  therefore  might  be  supposed  to 
be  better  ((ualified  to  judge  of  the 
doctrines  he  advanced ;  these,  he 
said,  had  unanimously  denied  the 
words  laid  in  the  indictment,  and 
had  likewise  given  a  positive  evi- 
flence  of  a  very  contrary  nature ; 
they  stated  the  defendant's  .sermon  to 
l)reathe  nothing  but  loyalty,  peace, 
order,  and  obedience  to  the  law; 
this  evidence,  he  observed,  would 
l)e  didy  weighed  and  considered  by 
the  jury.     The  learned  judge  further 


No.  316.       III.     TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      617 


observed,  that  it  had  been  admitted 
on  both  sides,  that  the  defendant 
was  a  sensible  man ;  and  it  was  ex- 
tremely improbable  that  a  sensible 
man,  with  a  prosecution  hanging 
over  his  head  for  a  sermon  preached 
on  the  5th  of  November,  should 
again  preach  another  sermon  on  the 
18th  of  the  same  month,  which  he 
must  know  would  again  bring  him 
within  the  reach  of  the  law,  and 
which,  if  the  testimony  of  the  wit- 
ness for  the  crown  was  to  be  relied 
upon,  contained  expressions  worse 
than  the  former.  The  learned  judge 
observed,  that  it  was  for  the  jury  to 


determine,  what  degree  of  credit 
was  to  be  given  to  this  evidence, 
against  the  unanimous  testimony 
of  so  many  other  persons.  Under 
the  circumstances,  he  said,  he  could 
not  think  the  defendant  guilty  ;  but 
the  jury  were  to  determine  for 
themselves  —  only  they  should  re- 
member that  after  the  verdict  of 
yesterday,  if  the  defendant  was 
again  found  guilty,  it  would  be  his 
utter  ruin. 

The  jury  desired  to  withdraw, 
and  after  being  locked  up  for  five 
hours  and  a  half,  returned  a  verdict 
of  guilty. 


Topic  3.     Self-contradictory  Statements 


314.  COLONEL  TURNER'S  TRIAL.     (1682.    Howell's  State  Trials. 


VI,  606.) 

[A  Mr.  Try  on  was  robbed  of  a 
large  sum  of  money  on  Thursday 
night,  April  7,  1682 ;  the  money 
w'as  found  in  Turner's  house.  His 
story  was  that  he  was  at  home  and 
in  bed  all  Thursday  night,  and  that 
he  had  got  the  money  back  from  the 
real  robbers  at  a  meeting  with  them 
on  Friday  night,  which  night  he 
spent  negotiating  with  them  at 
another  place ;  to  prove  his  being 
at  home  Thursday  night,  he  called 
his  maid  servant.] 

Turner.  —  Come,  maiden,  pray 
tell  Lord  and  the  Court  when  my  sons 
came  home  this  [Thursday]  night. 
Maid.  —  Between  nine  and  ten 
o'clock. 

L.  C.  J.  Bridgman. — Were  your 
master  and  his  sons  in  bed  all  Friday 
night,  or  no  ?  Maid.  —  Yes,  My 
Lord,  they  were. 

L.  C.  J.  Hyde.  —  Did  your  master 


go  forth  on  Friday  night  ?  Maid.  — 
No,  he  was  at  home  and  in  bed  all 
that  night  till  eight  in  the  morning, 
and  Thursday  night  before. 

Turner.  —  A  silly  soul,  she  knows 
not  what  she  says. 

L.  C.  J.  Hyde.  —  I  will  ask  you 
again,  was  your  master  at  home  on 
Friday  night  ?  Maid.  —  No,  I  think 
he  was  not. 

L.  C.  J.  Hyde.—\Nhy  did  you 
say  so  before  ?  Maid.  —  I  cannot 
remember,  sir. 

L.  C.  J.  Bridgman.  —  She  knows 
her  master's  mind.  Turner.  —  No, 
upon  my  soul,  my  Lord. 

L.  C.  J.  Bridgman.  —  My  masters 
of  the  jury,  this  is  the  use  of  the 
maid's  testimony ;  she  will  say  any- 
thing, she  is  no  fit  witness,  no  trust 
will  be  given  to  her  either  one  w^ay 
or  other. 


315.    QUEEN  CAROLINE'S  TRIAL.     [Printed  ante,  in  No.  309. 


316.  M'GARAHAN  v.  MAGUIRE.  (1827.  Mongan's  Celebrated 
Trials  in  Ireland,      pp.  16,  26.) 

[Seduction  of  the  plaintiflf's  evidence  to  be  one  of  mere  black- 
daughter,  the  defendant  being  a  mail,  but  this  was  at  the  outset 
priest.     The  case  was  shown  by  the      not  apparent.     The  chief  and  first 


618 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  317. 


witness  for  the  prosecution  was 
Anne  M'Garaiian,  the  supposed 
victim  of  the  defendant ;  and  upon 
her  cross-examination  by  Mr.  Daniel 
O'Connell,  the  following  passages 
took  place  :] 

Mr.  O'Coiuirll:  "Did  you  ever 
take  a  false  oath  about  the  busi- 
ness?" Witncji^-:  "  Not  that  I  rec- 
ollect." 

Mr.  O'CoumU:  "Great  God,  is 
that  a  thing  you  could  have  for- 
gotten?" Witness:  "1  believe  I 
did  not.     I  am  sure  I  did  not." 

Mr.  O'ConveU:  "Oh.  I  see  I 
have  wound  you  up.  Perhaps,  then, 
you  will  tell  me  now,  did  you  ever 
swear  it  was  false?"  Witness: 
"  I  never  took  an  oath  that  the 
charge  against  Mr.  ^Nlaguire  Avas 
false.  I  might  have  said  it,  l)ut  I 
never  did  swear  it."  .  .  . 

Mr  O'Connell:  "Did  you  ever 
say  that  your  family  Avas  offered 
£500  or  £600  for  prosecuting  Mr. 
Maguire?"  Witness:  "I  don't  rec- 
ollect." .... 

Mr.  O'Connell:  "Did  you  ever 
say  that  you  would  get  £600  for 
prosecuting  him?"  Witness:  "I 
never  did. " 

Mr.  O'Connell:  "Or  write  it?" 
Witness:  "Never." 

Mr.  O'Connell:  "Is  that  your 
handwriting?"  here  a  letter  was 
handed  to  her.      Witness:  "It  is." 


Mr.  O'Connell:  "And  yet  you 
never  wTote  such  a  letter!"  The 
letter  read  in  part :  "  Dear  Mr. 
Maguire,  ...  I  am  the  innocent 
cause  of  your  present  persecution. 
...  Is  there  a  magistrate  in  this 
county  you  can  safely  rely  upon  ? 
If  there  is,  let  him  call  here,  as  it 
were  on  a  journey  to  feed  his  horse ; 
let  him  have  a  strong  affidavit  of 
your  innocence  in  his  pocket ;  let 
me  in  the  meanwhile  know  his 
name,  that  I  may  have  a  look  out 
for  him,  and  while  his  horse  is  feed- 
ing, I  will  slip  downstairs  and  swear 
to  the  contents ;  I  have  already 
sworn  to  the  same  effect,  but  not 
liefore  a  magistrate.  .  .  .  £600 
have  been  offered  our  family  to 
prosecute  you,  but  money  shall 
never  corrupt  my  heart."  Witness: 
"  I  did  not  think  when  you  were 
questioning  me  that  you  were 
alluding  to  this  letter.  I  could 
not  have  supposed  Mr.  IMaguire 
would  have  been  so  base  as  ever  to 
have  produced  this  letter,  after 
swearing  three  solemn  oaths  that 
he  would  not.  If  I  thought  he 
would,  I  should  have  certainly  told 
my  counsel  about  it." 

After  further  questioning,  "the 
witness  seemed  overcome ;  and  she 
turned  to  the  defendant,  exclaiming, 
'Oh,  you  villain  !  you  villain  !'" 


317.    PARNELL  COMMISSION' 

day,  Times'  Ucp.,  pt.  14,  pp.  194, 
[This  was  virtually  an  action  by 
Mr.  Parnell  and  others,  against  the 
London  "Times,"  for  defamation, 
in  charging  among  other  things  that 
Mr.  Parnell  had  approved  the 
Phcenix  Park  assassination ;  this 
charge  was  based  on  alleged  letters 
of  Mr.  Parnell,  plainly  admitting 
complicity,  sold  to  the  "Times" 
by  one  Richard  Pigott,  an  Irish 
editor,  living  in  part  by  blackmail, 
who  claimetl  to  have  procured  them 
from  other  Irishmen.  Pigott  him- 
self turned  out  to  ha\e  forged  them  ; 
but   the  case  for  their  aulhent icitv 


S  PROCEEDINGS.     (1SS8.     54th 
J  95.) 

seemed  sound,  until  Pigott  was  placed 
on  the  stand  for  "The  Times"  and 
came  under  the  cross-examination 
of  Sir  Charles  Russell.  The  object 
of  the  ensuing  part  of  the  cross- 
examination  was  to  bring  out  Pigott's 
shiftiness  in  first  selling  the  letters 
as  genuine  to  the  "Times,"  and  then 
offering  to  the  Parnell  party  for 
money  to  enable  them  to  disprove 
the  letters'  genuineness.  The  letters 
had  been  first  published  in  a  series  of 
articles  entitled  "Parnellism  and 
("rime,"  beginning"  March  7,  1S87, 
and     bringing     temporary     oblof^uy 


No.  317.       III.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS       619 


to  the  Parnell  party  and  causing 
the  passing  of  the  Coercion  Act. 
Archbishop  Walsh,  mentioned  in  the 
examination,  was  an  intimate  friend 
of  Mr.  Parnell.  Pigott,  in  his 
prior  examination,  had  claimed  that 
he  had  handed  the  letters  to  the 
"Times"  merely  for  the  latter's 
protection,  to  substantiate  the  ar- 
ticles, and  that  the  publication  of 
the  letters  "came  upon  me  by  sur- 
prise"; the  falsehoods  exposed  in 
the  following  answers  were  in  a 
sense  partly  immaterial,  but  they 
served  all  the  more  to  show  the 
man's  thoroughly  false  character.] 

Q.  You  were  aware  of  the  in- 
tended publication  of  that  corre- 
spondence? A.  No,  I  was  not  at 
all  aware. 

Q.  What?   A.  Certainly  not.  .  .  . 

Q.  You  have  already  said  that  you 
were  aware,  although  you  did  not 
know  they  were  to  appear  in  the 
'*  Times,"  that  there  were  grave 
charges  to  be  made  against  Mr. 
Parnell  and  the  leading  members  of 
the  Land  League  ?  .4.1  was  not 
aware  till  the  publication  actually 
commenced. 

Q.  Do  you  swear  that  ?  .4.1 
do. 

Q.  No  mistake  about  that?  A. 
No. 

Q.  Is  that  your  letter  (produced)  ? 
Don't  trouble  to  read  it.  A.  Yes ; 
I  have  no  doubt  about  it. 

Q.  My  Lords,  that  is  from 
Anderton's  Hotel,  and  is  addressed 
by  the  witness  to  Dr.  Walsh, 
Archbi.shop  of  Dublin.  The  date, 
my  Lords,  is  March  4,  1887,  three 
days  before  the  first  appearance 
of  the  first  series  of  articles  known 
as  "  Parnellism  and  Crime."  (Read- 
ing.) "Private  and  confidential.  My 
Lord,  —  The  importance  of  the 
matter  about  which  I  write  will 
doubtless  excuse  this  intrusion  on 
your  attention.  Briefly,  I  wish  to 
say  that  /  have  been  made  aware  of  the 
details  of  certain  proceedings  that 
ore  in  preparation  with  the  object  of 
destroying  the  influence  of  the  Par- 
nellite  party  in   Parliament."     (To 


witness.)  W'hat  were  these  certain 
proceedings  that  were  in  prepara- 
tion ?     A.   1  do  not  recollect. 

Q.  Turn  to  my  Lords,  Sir,  and 
repeat  that  answer,  yl.  I  do  not 
recollect. 

Q.  Do  you  swear  that,  writing  on 
the  4th  of  March  and  stating  that 
you  had  been  made  aAvare  of  the 
details  of  certain  proceedings  that 
were  in  preparation  with  the  object 
of  destroying  the  influence  of  the 
Parnellite  party  in  Parliament  less 
than  two  years  ago,  you  do  not 
know  what  that  referred  to  ?  A.  1 
do  not  know  really. 

Q.   May  I  suggest  ?    A.   Yes.  .  .  . 

Q.  Did  that  passage  refer  to  these 
letters,  among  other  things  ?  A. 
No,  I  rather  fancy  it  had  reference  to 
the  forthcoming  articles. 

Q.  I  thought  you  told  us  you  did 
not  know  anything  about  the  forth- 
coming articles  ?  .4.  Yes,  I  did. 
I  find  now  that  I  am  mistaken,  but 
I  must  have  heard  something  about 
them. 

Q.  Try  and  not  make  the  same 
mistake  again,  if  you  please.  (Read- 
ing.) "  I  cannot  enter  more  fully 
into  details  than  to  state  that  the 
proceedings  referred  to  consist  in  the 
publication  of  certain  statements, 
purporting  to  prove  the  complicity  of 
Mr.  Parnell  himself  and  some  of  his 
supporters  with  murders  and  out- 
rages in  Ireland,  to  be  followed  in  all 
probability  by  the  institution  of 
criminal  proceedings  against  these 
parties  by  the  government."  Who 
told  you  that  ?     A.    I  have  no  idea 

Q.  Did  that  refer,  among  others, 
to  the  incriminatory  letters?  A. 
I  do  not  recollect  that  it  did. 

Q.  Do  you  swear  it  did  not  ?  A. 
I  will  not  swear  it  did  not. 

Q.  Do  vou  think  it  did?  A. 
No. 

Q.  Very  well ;  did  you  think  that 
these  letters,  if  genuine,  would  prove, 
or  would  not  prove,  Mr.  ParnelVs 
complicity  icith  crime?  A.  I  thought 
they  were  very  likely  to  prove  it. 

Q.  Now,  reminding  you  of  that 
opinion,    and    the    same    with    Mr. 


620 


PAKT    II.       TESTIMONIAL    EVIDENCE 


No.  317. 


Eagan,  I  ask  you  whether  you  did 
not  intend  to  refer  —  I  do  not  suggest 
solely,  hut  among  other  things  —  to 
the  letters  as  being  the  matter 
which  would  prove,  or  purport  to 
prove,  eoni])licity  ?  J.  ^  es,  I  may 
have  had  tiuit  in  mind. 

Q.  You  can  hardly  doul)t  that 
you  had  that  in  your  mind?  A.  I 
suppose  I  must  have  had. 

Q.  (Reading.)  "Your Grace  may 
be  assured  that  I  speak  with  full 
knowledge  and  am  in  a  position  to 
prove  beyond  all  doubt  or  question 
the  truth  of  what  I  say.  "  Was 
that  true?  A.  It  could  hardly  have 
been  true. 

Q.  Then  you  wrote  tliat  whicli 
was  false  ?  .1 .  I  did  not  suppose  his 
Lordship  would  give  any  strength 
to  what  I  .said.  I  do  not  think  it 
was  warranted  by  what  I  knew. 

Q.  Did  you  make  an  untrue 
statement  in  order  to  add  strength 
to  what  you  had  said  ?     A.    Yes. 

Q.  A  designedly  untrue  state- 
ment, was  it?     A.    Not  designedly. 

Q.  Try  and  keep  your  voice  up. 
A.    I  say,  not  designedly. 

().    Accidentally?    A.  Perhaps  so. 

Q.  Do  you  hrlirre  these  letters  to  be 
(jcnuine?     A.    I  do. 

Q.  And  did  at  that  time?  A. 
Yes. 

Q.  (Reading.)  "And  I  may  further 
assure  your  Grace  that  /  atn  also  able 
to  point  out  how  the  desiqns  may  be 
succe,isfully  combated  and  finally  de- 
feated." (To  witness.)  Now  if  these 
documents  were  genuine  documents, 
an<l  you  believed  them  to  be  such, 
how  were  you  able  to  assure  his 
Grace  that  you  were  able  to  point 
out  how  the  designs  might  be  suc- 
cessfullv  combated  and  finallv  de- 
feated ?  A.  Well,  as  I  say,  1  had 
not  the  letters  actually  in  my  mind 
at  that  time,  so  far  as  I  can  re- 
member. I  do  not  recollect  that 
letter  at  all. 

Q.  You  told  me  a  moment  ago 
without  hesitation  that  you  had 
both  in  your  mind?  .1.  Ihit,  as  F 
say,  it  had  completely  faded  out  of 
mv  memorv. 


Q.  That  I  can  imderstand.  A.  I 
have  not  the  slightest  idea  of  what 
I  referred  to. 

Q.  Assuming  the  letters  to  be 
genuine,  what  were  the  means  by 
which  you  were  able  to  assure 
his  Grace  you  could  point  out  how 
the  designs  might  l>e  successfully 
combated  and  finally  defeated  ?  A. 
I  do  not  know. 

Q.  Oh,  you  must  think,  Mr.  Pigott, 
please.  It  is  not  two  years  ago,  you 
know.  Mr.  Pigott,  had  you  qualms 
of  conscience  at  this  time,  and  were 
you  afraid  of  the  consequences  of 
what  vou  had  done?  A.  Not  at 
all. 

Q.  Then  what  did  you  mean  ? 
A.    I  cannot  tell  you  at  all. 

Q.    Try.     .1.    I  cannot. 

Q.    Try.     A.    I  really  cannot. 

Q.   Try.     A.    It  is  no  use. 

Q.  Am  I  to  take  it,  then,  that 
the  answer  to  my  Lords  is  that  you 
cannot  give  any  explanation  ?  A.  I 
really  cannot.  .  .  . 

Q.  Now  you  knew  these  impend- 
ing charges  were  serious  ?     A.    Yes. 

Q.  Did  you  believe  them  to  be 
true  ?  A.I  cannot  tell  you  whether 
I  did  or  not,  because,  as  I  say, 
I  do  not  recollect.   .  .  . 

Q.  First  of  all,  you  knew  then 
that  you  had  procured  and  paid  for 
a  number  of  letter^  ?     A.    Yes. 

Q.  Which,  if  genuine,  you  have 
already  told  me  would  gravely 
implicate  the  parties  from  whom 
they  were  supposed  to  come?  A. 
Yes,  gravely  implicate. 

Q.  You  regard  that  as  a  serious 
charge  ?     A.    Yes. 

Q.  Did  you  belie\e  that  charge 
to  be  true  or  false?  .1.  /  be- 
liered  that  to  be  true.   .   .   . 

Q.  Now  I  will  read  you  this  pas- 
sage :  "P.S.  I  need  hardly  add  that 
did  I  consider  the  parties  really 
guilty  of  the  things  charged  against 
them,  I  should  not  dream  of  suggesting 
that  your  Grace  should  take  part  in 
an  eH'ort  to  shield  them.  I  only 
wish  to  impress  on  your  Grace  that 
the  evidence  is  apparently  convinc- 
ing,  and   would   prol)ably   be  sufE- 


No.  319. 


III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS       621 


cient  to  secure  conviction  if  sub- 
mitted to  an  English  jury."  What 
have  you  to  say  to  that  ?  /i.  I  say 
nothing,  except  that  I  am  sure  I 
could  not  have  had  the  letters  in  my 
mind  when  I  said  that,  because  I 
do  not  think  the  letters  convej^  a 
sufficiently  serious  charge  to  warrant 
my  writing  that  letter. 

Q.  But  as  far  as  you  have  yet 
told  us  the  letters  constituted  the 
only  part  of  the  charge  with  which 
you  had  anything  to  do?  A.  Yes, 
that  is  why  I  say  that  I  must  have 
had  something  else  in  my  mind 
which  I  cannot  recollect.  I  must 
have  had  some  other  charges  in  my 
mind. 

Q.  Can  you  suggest  anything 
that  you  had  in  your  mind  except 
the  letters  ?     A.    No,  I  cannot.  .  .   . 

[On  the  next  day,  when ,  Pigott 
resumed  his  examination  :1 


Q.  Then  I  may  take  it  that  since 
last  night  you  have  removed  from 
your  mind  —  I  think  your  bosom 
was  the  expression  you  used  —  that 
this  communication  of  yours  [to  the 
Archbishop]  referred  to  some  fear- 
fid  charge,  something  not  yet  men- 
tioned ?  A.  No,  I  told  you  so  last 
night,  but  I  am  sure  that  it  is  not 
so.     I  will  tell  you  my  reason. 

Q.  You  need  not  trouble  yourself. 
A.  I  may  say  at  once  that  the  state- 
ments I  made  to  the  Archbishop  xoere 
cntireh/  imfounded.  .  .  . 

Q.  Then  in  the  letters  I  have  up 
to  this  time  read  —  or  some  of 
them  —  you  deliberately  sat  down 
and  wrote  lies  ?  A.  Well,  they  were 
exaggerations ;  I  would  not  say 
they  were  lies. 

Q.  Was  the  exaggeration  such 
as  that  it  left  no  truth  ?  A.  I 
think  verv  little. 


318.    NETHERCLIFT'S  CASE. 

and  the  Criminal.     1911.     p.  88.) 

.  .  .  Netherclift,  who  was  the  chief 
expert  in  the  days  when  Lord 
Brampton  was  at  the  bar,  had  such 
faith  in  his  methods  that  finally 
he  came  to  believe  that  he  could 
never  make  a  mistake.  This  belief 
received  an  amusing  check  in  a  case 
in  which  he  was  under  cross-examina- 
tion by  Lord  Brampton  (then  Mr. 
Hawkins).  Netherclift  had  claimed 
that  his  system  gave  infallible 
results,  and  had  further  stated  that 
his  son,  whom  he  had  trained,  made 
use  of  the  same  system.  "Then," 
said  the  wily  advocate,  "your  son 
working  on  your  system  is  as  good 
as  you  are?"  —  "Yes,"  replied  the 


(C.  AiNSwoRTH  Mitchell.    Science 

father  with  some  pride  in  his  voice, 
"he  is."  —  "That  is  to  say,  he,  too, 
is  infallible?"  —  "Yes,"  again  re- 
plied the  witness.  —  "  Well,  now, 
Mr.  Netherclift,  was  there  ever  a 
case  in  which  you  and  your  son 
appeared  on  opposite  sides?"  — 
Netherclift  tried  to  evade  the  ques- 
tion, which,  he  complained,  was  an 
unfair  one,  but  on  being  pressed 
was  forced  to  admit  that  on  a  cer- 
tain occasion  he  had  given  evidence 
on  one  side  and  his  son  upon  the 
other.  Swift  came  the  unanswerable 
retort,  "How  comes  it  then  that 
two  infallibles  appeared  on  opposite 
sides  ?" 


319.  CHRISTOPHER  RUPPRECHT'S  CASE.  (Anselm  von 
Feuerbach.  Rouarkabic  German  Criminal  Trials,  transl.  Gordon.  1846, 
p.  116.) 


[The  facts  of  the  assault  on 
Rupprecht  are  set  forth  in  No.  159, 
ante.]  Something,  it  was  hoped, 
would  be  learned  from  the  wounded 
man  himself  when  he  should  have 
recovered     consciousness.     On     the 


evening  of  the  following  day,  the 
8th  of  February,  the  judge  and  two 
other  officers  of  the  court  visited 
him.  .  .  .  The  judge  asked  him  the 
following  questions,  which  were 
thus  answered  by  the  wounded  man : 


622 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  319. 


"  \Mio  struck  vou  the  blow  ?  "  — 
"  Schmidt."  "  What  Schmidt  ?  "  — 
"Woodcutter."  "Where  does  he 
hve?"— "In  the  Most."  "With 
what  did  he  strike  you  ?  "  — 
"Hatchet."  "How  did  you  recog- 
nize liini  ?  "  —  "  By  his  voice."  .  .  . 
The  first  though  not  the  sole 
object  of  the  judge  now  was  to 
discover  the  Schmidt  of  whom 
Rupprecht  was  thinking.  But  in 
this  town,  as  everywhere  else,  there 
were  a  vast  number  of  people  called 
Schmidt,  several  of  whom  were 
woodcutters.  Three  of  these  es- 
pecially engaged  the  attention  of 
the  court.  The  first  was  a  certain 
Aljraham  Schmidt,  who  lived  in 
the  Hohes  Pflaster.  The  second 
was  one  John  Gabriel  Schmidt, 
commonly  known  as  "big  Schmidt," 
who  lived  in  a  street  called  the 
Walch.  The  third  was  big  Schmidt's 
half-l>rother.  distinguished  from  him 
))y  the  name  of  "  little  Schmidt.  "... 
As  equal  suspicion  attached  to  the 
three  Schmidts  al)ove  named,  Al)ra- 
ham.  as  well  as  the  big  and  the  little 
Schmidt,  were  arrested  that  even- 
ing. .  .  .  Abraham  Schmidt  be- 
haved far  diflerently  :  when  asked 
whether  he  knew  the  man  in  bed,  he 
at  first  answered,  "I  do  not  know 
him,"  but  immediately  added,  "That 
is  ]\Ir.  Rupprecht,  I  know  him  well ; 
what  is  the  matter  with  him?" 
When  asked  why  he  at  first  said  he 
did  not  know  him,  he  answered, 
"  Because  that  is  Mr.  Ruppi^scht." 
He  was  then  desired  to  give  a 
proper  answer,  but  only  exclaimed, 
"  I  can  give  no  answer  ;  I  did  not  do 
it;  ah  I  good  Lord  !  1  did  not  do 
it ;  I  am  not  the  man  ;  as  I  hope 
for  mercy,  I  am  innocent.  I  am 
a  poor  woodcutter.  Vou  may  ask 
my  neighbors,  my  wife,  and  my 
mother.  On  Friday  night  I  was 
cutting  pegs  at  the  house  of  my 
mother-in-law  till  eleven  o'clock, 
and  on  Saturday  and  Sunday  I  was 
at  home."  On  being  asked  at 
what  hour  he  had  gone  home  on 
Friday  niglit.  he  >;ii(l.  "  I  stayed 
until  past  nine  with  my  mother-in- 


law."  When  the  manifest  contradic- 
tion in  his  statement  was  pointed 
out  to  him,  he  only  repeated,  "From 
nine  to  eleven."  .  .  . 

INIeanwhile  suspicion  strengthened 
against  Abraham  Schmidt.  The 
police  handed  the  hatchets  belong- 
ing to  the  three  suspected  men  into 
court  and  that  of  Abraham  Schmidt 
was  spotted  apparently  with  blood.  . 
.  .  He  asserted  that  he  was  per- 
fectly innocent  of  the  murder  of 
Rupprecht,  whom  he  had  neither 
known  or  seen.  Hereupon  he  was 
reminded  that  when  the  wounded 
man  was  shown  to  him,  he  had  at 
first  sai<I  that  he  did  not  know  him, 
but  had  immediately  after  recog- 
nized him  as  Rupprecht :  how  was 
this?  He  then  replied,"  "I  do  not 
know  why  I  said  that,  and  I  said  it 
was  Rupprecht  directly,  but  I  never 
saw  him  in  my  life  before  ! "  He  was 
asked  how  then  he  had  recognized 
him,  and  answered  that  "  every  one 
was  talking  of  the  murder,  and  that 
he  had  heard  of  it  at  the  public 
house."  Whene\er  he  was  ques- 
tioned as  to  where  he  was  on 
Friday  evening  at  the  time  of  the 
murder,  he  invariably  involved  him- 
self in  contradictions.  The  judge 
questioned  him  as  follows  :  "  Where 
were  you  last  Friday  ? "  —  "I 
went  to  the  house  of  my  mother- 
in-law  at  nine  o'clock  in  the  morn- 
ing, to  help  her  cut  pegs.  I  dined 
with  her,  and  did  not  leave  her  house 
till  nine  o'clock  at  night,  when  I 
took  my  little  boy  home,  went  to  bed 
directly,  and  did  not  get  up  again 
until  .seven  o'clock  Saturday  morn- 
ing." "When  did  your  wife  leave 
her  mother's  house  ?  "  —  "  At  ten 
o'clock."  "Why  did  you  not  go 
together  ?  "  —  "  Because  she  was  still 
at  work,  and  as  the  boy  would  not  go 
to  sleep,  she  asked  me  to  take  him 
home,  which  I  did."  "At  what 
o'clock  then  did  you  go  home  on  Fri- 
day ?  "  —  "  At  nine  o'clock."  "  Yes- 
terday you  said  it  was  at  eleven  , 
how  is  that?"  —  After  some  hesita- 
tion, "I  don't  know  what  you  want 
of  me ;    I  went  home  with  my  wife 


No.  320.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS       023 


at  eleven."  "Just-now  you  asserted 
that  you  went  home  at  nine?"  — 
"  All  my  neighbors  can  testify  that  I 
always  come  home  at  nine."  —  "  That 
answer  will  not  suffice ;  first  you 
say  nine,  and  then  eleven :  which 
is  the  truth?"  —  "At  nine  o'clock 
with  my  wife  and  child.  No,  my 
wife  stayed  a  little  longer  with  her 
mother."  "Who  took  the  child 
home?"  —  "I  took  him  home  with 
me  at  nine  o'clock."  "When  did 
your  wife  come  home?"  —  "After 
ten  o'clock."  "How  do  you  know 
that  ?  "  —  "  Because  she  always 
comes  home  at  that  time ;  I  was 
asleep  when  she  came,  and  can't  tell 
exactly  when  it  was.  I  did  not  wake, 
though  I  sleep  in  the  same  bed  with 
her  and  the  child."  "  Have  you 
a  key  of  the  house?"  —  "Yes,  but 
my  mother  has  got  it."  "  How  then 
did  your  wife  get  in?"^ — "  ^ly  wife 
took  the  key  with  her."  "You  said 
at  first  that  your  mother  had  the 
key  the  whole  night  through?"  — 
"Yes,  it  lay  upon  the  table." 
"Then  your  wife  could  not  have 
used  it  to  let  herself  into  the  house  ?  " 

—  "  So  I  said,  for  my  wife  went  home 
with  me  and  put  the  boy  to  bed, 
and  then  she  took  the  house-door 
key  and  went  back  to  her  mother." 
"How   long   did   she   stay   there?  ' 

—  "Till  eleven."  "You  said  before 
that  she  came  home  at  ten?" — ^"I 
was  asleep,  I  can't  tell  whether  it 
was  ten  or  eleven  when  she  came 
home."  .  .  . 

[But  Abraham  Schmidt,  never- 
theless, was  quite  innocent.]  The 
evidence  of  one  Anna  Keinitz,   an 


okl  woman  of  seventy-eight,  proved 
that    on    the    eighth    of    February 
Abraham  Schmidt  was  in  all   prob- 
ability    ignorant    of     the     murder 
committed  on  the  previous  evening. 
.  .  .  His    strange    conduct    in    the 
presence  of  the  dying  man,  and  his 
contradictory  statements,  were  thus 
accounted  for.      According    to    his 
mother's  testimony,  he  was  hard  of 
hearing,  timid,  and  awkward.      The 
smallest    trifle    made    him    lose    all 
presence     of     mind,     and     he  was 
often    so    confused    as    to    say    the 
very  opposite    of  what  he    meant 
aljout  things  the  most  familiar  to 
him.     "  I  believe,"  said  the  magis- 
trate of    his    district,   "that    there 
is  not  any  one  in  my  whole  district 
who  is  so  blundering.     For  instance, 
he    seldom    calls    any    one    by    his 
right  name ;    and  when  he  does  not 
understand    what    is    said    to    him, 
or  cannot  express  his  meaning,  he  is 
apt    to    be    angry."  .  .   .  The   con- 
trary   statements    which    he    made 
concerning  many  important  details, 
were   manifestly   the   result    of   the 
prisoner's  habitual  confusion  of  ideas 
and  defective  memory.     His  recog- 
nition of  Rupprecht,  joined  to  his 
declaration   that  he  did   not  know 
him,  would  have  appeared  perfectly 
consistent    had    he    possessed    the 
power  of  expressing  himself  intelli- 
gibly ;  without  ever  seeing  Rupprecht 
he    must    have    guessed    that    the 
wounded  man  lying  before  him  could 
have    been    none    other    than    the 
Rupprecht   whose   accident   was   in 
every  one's  mouth. 


320.    FRANCIS    WILLIS'    TRIAL.     (1710.     Howell's  State  Trials. 


XV,  618.) 

[The  defendant  was  charged  with 
riot  and  sedition.  The  rioters  pulled 
down  meeting-houses  and  made 
bonfires  of  them.  The  leader  was 
seen  jumping  hilariously  about  the 
bonfire.  He  was  said  to  huve  worn 
a  footman's  dress  with  green  coat 
and  brass  buttons,  and  was  wa\ing 
a  flag  made  out  of  a  curtain.     The 


accused's  mistress  testified  that  she 
had  sent  him  out  merely  to  find  where 
the  fire  was,  after  it  started.  The 
principal  witness  for  the  prosecu- 
tion was  one  Grove.]  .  .  .  Then 
William  Grove  was  sworn. 

Atti/.-Gen.  —  Pray,  acquaint  my 
lord,  and  the  jury,  whether  you  saw 
the  prisoner  the  first  of  March  last. 


624 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  320. 


—  I  never  saw  him  till  that  nifjht 
I  saw  him  with  a  long  pole  ami 
a  curtain  upon  it,  and  he  cried  out, 
A  High-Church  standard  !  He 
stopped  several  coaches,  and  got 
money  from  them,  and  made  them 
cry,  High-("hurch.  But  to  swear 
that  this  is  the  man,  I  cannot. 

How  many  were  there  together  ? 

—  P^ive  or  six  hundred. 

^Vas  there  anything  like  colors 
before  them  ?  —  Yes,  there  was  a 
curtain,  and  he  that  carried  it, 
cried,  High-Church  standard  !  He 
stopped  many  coaches,  and  got 
money  from  them,  and  made  them 
cry,  High-Church  ! 

Sol.-(3cn.  —  Whence  did  he  bring 
it  ?  —  From  Mr.  Bradbiuy's  meet- 
ing, in  Fetter-lane. 

-  Did  he  carry  it  nowhere  else  ?  —  I 
saw  it  nowhere  but  at  the  fire  at 
Holborn. 

Was  there  any  fire  in  Hatt on- 
garden  ?  —  Yes,  there  were  three. 

What  were  they  made  of  ?  —  Of 
the  materials  of  Mr.  Taylor's  meet- 
inghouse. 

Do  you  know  of  any  others  that 
were  pulled  down  ?  —  Yes,  Mr. 
Burgess's. 

Do  you  know  of  any  others  ?  —  I 
have  heard  of  others,  but  do  not 
know  them. 

Atty.-Gen.  —  After  Willis  was 
taken,  you  went  to  Newgate ;  now 
give  an  account,  did  you  make  any 
particular  observations  at  the  time 
you  saw  the  man  display  the  ban- 
ner ?  Did  you  take  any  notice  of 
him  ?  —  Yes. 

What  did  you  take  notice  of  him  ? 

—  I  took  such  notice,  that  I  thought 
I  should  know  him  again. 

Now,  did  you  go  to  Newgate 
to  see  him  ?  —  Yes  ;  but  the  place 
was  dark,  and  his  clothes  and  wig 
were  altered. 

What  did  you  think  of  the  man 
you  saw  in  Newgate?  —  I  did 
think  it  was  the  same  man. 

Now  look  at  him,  and  see  whether 
this  is  the  same  you  saw  in  New- 
gate ? —  His  clothes  were  so  much 
altered,    that     1    cannot    tell. 


Tell  us,  is  that-man  the  same?  — 
I  never  saw  him  but  that  night,  and 
in  Newgate  ;  and  it  was  so  dark,  that 
I  cannot  say  this  is  the  man. 

Sol.-Gcn.  —  Do  you  remember 
what  clothes  he  had  ?  —  I  cannot 
tell  whether  they  were  blue  or 
green. 

Were  there  more  that  flourished 
colors;  more  than  one?  —  I  saw 
but  one. 

Mr.  Darnell  [for  the  defense].  — 
Pray,  at  the  time  you  saw  that 
banner  displayed,  was  there  any 
other  fire  in  Hatton-garden  ?  —  No  ; 
I  belie\e  this  was  made  first ;  and 
then  the  mob  said,  they  would  go  to 
]\Ir.    Taylor's. 

What  time  was  it  that  the  fire 
was  in  Holborn  ?  —  About  ten. 

What  time  was  that  in  Hatton- 
garden  ?  —  About  eleven. 

You  say  this  curtain  was  brought 
out  of  Fetter-lane  meeting.  How  do 
you  know  ?  Did  you  see  it  brought 
out  of  the  meeting  ?  —  No  ;  but  I 
saw  it  brought  out  of  the  lane,  and 
the  people  said  it  came  from  thence. 

Do  you  remember  what  colored 
coat  he  had  on  ?  —  I  cannot  tell ; 
it  was  either  blue  or  green. 

Do  you  remember  what  sort  of 
hat  he  had  on  ?  —  No. 

Was  it  a  laced  hat,  or  a  plain 
one  ?  —  I  cannot  tell  indeed. 

You  say  you  looked  hard  at  him  ? 
— Yes ;  but  I  never  minded  his  hat. 

Sol.-Gcn.  —  You  heard  people 
say,  the  curtain  was  taken  out  of 
]\Ir.  Bradbury's  meeting  ;  who  were 
they  that  said  so  ?  The  people 
that  were  concerned  in  the  fire, 
or  them  that  stood  by  ?  —  Them 
that  stood  by,  as  I  might. 

L.  C.  Baron.  —  You  say  you  went 
to  Newgate  shortly  after  this,  to 
see  this  man  ?  —  Yes,  my  lord. 

And  the  man  that  you  saw  there, 
do  you  l)elieve,  or  do  you  not,  to  be 
tlie  prisoner  at  the  bar  ?  —  Yes,  I 
do  believe  it  was. 

Mr.  Darnell.  —  Are  you  positive 
this  is  the  man  ?  —  No,  I  am  not. 

L.  C.  J.  —  W' hen  you  went  to 
Newgate,    the     man   that  you   ^av.' 


No.  320.       III.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      G25 


there,  did  you  believe  him  to  be  the 
person  that  you  saw  displaying  the 
colors  ?  —  Yes,  I  did. 

How  long  was  that  after  you 
saw  him  at  the  fire  ?  —  About  ten 
days. 

L.  C.  Baron.  —  Pray,  what  makes 
you  less  knowing,  or  believing,  now, 
than  you  was  then  ?  —  My  lord,  his 
clothes  are  altered,  and  he  has 
another  wig  on. 

Mr.  Darnell.  —  Pray  tell  us  any 
one  thing  you  had,  to  know  this  man 
by  ?  —  No  other  instance,  but  that 
he  flourished  the  colors. 

Do  you  know  the  color  of  his  coat  ? 
—  I  believe  it  was  blue. 

Are  you  sure  it  was  not  green  ?  — 
I  am  not  sure. 

When  you  saw  him  in  Newgate, 
what  did  you  know  him  by  ?  —  By 
his  features,  I  thought  he  was  the 
same  man. 

Pray  describe  any  one  feature 
you  knew  him  by. 

L.  C.  J.  —  It'  is  difficult  to  de- 
scribe a  man's  face,  and  so  it  is  to 
describe  his  hand.  If  you  were 
asked  how  you  knew  a  man's  hand, 
it  would  be  difficult  for  you  to 
describe  it ;  and  so  if  you  were 
asked,  how  you  know  any  man's 
face  in  court,  unless  there  was 
something  very  particular  in  his 
face  ;  and  yet  there  is  something  in 
the  composition  of  a  face,  by  which 
it  is  known,  which  none  perhaps 
but  a  painter  can  describe. 

Sol.-Gen.  —  You  say  he  is  altered 
from  what  he  was  in  Newgate  ? 
Has  he  not  the  same  clothes  on  ?  — 
He  has  quite  another  dress,  and 
another  wig ;  he  had  blue  clothes 
on  there. 

And  you  say,  \'OU  believed  the 
man  that  had  the  colors,  had  blue 
clothes  ?  —  Yes,  indeed  I  take  them 
to  be  blue ;  but  cannot  be  positive 
whether  they  were  blue  or  green. 

You  have  spoken  about  this  matter 
already,  on  your  examination,  you 
have  formerly  considered  it  coolly, 
you  ought  to  consider  what  you 
have  said  before,  and  to  recollect 
yourself.     The    man    you    saw    in 


Newgate,  what  coat  had  he  on  ?  — 
He  had  blue. 

I  ask  you,  whether  the  man 
that  flourisiu'd  the  colors  had  blue  ? 

—  It  was  blue  or  green. 

Which  of  the  two  do  you  believe 
it  to  be  ?  —  Indeed  I  cannot  well 
tell. 

The  man  in  Newgate,  what  kind  of 
wig  had  he  ?  —  A  wig  that  fell  more 
oft"  from  his  face. 

What  sort  of  wig  had  the  man  with 
the  colors  ?  W^as  it  that  kind  of  a 
wig  which  the  man  had  in  Newgate  ? 

—  I  think  it  was  not. 

Do  you  believe  this  man  to  be 
him  that  you  saw  in  Newgate  ?  — 
Indeed  I  cannot  believe  him  to  be 
the  same. 

Pray  who  brought  that  man  to 
you  ?  —  It  was  Mr.  Hill,  the  keeper. 

Is  he  here  ?     Let  him  be  called. 

Then  Mr.  Hill  was  sworn. 

Atty.-Gen.  —  Do  you  remember 
Mr.  Grove's  coming  to  see  the 
prisoner  in  Newgate  ?  —  I  never  saw 
anybody  come  while  I  was  there. 

Do  you  remember  that  he  came 
to  see  any  of  the  prisoners  ? 
Grove.  —  Justice  Blackerby's  clerk 
came  with  me,  and  we  had  a  quartern 
of  brandy. 

Hill.  —  I  did  not  remember  him 
before,  but  I  remember  Justice 
Blackerby's  clerk  came,  and  some- 
body with  him. 

Sol.-Geti.  —  W^ho  did  you  show 
him  ?  —  The  prisoner  at  the  bar. 

What  dress  was  he  in  then  ?  Do 
you  remember  ?     /////.  —  No. 

Did  you  carry  him  to  any  other 
but  the  prisoner  ?  —  No  ;  there 
were  others  upon  the  stairs,  but 
they  were  women. 

Was  there  anv  other  prisoner  ?  — 
No. 

And  is  this  the  man  ?  —  Yes. 

L.  C.  J.  —  Do  you  remember 
what  clothes  he  had  when  he  first 
came  to  Newgate ;  or  at  any  time 
after  ?  —  I  do  not  know  any  but 
them  he  has  on ;  I  was  not  in  the 
way  when  he  came  in. 

Mr.  Darnell.  —  Did  you  go  up 
with  that  man  ?  —  Yes. 


02G 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  320. 


Did  you  go  into  the  room  where 
the  prison  was  ?  —  I  went  to  the 
grates. 

Aiiy.-Gen.  —  When  I  asked  you 
at  first  whether  he  was  at  Newgate, 
you  eoukl  not  remember  till  he 
refreshed  your  memory  with  a 
quartern  of  brandy. 

L.  C.  ./.  —  Are  you  sure  you 
showed  him  the  prisoner  at  the  bar  ? 
—  Yes. 


sh 


otiier  ?  — 


Did  vou  show  liini  an\- 
No.  .  .'  . 

Then  Robert  CuhiciiUje  was  sworn. 

Sol. -Gen.  —  Do  you  know  Mr. 
Grove  ?  —  Yes. 

Do  you  remember  you  went  with 
him  to  see  a  prisoner  ?  —  Yes. 

\Vhat  prisoner  did  you  see  there  ? 
—  The  prisoner  at  the  bar. 

Did  you  see  any  other  prisoner 
but  him  ?  —  No  ;  we  saw  Damniaree 
and  Purchase  below,  but  no  other 
above. 

What  clothes  had  he  on  then  ?  — 
He  had  a  blue  livery  on.  .  .  . 

Then  Stephen  Fletcher  was  sworn 
[for  the  defense]. 

Mr.  Darnell.  —  Had  you  any  dis- 
course with  Gro\e  after  he  had  seen 
the  prisoner  in  Newgate  ?  —  When 
he  came  from  Newgate  on  Good- 
Friday  at  night,  and  had  been  to 
see  the  prisoner,  I  asked  him  what 
he  said  to  him  ?  Nothing,  says 
he ;  for  he  was  not  the  man  that 
carried  the  curtain  ;  for  the  man  that 
carried  the  curtain  had  a  green  coat 
and  brass  buttons. 

Atttj.-Gen.  —  Are  you  an  ac- 
quaintance of  Grove's?  —  Yes;  I 
lived  in  the  same  house. 

Was  it  Good-Fri(iay  at  night, 
after  he  had  been  at  Newgate,  that 
he  told  you  this  ?  —  Yes. 

Did  you  ask  him  any  questions 
about  the  prisoner ;  or  did  he  tell 
you  of  himself  ?  —  He  told  me  he 
had  been  at  Newgate  to  see  Mrs. 
Miles's  man  ;  I  asked  if  he  said 
anything?  He  said  no;  that  is 
not  the  young  man  tliat  I  saw  witli 
the  curtain. 

Mr.  Daniell.  —  The-  account  I 
ha\c    of    (irf)\c.    is.  that    he  \v;is    a 


tradesman,  and  broke,  and  now 
li\  es  by  gaming. 

L.  C.  J,  —  If  you  have  anything 
to  examine  to  his  reputation,  you 
will  do  well  to  call  your  witnesses 
to  it.  Grove,  what  do  you  say  to 
this?  Grove.  —  When  I  came  from 
Newgate,  I  thought  it  was  the  man  ; 
and  I  told  him  no  such  thing ;  I  told 
everybody  I  spoke  with,  that  I 
believed  it  was  the  man. 

L.  C.  J. —  Did  you  tell  him  that 
you  believed  the  man  that  had  the 
curtain  was  in  a  green  coat  ?  —  No, 
not  that  night. 

Mr.  Darnell.  —  Did  you  tell  him 
so  at  any  time  ?  —  Yes  ;  but  that 
was  the  Wednesday  night ;  but 
when  I  went  to  Newgate,  he  had  a 
blue  coat ;  but  I  always  believed 
him  to  be  the  same  man. 

L.  C.  J.  —  Did  he  tell  you  he  had 
a  green  coat  on  that  night  he  had 
been  at  Newgate,  or  before  ?  — 
Fletcher.  —  It  was  before. 

L.  C.  J.  —  I  understood  you, 
that  when  he  came  back  from  New- 
gate, he  told  you  he  had  nothing  to 
say  to  this  man,  for  that  the  man 
that  had  the  curtain  had  a  green 
coat  and  brass  buttons  ? — He  said 
he  could  not  be  positive,  for  that 
man  had  a  green  coat  and  brass 
buttons. 

Did  he  tell  you  that  night  that  he 
had  a  green  coat  and  l)rass  buttons  ? 
—  I  cannot  tell  whether  it  was  that 
night. 

Mr.  Darnell.  —  You  say,  once  he 
told  you  he  had  a  green  coat  and 
brass  buttons ;  what  did  he  say 
when  he  came  from  Newgate  ?  — • 
He  said  he  could  not  be  positive, 
for  that  he  had  a  blue  coat  on. 

Just.  Tracy.  —  Did  you,  after  you 
came  from  Newgate,  say,  you  could 
not  be  positive  he  was  the  man  ? 
Grove.  —  I  did  tell  him  I  could  not 
be  positive. 

Mr.  Tho)n.s-on.  —  Did  you  tell  him 
you  believed  him  to  be  the  man  ? 
Grove.  —  Yes  ;  I  said  I  did  l)elieve 
it,  but  I  would  not  swear  it  was 
he.  .  .  . 

Mr.  Darnell.  —  Mv   lord,  we  will 


No.  320.      III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      627 


not  trouble  your  lordship  with  any 
more  witnesses ;  we  hope  we  have 
well  accounted  for  the  time  he  was 
out  of  his  mistress's  hou.se,  for  that 
seems  to  be  all  that  sticks  upon  him, 
that  his  being  out  so  long  might 
give  room  for  him  to  be  concerned 
in  this  tumult.  But  by  the  witnesses 
it  appears,  that  the  curiosity  of 
seeing  a  mob,  which  he  had  never 
seen  before,  might  take  up  some 
part  of  his  time ;  and  the  two  fires 
being  so  near,  that  he  could  not  go 
from  one,  without  seeing  the  other, 
engaged  him  to  go  to  them  both. 
There  was  a  friend  too  that  met 
him,  with  whom  he  walked  up  and 
down  the  street  an  hour ;  but  we 
think  it  shows  that  he  was  not  a 
ringleader,  or  aiding  or  assisting  in 
pulling  down  the  meetinghouses.  .  .  . 

But  upon  the  main  question,  we 
must  humbly  insist,  that  there  is  no 
evidence  to  fix  it  upon  the  prisoner. 
There  are  not  two  witnesses  to  any 
overt  act  for  the  same  treason,  nor 
do  those  witnesses  ascertain  it  to  be 
the  prisoner ;  for  now  it  appears  a 
little  plainer,  that  his  first  charge 
was  against  a  footman  in  a  green 
livery  ;  he  declared  it  was  a  footman 
in  green  with  brass  buttons ;  and 
when  he  came  to  Newgate  to  see 
this  man,  he  believes  him  to  be  the 
same  man ;  that  is  the  most  of  his 
evidence ;  but  when  he  came  home 
then  to  his  companion,  that  he 
lived  in  the  house  with,  he  believed 
it  was  not  the  same  man,  and  he 
could  not  swear  it  was  the  same  man, 
because  he  had  a  blue  coat ;  and 
now  he  would  carry  his  belief  so  far 
as  to  believe,  that  he  then  had  a  blue 
coat,  with  black  buttons  ;  and  surely, 
nobody  could  •  mistake  a  blue  coat 
with  black  buttons,  for  a  green  coat 
with  brass  buttons ;  whatever  may 
be  supposed  of  the  color  of  blue  by 
firelight,  altering  by  that  light 
towards  a  green,  yet  it  cannot  turn 
black  buttons  into  brass  ones.  .  .  . 

Attorney-General.  —  My  lord,  we 
think  the  proof  is  sufficient ;  and 
notwithstanding  anything  that  has 
been   said   by   the   counsel   for   the 


defendant,  it  stands  unimpeached, 
and  it  is  clear,  that  the  prisoner  is 
guilty  of  this  treason.  .  .  .  Mr. 
Darnell  does  not  deny  but  that,  in 
point  of  law,  all  those  people  that 
were  gathered  together,  to  execute 
this  design,  are  equall}^  guilty  of 
high  treason :  so  that  the  ques- 
tion is  only,  whether  this  pris- 
oner was  one  of  those  people  that 
were  gathered  together  ?  That 
which  he  insists  upon  is,  that  though 
this  man  was  there,  yet  no  proof  is 
made  that  he  was  aiding  towards 
the  carrying  on  this  design  ;  there- 
fore we  think  what  our  witnesses 
say  is  consistent,  and  not  im- 
peached by  what  was  said  of  the 
other  side. 

The  first  witness  that  we  called, 
though  he  was  not  acquainted  with 
the  prisoner,  yet  he  says,  there  was 
a  man  in  a  blue  livery,  that  was  so 
remarkable  in  leading  the  mob,  with 
a  curtain  on  a  pole,  that  he  could 
not  but  take  notice  of  it ;  and  that 
when  he  went  to  Newgate,  to  see 
the  prisoner,  he  took  him  to  be  the 
same  man  that  carried  the  colors ; 
and  though  he  cannot  be  so  positive 
as  to  swear  directly,  yet  he  now 
believes  it  is  the  same  man,  though 
he  cannot  be  positive.  I  am  sure  I 
should  be  very  far  from  pressing 
anything  further  than  the  nature 
of  the  evidence  will  bear :  therefore 
I  hope  I  do  not  misrepeat  what  he 
says.  Therefore  it  leaves  it  some- 
what uncertain,  yet,  whether  the 
prisoner  at  the  bar  was  the  man  that 
carried  those  colors  ?  But  that  which 
puts  this  out  of  dispute,  and  makes 
it  clear  that  this  is  the  man,  is  Lunt's 
evidence.  ...  As  to  what  they 
insist  on,  that  they  have  called 
witnesses  to  invalidate  the  testi- 
mony of  Grove,  that  he  made  some 
mistake  about  the  color  of  his 
clothes,  that  is  no  great  matter  to 
be  relied  on ;  for  blue  and  green, 
by  candlelight,  are  pretty  much  of 
the  same  cast,  especially  at  a  tran- 
sient view ;  but  you  see  the  view 
he  had  was  sufficient  to  know  his  face, 
but  the  light  of  the  fire  occasioned 


628 


PART    II.       TESTIMONIAL    EVIDEXCE 


No.  321. 


another  cast  upon  his  clothes,  there- 
fore his  thinking  it  to  he  green 
wlien  it  was  hhie,  will  make  no  dif- 
ference :  ami  though  he  does  not 
speak  positively,  but  speaks  with 
caution,  and  not  as  a  man  would 
do,  that  was  prejudiced,  and  came 
to  take  away  a  man's  life  :  though 
he  says  he  cannot  positively  say  this 
is  the  man,  yet  he  says  he  does  really 
think  it  is.   .   .   . 

L.  C.  J.  —  Gentlemen  of  the  Jury, 
Francis  Willis,  the  prisoner  at  the 
bar,  stands  indicted  before  you,  for 
that  he,  upon  the  first  day  of  ]\Iarch 
last,  with  a  great  number  of  others, 
did  levy  public  war  against  her 
majesty.  .  .  .  You  are  to  consider 
what  is  proved  on  him  that  he  did. 
You  observe  what  is  objected  as  to 
Grove,  that  there  is  a  great  uncer- 
tainty as  to  his  evidence,  and  that 
his  credit  is  not  fair.  He  does  not 
charge  the  prisoner  positively,  nor 
ever  did.  He  differed  as  to  the 
color  of  his  clothes.  And  though 
it  is  rightly  observed,  that  blue  and 
green   are   not   easily   distinguished 


by  the  light  of  the  fire,  yet  that  is  not 
the  objection  ;  tlie  objection  is,  that 
the  witness  at  first  declared,  he 
believed  it  to  be  green,  and  now  he 
has  told  you,  that  he  believes  it  to 
be  blue,  and  that  is  not  consistent, 
and  does  therefore  a  little  concern 
his  credit  in  this  matter,  that  he  has 
changed  his  evidence.  ...  If  you 
believe  Willis  was  the  person  that 
did  make  use  of  these  colors,  and 
that  he  was  assisting  in  pulling 
down  the  meetinghouse  in  Hatton- 
garden,  then  you  are  to  find  him 
guilty.  If  you  think  he  was  not  the 
person,  you  will  acquit  him. 

Then  the  Jury  withdrew,  and  the 
court  adjourned  till  five  o'clock, 
when  the  Jury  brought  in  their 
verdict. 

CI.  of  Arr.  —  Francis  Willis,  hold 
up  thy  hand.  Look  upon  the 
prisoner.  How  say  you  ?  Is  he 
guilty  of  the  high  treason  whereof 
he  stands  indicted,  or  not  guilty  ? 
Foreman.  —  Not  guiltv. 

CI.  of  ^rr.  — Did  he  fly  for  it  ?  — 
Foreman.  —  Not  that  we  know  of. 


321.  LOUCKS  y.  PADEN.  (1 
63  111.  App.  54.").)   .   .   . 

This  was  a  l)ill  in  chancery  filed 
by  appellant,  in  which  she  alleged 
that  she  and  one  Margaret  A. 
Tinnin,  from  about  the  year  1886 
to  January,  1892,  were  partners, 
engaged  in  selling  notions  and 
small  articles  in  the  city  of  St. 
Louis,  Mo. ;  that  they  were  l)oth 
deaf  mutes  ;  that  they  accumulated 
a  partnership  fund  wliich  they  kept 
in  money,  at  their  room  at  300 
South  Hroadway,  St.  Louis,  in  a 
trunk  belonging  to  said  Margaret  A. 
Tinnin,  because  her  trunk  was 
stronger  and  more  secure  in  its 
fastenings  than  the  trunk  of  appel- 
lant, that  the  mr)ney  in  said  trunk 
was  the  joint  earnings  of  appellant 
and  said  Tinnin.  That  in  Febru- 
ary, 1S<I2,  said  Margaret  A.  Tinnin, 
who  had  for  two  years  previous 
been  in  poor  health,  was  taken 
seriously    ill    an<l    was   removed    by 


895.     Appellate  Court  of  Illinois. 

her  friends  to  Litchfield,  Illinois ; 
that  appellant  also  went  to  Litch- 
field to  assist  in  the  care  of  said 
Tinnin ;  that  the  said  trunk  of 
Margaret  A.  Tinnin  containing  the 
partnership  moneys  therein  was 
taken  to  Litchfield,  and  that  said 
joint  earnings  and  partnership 
money  amounted  to  .*§1400,  being 
the  accumulation  of  six  years'  part- 
nership business  ;  that  appellant  and 
said  Tinnin  frequently  conversed 
about  said  money  in  the  sign 
hinguage ;  that  the  money  was  to 
be  equally  divided  ;  that  appellant 
would  have  to  receive  S700.  That 
said  Margaret  A.  Tinnin  died  in- 
testate March  7,  1892,  leaving 
certain  heirs  named  in  the  bill ;  that 
Robert;  N.  Paden  was,  on  March  9, 
1892,  appointed  administrator  of 
her  estate  by  the  County  Court  of 
Montgomery  County,  Illinois  ;   that 


No.  321.       III.     TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS       629 


he  took  possession  of  said  trunk 
including  the  said  S1400;  that 
appellant  applied  to  said  adminis- 
trator for  her  one  half  of  said  money, 
but  he  refused  to  give  it  to  her, 
claiming  that  the  money  was  the 
exclusive  property  of  said  Tinnin, 
and  will  distribute  same  to  the  legal 
heirs  of  said  Tinnin.  Payer  of 
bill  is  to  have  said  money  decreed 
to  be  partnership  property,  and 
said  administrator  be  ordered  to 
deliver  one  half  thereof  to  the  com- 
plainant. The  defendants  answered 
denying  the  alleged  partnership  and 
claiming  all  the  money  belonged  to 
Margaret  Tinnin.  The  cause  was 
referred  to  the  master,  to  take  and 
report  the  proof,  and  was  submitted 
to  the  court  upon  the  testimony 
taken  before  and  reported  by  the 
master,  and  upon  the  deposition  of 
witnesses  taken  in  St.  Louis.  The 
Court  found  the  complainant  had 
not  supported  her  case  by  the  proof, 
and  dismissed  the  bill,  from  which 
decision  she  appealed  to  this  Court. 

IV.  A.  Howctt  and  Amos  C. 
Miller,  attorneys  for  appellant. 

R.  MclJlUiams  ■  and  James  M. 
Truitt,  attorneys  for  appellees. 

Opinion,  per  Curiam.  —  Only 
cjuestions  of  facts  arise  herein. 
They  are  stated  by  counsel  for 
appellee  to  be — ^  First. — Were  the 
complainant  and  said  Maggie  Tinnin 
partners  ?  Second.  —  If  they  were 
partners,  is  the  money  in  dispute 
partnership  funds  ?  .  .  . 

Patrick  Coughlin  testified  sub- 
stantially as  follows  :  "  I  am  forty- 
five  years  old ;  live  at  1248  Carr 
Street,  St.  Louis;  got  acquainted 
with  Maggie  Tinnin  and  Mary 
Loucks  about  eleven  years  ago  at 
1236  N.  Broadway,  wholesale  supply 
house ;  they  came  to  my  house  to 
buy  laces,  with  a  note  from  the 
house  of  Rice,  Stix  &  Co.,  telling 
me  what  they  wanted ;  they  both 
came  together.  Maggie's  health 
was  delicate  from  the  first  day  I 
saw  her.  They  were  both  deaf 
mutes.  I  communicated  with  them 
in  writing ;  Mary  Loucks  would  buy 


the  goods  and  Maggie  would  pay 
the  bill ;  Maggie  would  sit  in  the 
coolest  place  we  could  get,  and  the 
goods  would  be  brought  to  her  and 
she  and  Mary  would  examine  them 
and  when  satisfied  they  would  go 
into  the  pile  of  things  they  wanted 
to  buy.  Maggie  told  me  they  were 
partners.  Many  a  day  Maggie 
would  come  to  the  house  alone  to 
buy  goods,  and  when  I  asked  her 
where  her  partner  was,  she  would 
tell  me  in  such  and  such  a  place ; 
then  she  used  to  come  and  buy  goods 
and  would  ship  them  to  Mary  in 
different  parts  of  Missouri,  and  she 
would  remain  here.  I  would  get 
letters  from  them  ordering  so  much 
goods,  and  the  goods  were  always 
shipped  to  Mary  Loucks.  The 
letters  were  always  written  and 
signed  by  Mary  Loucks ;  the  re- 
turns were  sent  by  Mary  Loucks. 
All  that  Maggie  Tinnin  told  me 
was  they  were  partners.  About 
eight  years  ago  the  express  drove 
to  the  door  with  a  trunk  with  Mary 
Loucks'  name  on  it ;  after  a  while 
Maggie  and  Mary  came  in ;  they 
said  they  were  going  to  buy  a  nice 
bill  of  goods ;  they  went  off  to- 
gether, and  when  they  came  back 
Maggie  was  fainty  ;  Maggie  told  me 
that  she  had  lost  S800  and  could 
not  buy  any  goods ;  I  told  Maggie, 
"You  can  have  all  the  goods  you 
want."  They  bought  S50  or  $60 
worth  of  goods.  I  asked  both  in 
writing  who  I  should  charge  them 
to  and  they  both  said  charge  the 
goods  to  both  of  them ;  they  sent 
me  the  money  from  some  place  in 
Illinois ;  this  was  eight  years  ago ; 
they  continued  to  buy  goods  of  me 
until  about  three  years  ago ;  they 
would  buy  $35  and  $40  worth  of 
laces  every  week.  Every  time  Mag- 
gie came  in  I  would  say,  "Where 
is  your  partner?"  she  would  write 
down  where  she  was  then.  It  was 
Maggie  who  told  me  she  lost  the 
$800.  It  was  out  in  the  paper  for  a 
week  and  a  reward  offered ;  she 
said  she  carried  it  in  her  bosom. 
When  I  asked  who  the  goods  skould 


G30 


PART   11.      TESTIMONIAL   EVIDENCE 


No.  321. 


l)e  charged  to,  Maggie  said  they 
were  equal  partners.  Maggie  was 
the  general  manager  in  buying  and 
Mary  in  selling. 

Andrew  EichofV,  who  was  in  the 
employ  of  the  Standard  Hosiery 
Mills  in  St.  Louis,  in  1884,  and  until 
and  including  the  year  1889,  testified 
the  appellant  and  the  deceased 
bought  articles  such  as  hosiery, 
linen,  towels,  notions,  etc.,  from 
the  establishment  with  which  he 
was  connected,  almost  every  week 
during  the  five  years  he  was  there. 
They  came  to  the  store  together ; 
Miss  Loucks  did  the  buying ;  IVIrs. 
Tinnin  "looked  on";  Miss  Loucks 
made  the  payments  and  on  some 
occasions  the  goods  were  sent  to 
No.  300  Broadway,  whore  the  women 
had  a  room  rented  in  wliicli  they 
lived  together. 

They  leased  the  room  of  Mrs. 
Frederick  Woydt.  She  testified  that 
the  "deaf  mute  women"  were  en- 
gaged in  selling  stamping  goods, 
hosiery,  etc.,  and  that  she  was 
frequently  in  their  room  and  learned 
the  sign  language ;  that  Maggie 
Tinnin  (appellee's  intestate)  was 
often  ill  and  always  in  delicate  health 
and  was  confined  to  the  room  nearly 
all  the  time,  but  that  Mary  Loucks 
went  out  to  sell  goods  every  day 
"rain  or  shine";  that  the  witness 
was  frequently  in  tlie  room  when 
Mary  Loucks  returned  in  the  even- 
ing, and  saw  Mary  give  Maggie  the 
pocketbook  and  the  money  she  had 
taken  in,  and  that  Maggie  told  her 
they  were  partners.  .  .  . 

The  other  question  —  whether 
the  money  found  in  the  trunk  was 
the  property  of  the  firm  ?  The  posi- 
tion of  ai)pellee  upon  this  question 
is,  the  money  received  from  the 
.sale  of  goods  was  divided  at  the  close 
of  each  day,  or  from  time  to  time, 
and  the  money  found  in  the  trunk 
was  the  individual  property  of  the 
owner  of  the  trunk.  There  was 
proof  tending  to  show  the  partners 
divided  sums  received  from  daily 
sale,  and  perhsips  tending  to  show 
each  had  separate  parcels  of  money  ; 


but  the  evidence  was  conclusive 
that  all  the  money,  whether  belong- 
ing to  them  jointly  or  to  each 
separately,  was  kept  in  the  same 
trunk.  Each  had  a  trunk,  but  it 
was  their  custom  to  keep  all  the 
money  in  Mrs.  Tinnin's  trunk,  as 
they  dill  many  of  the  articles  on 
hand  for  sale.  .  .  .  Mrs.  Starr,  a 
cousin  of  Mrs.  Maggie  Tinnin, 
testified  that  Maggie  came  to  her 
house  from  St.  Louis  and  remained 
there  until  she  died  ;  that  both  the 
trunks  were  there  and  that  Mary 
Loucks  had  the  keys  to  both 
trunks  all  the  time  and  that  Maggie 
left  the  keys  with  Mary  when  she 
left  St.  Louis.  .  .  . 

The  appellant  after  the  death 
of  iSlrs.  Tinnin  produced  the  keys 
to  the  trunks  and  at  the  request 
of  the  administrator  opened  both 
trunks.  Money  in  bank  bills  to 
the  amount  of  SL550  was  found 
in  Mrs.  Tinnin's  trunk,  and  also  in 
the  same  trunk  were  found  hose, 
corsets,  stamping  goods,  patterns, 
and  notions  confessedly  of  the 
stock  in  trade  of  the  firm.  Upon 
the  statement  of  the  administrator 
that  she  should  lose  none  of  her 
rights  thereby,  and  he  would  see 
she  got  whatever  interest  she  was 
entitled  to,  the  appellant  allowed 
him  to  take  the  money.  The  con- 
clusion sought  to  be  drawn  from 
the  appearance  of  the  bank  bills 
and  the  fact  they  adhered  together, 
that  they  had  been  in  the  package  for 
a  much  longer  period  of  time  than 
as  stated  by  the  appellant,  was, 
we  think,  entirely  overcome  by 
the  testimony  of  the  cashier  of 
the  bank,  whose  experience  in 
handling  money  and  keeping  it  in 
packages  peculiarly  qualified  him  to 
throw  light  upon  the  subject. 

Counsel  for  appellee  urge  the 
appellant  made  many  contradictory 
statements  as  to  the  amount  she 
was  entitled  to  have  out  of  the 
money  in  the  trunk,  and  attach 
much  importance  to  such  contradic- 
tions as  tenfling  strongly  to  show 
she  had   no  real   interest  whatever 


No.  322.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      631 


in  the  money.  These  contnuHc- 
tions  are,  as  we  think,  apparent 
only,  at  least  are  explainable  upon 
theories  entirely  consistent  with  the 
honesty  and  justice  of  her  claim 
to  one  half  of  the  money  as  partner 
of  the  deceased.  Her  claim  to  all 
the  money  was  based,  in  part,  npon 
the  alleged  expressed  intention  of 
Mrs.  Tinnin  that  she  should  have  all 
of  it  in  case  of  her  (Mrs.  Tinnin's) 
death,  and  in  part  l)ecause  she 
insisted  she  had  earned  Mrs.  Tinnin's 
half  of  the  money  by  working  for 
her  and  attending  upon  and  caring 
for  her  when  she  was  sick.  These 
supposed  contradictions  are  based 
.  largely  upon  questions  asked  and 
answered  in  a  conversation  carried 
on  by  means  of  signs  between 
appellant  and  Miss  Jennie  Paden. 
As  to  this  conversation  Miss  Paden 
testified,  "some  of  the  questions 
were  asked  a  number  of  times 
before  the  appellant  could  under- 
stand their  meaning";  that  she 
(the  witness)  "  thought  she  inter- 
preted the  answers  correctly,  but 
there  might  have  been  misunder- 
standings"; she  understood  "the 
appellant  claimed  all  the  money 
because  Mrs.  Tinnin  wanted  her 
to  have  it  all ;  also  claimed  it  as  a 
partner ;  claimed  all  as  a  gift ; 
then  all  because  she  had  earned 
Mrs.  Tinnin's  half  by  working  for 
and  boarding  her,"  etc.,  etc.  The 
appellant  testified  Mrs.  Tinnin 
wanted  her  to  have  all  the  money 


except  SI 00,  which  was  to  be  given 
to  Miss  Jennie  Paden.  In  stating 
her  supposed  interest  in  the  money 
under  these  various  claims  of  right 
therein  the  appellant,  of  course, 
claimed  different  amounts,  but  we 
find  nothing  in  any  of  her  claims 
inconsistent  with  the  justice  of  her 
demand  for  one  half  the  money 
in  her  right  as  partner. 

The  case  was  presented  to  the 
learned  chancellor  who  presided  in 
the  Circuit  Court  upon  depositions 
and  written  testimony  —  we  have 
before  us  the  same  testimony,  and 
our  facilities  for  determining  as  to 
the  credibility  of  the  witnesses  and 
as  to  their  truthfulness  are  not  less 
or  inferior  to  those  enjoyed  by  the 
trial  judge.  x\fter  a  thorough  in- 
vestigation and  careful  considera- 
tion thereof  we  are  constrained  to 
declare  the  preponderance  thereof 
manifestly  supported  the  position 
that  the  money  in  question  was  the 
property  of  the  appellant  and  the 
deceased  in  equal  parts.  For  this 
reason  the  decree  is  reversed  and 
the  cause  remanded  with  directions 
to  the  Circuit  Court  to  enter  an 
order  and  decree  requiring  the  ad- 
ministrator to  deliver  to  the  ap- 
pellant one  half  of  the  money  found 
in  the  trunk  of  deceased,  viz.  the 
sum  of  $775,  and  to  pay  the  costs 
in  due  course  of  administration. 

Reversed  and  remanded  with  di- 
rections. 


322.  G.  F.  Arnold.  Psychology  applied  to  Legal  Evidence.  (1906.  p. 
401.)  ...  "A  person,"  says  a  legal  author,  "may  equally  persistently 
adhere  to  falsehood  once  uttered,  if  there  be  a  motive  for  it."  A  person 
may  no  doubt  adhere  to  a  falsehood ;  but  it  is  not  equally  easy  to  repeat  a 
true  story  and  a  made-up  one,  and  the  longer  and  more  detailed  it  is,  the 
harder  it  becomes.  This  follows  from  the  nature  of  memory  itself ;  events 
that  have  really  happened  will  always  be  recalled  in  the  same  chronological 
order,  because  that  is  the  order  in  which  we  originally  attended  to  them, 
and  cross-questioning  is  not  so  likely  to  confuse  that  order.  With  a  story 
learnt  off  by  heart  it  may  easily  happen  that  the  same  question  put  in 
different  forms  and  in  different  contexts  will  not  receive  the  same  answer, 
for  it  is  not  based  on  any  firm  association  of  ideas,  as  in  the  case  of  ordi- 
nary memory.     Real  events  are  also  better  recollected  because  we  localize 


632  PART    II.      TESTIMONIAL   EVIDENCE  No.  323 

them  in  time  and  space  and  so  give  them  Definiteness,  assigning  them  a 
particuhir  place  in  our. past  experience.  It  would  seem  that  conditions 
favorable  to  memory,  such  as  interest,  attention,  impressiveness  of  the 
original  experience,  its  intensity  and  distinctness,  duration  in  the  happen- 
ing, etc.,  are  less  likely  to  l)e  present  in  the  mere  learning  of  a  tale  than  in 
"the  occurrence  of  facts,  and  hence  retention  and  revival  will  become  more 
difficult.  The  statement  then  that  a  "person  may  equally  persistently 
adhere  to  a  falsehood  once  uttered,  if  there  be  a  motive  for  it,  if  by  "  equally  " 
is  meant  "equally  successfully,"  is  open  to  criticism  on  the  basis  of  memory. 
It  has  always  seemed  to  us  that  for  this  reason  a  statement  does  gain  value 
by  repetition,  if  the  second  statement  is  substantially  in  accord  with  the 
original,  and  especially  if  it  has  stood  the  test  of  cross-examination.  For  a 
good  cross-examination  will  by  suggesting  other  mental  associations  be 
likely  to  break  down  the  association  of  ideas  in  the  mind  of  the  witness 
unless  that. association  has  some  basis  in  reality ;  if  it  fails  to  do  that,  there 
is  reason  to  think  the  story  has  a  foundation  of  fact. 

To  apply  this  view  to  what  has  become  an  axiom  with  the  lawyers,  viz. 
that  "  the  statement  of  an  accomplice  does  not  at  all  improve  in  value  by 
repetition"  we  are  inclined  to  dispute  this  if  any  attention  is  to  be  paid  — 
as  we  think  it  should  be  —  to  consistency.  .  .  .  Whether  the  previous 
statement  of  the  accomplice  is  a  sufficient  corroboration  of  his  evidence  at 
the  trial  or  not,  is  a  question  of  fact  to  be  decided  in  each  case,  and  we  have 
little  doubt  that  in  some  cases  it  may  be  so.  But  however  this  may  be,  it 
is  a  different  matter  from  the  question  whether  the  statement  gains  at  all 
in  value  from  repetition.  It  gains  to  just  the  same  extent  as  that  of  the 
evidence  of  a  non-accomplice  witness  gains,  neither  more  nor  less,  because 
consistency  is  the  test  here  and  not  the  moral  character  of  the  witness : 
and  to  say  that  it  does  not  improve  in  value  because  it  "is  still  only  the 
statement  of  an  accomplice"  is  simply  to  fail  to  grasp  the  principle  on  which 
the  idea  of  corroboration  in  §  157  of  the  Indian  Evidence  Act  is  founded. 
It  is  just  one  of  those  silly  dicta  that  will  not  bear  examination  ;  but  because 
it  has  never  been  examined  but  has  been  repeated  with  parrot-like  fidelity 
by  legal  writers,  it  has  come  to  be  regarded  as  an  axiom  instead  of  being 
rejected  as  fallacious. 

323.  John  H.  WiG.MOHp:.  Principles  of  Judicial  Tronf.  (1913.)'  The 
significance  of  the  present  sort  of  impeaching  evidence  is  in  general  the 
same  as  that  of  the  Contradiction,  namely,  to  show  the  witness  to  be  in 
general  capable  of  making  errors  in  his  testimony  {post,  No.  355) ;  upon 
perceiving  that  the  witness  has  made  an  erroneous  statement  upon  one 
point,  we  are  ready  to  infer  that  he  is  capable  of  making  an  error  upon 
other  points.  But  the  method  of  showing  this  is  here  slightly  different ;  for, 
instead  of  invoking  the  assertions  of  other  witnesses  to  prove  his  specific 
error,  we  re.sort  simply  to  the  witness's  own  prior  statements,  in  which  he 
has  given  a  contrary  version.  We  place  his  contradictory  statements  side 
by  side,  and,  as  both  cannot  be  correct,  we  realize  that  in  at  least  one  of 
the  two  he  must  have  spoken  erroneously.  Thus,  we  have  detected  him  in 
one  specific  error,  from  which  may  be  inferred  a  capacity  to  make  other 
errors.     Two  ini|)i)rtanl  features  of  this  method  of  proof  are  to  be  noticed. 

'  [Adaptcfl  from  the  saiiu'  auth  ir'.s  Trvntisc  on  Evidence.     (1905.     Vol.  II,  §  1017.)] 


No.  323.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      633 

(1)  The  result  is  the  same  indefinite  one  reached  by  the  other  method 
{post,  No.  355),  i.e.  some  undefined  capacity  to  err;  it  may  be  a  moral  dis- 
position to  lie,  it  may  be  partisan  bias,  it  may  be  faulty  observation,  it  may 
be  defective  recollection,  or  any  other  quality.  No  specific  defect  is  indi- 
cated ;  but  each  and  all  are  hinted  at.  It  has  been  often  said  that  a  Self- 
contradiction  shows  "a  defect  either  in  the  memory  or  in  the  honesty"  of 
the  witness : 

Shaw,  C.  J.,  in  Co77i.  v.  Starkweather  (1852,  10  Cush.  60) :  "It  is  founded  on  the 
obvious  consideration  that  both  accounts  cannot  be  true,  and  tends  to  prove  a  defect 
of  intelligence  or  memory  on  the  subject  testified  of,  or,  what  is  worse,  a  want  of  moral 
honesty  and  regard  to  truth ;  and  so,  in  either  case,  that  the  witness  is  less  worthy 
of  belief." 

Cole,  J.,  in  Kno.v  v.  Johnson  (1S70,  26  Wis.  43)  :  "This  circumstance  is  well  cal- 
culated to  throw  suspicion  on  her  accuracy  and  credibility.  It  shows  that  her  memory 
is  exceedingly  unreHable  and  treacherous  in  reference  to  the  times  of  payment  of 
moneys  by  her,  or  that  she  does  not  realize  the  importance  of  adhering  to  actual  facts 
when  making  statements  under  oath." 

This  may  be  roughly  true  in  the  majority  of  instances ;  but  there  is  no  such 
invariable,  certain  indication ;  the  scope  is  much  broader  and  more  intan- 
gible. There  has  also  sometimes  been  an  inclination  on  the  part  of  the  bar 
to  argue  as  if  every  Self-contradiction  involved  a  lie,  and  illustrated  the 
maxim,  Falsus  in  uno,falsus  in  omnibus;  but  this  also  is  without  foundation  ; 
the  discrediting  effect  of  a  Self-contradiction  is  not  dependent  on  whether 
or  not  the  jury  believe  it  to  involve  a  conscious  lie. 

(2)  The  process  of  using  a  Self-contradiction  to  show  error  is  in  one 
respect  weaker,  in  another  respect  stronger,  than  the  process  of  using  Con- 
tradiction by  other  witnesses.  It  is  weaker,  in  that  the  proof  of  the  specific 
error  can  never  be  as  positive  as  is  possible  by  the  other  mode.  For  ex- 
ample, if  five  credible  witnesses  testify  that  the  assailant  had  a  scar  upon 
his  face,  contradicting  the  first  witness,  a  belief  in  his  present  error  is  more 
readily  reached  than  if  a  single  former  contradictory  statement  of  his  own  is 
brought  forward  ;  in  the  latter  case  we  are  by  no  means  compelled  to  believe 
that  his  statement  on  the  stand  is  erroneous.  On  the  other  hand,  in  the 
present  mode,  the  process  of  discrediting  is  in  its  chief  aim  incomparably 
stronger,  because  it  always  shows  that  the  witness  has  made  some  sort  of  a 
mistake  at  some  time,  and  thus  demonstrates  a  capacity  to  make  errors.  In 
other  words,  both  of  his  statements  cannot  be  correct ;  one  of  the  two  must 
be  incorrect ;  therefore,  he  shows  a  capacity  to  err.  It  is  the  repugnancy  of 
the  two  that  is  fatal. 

Thus,  the  process  of  discrediting  by  prior  Self-contradiction  is  on  the 
whole  the  more  effective.  The  capacity  to  err  invariably  appears,  from  the 
very  fact  of  Self-contradiction  ;  while  in  the  other  process  it  does  not  appear 
unless  we  believe  the  opposing  witnesses'  assertions.  Logically,  therefore, 
the  present  process  is  more  direct  and  effective,  because  self-operative. 
Practically,  however,  it  may  fall  to  the  same  level  as  the  other,  if  the  utter- 
ance of  the  self-contradiction  is  denied  by  the  witness  and  is  obliged  to  be 
evidenced  by  calling  other  witnesses ;  for  then  it  requires  (as  in  the  other 
process)  that  we  first  believe  the  other  witnesses.  Yet,  even  then,  in  com- 
pensation, it  may  acquire  a  double  force,  for  if  we  believe  the  other  witnesses, 
the  first  witness  has  twice  erred  and  perhaps  twice  falsified,  —  once,  in  his 
self-contradiction,  and  once  again  in  denying  that  he  uttered  it. 


G34  PART    II.      TESTIMONIAL    EVIDENCE  No.  324. 

Topic  4.     Contradictory  Testimony  by  "Witnesses  called  on  the  Same  Side 


324.    THE  HISTORY  OF   SUSANNA.      (Apocrypha.)^ 
[Two  elders   ooxeted    Susanna,  a      daughter     of     Israel?" 
very  fair  woman  and  pure,  the  wife 
They  tempted  her,  but 


of  Joaeini. 

she  resisted.  Then  they  plotted, 
and  charj^ed  her  with  adultery ;  and 
.she  was  hrouuht  before  the  assembly.] 
And  the  elders  said  :  "  As  we  walked 
in  the  garden  [of  Joacim]  alone,  this 
woman  came  in  with  two  maids,  and 
shut  the  garden  doors,  and  sent 
the  maids  away.  Then  a  young 
man,  who  there  was  hid,  came  unto 
her,  and  lay  with  her.  Then  we 
that  stood  in  the  corner  of  the  gar- 
den, seeing  this  wickedness,  ran  unto 
them.  And  when  we  saw  them 
together,  the  man  we  could  not  hold, 
for  he  was  stronger  than  we  and 
opened  the  door  and  leaped  out. 
But  having  taken  this  woman,  we 
a.sked  who  the  young  man  was,  but 
she  would  not  tell  us.  These  things 
do  we  testify."  Then  the  assembly 
believed  them,  as  those  that  were 
the  elders  and  judges  of  the  people. 
.  .  .  But  [Daniel]  standing  in  the 
midst  of  them,  said  :  .  .  .  "Are  ye 
such  fools,  ye  sons  of  Israel,  that 
without  e.xamination  or  knowledge 
of  the  truth  ve  have  condemned  a 


.  Then 
Daniel  said  unto  them,  "  Put  these 
two  aside,  one  far  from  another,  and 
I  will  examine  them."  So  when 
they  were  put  asunder  one  from 
another,  he  called  one  of  them,  and 
said  unto  him  :  "  Now,  then,  if  thou 
hast  seen  her,  tell  me,  under  what 
tree  sawest  thou  them  companying 
together?"  who  answered,  "Under 
a  mastick  tree."  And  Daniel  said, 
"  Very  well ;  thou  hast  lied  against 
thine  own  head."  ...  So  he  put 
him  aside,  and  commanded  to  bring 
the  other,  and  said  unto  him,  .  .  . 
"  Now  therefore  tell  me,  under  what 
tree  didst  thou  take  them  company- 
ing together?"  who  answered, 
"  I'nder  an  holm  tree."  Then  said 
Daniel  unto  him,  Well ;  thou  hast  al- 
so lied  against  thine  own  head."  .  .  . 
With  that,  all  the  assembly  cried  out 
with  a  loud  voice,  and  praised  God 
who  saveth  them  that  trust  in  him. 
And  they  arose  against  the  two 
elders,  for  Daniel  had  convicted 
them  of  false  witness,  by  their  own 
mouth.  .  .  .  From  that  day  forth 
was  Daniel  had  in  great  reputation 
in  the  sight  of  the  people. 


325.    KERNE'S  TRIAL.      (1679. 
709.)    .   .   . 

[Charge  of  l)eing  a  priest.  Two 
women,  Edwards  and  Jones,  were 
offered  to  testify  to  hearing  him  say 
ma.ss.]  Dcfcndani :  "1  desire  to  ask 
her  what  discourse  she  had  with  Mary 
Jones,  tile  other  witness,  for  she  has 
been  instructing  her  what  to  say, 
and  that  they  may  be  examined 
asunder;"  which  was  granted.  L. 
C.  J.  Scroggn:  "Did  she  [Jones]  tell 
you  what  she  could  sav  ?  "  Kdirard.s: 
"  She  did."  L.  C. ./.  .• ""  What  ?  "  Kd- 
warda:  "She  went  once  to  hearken, 
anfl  she  heard  Mr.  Kerne  say  .some- 
thing in  Latin,  wliicli  she  said  was 
mass."  /y.  ('.  ./. ;  "("all  the  other 
woman  ;  you  shall  now  .see  how  these 
women  agree."     Clerk:  "(all  Mary 


Howell's  State  Trials.     VII,  707, 

Jones."  /..  C.  J.:  "Let  the  other 
woman  [Edw-ards]  go  out.  .  .  . 
What  did  you  tell  her  you  could 
say?"  Jones:  "I  told  her  .  .  . 
he  said  somewhat  aloud  that  I  did 
not  understand."  L.  C.J.:  "Did 
you  not  tell  Margaret  Edwards 
that  you  heard  him  say  ma.ss?" 
Jones:  "No,  my  lord."  L.  C.  J.: 
"  Call  IVIargaret  Edwards  again. 
Margaret  Edwards,  did  Mary  Jones 
tell  you  that  she  heard  Mr.  Kerne 
say  mass?"  Edwards:  "Yes,  my 
lord."  Jones:  "No,  I  am  sure  I 
did  not,  for  I  never  heard  the  word 
before,  nor  do  not  know  what  it 
means."  /..  C.  J.:  "So  they  con- 
tradict one  another  in  that." 


No.  327.      III.       TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      635 


326.    THE   ATTESTING   WITNESSES' 

Condiict  of  Lawsuits,   2(1   ed.,    1912,   §  118.) 


CASE.      (John  C.  Reed. 


The  first  instance  was  on  a 
caveat  to  a  will  propounded  for  pro- 
bate, the  issue  being  whether  the  wit- 
nesses signed  in  the  presence  of  the 
testator.  There  was  no  doubt  that 
he  and  all  of  the  witnesses  were 
present  when  the  execution  com- 
menced, but  the  caveators  contended 
that  he  left  the  room  before  the 
witnesses  signed.  The  recollection 
of  the  subscribing  witnesses  was  not 
clear,  and  the  court  held  that  by 
reason  of  this  testimony  there  was 
a  prima  facie  presumption  of  due 
execution.  To  rebut  this  presump- 
tion, the  caveators  read  the  testi- 
mony of  two  women  which  had  been 
taken  by  commission.  These  two 
were  in  the  room  during  the  execu- 
tion of  the  paper,  and  both  of  them 
testified  positively  that  the  testator 
went  out  in  company  with  them- 
selves before  the  subscribing  wit- 
nesses had  signed. 

This  testimony  seemed  to  over- 
whelm the  propounders.  But  when 
it  was  criticized,  it  was  shown  that 
in  every  other  respect  save  that  they 
carried  the  testator  off  before  the 
subscription  by  the  witnesses,  these 
two  were  in  irreconcilable  conflict 
with  each  other.  One  said  that  the 
testator  accompanied  her  and  her 
companion  to  the  room,  while  the 
other    said    that    the    testator    was 


already  in  the  room  when  they  came 
and  she  did  not  know  whence  he 
came.  They  disagreed  as  to  the 
order  of  leaving.  One  said  that  the 
testator  went  out  with  the  two  and 
at  her  side,  the  other  said  that  he 
came  behind  them.  According  to 
one  of  them,  the  two  M^ent  out  into 
the  hall  and  passed  up  to  the  door 
of  the  sitting-room,  where-  they 
stopped  ;  the  other  carried  the  whole 
party  at  once  into  the  sitting-room. 
Again,  each  one  of  them  was  at 
variance  in  other  particulars  with  the 
weight  of  the  evidence ;  in  many 
instances  the  variations  being  trivial, 
to  be  sure,  but  yet  of  great  impor- 
tance for  testing  the  accuracy  of  their 
memories.  The  paper,  at  the  time 
of  its  execution,  was  primarily  in- 
tended as  a  settlement,  and  it  was 
not  known  by  the  subscribing  wit- 
nesses nor  the  women  to  be  also  a 
will,  and  none  of  them  pretended 
to  have  closely  observed  the  details 
of  its  execution.  Many  years  had 
elapsed  since  the  occurrence  under 
investigation.  One  of  the  women 
was  interested  with  the  caveators 
and  the  other  strongly  biased  in  their 
favor.  The  jury  could  not  trust 
their  memories  in  the  solitary  par- 
ticular where  they  agreed,  and 
they  found  a  verdict  setting  up  the 
will. 


327.    FRANK  ROBINSON'S  CASE. 

MINS.     Remarkable  Trials  of  all  Countries. 

[On  April  9,  Saturday,  1836,  in 
New  York  City,  Helen  Jewett, 
an  inmate  of  a  house  of  ill-fame, 
was  murdered  at  night  in  her  room, 
probably  with  an  axe.  In  the  back 
yard  next  morning  were  found  an 
axe  and  a  cloak.  The  cloak  had  a 
cord  or  string  to  tie  it,  and  was  said 
to  be  the  accused's ;  the  axe  was 
said  to  be  tied  to  the  same  string.] 

Richard  Eldridge,  examined  by 
Mr.  Phenix.  —  "I  am  a  watchman. 
On  Sunday  morning  the  10th  of  April, 


(T.  DuNPHY  and  T.  J.  Cum- 
1873.  pp.  146,  156,  163.) 
.  .  .  in  a  yard  next  to  Mrs.  Town- 
send's,  belonging  to  a  lot  on  Hudson 
street,  I  found  a  hatchet  and  a  cloak. 
.  .  .  I  went  towards  the  south- 
west corner  of  the  yard,  and  there 
I  perceived,  about  six  inches  at  the 
other  side  of  the  railing,  the  hatchet 
which  has  been  produced.  The 
fence  between  Mrs.  Townsend's 
yard  and  the  yard  belonging  to  the 
house  in  Hudson  street  is  about  nine 
feet  high,  and  in  some  places  twelve 
feet.     The  cloak  was  about  fifteen 


636 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  327. 


feet  from  the  fence  of  Mr.s.  Town- 
send's  yard  in  the  yard  helon^inii;  to 
the  lot  in  Hudson  street.  .  .  . 
When  I  first  discovered  the  cloak  I 
did  not  see  that  it  had  any  string 
attached  to  it.  .  .  .  The  axe  and 
cloak  were  both  deposited  in  a  back 
room  on  the  first  floor  of  the  house 
immediately  uniler  the  room  in 
which  the  body  was  lying.  ...  I 
did  not,  until  they  were  pointed  but 
to  me  at  the  coroner's  inquest, 
observe  either  the  string  on  the 
hatchet  or  the  string  upon  the 
cloak.".  .   . 

miliarn  Schurcman,  who,  being 
sworn,  was  examined  by  Mr.  Phcnix, 
and  deposed  as  follows :  "  I  am 
the  coroner  for  the  City  and  County 
of  New  York.  ...  I  was  at  the 
house  when  a  cloak  was  found  in 
one  of  the  yards  in  the  rear.  That 
cloak  was  handed  to  me  in  the  yard 
of  the  house.  .  .  .  The  string  now 
attached  to  the  cloak  was  attached 
to  it  when  it  was  found,  and  from 
certain  circumstances  and  conver- 
sation which  then  took  place  be- 
tween me  and  some  of  the  persons 
in  the  house,  I  was.  induced  to  notice 
it  particularly.  I  saw  the  string 
attached  to  the  cloak  before  it  was 
taken  into  ]Mrs.  Townsend's  house, 
and  shortly  after  I  received  it  from 
the  watchman.  .  .  .  There  was  a 
hatchet  also  found  in  the  rear  of 
the  house.  .  .  .  When  the  hatchet 
was  handed  to  me,  I  looked  at  it,  but 
did  not  discover  anything  at  that 
time  very  particular  upon  it.  It 
was  wet  as  if  with  dew ;  at  that 
time  I  did  not  perceive  a  string  upon 
the  hatchet  —  I  mean  when  it  was 
handed  to  me  in  the  yard.  I  did 
not  observe  the  string  upon  the 
hatchet  until  it  was  brought  to  me 
a  second  time  before  the  jury.  I 
think  it  was  handcfi  to  me  by  Mr. 
Brink  and  he  called  my  attention  to 
it ;  then  my.self  in  company  with 
some  of  the  jurors  compared  the 
string  upon  the  coat  and  the  string 
upon  the  hatchet,  and  they  were 
similar  in  all  resj)ects ;  the  string 
ai)peared    to   be   new,   ami    to   have 


been  recently  cut  off.  ...  I  did 
not  notice  any  blood  on  the  hatchet, 
but  it  had  a  reddish  appearance  the 
same  as  it  has  now.  I  gave  partic- 
ular direction,  when  I  handed  the 
hatchet  and  cloak  to  a  person  to 
keep  until  I  impaneled  a  jury,  to 
be  sure  to  keep  safe.  I  gave  this 
injunction  more  particularly  in  re- 
lation to  the  string  that  was  upon 
the  cloak,  as  I  understood  from 
some  of  the  persons  in  the  house 
that  a  person  had  been  there  who 
wore  a  cloak.  I  did  not  then 
notice  or  know  anything  about  the 
string  upon  the  hatchet,  and  my 
directions  therefore  had  not  such 
particular  reference  to  it."  .  .  . 

By  the  Judge.  —  "  The  string  might 
have  possibly  been  on  the  hatchet. 
My  attention  was  drawn  to  the  string 
on  the  cloak,  before  I  saw  the  hatchet, 
and  it  is  now,  on  reflection,  my  im- 
pression that  if  the  string  had  been 
on  the  hatchet  when  it  was  found  I 
should  have  noticed  it  in  connection 
with  the  circumstance.  ...  It  is 
possible  that  some  of  the  persons  to 
whom  I  gave  the  cloak,  having  the 
string  then  attached  to  it,  might 
have  tied  the  hatchet  to  the  string, 
and  subsequently  broken  it  ott'."  .  .  . 

George  ]V.  Noble,  examined  for 
the  prosecution  by  INIr.  Morris.  — 
"  I  am  an  assistant  captain  of  the 
watch.  .  .  .  When  I  got  into  the 
yard  both  the  cloak  and  hatchet 
were  found.  I  saw  the  hatchet  and 
examined  it  myself.  I  examined  it 
before  it  was  taken  into  the  house. 
I  saw  the  string  upon  the  cloak  be- 
fore it  was  taken  into  the  house.  .  .  . 
I  saw  the  string  on  the  hatchet  as 
it  is  now  upon  it,  in  the  yard,  before 
it  was  taken  into  the  house,  and 
directly  after  it  was  found.  I  did 
not  compare  the  string  upon  the 
hatchet  and  the  string  upon  the 
cloak,  but  Mr.  Brink,  the  officer,  did 
in  my  i)resence.  He  examined  and 
compared  them,  and  he  con- 
cluded as  I  did  that  thev  were  both 
alike."   ... 

Denis  Brink,  police  officer,  ex- 
amined by  Mr.  Phenix  for  the  pros- 


No.  329.       Hi.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      637 


edition.  —  'l  was  at  the  house  of 
Mrs.  Townhend,  in  Thomas  street, 
on  the  morning  of  the  tenth  of 
April.  ...  I  was  there  when  the 
cloak  anfl  hatchet  were  found.  .  .  . 
I  had  both  the  cloak  and  hatchet 
in  my  hand  before  they  were  taken 
into  the  house.  .  .  .  The  string 
that  now  appears  .  upon  this  cloak 
was  in  the  yard  before  it  was  taken 
into  the  house.  It  was  fastened 
to  the  end  of  the  cloak.  I  had  the 
hatchet  in  my  hand  before  it  went 
into  the  house.  I  saw  a  string 
upon  the  handle  of  the  hatchet. 
I  compared  the  string  on  the  han- 
dle of  the  hatchet  with  the  string 
that  was  fastened  to  the  cord 
of     the     cloak.  ...      I     saw     the 


string  on  both  the  coat  and  the 
hatchet  not  more  than  two  minutes 
after  they  were  found.  .  .  .  There 
was  not  a  particle  of  difference  be- 
tween the  strings  on  the  hatchet 
and  cloak  when  I  first  saw  them  in 
the  yard."  .   .   . 

Mr.  Schun'man,  recalled  for  the 
defense,  and  examined  by  Mr. 
Maxwell.  —  "I  did  not  see  or  hear 
of  any  comparison  of  the  string  on 
the  cloak  with  the  string  on  the 
hatchet  by  Mr.  Brink  or  Mr.  Noble. 
...  I  have  expressed  it  as  a  some- 
what singular  circumstance,  that 
neither  Brink  nor  Noble  mentioned 
to  me  in  especial  manner  about 
their  comparing  the  strings  on  the 
hatchet  and  the  cloak." 


328.    LAURENCE  BRADDON'S  TRIAL.     [Printed  j^ost,  as  No.  391. 


329.    LORD  CHANCELLOR   MACCLESFIELD'S  TRIAL.      (1725. 
Howell's  State  Trials.     XVI,  843,  1118.) 


[Sir  Thomas  Parker,  after  being 
Chief  Justice,  was  made  Chancellor. 
He  was  impeached  on  the  charge  of 
having  taken  money  for  the  ap- 
pointment of  masters  in  chancery 
and  other  offices.  One  of  the  issues 
in  the  particular  charge  here  in- 
volved was  whether  the  money  was 
merely  a  present  offered  and  ac- 
cepted, or  a  price  exacted  by  way  of 
sale  and  extortion.]  .  .  . 

Mr.  Thomas  Bennet  sworn. 

Serg.  Pengelly.  —  My  lords,  Mr. 
Bennet  was  the  person  who  was 
possessed  of  the  office  of  the  Clerk 
of  the  Custodies,  at  the  time  of 
the  resignation  of  it  for  the  benefit 
of  Mr.  Haraersley,  who  has  now  a 
patent.  .  .  .  We  beg  leave  to  ask 
Mr.  Bennet,  what  application  he 
made  for  liberty  to  resign  this  office, 
and  for  Mr.  Hamersley  to  be  ad- 
mitted ? 

Thomas  Bennet.  —  My  lords,  as 
soon  as  I  was  admitted  a  Master  of 
the  Court  of  Chancery,  which  was 
on  the  3rd  of  June,  1723,  I  thought 
it  inconsistent  to  hold  this  office  of 
Clerk  of  the  Custodies,  which  I  had 
before ;   and  therefore  I  intended  to 


surrender  it  to  some  person  that  was 
proper ;  and  after  I  had  found  Mr. 
Hamersley,  and  made  an  agreement 
with  him,  I  applied  to  Mr.  Cotting- 
ham,  then  secretary  to  my  Lord 
Chancellor.  I  told  him  I  was  pos- 
sessed of  an  office  in  the  gift  of  the 
crown,  and  was  willing  to  surrender, 
and  was  going  to  apply  to  a  sec- 
retary of  state,  to  get  the  king's 
leave  to  surrender,  for  the  benefit  of 
Mr.  Hamersley.  I  told  him  that  the 
office  being  in  the  Court  of  Chan- 
cery, the  Secretary  of  State  would 
naturally  ask  my  Lord  Chancellor, 
whether  the  person  I  proposed  was 
well  aft'ected  to  the  government 
and  qualified  for  the  place ;  and 
therefore,  for  that  reason,  I  thought 
it  my  duty  to  acquaint  my  Lord 
Chancellor  with  my  intention,  and 
who  the  person  was  I  intended  to 
succeed  me.  I  desired  Mr.  Cot- 
tingham  to  acquaint  my  Lord  Chan- 
cellor that  Mr.  Hamersley  was  the 
person.  Mr.  Cottingham  replied, 
he  would  acquaint  my  Lord  Chan- 
cellor, and  I  should  have  an  answer 
as  soon  as  possible.  He  appointed 
me  to  meet  him  the  next  day,  when 


63S 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  329. 


he  told  me  he  had  acquainted  my 
Lord  Chancellor  who  the  person 
was,  and  that  my  Lord  Chancellor 
said  he  had  not  any  knowledge  of 
him.  I  told  Mr.  Cottingham  he 
might  have  acquainted  his  lordship 
that  lie  [Mr.  Cottinghaml  knew  him, 
for  he  lived  the  ne.\t  door  to  him. 
He  is  a  gentleman  at  the  har  well 
known  ;  and  I  do  assure  you  he  is 
in  the  interest  of  the  government. 
Says  Mr.  Cottingham,  my  Lord 
Chancellor  don't  know  him,  nor 
do  L  I  was  surprised  at  that.  But 
however,  said  he,  Mr.  Bennet,  there 
is  a  present  expected  b}'  my  Lord 
Chancellor,  and  if  I  made  that 
present,  the  thing  might  he  made 
easy,  and  my  Lord  Chancellor 
would  do  what  I  desired  ;  that  is,  to 
acquaint  the  Secretary  of  State, 
that  Mr.  Hamersley  was  a  person 
well  affected  to  the  government ; 
and  that  I  desired  he  might  succeed 
me  in  my  place.  Mr.  Cottingham 
said,  there  must  he  a  present.  On 
this,  I  told  Mr.  Cottingham,  that 
it  was  not  usual  to  give  any  present 
upon  this  occasion  ;  that,  in  my  own 
case,  when  I  came  in,  I  gave  none 
to  my  lord  Cowper  ;  and  my  brother 
told  me  that  he  gave  none;  and 
that  at  his  coming  in,  he  asked  lord 
Cowper  if  anything  was  due  to  him, 
and  my  lord  Cowper  denied  that 
anything  was  <hie,  and  absolutely 
refused  anything.  Besides,  said  I, 
it  is  very  hard  for  my  Lord  Chan- 
cellor to  ask  or  accept  anytliing 
from  me,  becau.se  I  .so  lately  paid 
him  so  great  a  sum  as  1,500  guineas 
for  my  Master's  place ;  but  if  he 
will  have  it,  I  will  give  him  100 
guineas.  He  said  he  would  ac- 
quaint my  Lord  Chancellor  with 
it ;  and  the  next  day,  or  the  flay 
after,  he  told  me  that  my  Lord 
Chancellor  woulfl  accey)t  of  that; 
but  it  was  a  very  small  present,  and 
it  was  a  favor  my  lf)rd  accepted  it ; 
and  my  lord  would  send  over  to 
Hanover  for  the  king's  warrant, 
and  I  need  have  no  further  trouble 
besides  passing  the  patent. 

Serg.  Prngdiy.  —  My  lords,  I   de- 


sire he  may  be  asked,  whether  he 
paid  the  100  guineas  to  Mr.  Cotting- 
ham, and  in  what  manner  ? 

Thofi.  Bcnnct.  —  I  did  pay  it ;  I 
think  it  was  in  a  Bank  bill  of  £  105. 

Serg.  Paigclly.  —  Do  you  remem- 
ber at  what  time  ?  —  It  was  long 
before  the  resignation.  .  .  . 

Serg.  PcngrUy.  —  We  have  done 
with  Mr.  Bennet. 

Serg.  Prohyn.  —  If  the  gentlemen 
have  done  with  him,  we  beg  that  he 
may  be  asked  a  few  questions  on 
behalf  of  my  lord  Macclesfield. 
What  was  it  you  desired  Mr.  Cot- 
tingham to  say  in  your  favor  to  my 
lord  Macclesfield  ?  —  I  desired  Mr. 
Cottingham  to  acquaint  my  Lord 
Chancellor,  that  I  intended  to  apply 
myself  to  the  Secretary  of  State  for 
leaA'e  to  surrender  the  place  of 
Clerk  of  the  Custodies,  and  to  beg 
the  favor,  that  if  the  Secretary  of 
State  should  inquire  of  him  after 
the  abilities  and  circumstances  of 
Mr.  Hamersley,  he  might  assure 
the  Secretary  of  State,  that  he  was 
a  man  qualified  for  the  place,  and 
well  affected  to  the  government. 

Serg.  Probyn.  —  Was  that  all  ?  —  I 
think  that  was  all. 

Serg.  Prohyn.  —  Was  that  all  that 
Mr.  Cottingham  told  you  he  had 
asked  ? — I  don't  remember  anything 
more,  but  only  Mr.  Cottingham 
returned  for  answer,  my  lord  did 
not  know  Mr.  Hamersley,  and  I 
must  make  a  present,  and  then  what 
I   desired  would  be  complied  with. 

Serg.  Probyn.  —  I  think  you  say 
you  had  some  treaty  with  Mr. 
Hamersley  about  the  surrender  of 
your  office  ?  —  Yes. 

Serg.  Prohyn.  —  Had  you  come  to 
any  agreement  with  him  for  the 
office,  if  you  could  procure  a  sur- 
render and  admittance?  —  Yes.... 

Mr.  Robins.  —  My  lords,  I  desire 
he  may  be  asked,  whether  Mr. 
Cottingham  told  him  that  the  lord 
IMacclesfield  insisted  upon  any  par- 
ticular sum  ?  —  Mr.  Cottingham  told 
me,  that  my  lord  insisted  upon  one 
hundred  guineas ;  and  I  argued  the 
unreasonableness  and  hardship  of  it. 


No.  329.       III.      TESTIMONIAL    INTERPRETATION.      B.    COMMON    INCIDENTS       639 


Com.  Sc^-g.  —  My  lords,  I  desire 
Mr.  Benntt  may  acquaint  your 
lordships,  whether  ever  he  made  any 
appHcation  to  the  noble  lord  for 
permission  to  resign  ?  —  I  never 
spoke  to  my  lord  myself. 

Serg.  Pengclh/.- — -If  the  gentlemen 
have  done  with  him,  we  beg  leave 
to  explain  this  matter,  and  to  ask 
him  upon  what  account  it  was  that 
Mr.  Nottingham,  from  my  lord 
Macclesfield,  said  a  present  was 
expected  ?  —  I  cannot  say  what  was 
Mr.  Cottingham's  reason ;  but  he 
said  My  Lord  Chancellor  did  not 
know  Mr.  Hamersley ;  and  then 
he  went  on  and  said,  a  present  was 
expected.  I  apprehended  Mr.  Cot- 
tingham  took  it,  that  I  could  not  do 
it  without  my  Lord  Chancellor's 
consent.  ... 

Serg.  Pengelly.  — My  lords,  if  they 
have  done  with  this  witness,  we  beg 
leave  to  call  Mr.  Cottingham,  who 
was  an  agent,  and  paid  over  this 
money   to   my   lord   Macclesfield. 

Mr.  Peter  Cottingham  sworn. 

Serg.  Pengelly. — -My  lords,  we 
only  call  Mr.  Cottingham,  to  ac- 
quaint your  lordships  when  he  paid 
over  these  100  guineas  to  my 
lord  Macclesfield.  — •  Cottingham.  — 
In  July,  I  think  it  was. 

Serg.  Pengelly.  ■ —  How  long  after 
you  received  it  from  Mr.  Thomas 
Bennet  ?  —  Cottingham.  —  I  believe 
I  paid  it  ovev  that  day,  or  the  day 
after.  ... 

Com.  Serg.-" — If  the  gentlemen  of 
the  House  of  Commons  have  done 
with  him,  I  beg  that  he  would  give 
your  lordships  an  account  what 
discourse  he  had  with  Mr.  Bennet  ? 

L.  C.  J.  King.  —  You  hear  the 
question. 

Cottingham.  —  Mr.  Thomas  Ben- 
net told  me  he  had  agreed  with  Mr. 
Hamersley  for  the  place  of  Clerk  of 
the  Custodies ;  and  that  he  did  not 
think  it  convenient  to  keep  two  such 
considerable  places,  which  depended 
upon  his  own  life  only ;  that  is,  the 
Master's  place,  which  he  had  before 
purchased,  and  this.  He  told  me 
he  had  disposed  of  this  place  to  Mr. 


Hamersley,  in  order  to  reimburse 
himself  part  of  the  money  he  had 
paid  to  Mr.  Hiccocks,  for  his  Mas- 
ter's place  that  he  had  purchased  of 
him,  and  for  that  reason  he  did  not 
care  to  keep  both. 

Com.  Serg.  Did  he  tell  you  how 
much  he  had  disposed  of  it  for  ?  — 
No,  he  did  not. 

Com.  Serg.  —  My  lords,  I  desire 
Mr.  Cottingham  may  be  asked, 
what  it  was  Mr.  Bennet  desired  him 
to  request  of  my  lord  Macclesfield  ? 
—  To  the  best  of  my  remembrance, 
he  said,  he  hoped  that  his  lordship 
would  accept  of  100  guineas,  be- 
cause he  had  received  from  him  so 
lately  a  present  for  his  Master's 
place,  and  he  desired  his  lordship 
to  forward  his  petition  to  his  maj- 
esty. 

Dr.  Sayer.  —  Was  this  on  the  first 
application?  —  Yes;  he  never  made 
but  one  application  to  me. 

Dr.  Sayer.  —  It  is  of  consequence  ; 
and  therefore  I  desire  it  may  be 
asked,  whether,  at  the  first  time  he 
applied,  he  made  this  offer  of  100 
guineas?  —  He  did,  and  I  paid  it 
over  to  my  lord  Macclesfield. 

Dr.  Sayer.  —  I  desire  Mr.  Cotting- 
ham may  be  asked  whether  he  knew 
Mr.  Hamersley  before  this  time?  — 
I  knew  him  very  well,  he  was  my 
next  door  neighbor  both  in  town 
and  country. 

Dr.  Sayer. —  Did  you  tell  Mr. 
Bennet  you  did  not  know  him  ? 
No,  I  never  told  him  so,  it  was 
impossible  I  should  ;  he  was  my  next 
door  neighbor  both  in  Bell-yard, 
and  at  Hampstead. 

Dr.  Sayer.  —  What  character  had 
Mr.  Hamersley  ?  —  A  very  good  one. 

E.  of  Macclesfield. — When  you 
first  spoke  to  me  of  this  matter, 
what  did  you  tell  me  ?  —  I  told  your 
lordship,  Mr.  Hamersley  was  my 
next  door  neighbor  both  in  town  and 
country ;  and  that  he  was  a  gentle- 
man of  as  unquestionable  a  char- 
acter as  any  at  the  bar ;  and  your 
lordship  was  pleased  to  depend  upon 
me  for  his  character.   .   .   . 

Serg.    Pengelly.  —  If    they    have 


64G 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  320. 


done,  we  beg  leave  to  ask  Mr.  Cot- 
tingham,  since  lie  informed  my  lord 
of  the  circuinstances  of  Mr.  Ham- 
ersley,  whether  he  acquainted  my 
lord  of  Mr.  Haniersley,  before  or  after 
the  time  he  paid  the  100  guineas  ? 
—  I  acquainted  his  lordship  before. 

Serg.  PcngcUi/.  —  I  beg  leave  to 
ask  another  question  :  If  this  gentle- 
man can  inform  your  lordships  upon 
what  account  it  was  he  received  the 
100  guineas  from  Mr.  Bennet?— I 
received  the  100  guineas  upon  ac- 
count of  his  surrender  of  his  office. 

Serg.  Prngtlh/.- — We  beg  leave  to 
ask  another  question  :  whether  be- 
fore he  agreed  with  Mr.  Bennet,  he 
had  informed  my  lord  Macclesfield 
of  any  proposal,  or  what  was  to  be 
expected  ? —  No,  I  don't  remember  I 
did.  All  that  passed  on  that  occa- 
sion was,  !Mr.  Bennet  said  he  was 
willing  to  give  100  guineas,  and  he 
hoped  his  lordship  would  not  insist 
upon  more. 

Serg.  PcngeUy.  —  I  beg  he  may  be 
asked  another  question ;  whether 
when  he  came  back  from  my  lord 
^Macclesfield  to  ]Mr.  Bennet,  with 
the  account  of  the  acceptance  of  the 
100  guineas,  he  did  not  tell  Mr. 
Bennet,  he  ought  to  take  it  as  a 
favor  that  his  lordship  accepted  so 
little?  —  I  can't  remember,  but  I 
think    I    did    not. 

Serg.  Pengrlli/.  —  Can  you  say  you 
did,  or  you  did  not?  —  To  the  best 
of  my  remembrance,  I  did  not. 

Serg.  PcngcUii.  — We  desire  he  may 
inform  your  lordships  what  answer 
he  brought  to  Mr.  Bennet  from  my 
lord  Macclesfield  ''.  — The  answer  my 
lord  Macclesfield  ordered  me  to 
give  Mr.  liennet,  was,  tliat  he  agreed 
to  accept  of  the  100  guineas  accord- 
ing to  his  proposal. 

Serg.  Pnificlli/.  —  Wlielher  was  tiiis 
ofl'er  of  the  100  guineas  the  first 
time,  (»r  after  Mr.  Cottingham  had 
spoken  to  my  lord  Macclesfield 
about  it?  —  Mr.  Bennet  proposed  to 
me  to  give  the  100  guineas  before 
I  spoke  to  my  lord  about  it. 

Serg.  Pnu/clh/.  —  Whether  it  was 
the   first    time   he   offered    the    100 


guineas,  or  some  time  after  ?  —  He 
offered  the  100  guineas  the  first 
time. 

Serg.  Pciujrlly. — Whether  Mr. 
Nottingham  did  not  say  the  first 
time,  that  something  was  expected? 
—  I  believe  he  did  say  the  great 
seal  would  expect  something. 

Mr.  Luticyche.  —  Mr.  Cottingham 
says,  he  believes  he  did  say  some- 
thing was  expected.  Then  I  desire 
to  refresh  his  memory,  and  that 
he  would  acquaint  your  lordships 
whether  that  was  mentioned  before 
the  100  guineas  were  offered  ?  —  No, 
not  as  1  remember. 

Mr.  LuUvychc.  —  What  did  you  say 
on  that  occasion  ?  I  said  on  that 
occasion,  as  he  offered  100  guineas, 
I  told  him  my  lord  was  willing  to 
accept  of  it. 

Mr.  Ltdwyche. —  lam  speaking  of 
the  first  discourse  he  had  with  him, 
I  think  he  does  recollect  that  he 
said  my  lord  expected  something  on 
the  account  of  this  office.  —  The  first 
discourse  when  that  was  mentioned, 
I  told  him  my  lord  expected  some- 
thing to  be  paid  by  way  of  compli- 
ment. 

Mr.  Ltdwyche. — Was  that  the 
first  discourse?- — The  first  that  I 
remember. 

Mr.  Lidivyche.  —  I  beg  another 
question.  If  Mr.  Cottingham  told 
Mr.  Bennet  that  my  lord  expected 
something  by  way  of  compliment, 
how  came  Mr.  Cottingham  to  know 
that?  —  Mr.  Bennet  asked  me  if  I 
believed  his  lordship  would  not  ex- 
pect a  comj)linient.  —  I  told  him  I 
1  elieved  his  lordship  would ;  and 
then  he  said  he  would  give  100 
guineas. 

]\Ir.  Lntwychc.  —  Had  you  any 
discourse  with  my  lord  Macclesfield 
before?  —  No,  none  at  all.  I  told 
him  it  was  usual  to  make  a  present; 
and  then  he  told  me  he  Avas  willing 
to  give  100  guineas. 

Mr.  Plumnicr.  —  I  know  ]VIr.  Cot- 
tiiigliam  is  a  very  honest  gentleman. 
1  desire  to  ask  him,  if  Mr.  Bennet 
did  not  then  tell  him,  that  when  his 
brother  was  admitted,  my  lord  Cow- 


No.  329.       III.      TESTIMONIAL   INTERPRETATION.      B.    COMMON    INCIDENTS      641 


per  would  take  nothing  ?  —  He  did 
not,  upon  the  oath  I  have  taken ; 
this  is  the  first  word  I  heard  of  it ; 
I  did  not  know  whether  his  brother 
paid  anything  or  nothing. 

Serg.  PcngcUy.  —  There  is  some 
little  variation,  though  not  material, 
between  Mr.  Bennet  and  Mr.  Cot- 
tingham ;  we  beg  that  Mr.  Bennet 
may  come  to  the  bar  again. 

E.  of  Macclesfield.  —  My  lords,  I 
don't  oppose  Mr.  Bennet's  coming 
to  the  bar  again ;  but  I  think  it  is 
very  extraordinary  for  persons  to 
produce  witnesses  to  confront  their 
own  witnesses. 

Mr.  Lvtwyche.  —  We  do  it  to  con- 
firm the  testimony  of  our  witness. 

Serg.  Peugelly.  —  In  an  affair  of 
this  nature  it  is  impossible  to  pro- 
duce direct  evidence,  without  pro- 
ducing the  agent  employed.  Mr. 
Cottingham  was  the  agent  made  use 
of  by  the  Chancellor,  and  we  beg 
leave  to  ask  of  Mr.  Bennet,  what 
answer  Mr.  Cottingham  brought, 
or  said  he  brought,  from  my  Lord 
Chancellor   relating   to   this    affair. 

Thos.  Bennet. —  When  Mr.  Cot- 
tingham went  from  me  to  my  Lord 
Chancellor,  there  was  not  a  word  of 
money  mentioned  the  first  time.  I 
would  not  so  much  as  put  it  into 
his  head  ;  and  he  returned  to  me  the 
next  day  and  told  me  my  Lord 
Chancellor  insisted  upon  a  present. 
Then  I  said  it  was  very  hard,  and 
I  would  give  my  lord  100  guineas 
if  it  must  be  so. 

Serg.  Pengelly.  — Was  it  not  at  the 
second  meeting  that  he  insisted  on  a 
present  to  my  lord  ?  Thos.  Bennet. 
—  At  the  second  meeting.  At  the 
first  time  he  did  not,  because  there 
was  no  mention  made  of  money. 

Cottingham.  —  All  that  Mr.  Bennet 
said  to  me  on  that  occasion  was, 
that  in  regard  a  compliment  of 
1500  guineas  had  been  so  lately 
given  to  his  lordship,  he  hoped  his 
lordship  would  take  no  more  of  him 
than  100  guineas. 

E.  of  Macclesfield.  —  These  gentle- 
men are  pleased  to  differ  in  their 
evidence.     I  would  ask  Mr.  Bennet 


a  second  time  whether  Mr.  Cotting- 
ham told  him  that  he  did  not  know 
Mr.  Hamersley  ?  —  Thos.  Bennet.  —  I 
am  sure  Mr.  Cottingham  told  me 
that  my  Lord  Chancellor  did  not 
know  him,  and  I  think  he  told  me 
that  he  did  not  know  him.  That 
made  me  say,  Why,  Sir,  that  is 
strange  you  should  not  know  him, 
when  he  lives  the  next  door  to  you  \ 

E.  of  Macclesfield.  —  Before  he 
said,  Mr.  Cottingham  said  he  did 
not  know  Mr.  Hamersley.  I  think 
he  told  your  lordship  so,  that  he  did 
not  know  him.  Thos.  Bennet.  —  It 
is  impossible  to  swear  to  a  conver- 
sation at  so  great  a  distance. 

E.  of  Macclesfield.  —  You  are  not 
positive  ?  Thos.  Bennet.  —  I  am  not 
positive. 

E.  of  Macclesfield.  —  Then,  if  he  is 
not  positive  whether  Mr.  Cotting- 
ham told  him  so ;  I  desire  he  may 
be  asked  whether  he  is  positive  that 
he  answered  Mr.  Cottingham,  Why, 
Sir,  that  is  very  strange  that  you 
should  not  know  him,  when  he  lives 
the  next  door  to  you  ?  Thos.  Ben- 
net. —  I  am  as  positive  of  the  one 
as  of  the  other.  This  conversation 
passed  between  us,  as  near  as  I  can 
remember. 

Cottingham.  —  It  is  very  strange 
I  should  say  so  of  my  very  ne.xt- 
door  neighbor,  and  a  gentleman  at 
the  bar.  Thos.  Bennet.  —  Therefore 
I  wondered  at  it. 

Cottingham.  —  It  is  very  strange, 
sure,  Mr.  Bennet,  that  I  should  not 
know  him.  He  is  a  gentleman  at 
the  bar ;  I  see  him  every  day  at 
Westminster  hall.  Thos.  Bennet.  — 
That  was  the  wonder  I  made  of  it 
I  might  mistake  you ;  I  am  sure 
you  said  my  lord  did  not  know  him, 
and  I  believe  you  said  you  did  not 
know  him.  Mr.  Cottingham  is  very 
deaf,  and  he  might  mistake  me.  .  .  . 

Com.  Serg.  (Mr.  Lingard).  —  My 
lords,  the  gentlemen  that  have  gone 
before  me  upon  this  occasion  have 
so  fully  opened  the  nature  of  the 
noble  Earl's  defense  in  general,  that 
I  shall  not  presume  to  take  up  any 
more   of   your   lordships'    time,    by 


642 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  330. 


following];  them  in  that  iiu'thod ; 
hut  shall  confine  myself  to  the  Fifth, 
Sixth,  Seventh,  Eighth,  and  Ninth 
articles.  .  .  .  My  lords,  we  must 
beg  leave  to  suhmit  it  to  your  lord- 
ships' consideration,  what  credit 
is  to  be  given  to  Mr.  Bennet's 
evidence,  so  far  as  it  does  go,  for 
this  purpose.  The  gentlemen  of 
the  House  of  Commons  have  thought 
fit  to  call  Mr.  Cottingham,  as  a  wit- 
ness to  this  Article  ;  who  owns  that 
in  his  first  discourse  with  Mr.  Ben- 
net  upon  this  occasion,  he  told  him 
he  believed  a  present  would  be  ex- 
pected to  the  great  seal,  and  that 
Mr.  Bennet  freely  ofll'ered  100 
guineas,  Viefore  Mr.  Cottingham 
spoke  to  the  Earl  about  that  affair. 
He  expressly  contradicts  Mr.  Ben- 
net  in  what  he  said  of  Mr.  Cotting- 
ham's  insisting  upon  100  guineas, 
and  Mr.  Bennet's  agreement  to 
give  that  sum  at  the  second  meeting, 
Mr.  Cottingham  swearing,  that  the 
ofl'er  of  100  guineas  was  voluntary 
on  ]\Ir.  Bennet's  part ;  and  that  it 
was  at  their  first  meeting.  There 
are  several  other  contradictions  in 
their   evidence ;     but    I    shall    onh' 


take  notice  of  that,  where  Mr. 
Bennet  pretends  that  Mr.  Cotting- 
ham asserted  he  did  not  know  Mr. 
Hamersley,  his  next-door  neighbor. 
This  Mr.  Cottingham  denies,  and 
]\Ir.  Bennet  is  forced  in  some  meas- 
ure to  retract  what  he  had  so  posi- 
tively sworn  ;  and  comes  down  to  a 
belief  only  that  Mr.  Cottingham 
said  so,  but  will  not  be  positive. 
It  is  something  surprising,  that  after 
they  have  done  Mr.  Cottingham  the 
honor  to  call  him  as  a  witnesS;  and 
give  him  a  credit  by  so  doing,  hints 
should  be  flung  out,  that  Mr.  Cot- 
tingham knows  nobody,  except 
where  there  is  gold  in  the  case ;  that 
gold  is  a  great  clearer  of  the  eye- 
sight, and  the  like  insinuations,  to 
the  lessening  his  character.  But 
why  then  did  they  call  h'm  as  a  wit- 
ness ?  Surely,  my  lords,  if  he  is  a 
person  not  to  be  believed,  it  was  not 
altogether  so  proper  to  produce  him 
as  a  witness  before  this  august 
assembly.  .  .  .  We  hope  your  lord- 
ships will  then  find  no  difficulty  in 
determining  whether  Mr.  Bennet  or 
Mr.  Cottingham  deserves  most  to 
be  credited. 


330.    JOHN  BEGGS'  TRIAL. 
XXVIII,  p.  852.)  .  .  . 

Mr.  Attorney-General.  — My  Lord, 
and  Gentleman  of  the  Jury :  We 
shall  shortly  submit  to  your  con- 
sideration such  evidence,  as  we 
trust  will  be  sufficient  to  satisfy 
your  minds,  that  a  rebellious  and 
traitorous  insurrection  existed  in 
this  city  of  Dublin  upon  the  23d  day 
of  July  last,  and  then  it  will  be  your 
duty,  gentlemen,  to  attend  with 
every  possible  degree  of  diligence  to 
the  evidence  which  will  be  adduced 
to  show,  how  far  the  prisoner  was 
connected  with  that  insurrection.  .  .  . 
The  prisoner  at  the  bar,  standing 
sentinel  at  Bonham-street,  was  dis- 
covered at  no  great  distance  from 
the  frame  of  timber  which  you  will 
hear  described.  ...  A  soldier  of 
the  ninth  regiment,  who  first  per- 
ceived   the    prisoner,    said,    "There 


(1S03.     Howell's  State  Trials.    Vol. 

is  a  man  with  a  pike,"  and  upon  hear- 
ing the  exclamation,  the  prisoner  fled 
into  a  timl)cr  yard  ;  he  was  pursued 
and  arrested,  in  a  situation  in  which 
he  endeavored  to  conceal  himself. 
If  these  facts  shall  be  clearly  es- 
tablished by  evidence,  there  can 
be  no  doubt  that  the  prisoner  was 
armed  with  a  pike  for  the  purpose 
of  aiding  those  who  were  engaged 
in  the  conspiracy.  If  he  took  up  the 
pike  with  that  intention,  he  is 
guilty  of  the  crime  charged  against 
him.   .   .   . 

Wlicrhr  Coultnuni,  Esq.,  sworn. 
Examined  by  Mr.  Townsrnd. 

Do  \'ou  remember  the  night  of  the 
23d  of  July  last  ?  -^  I  do. 

Had  you  any  party  with  you  that 
nighty  —  I  had  about  twenty-eight 
men. 


No.  330.       III.     TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS       643 


To  what  place  did  you  proceed  ?  — 
To  the  left  of  Bonham-street,  where 
a  box  of  hall  cartridge  had  been 
found.     I  saw  eight  pikes  there. 

.  .  .  Look  at  the  prisoner  at  the 
bar  ;  did  you  see  him  ?  —  I  did. 

Where  and  when  ?  ^ — ^  I  saw  him  in 
a  timber  yard  in  Bonham-street.  .  .  . 

Had  he  any  arms?  —  Not  that  I 
saw.  It  was  a  quarter  past  twelve 
at  the  time ;  a  private  of  the  ninth 
mounted  upon  the  wall,  and  said, 
"Here  is  a  rebel  with  a  pike."  I 
handed  him  a  pistol,  and  desired 
him  to  jump  down,  and  not  let  the 
man  hurt  him,  but  to  open  the  gate  ; 
I  then  got  into  the  yard,  and  saw  the 
prisoner  dragged  from  under  some 
fresh  timber,  the  roots  of  trees  I 
believe ;  there  was  little  more  than 
his  legs  seen,  and  by  them  he  was 
dragged  out ;  I  seized  and  tied  him, 
and  ga^'e  him  to  a  party  of  the 
thirty-eighth  regiment.  .  .  . 

Was  any  person  with  him  ?  —  No  ; 
and  I  saw  but  one  pike  there,  Avithin  a 
yard  of  where  the  prisoner  was  lying. 

How  far  was  this  yard  from  the 
beam  of  timber  which  you  said  was 
across  Bonham-street  ?  —  About 
twenty  yards,  not  reckoning  the 
space  over  the  wall. 

Was  it  easy  to  get  over  the  wall  ?  — 
It  was ;  for  there  was  a  quantity  of 
pipe  timber  raised  against  the  wall 
upon  which  we  climbed.  .  .  . 

Whcclcr  Coultman,  Esq.,  cross- 
examined  by  Mr.  MacNaUy.  .  .  . 

Court.  —  Did  the  prisoner  say 
anything  by  way  of  excuse  ?  —  I 
asked  him,  "what  brought  him 
there?"  he  said,  "he  ran  away  to 
avoid  the  pikemen." 

He  told  you  he  ran  away  from  a 
number  of  pikemen  ?  —  He  did. 

From  all  you  saw,  from  the  in- 
struments of  destruction  across  the 
street,  and  the  depot  of  arms,  do 
you  not  believe  there  was  a  great 
number  of  pikemen  there  ?  — -I  do 
believe  it,  because  Colonel  Browne 
had  been  killed  there  that  even- 
ing. ... 

Sergeant  Thomas  Rice  sworn.  Ex- 
amined by  Mr.  Mayne. 


Were  you  with  lieutenant  Coult- 
man upon  the  23d  of  July  last  ?  —  I 
was  under  his  command. 

Were  you  in  Bonham-street  ?  —  I 
was. 

Was  any  prisoner  taken  there  ?  — 
There  was  one  taken  out  of  a  timber 
yard. 

W' ho  was  that  person  ?  —  The  pris- 
oner at  the  bar ;  I  know  him  very 
well. 

What  did  you  first  see  of  him  ?  —  I 
found  him  under  some  timber. 

Was  he  concealed  ?  —  He  was  ;  I 
could  only  see  his  legs  and  feet.  .  .  . 

W'^as  any  weapon  found  there  ?  —  I 
believe  there  was,  but  I  cannot  say 
positively ;  when  taken  out  from 
under  the  timber  he  had  nothing 
in  his  hand.  .  .  . 

John  Gallagher  sworn.  Exam- 
ined by  Mr.  Solicitor-General. 

Do  you  remember  the  night  of  the 
23d  of  July  ?  —  I  do  very  well. 

Do  you  know  the  prisoner  ?  —  He 
is  there  (pointing  to  him). 

Did  vou  see  him  upon  that  night  ? 
—  I  did. 

W'here  did  you  first  see  him?  —  I 
first  saw  him  running  up  Bonham- 
street.  .  .  . 

How  did  he  get  off  ?  —  He  mounted 
on  large  beams  of  timber  which  were 
next  the  yard  gate. 

And  what  did  he  do  then  ?  —  He 
jumped  over  the  wall. 

Had  he  any  arms  at  that  time  ?  — 
He  was  armed  with  a  pike. 

Did  you  pursue  him  ?  —  Over  the 
wall  straight ;  and  when  I  was 
upon  the  wall,  some  of  the  party 
desired  me  not  to  go  down ;  I  said 
I  would  go ;  if  I  was  killed,  it  would 
be  the  first  time ;  I  called  out  to  my 
ofhcer,  and  said  there  was  the  man 
there ;  he  immediately  dropped  his 
pike,  and  he  sunk  under  some  timber. 
I  jumped  down  with  my  bayonet, 
and  threw  the  pike  under  the  wall, 
lest  some  mischief  might  be  done, 
and  I  called  for  a  hatchet  which  the 
party  had,  and  I  broke  open  the 
gate.  The  sergeant  came,  and  I 
said,  the  man  sunk  there,  and  I  de- 
sired the  sergeant  to  take  him  out. 


844 


PART    II.      TESTIMONIAL    EVIDENCE 


No.  330, 


Was  there  any  other  person  there  ? 

—  No,  there  was  not.  .  .  . 

Juhn  Gallaqhcr  cross-examnied  hy 
Mr.  MarXall)/. 

.  .  .  What  arms  hail  you  ?  —  I  had 
no  nuisket,  l)ut  I  had  this  bayo- 
net. .  .  . 

You  took  this  man  with  your 
bayonet?  —  No,  I  desired  the  ser- 
jieant  to  take  him.  .  .  . 

You  said  you  tlirew  the  pike  over 
the  wall  ?  —  I  did,  certainly. 

Then  there  was  no  pike  in  the 
yard  'f  —  There  was  no  pike  wlien  I 
threw  it  from  the  yard ;  he  dropped 
it  in  the  yard,  when  I  called  out, 
"he  was  there"  ;  he  sunk  under  the 
timber,    and    I    let    the    officer    in. 

You  threw  the  pike  into  the 
street  ?  —  I  did,  and  afterwards 
opened  the  gate. 

When  you  went  in,  you  did  not 
know  but  there  mi,t,dit  be  more  men 
than  one,  and  therefore  you  threw 
the  pike  over  the  wall  ?  —  For  fear 
of  mischief  1  did ;  for  fear  there 
might  be  more  there  to  sacrifice 
me  while  I  was  opening  the  gate .... 

Why  did  you  not  fire  at  the  rebel 
as  you  supposed  the  prisoner  to  be, 
when  you  saw  him  in  the  yard?  — 
Becau.se  I  had  no  pistol ;  my  officer 
gave  me  one  afterwards. 

Court.  —  Be  accurate  as  to  the  time 
when  you  threw  the  pike  over  the 
wall ;  did  you  throw  the  identical 
jiike  which  you  saw  the  man  drop  ? 

—  The  very  pike. 

Before  \ou  opened  the  gate  ?  — 
Yes. 

Was  there  any  other  there  ?  —  Not 
that  I  saw.   .   .   . 

Was  any  of  the  party  with  you 
in  the  yard  at  the  time  you  threw 
the  pike  o\er  the  wall  ? — ^  No  one 
but  myself.   .   .   . 

(The  witness  was  desired  to  with- 
draw, and  Lieut.  Coultwan  was 
called  again  and  examined  by  the 
Court.) 

You  have  been  i)resent  when  the 
last  man  was  examined?  —  I  was, 
my  lord. 

In  your  direct  examination  you 
sail  you  found  a  pike,  and  but  one 


within  the  yard,  when  the  prisoner 
was  dragged  from  under  the  timber  ? 

—  I  ha\"e. 

You  heard  the  last  witness  say, 
the  pike  was  let  fall  l)y  the  prisoner, 
and  thrown  over  the  wall  by  him,  the 
witness,  before  he  opened  the  gate ; 
of  course  it  must  of  necessity  follow, 
that  it  was  not  the  pike  which  you 
got  in  the  yard  ?  —  I  could  not  answer 
for  that ;  I  say  I  got  a  pike  in  the 
yard  near  where  the  man  lay. 

Do  you  recollect  a  pike  being 
thrown  o\'er  the  wall  ?  —  I  do  not ; 
there  was  a  gentleman  with  me  who 
may  recollect  better. 

When  the  prisoner  was  taken, 
what  conversation  passed  respecting 
the  pike  ?  - —  I  asked  him  what 
brought  him  there  ?  He  said  he  ran 
away  from  a  number  of  pikemen. 
I  asked  him  why  he  was  out  so  late  ? 
He  said  he  had  been  at  a  tailor's. 

Did  you  say  anything  about  the 
pike  ?  —  I  asked  him  about  his  pike  ; 
he  said  he  knew  nothing  of  it. 

Jury.  —  You  said  you  gave  the 
soldier  a  pistol  ?  —  I  say  so  still ;  I 
gave  him  a  pistol  when  I  mounted 
the  wall.  .  .  . 

Jury.  —  What  did  the  soldier  say 
when  he  got  upon  the  timber  ?  —  He 
said,  "  here  is  a  man  with  a  pike  in  his 
hand." 

Was  it  then,  or  after  his  going 
over,  that  you  gave  him  the  pistol  ? 

—  He  was  upon  the  timber,  looking 
over  the  wall,  and  I  drew  my  pistol 
from  my  belt  and  gave  it  to  him  ; 
for  we  desired  him  not  to  go  over 
the  wall  without  it. 

Jolui  Gnlhujhcr  called  again.  Ex- 
amined by  Mr.  Aitoniey-GcncraJ. 

Did  you  get  any  weapon  from 
your  officer  upon  the  night  of  the 
23d  of  July  ?  —  I  did  —  a  pistol  when 
I  was  mounting  the  stores. 

Did  he  give  you  a  pistol  when  you 
were  mounting  the  wall  of  the  yard, 
where  the  prisoner  was?  —  No,  but 
in  Marshal  lane,  after  we  went  from 
the  timber  yard. 

Court.  —  What  did  you  say  when 
you  looked  into  the  yard  where  the 
prisoner  was  ?  —  I  said,  "  here   is   a 


No.  330.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      645 


rebel  with  a  pike  in  his  hand"  ;  and 
he  then  dropped  the  pike  and  sunk 
under  the  timber.  .  .  . 

Defense 

Mr.  MacNalhj.  —  My  Lords  and 
Gentlemen  of  the  Jury  :  .  .  .  What 
will  be  the  question  for  your  deter- 
mination, when  you  have  weighed  all 
the  evidence  ?  It  is  this,  whether  the 
prisoner  has  to  your  full  satisfaction, 
and  beyond  all  rational  doubt,  been 
guilty  of  any  one  of  those  overt  acts  ? 
Now  what  is  his  defense  ?  It  is  too 
short  to  bear  the  appearance  of  a 
statement ;  it  is  confined  to  a  single 
point.  .  .  .  He  is  a  journeyman 
carpenter;  and  it  is  a  truth  that  he 
was  at  work  on  the  2.3d  of  July ; 
it  is  true  that  he  was  in  his  working 
dress,  had  his  apron  on,  and  was 
with  his  master  from  the  commence- 
ment of  the  day,  down  to  that 
terrific  hour,  when  the  inhabitants 
of  this  city  were  roused  from  their 
peaceful  firesides  and  domestic  com- 
forts, by  the  drums  beating  to  arms. 
On  the  firing  being  heard,  he  de- 
parted from  his  employer's  house, 
and  went  to  a  house  in  Dirty  lane, 
where  he  lodged,  deviating  a  little 
way  indeed  to  call  at  a  tailor's  for 
a  pair  of  breeches.  It  was  Saturday 
night,  he  wanted  his  new  clothing  for 
Sunday  morning.  This  is  a  material 
part  of  the  case.  .  .  .  He  states  to 
me,  gentlemen  of  the  jury,  that  on 
his  way  to  his  lodgings,  it  being  then 
dark,  he  met  in  the  neighborhood  of 
the  depot  an  armed  body  of  men, 
from  whom  he  fled  in  terror,  suppos- 
ing them  to  be  rebels.  The  house 
where  his  tailor  resided,  and  from 
whence  he  came,  is  exactly  opposite 
to  the  wall  where  it  is  alleged  he  was 
first  discovered,  that  is,  according  to 
the  vague  and  equivocal  evidence  of 
the  soldier.  ...  If  you  believe  he 
spoke  truth,  when  he  alleged  to  the 
officer,  that  he  fled  from  a  party 
whom  he  supposed  to  be  rebels,  you 
will  then  acquit  him,  from  a  convic- 
tion that  he  is  innocent.  .  .  . 

Margaret  Carr  sworn.  Examined 
by  Mr.  MacNally. 


Where  do  you  live  ?  —  In  Bonham- 
street. 

Do  you  follow  any  business  ?  —  My 
husband  is  a  poor  man,  a  carpenter, 
and  works  at  a  bench  in  the  street. . . . 

Can  you  remember  whether  you 
saw  the  prisoner  on  the  night  of  the 
23dof  July?  — I  did  indee.l. 

Where  did  you  see  him  ?  —  In  my 
place. 

At  what  hour  did  he  leave  your 
place?  —  In  or  about  ten  o'clock. 

Do  you  know  what  brought  him 
there  ?  —  He  had  left  a  pair  of  small 
clothes  with  the  young  man  the 
week  before,  and  he  came  about 
them. 

Was  the  tailor  at  home  that  time  ? 

—  He  was  not. 

Did  he  return  while  the  prisoner 
waited  there  ?  —  No. 

And   upon   that  he  went  away  ? 

—  He  did.  ... 

Mr.  Ball.  My  Lords  and  Gentle- 
men of  the  Jury  :  .  .  .  What  is  the 
evidence  tending  to  support  the 
accusation  against  the  prisoner  ? 
Is  there  any  other  circumstance  of 
guilt,  except  the  evidence  of  the 
soldier,  who  swears  that  he  saw  a 
pike  in  the  prisoner's  hand,  and  upon 
that  single  fact,  which  is  the  whole 
strength  of  the  prosecution,  is  to  be 
found,  in  my  opinion,  the  most 
deplorable  weakness :  if  he  had  not 
the  pike,  there  is  no  more  reason  to 
impute  guilt  to  him,  than  to  any  one 
of  you,  or  to  any  man  in  the  court. 
Who  is  it  tells  you  the  prisoner  had 
a  pike  ?  He  is  a  ::ian  who  has  either 
told  you  a  deceit,  or  intentional  false- 
hood, or  who  has  so  confused  and  so 
uncertain  a  knowledge  of  the  facts, 
that  he  is  unable  to  give  an  accurate 
statement  of  them.  .  .  .  But  attend 
him  farther,  examine  his  evidence, 
step  by  step,  and  see  whether  you  can 
give  him  credence  in  any  part  of  his 
story.  Now,  gentlemen,  see  what 
his  evidence  is ;  he  says  that  there 
were  large  pieces  of  timber  lying 
against  the  wall  in  Bonham-street, 
and  that  he  saw  the  prisoner  running 
over  it,  and  that  he,  the  witness, 
went  after  him  ;  upon  his  evidence, 


646 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  330. 


taken  altogether,  the  guilt  or  inno- 
cence of  the  prisoner  rests ;  and  I 
will  shortly  analyze  that  evidence. 
He  saw  the  prisoner  run  over  the 
wall  with  a  pike  in  his  hand ;  he 
runs  upon  the  wall  after  him  ;  what 
is  his  account  then  of  the  transac- 
tion ?  I  entreat  you  to  attend 
minutely  to  his  expressions.  Does 
he  say,  "the  fellow  I  saw  with  the 
pike  is  here  still  ?  "  which  is  the  very 
form  of  words  he  woidtl  have  used, 
if  the  fact  be  true.  No,  but  he 
cried  out,  "here  is  a  rebel,  and  he 
has  a  pike  in  his  hand."  These 
are  the  words  he  would  have  used 
if  he  had  unexpectedly  seen  a  man 
for  the  first  time,  not  if  he  had  again 
seen  one  whom  he  knew  to  be  there, 
and  whom  he  had  seen  immediately 
before.  They  are  words  of  dis- 
covery, not  of  ascertainment ;  the 
^witness  then  says  he  drew  his  bayo- 
net in  order  to  defend  himself,  and 
you  will  remember,  gentlemen,  that 
armed  with  that  bayonet  he  went 
and  took  the  prisoner  lurking  under 
the  timber,  that  the  pike  was  within 
a  yard  of  him,  and  so  cautious  was 
the  witness  that,  though  the  man 
sunk  as  was  described,  under  the 
root  of  the  tree,  and  there  was  no 
danger  from  him,  and  although  the 
witness  had  no  arms  but  the  bayo- 
net to  defend  himself  against  the 
others,  he  took  up  that  pike,  and  to 
be  more  upon  his  guard,  threw  it 
over  the  wall,  lest  he  should  be  as- 
sailed by  other  rebels,  while  he  was 
opening  the  gate  as  he  was  desired 
by  his  officer.  Observe,  gentlemen, 
how  circumstantially  he  tells  his 
story  —  he  states  to  you  his  fears, 
the  nature  of  them,  and  the  means 
he  took  to  avert  the  danger.  If 
he  has  stated  those  circumstances 
falsely,  he  has  done  it  through 
design ;  it  is  impossible  he  could 
invent  them  through  forgctfuhiess. 
A  man  may  through  weakness  of 
memory  forget  what  he  has  known, 
but  cannot  from  the  same  cause 
remember  what  he  never  knew. 

I  will  undertake  to  show  you,  that 
he    has    invented    all    those    facts 


which  he  has  detailed  with  such 
precision.  First,  the  story  the  sol- 
dier tells  is  in  itself  improbable;  for, 
gentlemen,  according  to  my  reason- 
ing, if  one  person  whom  I  was  pur- 
suing should  throw  away  his  pike, 
I  would  rather  use  it,  as  putting  my-  • 
self  upon  a  level  wuth  any  other  per- 
son who  might  attack  me,  than 
throw  it  over  the  wall.  But  the 
fact  is  not  corroborated  by  any  other 
evidence,  which,  if  it  were  true,  that 
the  pike  had  been  tossed  over  the 
wall,  might  easily  have  been  done, 
for  all  the  party  waiting  at  the  out- 
side must  have  seen  it.  Was  there 
any  other  pike  there  ?  "  No,"  says 
the  soldier.  "  What  became  of  it  ?  " — 
"  I  threw  it  over  the  wall  before  lieu- 
tenant Coultman  came  in."  What 
is  lieutenant  Coultman's  evidence  ? 
That  he  found  a  pike  in  the  yard ; 
he  said  he  did  not  find  it  with  the 
prisoner,  nor  near  him,  so  it  could 
not  be  the  pike  of  the  prisoner. 
The  only  witness  that  attests  the 
fact  of  the  pike  being  in  the  prisoner's 
hands  shows  it  was  not  the  prisoner's 
pike  that  lieutenant  Coultman  saw, 
because  the  prisoner's  pike  was 
thrown  o\er  the  wall,  and  therefore 
if  a  pike  was  found  afterwards  in  the 
yard,  as  lieutenant  Coultman  says,  it 
was  not  brought  in  by  the  prisoner ; 
if  not,  who  brought  it  there  ?  It  is 
utterly  inconsistent  with  the  pris- 
oner's case,  that  he  could  prove  it, 
but  beyond  all  manner  of  contradic- 
tion the  one  found  by  lieutenant 
Coultman  w-as  not  the  pike  of  the 
prisoner.   .   .   . 

Upon  the  whole,  w-hich  of  the  wit- 
nesses will  you  believe  —  lieutenant 
Coultman  or  the  soldier  ?  Will  you 
be  asked  to  say,  It  is  of  very  little 
consequence  and  makes  no  differ- 
ence whether  there  w'as  one  pike  or 
two  pikes,  that  the  prisoner  had  a 
pike  and  that  is  sufficient  ?  No, 
gentlemen,  this  cannot  be  expected 
from  you  :  if  you  cannot  speak  with 
certainty,  you  cannot  convict :  the 
criminality  of  the  prisoner  rests  upon 
the  identity  of  the  pike  ;  which  then 
will    you    believe?     Can    you    say 


No.  330.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS       G47 


that  the  pike  which  he  had  was  the 
one  which  was  found  by  Heutenant 
Coultman  ?  No  ;  for  that  was  not 
near  him,  nor  is  it  pretended  that 
the  prisoner  knew  anything  of  that 
pike ;  besides,  the  soldier  denies 
and  falsifies  that  account  l^y  saying, 
he  threw  the  pike  which  the  prisoner 
had  into  the  street.  The  evidence 
at  best  is  calculated  to  puzzle  and 
perplex  you,  and  if  you  give  implicit 
credit  to  such  contradictory,  vague, 
and  uncertain  accounts,  unless  you 
cut  the  gordian  knot,  you  cannot 
satisfy  your  minds.  But,  gentle- 
men, you  will  not  do  that  violence, 
when  a  plain  and  obvious  rule  of 
common  sense  will  gently  untie  and 
unravel  the  difficulty  —  namely, 
that  a  witness  contradicted  by  others 
equally  entitled  to  credit,  must  not 
be  believed  ;  —  that  no  man's  life 
should  fall  beneath  such  evidence  ;  — 
that  it  is  better  one  hundred  guilty 
persons  should  escape,  than  one 
innocent  person  suffer. 

I  .  have,  however,  gentlemen, 
farther  observations  to  make  upon 
the  evidence  of  the  soldier,  as  con- 
trasted with  that  of  the  officer, 
which  will,  in  my  opinion,  strongly 
corroborate  (if  they  have  any  weight 
at  all),  those  which  I  have  already 
made.  There  is  one  other  important 
circumstance  which  I  think  it  neces- 
sary to  observe  upon  —  it  is  an  un- 
connected, single,  detached  fact  — 
nothing  more  is  necessary  than 
barely  to  state  it  —  speaking  trum- 
pet tongued  that  the  evidence  of  the 
soldier  ought  not  to  be  believed ; 
he  either  forgets  the  transaction  in 
toto,  or  he  forgets  most  important 
facts,  and  those  facts  of  a  nature  to 
make  a  strong  and  lasting  impres- 
sion upon  his  mind  —  [because 
clearly  and  immediately  connected 
with  his  own  personal  safety  — 
because,  being  connected  with  his 
own  self-defense  —  the  strongest 
passion  of  nature  —  their  impres- 
sion must  be  indelible.  He  admits 
that  there  were  fears  for  his  safety  — 
but  he  forgets  that  it  was  the  officer 
who  first  suggested  these  fears.     He 


admits  that  he  was  armed  for  his 
defense,  but  he  forgets  the  nature 
of  these  arms.  The  officer  tells  you, 
he  armed  the  soldier  with  a  pistol  — 
the  soldier  tells  you  that  he  armed 
himself  with  his  drawn  l)ayonet  only. 
The  soldier  tells  you  he  threw  away 
the  pike,  lest  some  unseen  rebel 
might  seize  it,  because  he  had  no 
arms  that  could  resist  a  pike.  But, 
gentlemen,  he  had  arms  that  might 
have  defended  him  against  a  pike  — 
he  had  a  pistol  —  and  that  fact  he 
denies.  I  do  not  wish  to  cast  the 
stigma  of  intentional  falsehood  on 
any  witness  brought  forward  by  the 
government  of  the  country.  That  he 
has  sworn  falsely  cannot  be  denied  ; 
can  this  falsehood  be  accounted  for 
in  any  way  favorable  to  the  wit- 
ness ?  .  .  . 

I  sincerely  hope  that  those  false- 
hoods and  contradictions  have 
arisen  from  the  confusion  of  the  man, 
his  inaccuracy  of  recollection  and 
judgment ;  but  are  you,  gentlemen, 
to  hang  a  wretched  prisoner,  be- 
cause a  man  tells  a  stor^'  comprising 
a  number  of  facts  of  which  his  recol- 
lection, his  judgment,  and  his  obser- 
vation as  to  the  persons,  time,  and 
circumstances  of  the  transaction 
have  been  confused,  indistinct,  in- 
consistent, and  contradicted  ?  Is 
there  not  in  all  this  something  upon 
which  you  should  long  and  long 
hesitate,  before  you  would  consign 
an  individual  to  death  ?  .  .  . 

Reply 

Mr.  Solicitor-General.  — My  Lords, 
and  Gentlemen  of  the  Jury :  It 
falls  to  my  lot  to  conclude  this  trial, 
by  a  few  observations  upon  the 
evidence ;  and  I  should  not  pay 
that  respect  to  Mr.  Ball  which  he  is 
entitled  to,  unless  I  assigned  the 
reason  of  my  troubling  you.  .  .  . 
When  the  party  arrived  at  the  corner 
of  Bonham-street,  Gallagher  swears 
he  saw  a  man  running,  and  that  he 
leaped  over  the  wall.  That  must 
have  been  the  case ;  because  he 
would  not  have  noticed  the  wall 
unless  he  saw  something  that  way ; 


648 


PART    II.       TESTIMO.NIAL    EVIDEN'CE 


No.  330. 


neither  would  he  have  l)een  induced 
to  quit  his  party,  unless  something 
was  presented  to  his  view  which 
required  investigation.  This  dem- 
onstrates that  he  could  not  be 
mistaken  in  that  respect ;  when  he 
got  upon  the  timber,  he  exclaims, 
"Here  is  a  man  with  a  pike."  Mr. 
Ball  relies  upon  it,  that  the  soldier's 
testimony  is  to  be  considered  solely 
by  itself.  But  you  will  observe, 
that  the  other  witnesses  confirm 
him ;  they  agree  that  he  did  ex- 
claim, "There  was  a  man  with  a 
pike!"  What  object  rould  the 
soldier  have  had  in  stating  a  false- 
hood at  that  time  ?  It  was  a  sud- 
den exclamation,  when  there  was  no 
time  to  deliberate  upon  plan  or 
contrivance,  without  any  motive  of 
falsehood  ;  it  was  in  the  moment  of 
danger,  when  nothing  but  truth  was 
likely  to  escape  his  lips.  There 
was  no  other  person  found  in  the 
yard,  save  the  prisoner  ;  and  that  he 
was  the  man  who  jumped  over  the 
wall  upon  the  approach  of  the  mili- 
tary, there  can  be  no  doubt  upon  any 
reasonable  mind. 

Then  the  whole  difficulty  which 
has  been  attempted  to  be  raised  is 
the  transaction  immediately  follow- 
ing—  in  the  account  of  which,  there, 
in  truth,  is  no  contradiction  ;  but 
even  if  there  were,  it  is  of  no  conse- 
quence in  the  case.  The  finding  of 
the  pike,  one  way  or  the  other,  is 
perfectly  immaterial  to  the  point  in 
issue,  namely,  the  identity  of  the 
man  ;  and  this  enables  me  to  apply 
a  rule  which  was  stated  by  Mr.  Ball 
himself,  upon  a  former  case,  that 
trifling  inconsistencies  do  not  defeat 
the  testimony  of  witnesses,  but 
rather  serve  to  corroborate  them, 
because  they  show  that  the  witne.s.ses 
do  not  come  with  prepared  stories, 
but  declare  the  truth,  and  slight 
trifling  deviations  appear,  according 
as  the  mind  or  recollection  of  each 
particular  witness  was  affected. 
But  I  do  not  rest  upon  that  :  I  shall 
show,  that  there  was  no  contradic- 
tion whatever. 

Two  points  of  contradiction  have 


been  relied  upon.  The  soldier  says, 
he  did  not  get  a  pistol  when  going 
over  the  wall  ;  the  officer  says  he  did. 
But  it  appears  upon  another  occa- 
sion, in  the  course  of  the  same  night, 
the  soldier  acknowledges  he  got  a 
pistol,  anil  that  was,  when  he  entered 
the  depot;  for  it  appears,  that 
being  a  courageous  man,  he  was 
foremost  in  every  danger,  and  the 
transaction  of  the  pistol  having 
taken  place  might  be  mistaken  by 
the  officer,  and  not  by  the  soldier, 
because  he  was  the  actor  in  the 
business.  The  pistol  was  not  neces- 
sary in  the  deal  yard,  because  the 
prisoner  threw  away  his  pike  and 
hid  himself  before  Gallagher  jumped 
down.  But  let  which  of  the  wit- 
nesses be  mistaken,  or  whether  there 
be  a  mistake  or  not,  it  is  not 
material,  because  the  main  question 
is,  as  to  the  identity  of  the  man 
The  next  contradiction  relied  upon 
is,  the  account  respecting  the  pike. 
One  of  the  witnesses  states,  that  it 
was  thrown  over  the  wall ;  the  other 
states,  he  found  a  pike  in  the  yard : 
now,  gentlemen,  consider  their  situa- 
tion. The  soldier  was  within  the 
yard,  looking  with  attention  to- 
wards the  prisoner  and  the  pike, 
while  those  without  were  collected 
at  the  gate,  waiting  for  admission  — 
so  that  the  pike  might  have  been 
thrown  over  the  wall  without  the 
officer  perceiving  it,  and  it  might 
have  been  found  there  by  the 
officer  when  he  was  giving  the 
prisoner  up  to  another  party.  Now, 
what  could  induce  the  witness  to  tell 
a  falsehood  in  this  respect  ?  If  the 
pike  were  found  in  the  yard  by  the 
officer,  it  might  luive  been  brought  in 
by  some  of  his  party  and  dropped, 
when  they  were  dragging  the  pris- 
oner from  under  the  timber.  .  .  . 
It  is  not  an  important  point  upon 
which  this  variation  appears,  but 
this  fact  is  certain,  that  a  pike  was 
there,  and  there  is  no  way  of  account- 
ing for  it  but  l)y  the  prisoner  having 
had  it.  That  fact  is  confirmed  by 
the  testimony  of  lieutenant  Coult- 
man ;     he    says,    the    soldier    called 


No.  330.       HI.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      649 


out,  "Here  is  a  man  icith  a  pike.'" 
Can  you  believe,  in  saying  that,  he 
concerted  a  falsehood  before  so 
man}-  who  could  detect  him  in  a 
moment,  when  there  was  no  op- 
portunity for  concert  or  design  ? 
And  therefore,  gentlemen,  I  sub- 
mit, that  there  is  no  important  con- 
tradiction whatever,  and  that  the 
material  fact  is  strongly  confirmed. 
.  .  .  There  is  no  dispute  as  to  his 
identity  or  his  jumping  over  the 
wall  —  the  finding  of  the  pike  is  not 
contradicted  —  and  the  only  ques- 
tion is,  what  was  his  intent  in  having 
it,  and  what  could  have  induced  him 
to  fly  from  his  majesty's  troops. 
The  prisoner  found  it  necessary  to 
account  for  this  conduct,  and  the 
evidence  produced  confirms  the  case 
of  the  prosecution,  and  leaves  no 
reasonable  doubt  of  his  guilt.  .  .  . 

Swnmiiig  Up 

Lord  NoRBURY.  —  Gentlemen  of 
the  Jury :  .  .  .  No  doubt  re- 
mains of  that  which  is  the  primary 
consideration,  namely,  that  there 
did  exist  a  rebellious  insurrection, 
and  a  levying  of  war  in  the  city  of 
Dublin,  at  the  period  in  question. 
.  .  .  The  existence  of  the  treason 
and  conspiracy  being  thus  estab- 
lished, the  principal  question  is, 
whether  the  prisoner  was  concerned 
in  it ;  because  you  must  be  satisfied, 
before  you  find  him  guilty,  that  he 
did  take  some  active  part  in  for- 
warding that  conspiracy.  In  order 
to  bring  the  guilt  home  to  him, 
lieutenant  Coultman  describes  his 
going  after  twelve  o'clock  of  the 
night  in  which  the  disastrous  events 
are  sworn  to  have  happened.  .  .  . 
One  private  in  military  uniform  ap- 
pears to  have  been  somewhat  ad- 
vanced more  than  the  rest,  that  was 
Gallagher,  and  there  seems  to  be  no 
doubt  that  he  made  use  of  the  ex- 
pressions which  called  upon  the 
attention  of  the  rest  of  the  party ; 
he  exclaimed  that  "  there  was  a  rebel 
with  a  pike ;  "  that  was  when  he 
approached  the  timber  yard  in 
which  the  prisoner  was  afterwards 


foimd.  Some  timber  was  also  piled 
against  the  wall,  by  which  the 
soldier  climbed  and  got  access  with- 
out opening  the  gate ;  when  Galla- 
gher had  ascended  this  timber,  and 
lookeil  over  the  wall,  he  exclaimed, 
"  here's  the  rebel,  he  is  throwing 
away  his  pike  and  hiding  himself." 
.  .  .  When  the  gate  was  opened, 
the  party  entered,  and  saw  the 
prisoner  concealed,  all  but  his  legs, 
by  which  he  was  dragged  from  under 
the  timber.  There  was  no  person 
with  him  at  the  time,  and  here  you 
will  have  much  to  investigate. 
Lieutenant  Coultman  says,  he  got  a 
pike  within  a  yard  where  the  pris- 
oner lay,  and  Gallagher  says,  that 
he  threw  the  pike  which  the  pris- 
oner had  over  the  wall.  .  .  . 

Gentlemen,  you  are  to  judge 
whether  the  person  whom  Gallagher 
first  saw,  was  the  same  person 
whom  he  saw  afterwards  in  the 
timber  yard  :  the  pursuit  was  made 
by  the  witness  over  the  timber  to 
the  wall,  and  in  consequence  of 
that  pursuit  some  person  was  seen. 
The  witness  called  out,  that  he  saw 
a  man  with  a  pike  —  that  he 
was  letting  it  fall,  was  diving  under 
the  timber ;  whether  the  witness 
could  be  so  inspired  as  to  pursue 
without  seeing  a  party  fly,  you 
are  to  judge ;  the  pursuit  and 
the  finding  of  a  man  seemed  to 
be  connected  with  the  preceding 
circumstance  of  seeing  a  man  run : 
the  officer  followed,  and  the  fact 
of  finding  the  prisoner  is  incon- 
trovertible. Gallagher  says,  he 
threw  the  pike  over  the  wall ;  in 
that  he  disagrees  with  lieutenant 
Coultman ;  whether  that  circum- 
stance did  not  draw  the  officer's 
attention,  if  it  happened,  or  whether 
it  escaped  his  observation,  will  be 
for  you  to  consider,  because  in  all 
cases  of  this  kind,  it  is  natural  to 
catch  at  every  circumstance  where 
there  is  even  an  apparent  contra- 
diction. But  I  am  l)ound  to  tell 
you  —  what  may  perhaps  occur  to 
you  yourselves  —  that  it  is  extremely 
possible,   that    a  witness    intending 


650 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  331. 


to  tell  the  whole  truth  upon  the 
subject  matter,  concerning  which 
several  witnesses  have  been  exam- 
ined, may  differ  in  collateral  points, 
which  are  not  essential,  and  do  not 
bear  upon  the  main  subject  of  in- 
quiry. But  still,  if  the  witnesses 
do  differ,  it  is  a  matter  which  ought 
to  be  taken  into  consideration. 
.  .  .  There  is  a  variance,  marking 
the  fallibility  and  a  defect  of  memory 
in  one  witness  or  the  other,  and  .if 
such  incorrectness  appears,  even 
in  collateral  points,  as  would  induce 
you  to  doubt  that  part  which  is 
essential,  undoubtedly  it  Vill  weigh 
much  in  the  conclusion  that  you 
shall  form.  But  if  it  arise  from 
equivocation  in  either  witness,  it 
bears  close  affinity  to  deliberate 
falsehood,  and  it  ought  to  go  strongly 
against  the  credit  of  the  witness. 
You  will  consider,  however,  whether 
this  difference  between  the  witnesses 
arose  from  a  different  view  of  the 
transaction,  in  a  matter  that  seemed 


not  essential  to  the  case  of  the 
prisoner,  and  by  no  means  illustrative 
of  innocence  or  guilt,  and  whether 
from  a  frail  recollection  by  one  wit- 
ness, and  a  clear  recollection  in  the 
other ;  or  whether  there  was  inten- 
tional falsehood  in  either.  There 
are  \arious  gradations  in  accuracy 
of  account  and  consistency  of  detail, 
from  whence  you  are  to  draw  the  in- 
ference as  to  the  intention  of  the 
witnesses  and  the  degree  of  credit 
their  evidence  should  have. 

It  is  for  you  to  judge  upon  all 
the  circumstances  of  the  case ;  but 
the  most  important  fact  for  you  to 
determine  is,  whether  the  prisoner 
was  armed  with  a  pike,  in  further- 
ance of  the  treason  charged  upon 
him.  .  .  . 

The  jury  retired,  and  after  de- 
liberating for  twenty-five  minutes^ 
returned  a  verdict  of  guilty ;  at 
the  same  time  recommending  him 
to  mercy,  on  account  of  the  charac- 
ter given  of  him  by  his  employer. 


331.  Richard  Harris.  Hinis  on  Advocacy.  (Amer.  ed.  1892.  p.  55.) 
A  witness  whose  evidence  is  untrue  must  lie  with  wonderful  skill  if  he  go 
through  even  his  examination-in-chief  without  betraying  himself.  He  is, 
I  think,  the  easiest  of  all  to  dispose  of,  and  once  discovered  to  the  jury  in 
his  true  character  will  do  more  harm  to  a  cause  than  half  a  dozen  truthful 
witnesses  will  undo.  The  greatest  instances  in  modern  times  of  this  class 
of  witness  were  the  notorious  Tichborne  claimant  and  his  supporter  Luie. 
It  was  wonderful  how  Orton  told  the  story  of  the  wreck,  of  his  ha^•ing  been 
rescued  and  conveyed  to  Australia,  of  his  life  in  the  bush,  of  his  return  and 
his  recognition  by  persons  who  had  known  the  real  heir  to  the  baronetcy. 
There  was,  doubtless,  falsehood  stamped  unmistakably  upon  the  whole 
story,  l)ut  what  gave  it  the  appearance  of  truth  which  it  presented  to  some 
minds  was,  not  the  probability  of  any  part  of  it,  but  the  improbability  that 
so  ignorant  a  man  could  so  skillfully  have  constructed  so  wonderful  a  story  ; 
that  it  should  not  have  broken  down  by  its  own  inherent  weakness  even 
while  being  narrated  in  chief  to  the  jury.  We  know  as  a  fact  that  it  did 
not,  and  it  tlicrcfore  follows  that  a  tissue  of  lies  may  support  itself  before  a 
tribunal  constituted  for  the  purpose  of  eliciting  the  truth.  I^ven  after  he 
had  been  <liscovered  and  exposed  as  an  impostor,  there  were  thousands 
who  believed  his  story,  and  believe  it  to  this  (hiy.  A  lying  witness,  there- 
fore, is  not  always  to  l)e  disposed  of  by  a  fiourish  of  the  hand.  In  most 
cases,  if  you  have  had  any  experience,  you  will  be  able  to  refute  his  state- 
ments by  his  own  lips. 

The  witness  comes  up  with  a  well-concocted  story,  and  tells  it  glibly 
enough.     Now  you  arc  well  aware  that  events  in  this  world  take  place  in 


No.  331.       III.      TESTIMONIAL    IXTERPRETATION.       B.    COMMON    INCIDENTS      651 

connection  with  or  in  relation  to  other  events.  An  isolated  event  is  impos- 
sible. The  story  he  tells  is  made  up  of  facts  which,  if  true,  fit  in  with  a 
great  many  other  facts,  and  could  not  have  happened  without  causing  other 
facts  or  influencing  them.  If  his  story  be  untrue,  the  matters  he  speaks  of 
will  not  fit  in  with  surrounding  circumstances  in  all  their  details,  however 
skillful  the  arrangement  may  he.  The  multitude  of  surrounding  circum- 
stances will  all  fit  in  with  a  true  story,  because  that  is  part  and  parcel  of 
those  circumstances  carved  out  from  them,  no  matter  how  extraordinary  it 
may  seem ;  just  as  the  oddest  shaped  stone  you  could  cut  from  the  quarry 
would  fit  in  again  to  the  place  whence  it  was  taken.  It  is  therefore  to  the 
rock,  of  which  it  once  formed  a  part,  that  you  must  go  to  see  if  the  block 
presented  be  genuine  or  false.  You  must,  in  other  words,  go  to  the  sur- 
rounding circumstances.  The  witness,  however  clever  he  may  be,  cannot  pre- 
pare himself  for  questions  which  he  has  no  conception  will  be  put  to  him,  and 
if  you  test  his  imaginary  events  by  comparing- them  with  real  events,  you  will 
find  the  real  and  the  false  could  not  exist  in  their  entirety,  there  must  be  a 
displacement  of  facts  which  have  actually  occurred,  which  is  impossible. 

Will  a  lying  story  fit  in  ?  It  is  certain  it  will  not ;  but  it  may  not  be 
possible  to  obtain  an  accurate  view  of  the  surrounding  circumstances  — 
that  is  the  principal  difficulty.  But  you  may  almost  always  get  at  some  of 
them,  and  these,  however  few,  will  answer  your  purpose.  Did  the  Claim- 
ant go  to  Wapping?  Did  he  know  the  houses  of  the  neighborhood,  and 
the  names  and  trades  of  the  respective  owners  ?  If  he  did,  who  was  the 
Claimant  ?  Orton  telling  the  story  of  himself  would  tell  a  true  story,  and 
all  the  surrounding  circumstances  would  fit  in  and  form  with  it  a  complete 
whole.  But  when  he  says,  I  am  Tichborne,  he  places  there  a  man  who 
from  his  position  in  life  and  mode  of  bringing  up  could  not  possibly  have 
been  acquainted  with  the  minute  details  concerning  the  families  of  Wapping 
and  its  neighborhood.  Transpose  the  men,  and  you  then  have  one  whose 
antecedents  just  qualified  him  for  possessing  that  knowledge  which  he  dis- 
played of  the  minute  particulars  of  past  events  and  persons,  and  which  no 
one  in  any  other  situation  of  life  could  possess. 

In  cross-examining  such  a  witness,  or  a  witness  who  lies,  you  must  therefore 
apply  the  test  of  surrounding  circumstances,  and  compare  his  testimony 
with  that  of  other  witnesses.  The  latter  will  be  the  severest  and  the  surest 
test  if  you  apply  it  to  the  smaller  details.  It  need  hardly  be  said,  that  the 
greater  the  number  of  witnesses  to  prove  a  concocted  story  the  greater  the 
certainty  of  exposure  by  a  skillful  cross-examiner.  The  main  facts  of  a 
story  may  be  so  contrived  as  to  be  spoken  to  by  all  the  witnesses  ;  but  they 
cannot  agree  upon  details  which  never  occurred  to  them,  or  concoct  answers 
to  questions  which  they  have  no  conception  of. 

It  was  the  great  complaint  of  Brougham  in  Queen  Caroline's  trial,  that 
the  story  was  so  well  concocted  that  two  witnesses  were  never  called  upon 
one  important  fact.  This,  of  course,  was  contrived  so  that  there  should 
be  no  possibility  of  contradiction.  It  is  not  difficult,  if  there  are  several 
witnesses  telling  an  untrue  story,  to  break  them  down  in  cross-examination  ; 
and  one  of  the  best  instances  I  have  met  with  is  that  narrated  in  the  story 
of  Susannah  and  the  elders.  This  example  of  cross-examination  further 
shows  how  necessary  it  is  that  the  other  witnesses  should  "be  out  of  court" 
while  one  is  under  examination. 


652  PART    II.      TESTIMONIAL    EVIDENCE  No.  331. 

It  is  when  you  have  to  deal  with  an  untruthful  witness  who  speaks  only 
to  one  set  of  facts,  antl  stands  alone  with  regard  to  that  evidence,  tJiat 
your  skill  is  put  to  the  test.     How  are  you  to  shake  his  testimony  ? 

You  must  proceed  to  test  him  by  surrounding  circumstances,  leading  the 
witness  on  and  on,  until,  encouraged  by  his  apparent  success,  he  will  soon 
tell  more  than  he  can  reconcile,  either  with  fact  or  with  the  imagination  of  the 
jury.  At  a  trial  at  Warwick  some  years  ago  a  remarkably  well-planned 
alibi  was  set  up.  The  charge  against  the  prisoner  was  burglary.  An  Irish 
witness  was  called  for  the  defense,  and  stated  that  at  the  time  the  burglary 
was  committed  the  prisoner  was  with  him  and  four  or  five  other  persons 
some  miles  from  the  scene  of  the  crime.  The  time,  of  course,  was  a  material 
element  in  the  case,  and  the  witness  was  asked  how  he  fixed  the  exact  time. 
He  said  there  was  a  clock  in  the  room  where  he  and  the  prisoner  were,  and 
that  he  looked  at  it  when  they  went  in  and  when  they  left.  He  was  theii 
told  to  look  at  the  clock  in  court  and  say  what  time  it  was.  The  witness 
stared  vacantly  for  a  considerable  time,  and  then  said  it  was  "  such  a  rum  'un 
he  couldn't  tell."  "Can't  you  tell  a  clock?"  "Shure,  sor,  I  can't  tell 
that  'un!"  \Vhat  was  still  more  strange,  the  same  question  was  put  to 
every  witness,  and  there  was  only  one  out  of  some  six  persons  w^ho  could 
tell  what  o'clock  it  was.  And  yet  they  all  swore  to  the  exact  time  deposed 
to  by  the  first  witness,  and  repeated  the  answer  as  to  how  they  knew  it. 
Of  course  the  alibi  totally  broke  down,  and  the  prisoner  was  convicted. 

I  come  now  to  a  subject  which  has  always  been  considered,  in  criminal 
cases  especially,  one  of  the  most  difficult  tasks  that  presents  itself  to  the 
cross-examiner.  It  is  that  which  is  known  under  the  title  of  &  false  alibi; 
that  is,  where  an  alibi  is  set  up,  and  every  fact  is  true  except  the  date.  It 
has  been  said  that  you  cannot  break  down  an  alibi  of  this  kind.  That,  I 
think,  is  an  erroneous  idea :  and  although  it  is  a  difficult  task,  I  believe,  in 
the  majority  of  cases,  it  can  be  accomplished.  A  false  alibi  may  be  described 
in  this  way :  A  has  committed  a  burglary,  say,  betw^een  the  hours  of  eleven 
and  twelve  on  a  particidar  night.  B,  C  and  D  are  resolved  to  secure  his 
acquittal,  and  undertake  to  prove  that,  at  the  time  mentioned,  the  prisoner 
was  in  their  company  ten  miles  away  from  the  scene  of  the  crime.  If  this 
be  proved,  and  the  witnesses  withstand  the  cross-examination,  they  will 
succeed. 

They  know  that  they  will  be  cross-examined  apart  as  to  the  main  events 
of  their  meeting  as  well  as  the  minor  circumstances  —  the  time  they  started, 
the  road  they  took,  where  they  stopped,  what  refreshments  they  had,  how 
they  were  employed,  and  even  the  relative  position  each  individual  occupied 
with  regard  to  his  companions.  If  the  meeting  were  altogether  imaginary, 
nothing  would  be  more  easy  than  to  demoli.sh  the  whole  story.  But  if  A, 
B,  ('  and  I)  went  on  some  other  day  for  the  purpose  of  subsequently  describ- 
ing their  proceedings,  each  would  be  ai)le  to  stand  against  the  most  subtle 
cro.ss-examination  that  could  be  administered,  as  to  the  circumstances  of 
their  meeting.  .Ml  would  be  true,  and  the  more  they  were  cross-examined 
the  more  clearly  the  truth  wouKI  appear.  The  only  thing  they  would  have 
tf)  make  up  their  minds  upon  and  remember  would  be  that  it  occurred  upon 
the  night  of  the  burglary.  This  was  doubtless  an  ingenious  device,  and 
must  have  succeeded  for  a  considerable  time.  It  must  have  been  exposed, 
however,  on  the  first  occasion,  when  it  was  discovered  that  the  events  were 


No.  331.       III.      TESTIMONIAL    INTERPRETATION,       B.    COMMON    INCIDENTS       653 

all  true,  and  yet  the  pri.soner  was  guilty.  It  could  be  capal)le  of  one  ex- 
planation only.  Now  comes  the  question,  "  How  is  such  an  alibi  to  be 
broken  down?"  The  time-worn  questions,  such  as,  "Where  were  you  the 
day  before?  The  day  after?"  and  so  on,  are  obviously  too  weak  as  well 
as  too  clumsy  to  succeed.  It  cannot  be  doubted  that  there  must  be  a  way 
to  break  down  such  an  alibi,  but  up  to  the  present  time  no  one  seems  to  have 
formed  any  scientific  mode  of  proceeding,  although  the  best  cross-examiners 
have  furnished  portions  of  a  system  which  I  have  endeavored  to  piece 
together. 

In  the  first  place  it  must  be  ascertained  whether  the  alibi  be  true  or  false 
(a  very  different  thing  from  proving  it  to  be  one  or  the  other),  and  this  will 
be  easily  accomplished  by  a  skillful  advocate  in  three  or  four  ciuestions,  for 
as  spurious  metal  answers  to  the  test,  so  a  fictitious  story  will  discover  its 
nature  to  a  good  cross-examiner.  Having  satisfied  yourself  on  this  point, 
the  next  cjuestion  and  the  only  one  will  be  how  to  break  down  the  witnesses 
as  to  datcf  As  all  the  incidents  deposed  to  actually  occurred,  cross-examina- 
tion as  to  them  will  be  not  only  a  waste  of  time,  but  will  tend,  as  before 
observed,  to  prove  their  truth.  You  must,  consequently,  proceed  to  the 
incidents  which  are  outside  the  witness'  story. 

If  I  take  an  absolutely  obvious  example  by  way  of  illustration,  it  will 
probal)ly  be  more  useful  than  any  attempt  to  define  a  theory  by  reasoning. 
I  will  suppose,  then,  the  burglary  to  have  been  committed  on  the  Thursday 
immediately  preceding  Good  Friday,  in  a  country  village,  and  that  the  meet- 
ing for  the  purpose  of  concocting  the  alibi  took  place  on  Good  Friday.  The 
witnesses  will  have  come  prepared  to  speak  of  the  incidents  of  that  meeting. 
They  will  surmise  that,  in  all  probability,  they  will  be  asked,  because  it  is 
a  common  and,  as  it  seems  to  me,  a  clumsy  question,  "Where  were  you  the 
day  before?"  and,  "When  were  you  with  the  prisoner  before  that?" 
These  questions  and  many  others  of  a  similar  kind  are  as  familiar  to  the  class 
of  persons  now  referred  to  as  they  are  to  the  counsel  asking  them.  "I 
knowed  what  he  was  going  to  arx,"  says  one  —  "allays  axes  where  you  was 
the  day  afore."  They  are  obvious,  every-day,  stereotyped  questions,  and 
the  witnesses  come  prepared  to  answer  them  accordingly. 

But  suppose  you  take  him  entirely  out  of  the  circumstances,  and  ask 
something  which  he  does  not  anticipate.  In  the  first  place,  he  will  be  afraid 
to  answer,  for  fear  you  are  laying  a  trap,  and  the  more  the  question  is  un- 
connected with  the  circumstances  of  the  case,  the  greater  will  be  his  alarm. 
Follow  that  up  by  another  and  another  alike  incomprehensible  to  his  baffled 
mind,  and  then  ask  him  where  he  was  in  the  morning.  That  is  quite  far 
enough  from  the  time  he  has  deposed  to  to  set  him  wondering  what  it  has 
to  do  with  eleven  o'clock  at  night.  As  he  cannot  guess  your  meaning  he 
will  be  puzzled  what  answer  to  return,  and  as  he  will  be  afraid,  on  the  spur 
of  the  moment,  to  attempt  to  invent  a  story,  and  may  not  be  ingenious 
enough  to  do  so,  he  will  probably  tell  the  truth.  Having  got  thus  far,  you 
start  with  a  fact.  By  the  same  process  you  may  get  another  and  another 
fact.  He  will  be  drawn  on  to  give  you  facts,  because  he  does  not  know  what 
answers  his  companions  may  give.  He  will  feel  sure  that  you  will  put  the 
same  questions  to  them.  Presently,  you  may  get  from  him,  if  a  little  caution 
and  skill  be  used,  what  people  he  met,  and  where  and  at  what  time  —  what 
they  did  and  where  they  went.     He  has  not  come,  by  any  means,  prepared 


C54  PART    II.      TESTIMONIAL    EVIDENCE  No.  331 

to  set  up  a  dozen  olihis  at  once  —  some  for  himself  and  some  for  his  friends 
—  so  he  must  necessarily  become  confused,  and  as  he  will  tell  the  truth  and 
lie  at  the  same  time,  you  will  find  him  pretty  much  at  your  mercy.  It  may 
be  that  he  saw  several  people  on  that  morning,  and  he  may  place  so  many 
of  them  together,  by  a  little  gentle  humoring,  that  you  may,  at  least,  safely 
put  the  question,  "  Were  not  the  people  coming  out  of  church  ?  "  Outwitted, 
the  rogue  will  smile  and  say  no,  it  was  Thursday  !  but  the  effect  of  this,  if 
done  with  tact,  will  utterly  destroy  the  whole  story.  The  jury  will  readily 
accept  the  suggestion  which,  indeed,  you  maybe  able  to  prove  by  independ- 
ent testimony  —  that  ihr  day  he  is  speaking  of  must,  from  the  incidents  you 
hare  drawn  from  him,  have  been  Good  Friday,  and  not  the  preceding  Thursday. 

But  you  will  not  rest  there  :  at  present  you  have  only  gone  a  little  portion 
of  the  way.  The  next  witness  will  fall  into  the  same  blunder,  and  may  add 
another  minute  fact  to  the  particles  of  evidence.  Suppose  Thursday  was 
a  fine  and  Friday  a  wet  day.  Here  is  a  field  for  the  exercise  of  ingenuity 
which  counsel  should  hail  with  delight ;  and  he  ought  not  to  sit  down  till 
he  has  proved  from  the  witness  that  the  day  he  and  his  companions  were 
together  was  a  wet  day.  .  .  .  You  would  not  be  weak  enough  to  let  him  suspect 
that  you  were  cross-examining  for  a  rainy  day,  otherwise  you  would  fail ; 
it  is  only  by  keeping  him  in  the  dark  that  you  can  succeed.  His  mind  will 
])e  working  intensely  the  whole  time  you  are  questioning  him,  and  as  his 
great  object  will  be  to  find  out  what  you  are  aiming  at,  yours  must  be  to 
conceal  it.  As  a  policeman  once  said  of  an  eminent  friend  of  mine  on  the 
Midland  circuit,  "He's  a  good  cross-examiner,  sir,  he  never  lets  you  know 
what  he's  driving  at." 

If  you  succeed  in  getting  from  these  two  witnesses  an  incident,  however 
small,  that  even  tends  to  show  that  the  meeting  took  place  on  Friday  you 
will  have  almost  demolished  the  alibi.  But  C  comes  into  the  box,  and  may 
by  a  stretch  of  memory  recollect  for  whom  he  worked  at  the  time  and  what 
particular  work  he  was  engaged  upon  :  and  it  might  possibly  have  happened 
that  some  portion  of  the  machinery  broke  on  that  particular  morning. 
Nothing  outside  the  case  is  too  trivial  if  it  throw  but  the  faintest  gleam  upon 
it.  If  he  answers  flippantly  he  will  be  caught  in  two  or  three  questions 
without  much  difficulty.  If  he  answers  overcautiously  he  will  betray  him- 
self by  his  demeanor,  and  you  may  follow  him  up  and  give  him  line  like  a 
pike  that  has  taken  the  bait.  But  if  no  work  was  done  and  no  machinery 
brr)ken,  you  will  still  be  able  to  find  out  his  habits,  his  mode  of  living,  and  his 
surroundings,  and  it  will  be  strange  if  from  all  these  you  do  not  lay  hold  of 
some  event  which  will  be  shown  by  its  connection  with  some  other  event  to 
have  happened  on  the  latter  and  not  the  former  of  the  days  in  question. 
The  smallest  incident  may  be  linked  to  a  greater,  which  may  be  either  patent  of 
itself  or  notorious  as  to  the  day  of  the  week  on  which  it  took  place.  Other 
witnesses  may  be  dealt  with  in  like  manner,  7wne  of  them,  being  cross-exam- 
ined to  the  same  facts  unless  for  the  purpose  of  contradiction,  but  all  of  them 
questioned  as  to  incidents  which,  small  though  they  be,  will  in  their  united 
strength  destroy  the  alibi  altogether. 

On  the  other  hand,  an  honest  case  is  sometimes  spoiled  by  just  such  dis- 
crepancies, which  give  tlie  impression  that  the  witnesses  are  wrong  on  some 
of  the  more  vital  facts.  It  is  extremely  important  that  you  should  not  try 
to  prove  too  much,  or  you  may  in  cons(>quence  prove  too  little.     "0\erlay- 


No.  331.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS       655 

ing  the  case,"  as  it  is  called,  is  a  dangerous  proceeding.  It  is  like  taking  a 
feather-bed,  bolster,  and  two  pillows  to  smother  a  mouse  with,  when  the 
feather-bed  would  be  amply  sufficient  if  well  applied.  A  number  of  wit- 
nesses cannot  agree  on  all  points ;  I  do  not  mean  in  words,  because  that 
would  at  once  damn  their  evidence,  but  I  mean  as  to  facts  themselves ;  and 
if  you  call  a  number  of  witnesses,  the  chances  are  that  you  will  call  a  number 
of  contradictions,  and  the  moment  you  get  one  witness  to  contradict  another 
upon  any  point  how  little  material  soever,  if  it  be  material,  the  jury,  as  a 
rule,  will  determine  that  portion  of  the  evidence  in  favor  of  the  accused, 
unless  other  circumstances  lead  them  to  a  different  conclusion.  You  will 
have  given  him  already  the  benefit  of  one  doubt. 

...  I  may  here  mention  (with  all  reverence)  one  great  prosecuting  institu- 
tion which  is  very  apt  to  overlay  its  infants,  and  that  is  The  Crown.  I  remem- 
ber one  very  important  case  in  which  the  Crown  was  cruelly  hoodwinked, 
and  I  have  always  had  a  feeling  of  deep  sympathy  with  the  Crown  ever 
since.  It  was  a  case  of  murder.  A  very  bad  case.  Horribly  l^rutal.  The 
public  was  shocked  and  intensely  interested  throughout  the  length  and 
breadth  of  the  land.  It  was  a  murder  that  ranks  among  the  great  murders 
of  the  world.  In  consequence  whereof  there  was  more  bungling  among  the 
police,  and  more  conflict  among  police  authorities  than  usual.  .  .  .  The 
"proofs"  came  thick  and  fast  you  may  be  sure;  almost  everybody 
had  a  "proof."  The  whole  country  .seemed  to  have  been  called  from  its 
avocations  to  see  the  murder  done.  The  prisoner  was  seen  here  and  seen 
there ;  he  was  buying  in  this  shop  and  visiting  in  that ;  he  was  singing  in 
one  place  and  dancing  in  another ;  courting  in  one  lonely  spot  and  murdering 
in  another.  There  never  were  so  many  "clews"  to  a  single  crime.  At 
last  the  perpetrator  of  one  horrible  murder,  at  all  events,  to  the  satisfaction 
of  one  section  of  the  police,  would  be  brought  to  justice.  It  would  make  up 
for  many  undiscovered  and  thrilling  crimes.  Let  no  one  henceforth  say  the 
police  cannot  "find  out  anything."  Into  the  office  where  they  take  the 
evidence,  or  "proofs,"  there  stepped  witness  after  witness  —  scores  of  wit- 
nesses. Evidence  was  taken  down,  sifted,  weighed,  measured,  as  it  might 
have  been  by  the  yard ;  and  there  stepped  in  among  the  crowd  one  or  two 
of  the  simplest-looking,  "  innocentest"  looking  young  men  that  could  be 
found  in  all  London,  and  an  innocent  looking  woman  or  two,  if  I  remember 
rightly.  Now,  the  Crown  being  incapable  of  doing  any  wrong,  is  equally 
incapable  of  thinking  any  evil ;  so  it  thought  no  evil  of  these  interesting 
witnesses,  who  gave  their  story  with  solemn  faces,  and  .  went  away  with 
proper  subpoenas  in  their  pockets,  proper  Crown  Office  subpoenas. 

The  trial  came  on,  as,  after  so  much  elaborate  preparation,  it  w^as  only 
proper  that  it  should ;  and  the  evidence  looked  uncommonly  black  against 
the  unhappy  prisoner.  An  anxious  and  highly  sensational  public  watched 
for  justice  to  be  avenged.  But  it  was  curious  that  amid  the  Crown  witnesses, 
interspersed,  were  witnesses  who  made  some  matters  deposed  to  impossible, 
who  undid  fastenings  and  knocked  the  heads  off  several  of  the  Government 
rivets ;  in  fact,  who  seemed  altogether  to  upset  the  elaborately  constructed 
evidence  of  the  prosecution.  Crown  became  confused,  looked  at  the  notes 
taken  down  at  the  institution,  compared  them  with  the  evidence  in  court 
to-day,  questioned  the  witnesses  —  no  use,  there  were  contradictions,  ir- 
reconcilable disagreements,  all  in  favor  of  the  prisoner.     Dates  were  wrong ; 


<356  PART    II.      TESTIMONIAL    EVIDENCE  >-'o-  332. 

prisoner  was  in  two  or  three  places  at  once.  And  so  it  went  on,  until  the 
judge  summed  up.  The  judge  did  not  reconcile  the  discrepancies  —  could 
not,  in  fact ;  jury  never  attempted  to.  So  the  man  was  acquitted.  Evi- 
dence not  sufficient  because  too  much. 

332.  James  R.\m.  Oh  Fach  a.s  Subjcct.s-  of  Inquiry  by  a  Jury.  (3d  x\mer.  ed. 
1873.  p.  193.)  A  question  of  credit  often  arises  on  different,  or  contradictory, 
evidence  given  by  two  witnesses.  When  two  persons  have  been  present 
when  a  fact  took  place,  when  something  was  heard  or  seen,  and  each  gives 
an  account  of  the  fact,  their  stories  sometimes  quite,  or  at  least  very  nearly, 
agree.  But  at  other  times  it  is  found  that  the  account  which  one  gives  of 
the  fact,  or  if  not  of  the  fact  itself,  the  main  fact,  yet  of  some  accompanying 
circumstance,  differs  much  from  the  account  given  by  the  other.  A  dis- 
crepancy of  this  kind  necessarily  raises  a  question  of  credit ;  and  this  whether 
the  witnesses  are  honest  or  dishonest. 

Assuming  that  each  of  the  two  is  an  honest  witness,  the  disagreement  in 
their  accounts  is  to  be  sought  for  in  each  one's  perception  of  the  thing  seen  or 
heard,  the  impression  it  made  on  him,  and  his  remembrance  of  it.  From 
inattention,  interruption,  a  less  acute  sense  of  hearing  or  sight,  distance  from 
the  sound  or  object  heard  or  seen,  or  from  some  other  cause,  one  may  not 
have  had  the  same  perception  or  impression  which  the  other  had  of  the  par- 
ticular thing  ;  or  the  memory  of  the  one  may  be  better  than  that  of  the  other. 

It  may  happen  that  when  one  persqn  does  one  thing,  and  another  another, 
each  may  think  and  say  he  did  that  which  the  other  did.  Here  each  is 
mistaken,  l)ut  his  mistake  need  not  at  all  affect  his  credit.  On  the  same  trial 
of  Frost,  part  of  the  evidence  for  the  Crown  was  that  a  large  and  armed  mob 
had  assembled  in  front  of  an  inn,  in  which  soldiers  were  placed,  the  soldiers 
being  in  a  room  looking  toward  the  front,  and  having  in  it  one  projecting 
window,  namely,  a  l)ow  with  three  windows,  one  of  which,  that  nearest  to 
the  passage  or  entrance  to  the  inn,  being,  to  a  person  in  the  room,  and  looking 
toward  the  projecting  window,  on  the  left  of  the  middle  of  the  three  windows. 
The  lower  half  of  the  shutters  of  each  of  the  three  windows  was  closed ; 
and  it  becoming  necessary,  for  the  purpose  of  firing  on  the  mob,  to  open  the 
shutters,  they  were  opened  by  Phillips  and  Gray,  witnesses  on  the  trial.  On 
the  fact  that  the  shutters  were  opened,  Phillips  and  Gray  agreed  in  their 
evidence ;  but  they  differed  in  their  evidence  of  the  person  who  opened  the 
shutters  of  the  left-hand  window  and  those  of  the  middle  window.  Phillips 
said  that  he  opened  the  shutters  of  the  window  on  the  left,  and  that  Gray 
opened  the  shutters  of  the  middle  window.  On  the  contrary,  Gray  said 
that  he  opened  the  shutters  of  the  window  on  the  left,  and  that  Phillips  opened 
the  shutters  of  the  middle  window.  Lord  Chief  Justice  Tindal  told  the 
jury  the  point  was  perfectly  immaterial,  unless  the  variance  and  discrepancy 
between  the  witnesses  was  of  such  a  nature  as  to  impair  their  confidence  in 
the  one  or  the  other.' 

Also,  wlicn  a  thing  is  done  by  one  person,  and  the  like  may  be  done  by 
another,  ;ui<l  each  of  two  persons  thinks  and  says  he  did  a  something,  which 
may  corresjjond  either  with  the  thing  first  mentioned,  or  with  that  like  it, 
it  will  not  follow  that  the  two  persons  mean  the  same  thing;  and  there  may 
consequently  be  no  contradiction  between  them,  and  their  credit  may  be  in 

»  Fro.st's  Trial  (taken  by  Gurney),  pp.  238,  248,  249,  707. 


No.  333.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      657 

no  wi33  affected  by  what  they  say.  On  the  same  trial  of  Frost,  the  two  wit- 
nesses, PhilHps  and  Gray,  agreed  so  far  that  the  soldiers  were  ordered  to 
load ;  and  Phillips  said  he  ordered  them,  and  Gray  said  he  did.  "  It  is 
possible,"  said  the  Lord  Chief  Justice  Tindal,  "that  both  might  have  done 
it,  and  that  Gray  did  not  hear  the  order  given  by  Phillips.  It  is  very  im- 
material to  the  main  question,  because  such  discrepancies  as  this  may  exist 
very  well  between  witnesses,  without  at  all  breaking  in  upon  the  weight  due 
to  the  testimony  of  each."  ^ 

"I  know  not,"  says  Paley,  "a  more  rash  or  unphilosophical  conduct  of 
the  understanding,  than  to  reject  the  substance  of  a  story,  by  reason  of 
some  diversity  in  the  circumstances  with  which  it  is  related.  The  usual 
character  of  human  testimony  is  substantial  truth  under  circumstantial 
variety.  This  is  what  the  daily  experience  of  courts  of  justice  teaches. 
When  accounts  of  a  transaction  come  from  the  mouths  of  different  witnesses, 
it  is  seldom  that  it  is  not  possible  to  pick  out  apparent  or  real  inconsistencies 
between  them.  These  inconsistencies  are  studiously  displayed  by  an  adverse 
pleader,  but  oftentimes  with  little  impression  upon  the  minds  of  the  judges. 
On  the  contrary,  a  close  and  minute  agreement  induces  the  suspicion  of 
confederacy  and  fraud.  When  written  histories  touch  upon  the  same  scenes 
of  action,  the  comparison  almost  always  affords  ground  for  a  like  reflection. 
Numerous,  and  sometimes  important,  variations  present  themselves ;  not 
seldom  also  absolute  and  final  contradictions ;  yet  neither  one  nor  the  other 
are  deemed  sufficient  to  shake  the  credibility  of  the  main  fact.  The  em- 
bassy of  the  Jews  to  deprecate  the  execution  of  Claudian's  order  to  place 
his  statue  in  their  temple,  Philo  places  in  harvest,  Josephus  in  seed-time ; 
both  contemporary  writers.  No  reader  is  led  by  this  inconsistency  to  doubt 
whether  such  an  embassy  was  sent,  or  whether  such  an  order  was  given. 
Our  own  history  supplies  examples  of  the  same  kind.  In  the  account  of 
the  Marquis  of  Argyle's  death,  in  the  reign  of  Charles  the  Second,  we  have  a 
very  remarkable  contradiction.  Lord  Clarendon  relates  that  he  was  con- 
demned to  be  hanged,  which  was  performed  the  same  day  ;  on  the  contrary, 
Burnet,  Woodrow,  Heath,  Echard,  concur  in  stating  that  he  was  beheaded ; 
and  that  he  was  condemned  upon  the  Saturday,  and  executed  upon  the  Mon- 
day. Was  any  reader  of  English  history  ever  skeptic  enough  to  raise  from 
hence  a  question,  whether  the  Marquis  of  Argyle  was  executed  or  not?"^ 

333.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)^ 
Sequestration  of  Witnesses.  The  probative  service  rendered  by  this  ex- 
pedient is  somewhat  different  according  as  the  witnesses  separated  are 
called  for  opposing  parties  or  for  the  same  parties. 

(1)  If  the  hearing  of  an  opposing  loitness  were  permitted,  the  listening  wit- 
ness could  thus  ascertain  the  precise  points  of  difference  between  their  testi- 
monies, and  could  shape  his  own  testimony  to  better  advantage  for  his  cause. 
The  process  of  separation,  then,  is  here  purely  preventive  ;  i.e.  it  is  designed, 
like  the  rule  against  leading  questions,  to  deprive  the  witness  of  suggestions 
as  to  the  false  shaping  of  his  testimony. 

(2)  But  the  separation  of  witnesses  on  the  same  side  may  do  something 

1  Frost's  Trial  (taken  by  Gurney),  pp.  2.37,  248,  251,  707. 

2  Paley's  Evidences  of  Christianity,  part  iii,chap.  i. 

^  [Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     Vol.  Ill,  §  1838.)] 


65S  PART    II.       TESTIMONIAL    EVIDENCE  No.  333. 

more  than  this.  It  is  equally  preventive,  in  that  it  deprives  the  later  wit- 
ness of  the  opportunity  of  shaping  his  testimony  to  correspond  with  that  of 
the  earlier  one.  But  it  is,  additionally,  detective  in  its  effects  ;  i.e.  it  exposes 
their  difference  of  statement  on  points  on  which,  had  they  truly  spoken, 
they  must  ha\e  made  identical  statements.  This  variance  of  statements  is 
the  siirnificant  achie\ement  of  the  witnesses'  separation,  and  seems  to  rest  for 
its  probative  cogency  on  two  salient  circumstances,  namely,  (o)  that  the  wit- 
nesses speak  upon  the  same  side,  and  (b)  that  the  subject  of  their  statements 
is  the  details  of  a  single  occurrence,  (a)  The  first  circumstance  serves  to  re- 
move uncertainty,  by  fixing  unmistakably  upon  one  party's  case  the  whole 
burden  of  error.  Where  two  persons,  claiming  to  have  been  present  on  the 
same  occasion  with  equal  opportunities  of  obser\ation,  are  called  upon  oppo- 
site sides  and  contradict  each  other,  the  contradiction  does  not  of  itself 
establish  anything ;  it  may  indicate  that  one  of  the  two  is  falsifying,  but  it 
does  not  indicate  one  rather  than  the  other  as  the  falsifier ;  it  is  still  open  to 
either  side  to  claim  its  witness  as  the  truthful  one,  so  that  neither  side  is 
clearly  fixed  with  the  error  of  falsity.  But  where  both  speak  for  the  same 
party,  contradicting  each  other,  it  is  manifest  without  anything  further  that 
the  error  is  upon  that  particular  side ;  the  result  is  achieved  by  mere  com- 
parison of  statements,  without  the  necessity  of  first  granting  credit  to  an 
opposing  witness  and  without  any  of  the  troublesome  imcertainty  which 
arises  from  being  forced  to  weigh  their  respecti\e  credits,  (h)  The  second 
circumstance,  mentioned  above,  emphasizes  the  probability  of  a  downright 
manufacture  of  testimony.  The  truth  of  the  main  fact  is  put  forward  by 
the  party  as  confirmatively  established  by  the  harmony  of  their  joint  testi- 
mony ;  and,  where  two  persons  come  purporting  to  have  observed  the  same 
event  in  the  same  way,  the  details  of  that  fact,  necessarily  and  equally  open 
to  their  observation  at  the  same  time,  ought  to  produce  the  same  harmony 
of  impression,  and  therefore  of  testimony.  If,  then,  that  harmony  disap- 
pears upon  further  questioning  as  to  these  details,  one  of  two  inferences 
follows :  Either  (b)  there  is  an  honest  mistake,  in  obser\ation  or  in  memory 
on  the  part  of  one  ;  but  the  former  is  less  likely  to  the  extent  that  the  one  fact 
was  necessarily  connected  in  observation  with  the  other,  and  the  latter  is  al- 
most impossible  where  (as  is  usual)  the  statements  are  positive,  and  therefore 
mere  failure  of  memory  does  not  ser\e  to  explain  ;  moreover,  even  an  honest 
mistake  as  to  details  shows  the  probability  of  a  mistake  on  the  main  fact. 
Or,  (bb)  there  is  a  collusive  arrangement,  or  a  deliberate  intention  by  one,  to 
testify  falsely  ;  for  if,  on  connected  matters  of  detail,  which  by  the  operation 
of  the  senses  ought  ecjually  to  have  produced  identical  impressions  and  there- 
fore identical  statements,  there  is  no  harmony,  then  the  apparent  harmony  of 
statement  on  the  princij)al  fact  can  be  explained  only  as  artificial  (i.e.)  as 
the  result  of  an  individual  plan  or  a  combination  to  manufacture  false  testi- 
mony. This  not  only  discredits  one  or  both  of  the  witnesses  in  all  their 
testimony,  but  also  throws  suspicion  on  the  entire  mass  of  evidence  of  that 
party,  if  this  fal)rication  l)y  the  witnesses  may  seem  to  have  been  known  to 
him.  More  concisely  and  less  accurately :  If  matters  A,  B,  C,  and  D 
must  have  happened  together,  then  a  disagreement  as  to  the  tenor  of  matters 
B,  C,  and  I),  by  witnesses  called  on  the  same  side  to  prove  A,  indicates 
prf)bable  perjury  by  one  or  more  as  to  A.  and  possible  subornation  of  per- 
jury by  the  party. 


No.  335.       III.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS       659 

The  weight  of  this  exposure  of  contrary  statements  is  of  course  diminished 
according  to  the  degree  of  possihiHty  of  honest  mistake,  which  in  turn  de- 
pends upon  the  necessariness  of  connection  l)etween  the  facts  testified  to  and 
upon  the  extent  to  which  one  or  more  of  the  witnesses  venture  positive  state- 
ments as  to  details.  Moreover,  the  expedient  is  not  invariably  successful 
even  where  perjury  does  exist,  because  either  a  concerted  working  out  of  false 
details,  or  a  cautious  failure  of  memory,  lieyond  the  circle  of  the  main  fact, 
may  sometimes  baffle  all  efforts  at  detection.  But  when  all  allowances  are 
made,  it  remains  true  that  the  expedient  of  sequestration  is  (next  to  cross- 
examination)  one  of  the  greatest  engines  that  the  skill  of  man  has  ever  in- 
vented for  the  detection  of  liars  in  a  court  of  justice.  Its  supreme  excellence 
consists  in  its  simplicity  and  (so  to  speak)  its  automatism ;  for,  while  cross- 
examination,  to  be  successful,  often  needs  the  rarest  skill,  and  is  always  full 
of  risk  to  its  very  employers,  sequestration  does  its  service  with  but  little 
aid  from  the  examiner,  and  can  never,  even  when  unsuccessful,  do  serious 
harm  to  those  who  have  invoked  it. 


Topic  5.     Contradictory  Testimony  by  Witnesses  on  Opposing  Sides ; 
and  Collateral  Error  in  General 


335.    ROBERT  HAWKINS'  TRIAL.     (G.  L.  Craik.     English  Causes 


CeU'hres.      1844.      p.  147.) 

[The  accused,  a  clergyman,  was 
charged  at  Aylesbury,  in  1668,  with 
robbing  one  Larimore  at  his  house 
on  a  certain  day.  Further  facts  are 
given  in  No.  207,  ante.  Larimore 
himself  was  the  only  witness  to  the 
alleged  robbery ;  he  described  it 
as  taking  place  on  the  afternoon  of 
Friday,  September  18,  when  he 
came  home  alone  to  his  house,  and 
found  the  accused  there.]  For  the 
defense  was  called.  .  .  . 

Mr.  Wilcox.  —  If  it  may  please 
your  Honor,  my  Lord,  upon  Friday 
the  18th  of  September,  1668,  I  was 
at  Larimore's  house  in  Chilton, 
from  noon  until  it  was  near  night, 
with  Larimore,  a  driving  of  some 
bargain  about  tiles  and  other  things  ; 
and,  my  Lord,  Mr.  Hawkins  was 
not  at  Larimore's  house  all  that 
afternoon,  nor  did  I  hear  anything 
at  all  then  that  Larimore  was 
robbed,  which,  my  Lord,  I  must 
needs  have  done  if  he  had  been 
robbed  that  afternoon  I  was 
there. 

L.  C.  B.  Hale.  — At  what  time 
came  you  to  Larimore's  house,  Mr. 
Wilcox  ?     Take  heed  what  you  say. 


Mr.  Tr7/co.r.  —  Before  noon,  my 
Lord. 

L.  C.  B.  —  Mr.  Wilcox,  how  long 
did  you  stay  thei-e  ?  Mr.  Wilcox. 
—  Until  it  was  near  night,  my  Lord. 

L.  C.  B.  —  Was  Larimore  with 
you  all  that  time  ?  Mr.  Wilcox.  — 
Yes,  my  Lord,  for  we  were  about  to 
bargain  for  some  tiles  and  other 
things. 

L.  C.  B.  —  Are  you  sure  that  it 
was  on  the  18th  of  September  that 
you  were  at  Larimore's  house  ? 
Mr.  Wilcox.  —  I  am  sure,  my  Lord, 
that  it  was  upon  the  18th  of  Sep- 
tember that  I  was  there,  and  the 
day  before  Mr.  Hawkins's  house 
was  broke  open. 

L.  C.  B.  —  What  day  of  the  week 
was  it  upon  ?  Mr.  Wilcox.  —  It 
was  upon  a  Friday,  my  Lord,  and 
Mr.  Hawkins'  house  was  broke 
open  on  the  next  day,  it  being 
Saturday. 

Lar.  —  It  was  upon  Thursday, 
my  Lord,  that  Mr.  Wilcox  was  at 
my  house,  it  was  not  upon  that  day 
that  my  house  was  robbed,  but  the 
day  before.  Sir  Ralph  Verney.  — 
No,  no,  Larimore,  it  could  not  be  on 


663 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  .336 


the  Thursday  that  Mr.  Wilcox  and 
you  were  together  at  your  house, 
for  that  wa.s  the  17th  day  of  Sep- 
tember, and  that  was  the  (hiy  you 
were  busied  in  fetching  yoiu'  warrant 
from  Sir  Richard  Pigott. 

L.  C.  B.  —  It  is  well  observed, 
sir,  and  so  he  was,  and  therefore  it 
could  not  be  on  the  Thursday  that 
Mr.  Wilcox  was  with  him  at  his 
hou.se. 

Sir  Richard  Pic/oft.  —  I  am  sure, 
my  Lord,  that  Larimore  and  that 
fellow,  the  constable,  were  both  at 
my  house  upon  the  17th  of  Septem- 
ber, as  my  warrant  testifieth. 

L.  C.  B.  —  Larimore,  do  not  vou 


remember  that  he  was  at  your  house 
on  Fridav,  the  18th  of  September, 
1668  ? 

Larimore.  —  Xo,  my  Lord,  sure 
it  was  not  upon  that  day  that  I  was 
robbed. 

L.  C.  B.  JlaJc.  —  Larimore,  no, 
in  my  conscience  thou  sayest  well, 
for  it  seems  you  were  not  robbed 
upon  the  same  day  that  you  have 
sworn  you  saw  the  prisoner  at  the 
bar  commit  this  robbery. 

Ilau'lc.  —  ]My  Lord,  nor  upon  any 
other  day  (as  I  do  verily  believe). 

And  here  many  of  the  people 
cried  out,  that  they  believed  as 
much. 


336.    SMYTH  v.  SMYTH.      (W 
Trials.      1873.      Vol.  L  p.  130.) 

[The  plaintiff  claimed  to  be 
Richard  Hugh  Smyth,  son  of  Sir 
Hugh  Smyth,  and  Jane  Vanden- 
bergh,  a  relative  of  Mrs.  Jane  Ber- 
nard, formerly  Jane  Gookin.  The 
plaintiff's  mother's  marriage  to  Sir 
Hugh  would  have  made  him  the 
heir  to  vast  estates.  He  claimed 
to  have  been  born  in  1798,  and  to 
have  been  placed  by  his  father  in 
another  family,  to  keep  secret  his 
relation  to  the  father's  family.  He 
lived  a  long  time  abroad.  On  his 
return  in  1826,  he  learned  of  his 
parentage.  He  produced  two  deeds 
of  testament,  .signed  and  sealed  by 
Sir  Hugh  Smyth,  purporting  to 
acknowledge  in  explicit  detail  all 
the  facts  of  his  mother's  marriage 
and  his  own  l)irth.  The  deeds  bore 
date  January  27,  1822,  and  Septem- 
ber 10,  1823.  They  had  not  come 
into  his  po.s.session,  however,  till 
1852  or  18o3. 

The  trial  in  ejectment  for  the 
estates  came  on  in  August,  1853. 
The  last  witness  was  the  claimant 
himself,  who  thus  continued.]  .  .  . 
"  I  was  gf)ingaway  from  my  father's 
house,  and  he  called  me  l)ack,  took 
me  upstairs  to  his  bedroom,  opened 
his  bureau  and  gave  me  the  Bible  and 
the  jewelry.  The  large  picture  said 
to  be  that  of  my  father  hung  in  the 


O.  WooDALL.      Reports  of  Celebrated 

room  below.  He  also  asked  me 
to  pledge  my  word  to  him  that  I 
would  follow  his  directions.  I  as- 
sured him  I  would.  He  then  gave 
into  my  hands  a  bundle  of  papers, 
sealed  up  with  directions  to  take 
them  to  Mr.  Phelps,  an  eminent 
solicitor,  at  Warminster.  I  then 
left  him,  and  never  saw  him  more. 
I  brought  the  Bible  and  jewelry 
away  without  opening  them.  That 
is  the  Bible  [produced],  and  this 
the  jewelry." 

Much  interest  was  caused  by  the 
production  of  the  jewelry.  The 
Claimant  V)rought  out  a  new- 
looking  morocco  case  containing 
a  miniature  portrait  supposed  by 
him  to  be  his  mother's,  four  gold 
rings,  and  two  brooches.  One  ring 
was  marked  with  the  initials  "J.  B.," 
suggested  to  be  those  of  Jane  Ber- 
nard, and  one  of  the  brooches 
with  the  words  "Jane  Gookin"  at 
length.   .   .   . 

[He  testified  :]  "  I  first  saw  the 
large  parchment  [the  deed  of  1823] 
some  time  in  March  last.  It  came  to 
me  by  railway  from  London.  There 
was  a  letter  inclosed  with  it.  The 
letter  is  dated  March  the  7th,  but 
I  think  I  flid  not  receive  the  parcel 
until  the  17th.  I  first  heard  of  the 
small  parchment  of  1822  when  my 


No.  336.       III.       TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      661 


attorney  spoke  of  it  to  me.  I  first 
saw  this  parchment  (the  small  one) 
to-day.  I  do  not  know  where  it 
came  from.  ...  I  did  not  order 
any  seals  of  ISIoring,  seal  engraver 
of  Holhorn,  in  December,  1852. 
It  was  in  Marcli.  ISoo.  .  .  .  The 
second  seal  was  taken  from  the  docu- 
ment of  1823,  the  only  one  I  had. 
...  I  got  the  seal,  I  think,  the  7th 
of  June.  I  had  correspondence  with 
Mr.  Bennett,  of  Ballinadee  .  .  . 
stating  that  he  had  the  certificates 
of  his  mother's  marriage  and  wanted 
specimens  of  Mr.  Lovett's  writ- 
ing.  .  .  ." 

[This  letter  to  Mr.  Bennett,  be- 
ing produced,  was  found  to  bear 
the  date  13th  March,  1853.  Upon 
the  envelope  was  a  seal  with  the 
motto  "Qui  capit  capitor,"  which 
was  the  same  as  the  seal  he  said 
he  did  not  have  till  7th  June.]  In 
explanation  of  this  witness  said : 
"  It  must  be  a  mistake  of  the  en- 
graver ;  he  should  make  out  his 
bill  better  and  not  lead  me  astray 
with  wrong  dates.  I  covild  not  have 
had  the  seal  long  before  I  wrote  to 
the  Rev.  Mr.  Bennett.  After  I 
received  the  deed  on  the  17th 
March,  I  sent  the  impression  to 
Mr.  Moring.  He  was  not  long  ex- 
ecuting it.  .  .  ." 

Sir  F.  Thcsiger  then  asked  how 
it  was  that  he  sealed  a  letter,  dated 
the  13th  March,  with  a  seal  made 
from  a  document  which  he  did  not 
see  until  the  17th.  The  plaintiff 
in  explanation  said  Sir  Frederick 
had  explained  it  —  he  must  have 
received  the  seal  before  the  13th. 
Sir  F.  Thesiger  then  asked  how  he 
could  account  for  receiving  the  seal 
before  he  received  the  document ; 
and  the  plaintiff  replied  that  he 
could  not  tell  — -  he  could  not  ex- 
plain, and  asked  to  be  allowed  to 
retire. 

Sir  FredcricJx-.  —  "  That  cannot  be. 
My  lord  [addressing  the  court],  I 
have  just  had  a  telegraphic  mes- 
sage from  London  of  the  greatest 
importance."  Sir  Frederick  then 
read  from  the  message  to  the  wit- 


ness—  "Did  you  on  the  19th 
of  January  last  apply  to  a  person  at 
361,  Oxford  Street,  to  engrave  the 
ring  with  the  Bandon  crest,  and  the 
brooch  with  the  wortls  Jane  Gookin  ?  " 
Witness.  —  "I  did,  sir." 

The  excitement  in  court  at  this 
unexpected  avowal  was  intense. 
Sir  Frederick  himself  sat  down,  and 
was  so  much  affected  as  to  be 
ciuite  unable  to  proceed  or  even  to 
repeat  the  cjuestion.  Mr.  Bovill 
was  also  deeply  moved.  Mr.  Alex- 
ander then  repeated  to  the  court, 
at  the  request  of  the  judge,  the  ques- 
tion asked  of  the  witness.  Sir 
Frederick  being  quite  unable  to  do 
so.  The  ring  and  brooch  were 
then  produced,  and  admitted  by  the 
plaintiff  to  be  the  ones  referred  to. 
Hitherto  he  had  faced  all  the  pre- 
vious questions ;  but  at  this  stage 
of  the  case  he  appeared  cowed 
and  crestfallen.  .  .  .  His  lordship 
thereupon  appealed  to  Mr.  Bovill 
whether  he  meant  to  go  on.  .  .  . 
Application  was  then  made  to  the 
court  by  Sir  F.  Thesiger  that  the 
plaintiff  should  not  be  permitted 
to  go  at  large,  and  he  was  accord- 
ingly taken  into  custody  on  a  charge 
of  perjury.  The  jury  then  returned 
a  verdict  for  the  defendant,  and 
the  extraordinary  case  came  to  an 
end.  .  .  . 

All  trinkets,  deeds,  etc.,  were  then 
impounded ;  and  in  the  course  of 
the  day  the  plaintiff  was  taken 
before  a  magistrate  and  committed 
for  trial  on  a  charge  of  forgery.   .   .   . 

Mr.  Alexander,  on  the  part  of  the 
prosecution,  stated  the  circumstances 
under  which  the  previous  action  had 
been  brought  and  its  termination 
in  the  committal  of  the  plaintiff  to 
take  his  trial  for  perjury  and  forgery  ; 
and  the  shorthand  notes  of  the  plain- 
tiff's examination  in  chief  and  cross- 
examination  ha^■ing  been  read, 

Mr.  Moring,  a  seal  engraver  of 
Holborn,  was  called.  He  deposed 
that  in  December,  1852  (only  a  few 
months  before  the  trial),  he  had 
been  employed  by  the  prisoner  to 
engrave  a  crest,  garter,  and  motto 


662 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  337. 


on  a  seal,  from  a  pattern  which  the 
prisoner  furnished  him  with.  The 
proper  motto  was  "Qui  capit  capi- 
tur."  but  the  "u"  being  blotted, 
an  error  was  made  in  the  engraving, 
and  tlie  motto  was  made  to  read 
"Qui  capit  capitor."  He  also  made 
a  second  seal  at  the  request  of  the 
prisoner,  with  the  arms  of  the 
Smyths  of  Ashton  Court,  in  which 
the  same  error  arose.  The  seal 
on  the  document  purporting  to  be  the 
will  of  Sir  Hugh  Smyth  was  made 
with  this  second  seal,  as  also  the 
seal  on  the  letter  from  Sir  Hugh  to 
his  pretended  wife.  He  further 
proved  that  there  had  been  an 
alteration  in  the  mode  of  engraving 
seals  within  the  last  four  or  five 
years,  and  the  seals  on  the  will  had 
been  engraved  in  the  new  manner. 
The  prisoner  had  subsequently  called 
upon  him  and  desired  he  would  not 
give  any  information  about  the 
seals.  Another  witness,  a  seal  en- 
graver, corroborated  the  evidence 
as  to  the  seal  on  the  will  having 
been  made  with  the  seal  engraved 
by  Mr.  ^Sloring,  and  also  as  to  the 
new  mode  of  engraving. 

Mr.  Robert  Cox,  a  jeweler,  of  No. 
351,  Oxford  Street,  London,  through 
whose  instrumentality  the  plaintiff 
had  been  so  effectually  confounded 
on  the  third  day  of  the  trial,  proved 


that  on  the  5th  Januar}^  1853,  the 
prisoner  came  to  his  shop  and  said 
he  was  trustee  of  some  children, 
and  had  the  care  of  some  jewels 
which  he  had  lost ;  but  the  jewels 
had  been  asked  for,  and  he  was 
desirous  of  buying  some  others  in 
their  place.  As  the  children  had 
never  seen  the  originals  the  prisoner 
said  the  new  oneswould  do  just  aswell. 
He  also  asked  for  a  miniature  or  min- 
iature frame,  which  he  said  he  should 
wish  to  pass  off  as  that  of  the  mother 
of  the  children.  He  selected  two 
brooches  and  a  wedding  and  a  mourn- 
ing ring.  The  engraving  on  the 
mourning  ring,  "  Mary,  wife  of  Sir 
Hugh  Smyth,  m.  1790,  d.  1797," 
was  done  by  order  of  the  prisoner. 
On  one  of  the  brooches  the  name 
"Jane  Gookin"  was  engraved,  also 
by  his  order,  and  on  the  signet  ring 
the  Bandon  crest.  The  witness 
deposed  that  it  was  by  casually 
reading  a  report  of  the  proceedings 
of  the  first  day's  trial  in  the  "  Times  " 
newspaper  that  he  had  been  led  to 
communicate  with  the  defense  at 
the  last  trial.   .   .   . 

The  jury  after  a  few  minutes'  de- 
liberation returned  a  verdict  of 
guilty  both  of  forgery  and  of  the 
uttering,  and  the  prisoner  then 
received  the  well-merited  sentence 
of  twenty  years'  transportation. 


33; 


LAURENCE  BRADDON'S  TRIAL.     [Printed  post,  as  No.  391. 


338.    THE  GENERAL  RUCKER.      [Printed  ante,  as  No.  171.] 


339.    CAL  ARMSTRONG'S  CASE.   (Isaac  N.  Arnold. 


Life  of  Abra- 


ham Lincoln.      1S.S5.      p.  <S7.) 

One  of  the  great  triumphs  of 
Lincoln  at  the  bar  was  won  in  the 
trial  of  William  1).  ("Cal")  Arm- 
strong, indicterl  with  one  Norris, 
for  nmrdcr.  The  (Time  hafl  been 
committed  in  Mason  County,  near 
a  camp  meeting.  Norris  was  con- 
victed and  sent  to  the  State  prison. 
Armstrong  took  a  change  of  venue  to 
Cass  County,  on  the  ground  that  the 
j)n'jiidiccs  of'  the   people   in   Mason 


County  were  so  strong  against  him 
that  he  could  not  have  a  fair  trial. 
He  was  the  son  of  Jack  Armstrong, 
who  had  been  so  kind  to  Lincoln 
in  early  life.  Jack  was  dead ;  but 
Hannah,  who,  when  Lincoln  was 
roughing  it  at  New  Salem,  had  been 
so  motherly,  thought  that  Lincoln 
only  could  save  Bill  from  disgrace 
and  death  ;  he  could  do  anything. 
She  went  to  Springfield,  and  begged 


No.  341.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      663 


him  to  come  and  sjiAe  her  son.  He 
at  once  relieved  her  b}'  promising  to 
do  all  he  could. 

The  trial  came  on  at  Beardstown, 
in  the  spring  of  1858.  The  evidence 
against  Bill  was  very  strong.  In- 
deed, the  case  for  the  defense  looked 
hopeless.  Several  witnesses  swore 
positively  to  his  guilt.  The  strong- 
est evidence  was  that  of  a  man  who 
swore  that  at  eleven  o'clock  at  night 
he  saw  Armstrong  strike  the  de- 
ceased on  the  head.  That  the  moon 
was  shining  brightly  and  was  nearly 
full,  and  that  its  position  in  the  sky 
was  just  about  that  of  the  sun  at  ten 
o'clock  in  the  morning,  and  that  by 
it  he  saw  Armstrong  give  the  mortal 
blow.  This  was  fatal,  unless  the 
effect  could  be  broken  by  contra- 
diction or  impeachment.  Lincoln 
quietly  looked  up  an  almanac,  and 
found  that  at  the  time  this,  the 
principal  witness,  declared  the  moon 


to  have  been  shining  with  full  light, 
there  was  no  moon  at  all.  There 
were  some  contradictory  statements 
made  by  other  witnesses,  but  on  the 
whole  the  case  seemed  almost  hope- 
less. Mr.  Lincoln  made  the  closing 
argument.  "At  first,"  says  Mr. 
Walker,  one  of  the  counsel  associated 
with  him,  "  he  spoke  slowly  and  care- 
fully, reviewed  the  testimony,  and 
pointed  out  its  contradictions,  dis- 
crepancies, and  impossibilities. 
When  he  had  thus  prepared  the  way, 
he  called  for  the  almanac,  and  showed 
that,  at  the  hour  at  which  the  prin- 
cipal witness  swore  he  had  seen,  by 
the  light  of  the  full  moon,  the  mortal 
blow  given,,  there  was  no  moon  at 
all." 

This  was  the  climax  of  the  argu- 
ment, and  of  course  utterly  disposed 
of  the  principal  witness.  But  it 
was  Lincoln's  eloquence  which  saved 
Bill  Armstrong. 


340.    NETHERCLIFT'S  CASE. 

and  the  Criminal.      IQIL      p.  89.) 

.  .  .  Netherclift's  dogmatic  man- 
ner rendered  him  peculiarly  liable  to 
fall  into  traps  like  this,  and  many 
were  the  occasions  on  which  he  was 
found  tripping.  Readers  of  Lord 
Brampton's  book  will  recall  an- 
other amusing  instance  in  which  the 
expert  was  "put  in  a  hole"  by  his 
opponent,  who  tells  the  story  in  these 
words :  "  When  I  rose  to  examine 
I  handed  to  the  expert  six  slips  of 
paper,  each  of  which  was  written  in 
a  diflferent  kind  of  writing.  Nether- 
clift  took  out  his  large  pair  of  spec- 
tacles, magnifiers,  which  he  always 
carried.  Then  he  began  to  polish 
them  with  a  great  deal  of  care,  say- 

34L    PITTSBURG,    C.    C.    & 

(1896.  Illinois  Appellate  Court 
Trespass  on  the  case,  for  personal 
injuries.  Appeal  from  the  Superior 
Court  of  Cook  County ;  the  Hon. 
Jamss  GoGGiN,  Judge,  presiding. 
Heard  in  this  court  at  the  March 
term,  1896.  Remittitur  ordered-,  etc. 
Opinion  filed  March  31,  1896.  .  .  . 


(C.  AiNSWORTH  Mitchell.     Science 

ing,  as  he  performed  that  operation, 
'  I  see,  Mr.  Hawkins,  what  you  are 
going  to  try  to  do  —  you  want  to 
put  me  in  a  hole.'  'I  do,  Mr. 
Netherclift,  and  if  you  are  ready  for 
the  hole,  tell  me  —  were  those  six 
pieces  of  paper  written  by  one  hand 
about  the  same  time  ? '  He  ex- 
amined them  carefully,  and  after 
a  considerable  time,  answered,  '  No ; 
they  were  written  at  different  times, 
and  by  different  hands.'  'By  dif- 
ferent persons,  do  you  say  ? '  '  Yes, 
certainly.'  'Now,  Mr.  Netherclift, 
you  are  in  the  hole  !  I  wrote  them 
mvself  this  morning  at  this  desk.'" 


ST.    LOUIS    R.    CO.    V.    STORY. 

63  111.  App.  241.) 

Mr.  Justice  Shepard  delivered 
the  opinion  of  the  Court. 

The  appellee  was  a  passenger, 
})ound  from  Chicago  to  New  York, 
on  one  of  the  appellant's  passenger 
trains.  Near  a  station  named 
Tuscarawas,     Ohio,    the     train     in 


664 


PART    II.      TESTIMONIAL    EVIDEXCE 


No.  34\, 


which  appellee  was  so  traveling 
collided  with  a  west-bound  mail 
train  on  the  same  road,  and  the 
claimetl  injuries  suffered  by  ap- 
pellee were  tliereby  incurred.  The 
trial  in  the  Superior  Court  resulted 
in  a  verdict  for  Si  2,000,  from 
which  appellee  remitted  the  sum 
of  S3()00,  and  thereupon  a  judg- 
ment for  SOOOO  in  favor  of  appellee 
was  entered,  and  this  appeal  is 
from  such  judgment.  The  appellee 
was  about  forty-six  years  of  age,  and 
resided  on  a  farm  in  Wisconsin  with 
her  two  sons  and  a  daughter.  She 
had  lived  there  twenty-six  years, 
and  performed  all  the  usual  house- 
hold duties,  anil  was  in  good  health 
before  the  accident.  She  testified 
that  previous  to  the  collision  she 
averaged  from  135  to  140  pounds  in 
weight,  and  that  at  the  time  of  the 
trial  (four  years  after)  her  weight 
was  170  pounds.  In  the  collision 
the  baggage-master  was  killed  and 
another  employee  severely  hurt,  but 
no  passenger  except  appellee  was 
injiH'ed.  The  collision  occurred 
about  eleven  o'clock  in  the  fore- 
noon of  May  7,  1891.  The  loco- 
moti\e  and  the  express  and  baggage 
cars  w'ere  disabled,  but  the  passen- 
ger coach  in  which  appellee  traveled 
was,  at  least,  left  fit  for  present  use ; 
and  about  the  middle  of  the  after- 
noon it  was  attached  "to  another 
train,  and  appellee  continued  on- 
ward in  her  journey  to  New  York, 
where  she  arrived  about  eleven 
o'clock  the  following  day,  and  on  the 
day  after  that  proceeded  on  to 
her  ultimate  destination  in  Con- 
necticut. 

The  only  evidence  the  record  fur- 
nishes of  what  her  condition  was 
after  the  accident,  and  prior  to  her 
reaching  Connecticut,  is  found  in 
the  testimony  of  the  appellee.  After 
she  had  been  in  Coimecticut  a  "few 
days,"  according  to  her  testimony, 
and  some  time  in  "  the  latter  part  of 
Alay,  1891,"  according  to  his  testi- 
mony, a  physician  was  for  the  first 
time  called  to  treat  her.  That 
physician     visited     her     twcl\e     or 


fourteen  times  between  his  first 
call  and  June  17th  following,  and 
on  the  faith  of  her  representations  of 
pain  and  disability  suffered  by  her, 
and  of  certain  external  bruises,  con- 
tusions and  discolorations  seen  by 
him  on  her  person,  he  prescribed 
for  her  during  that  period.  Ap- 
pellee renuiined  visiting  at  her  niece's 
house  in  ( "onnecticut  some  six 
months,  and  until  in  November, 
1891,  when  she  returned  to  Chicago, 
visiting  on  the  way  her  sister  in 
Linesville,  Pennsylvania,  and  a 
cousin  in  Pierrepont,  Ohio.  She 
remained  in  Chicago  for  a  while  and 
then  went  to  Wisconsin  for  a  short 
time,  after  which  she  returned  to 
Chicago,  and  through  the  inter- 
^•ention  of  a  friend  was  accepted  at 
St.  Luke's  hospital  as  a  patient,  and 
remained  there  three  weeks,  in 
February,  1892.  It  w'as  while  in 
St.  Luke's  hospital  that  she  for  the 
first  time  had  medical  treatment 
after  that  referred  to  in  Connecticut. 
There  w'ere  not  many  ol)jective 
symptoms  (to  use  the  language  of 
the  doctor)  of  physical  injiu'y  to 
her  visible  at  the  time  she  entered 
St.  Luke's  hospital,  nor  do  we  under- 
stand from  the  evidence  that  any 
such  have  become  apparent  since 
that  time.  The  evidence  from  that 
time  on,  and  there  is  a  great  deal 
of  it,  with  reference  to  her  injuries, 
deals  wholly  with  subjective  symp- 
toms, and  for  its  weight  rests  upon 
her  own  statements  and  actions ; 
and  there  is  in  some  of  the  medical 
testimony,  in  her  own  testimony,  and 
in  the  clinical  report  or  record  of  her 
case,  made  when  she  was  an  inmate 
of  St.  Luke's  hospital,  considerable 
evidence  of  a  lack  of  genuineness  in 
her  case  —  jirobably  not  of  actual 
simulation  of  an  injury  not  received, 
or  of  actual  malingery,  as  recorded 
against  the  record  of  her  case  in  St. 
Luke's  hospital,  l)ut  of  an  exaggera- 
tion of  the  injury,  owing  to  a  highly 
wrought  up  condition  of  the  nerv- 
ous system,  produced  primarily 
by  the  injury  and  intensified  by 
brooding  over  it.     The  only  pecuni- 


No.  341.       III.     TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      665 


ary  loss  suffered  hy  the  appellee, 
that  is  shown  by  the  evidence,  is 
her  disability  to  pursue  her  usual 
avocations  as  before,  and  her  expenses 
in  endeavoring  to  be  cured. 

As  to  what  such  expenses  were, 
appellee  was  asked  by  her  counsel 
if  she  could  state  to  the  jury,  or 
approximate,  the  amount  of  money 
she  had  expended  for  such  piu'pose, 
and  she  replied  that  she  could  not, 
but  added,  "  I  should  say  in  the 
neighborhood  of  $3000;"  and  upon 
being  asked  if  she  were  able  to  give 
the  items,  answered  :  "  I  am  not ; 
no,  sir."  Her  treatment  in  St. 
Luke's  hospital  was  free,  and  that 
received  by  her  in  the  sanitarium 
at  Joliet,  for  the  two  days  that 
she  remained  there,  was  in  return 
for  services  rendered  by  her.  And 
the  physician  who  attended  her  in 
Connecticut  testified  that  SI 5  would 
cover  his  entire  bill  for  services  to 
her.  Drawing  all  reasonable  in- 
ferences from  all  the  other  evidence 
concerning  what  may  have  caused 
expense  to  her,  it  seems  as  if  her 
estimate  of  $3000  was  needlessly 
extravagant,  if  not  recklessly  so.  .  .  . 

Looking  only  at  the  record,  the 
appellee  does  not  inspire  us  with 
much  confidence  in  her  statement 
of  facts  concerning  which  other  proof 
is  preserved,  and  hence  we  cannot 
avoid  a  distrust  as  to  those  facts 
of  which  her  testimony  furnishes 
the  onl}^  evidence.  That  circum- 
stances "should  admonish  us  to 
look  with  suspicion  upon  whatever 
else  he  (she)  may  choose  to  swear 
to,"  as  was  said  by  Mr.  Justice 
Caton  in  a  case  (Fryrear  v.  Lawrence, 
5  Gil.  325,  p.  329)  where  one  swore 
to  hearsay  matters  as  being  within 
his  own  knowledge.  See  also  Earle 
V.  Earle,  60  111.  App.  360,  p.  367. 
Appellee  testified  among  other  things 
concerning  the  results  of  the  col- 
lision to  the  car  that  she  was  in,  as 
follows  :  "The  stove  was  overturned, 
the  lamps  were  shattered  and  broken, 
the  oil  falling  all  over  the  passengers  ; 
the  window  glass  was  shattered 
and  the  car  took  fire,  and  the  rear 


end  of  the  car  seemed  to  be  thrown 
up  a  great  distance."  We  have  not 
exhausted  the  record  with  reference 
to  each  of  the  details  she  so  testified 
to;  but  it  was  clearly  established 
by  other  evidence  that  the  stove 
was  not  overturned,  that  the  car 
did  not  take  fire,  that  the  windows, 
with  perhaps  one  exception,  were 
not  broken,  and  that  if  any  lamp 
was  broken,  no  one  complained  of 
oil  falling  upon  them.  This  testi- 
mony of  the  appellee  was  probably 
not  at  all  material  to  her  right  of 
recovery,  but  it  shows  her  unre- 
liability and  tendency  to  exaggera- 
tion. If  she  is  so  prone  to  magnify 
immaterial  matters,  what  confi- 
dence can  we  place  upon  her  tes- 
timony as  to  material  facts  ? 
Moreover,  her  testimony  heretofore 
referred  to,  regarding  the  expense 
the  had  incurred  in  her  endeavors 
to  become  cured,  is  so  utterly  and 
recklessly  exaggerated  beyond  any 
facts  shown,  and  is  so  entirely  im- 
probable, considering  her  apparent 
means,  as  to  cast  further  suspicion 
upon  all  her  statements. 

Considering,  therefore,  appellee's 
own  testimony  in  connection  with 
the  uncertainty  of  much  of  the  medi- 
cal evidence  and  the  records  of 
St.  Luke's  hospital,  wherein  the 
diagnosis  of  her  case  is  set  down  as 
"  Malingerj^,"  we  feel  that  there 
has  not  been  that  certainty  obtained 
regarding  the  extent  of  her  injuries  as 
warrants  us  in  sustaining  a  judgment 
which  of  itself  amounts  to  a  small 
fortune,  and  is  far  in  excess  of  what 
we  think  the  record  shows  would 
constitute  full  compensation.   .   .   . 

It  seems,  however,  from  a  careful 
consideration  of  the  whole  record, 
that  the  appellee  should  have  re- 
covered a  reasonable  judgment,  and 
if  appellee  shall  elect  within  ten 
days  to  enter  in  this  court  a  remit- 
titur of  six  thousand  dollars  from 
the  judgment  of  the  Superior  Court, 
the  judgment  will  l)e  affirmed  for 
the  amount  so  remitted  down  to ; 
otherwise  the  judgment  will  be  re- 
versed and  the  cause  remanded. 


66G 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  342. 


342.    JOHN  HAWKINS'  CASE.     (S.  M.  Piiillipp.s 
of  Circuiii,st(inti(il  Evidiiivc.      No.  XXII.) 


Famous  Cases 


John  Hawkins  and  George  Simp- 
son were  indicted  for  robbing  the 
mail,  about  2  a.m.  on  the  10th  of 
April.  1722.  Hawkins,  in  his  de- 
fense, set  up  an  alil)i,  to  prove  which, 
he  called  one  William  Fuller,  who 
deposed,  that  Hawkins  came  to  his 
house  on  Sunday,  the  loth  of  April, 
and  lay  there  that  night,  and  did  not 
go  out  until  the  next  morning. 
Being  asked  by  the  court,  "  By 
what  token  do  you  remember  that 
it  was  the  loth  of  April  ?  "  he  replied, 
"By  a  very  good  token,  for  he 
owed  me  a  sum  of  money  for  horse 
hire,  and  on  Tuesday,  the  10th  of 
April,  he  called  upon  me  and  paid 
me  in  full,  and  I  gave  him  a  receipt ; 
anfl  I  \ery  well  remember,  that  he 
la\'  at  my  house  the  Sunday  night 
following."  The  receipt  was  now 
produced.  "April  the  10th,  1722. 
Received  of  Mr.  John  Hawkins,  the 
sum  of  one  pound  ten  shillings,  in 
full  of  all  accounts,  per  me,  William 
Fuller."  Upon  inspecting  the  re- 
ceipt, the  court  asked  Fuller  who 
wrote  it.  He  replied,  "Hawkins 
wrote  the  body  of  it,  and  I  signed  it." 

Court.  —  "  Did  you  see  him  write 
it  y "     Fiillir.  —  "  Yes." 


Court.  —  "  And  how  long  was  it 
after  he  wrote  it,  before  you  signed  ? 
Fuller.  —  "I  signed  it  immediately, 
without  going  from  the  table." 

Court.  —  "  How  many  standishes 
[inkwells]  do  you  keep  in  the  house  ?  " 
Fuller.  —  "  Standishes  ?  "     . 

Court.  —  "  Aye,  standishes  ;  it  is 
a  plain  question."  Fuller.  —  "My 
Lord,  but  one ;  and  that  is  enough 
for  the  little  handwriting  we  have 
to  do." 

Court.  —  "  Then  you  signed  the 
receipt  with  the  same  ink  that 
Hawkins  wrote  the  body  of  it  with  ?  " 
Fuller.  —  "  For  certain." 

Court.  —  "  Officer,  hand  the  re- 
ceipt to  the  jury.  Gentlemen,  you 
will  see  that  the  body  of  the  note  is 
written  with  one  kind  of  ink,  and 
the  name  at  the  bottom  with  an- 
other very  different ;  and  yet  this 
witness  has  sworn,  that  they  were 
both  written  with  the  same  ink, 
and  one  immediately  after  the  other. 
You  will  judge  what  credit  is  to  be 
given  to  his  evidence  !" 

Thus,  the  authenticity  of  the 
receipt,  and  the  credit  of  the  witness, 
were  overthrown. 


343.    THE  BOND  PAYMENT  CASE.     (John  C.  Reed.     Conduct  of 


Lawsuits.      2d    ed.      1912,  §  434. J 

.  .  .  There  are  still  others,  who 
belong  to  a  much  less  numerous  class, 
where  perjury  is  palpably  detected. 
And  as  the  lawyer  shovdd  be  ready 
to  deal  with  such  reckless  swearers, 
we  will  give  instances  where  some 
were  brought  to  grief.  The  first  is 
told  by  Judge  Sharswood.  "  He  (a 
gentleman  of  the  l)ar  of  Philadelphia) 
allowed  nothing  that  occurred  in 
a  cause  to  disturb  or  surprise  him. 
On  an  occasion,  in  one  of  the 
neighboring  coimties  the  circuit  of 
which  it  was  his  custom  to  ride,  he 
was  trying  a  cause  on  a  bond,  when 
a  witness  for  the  defendant  was 
introduced,  who  testified  that  the 
defendant  had  taken  th(>  amount  of 


the  bond,  which  was  quite  a  large 
sum,  from  his  residence  to  that  of  the 
obligee,  a  distance  of  several  miles, 
and  paid  him  in  silver  in  his  pres- 
ence. The  evidence  was  totally  un- 
expected. His  clients  were  orphan 
children ;  all  their  fortune  was 
staked  on  this  case.  The  witness 
had  not  yet  committed  himself  as 
to  how  the  money  was  carried. 
Without  any  discomposure,  with- 
out lifting  his  eyes  or  pen  from  paper, 
he  made  on  the  margin  of  his  notes 
of  trial  a  calculation  of  what  that 
amount  in  silver  would  weigh,  and 
when  it  came  his  turn  to  cross- 
examine,  calmly  proceeded  to  make 
the    witness    repeat    his    testimony 


No.  344.      III.     TESTIMONIAL    INTERPRETATION.      B.    COMMON    INCIDENTS         667 


step  by  step,  —  when,  where,  how, 
and  how  far  the  money  was  carried, 
—  and  then  asked  him  if  he  knew 
how  much  that  sum  of  money 
weighed,    and    upon     naming    the 


amount  so  confounded  the  witness, 
party,  and  counsel  engaged  for  the 
defendant  that  the  defense  was  at 
once  abandoned  and  a  vercHct  for 
the  plaintiff  rendered  on  the  spot." 


344.  THE   FARM   BURGLARY  CASE.     (A.    C.   Plowden.     Grain 
or  Chaff ;    The  Autobiography  of  a  Police  Magistrate.     1903.     p.  102.)  .  .  . 


The  prisoner  was  a  young  woman 
employed  as  a  servant  on  a  farm  in 
an  out-of-the-way  part  of  the  coun- 
try. The  charge  against  her  was 
the  ordinary  one  of  stealing  mone^'. 
The  facts  were  as  follows.  One 
night  the  farmer  was  roused  from 
his  sleep  by  the  prisoner's  knocking 
at  his  door  and  telling  him  there  were 
burglars  in  the  house.  Seizing  his 
gun,  the  farmer,  in  company  with 
the  prisoner,  cautiously  descended 
the  stairs  and  made  his  way  to  the 
sitting  room.  It  was  evident  that 
some  one  had  been  there,  for  the 
furniture  had  been  shifted  about, 
and  a  purse  and  one  or  two  other 
trifles  were  missing  from  the  mantel- 
piece. The  farmer  rushed  to  the 
front  door,  and  hearing,  as  he 
thought,  the  sound  of  retreating 
footsteps  down  the  gravel  path,  fired 
his  gun  in  the  direction  without 
effect.  The  burglars  had  effected 
their  escape.  The  next  day  the 
police  were  duly  informed  of  the 
occurrence,  and  thanks  to  the  very 
clear  description  the  prisoner  was 
able  to  give  —  one  of  the  burglars 
she  had  particularly  noticed  as 
having  a  golden  mustache  and 
patent  leather  boots  —  placards 
were  posted  at  the  different  Police 
Stations,  and  a  general  hue  and  cry 
took  place  over  the  length  and 
breadth  of  the  country. 

Days  and  weeks  passed  without 
any  trace  of  the  burglars,  but  the 
police,  though  baffled,  had  not  been 
listless.  The  golden  mustache  and 
the  patent  leather  boots  were  a  clew 
indeed,  but  not  in  the  direction  they 
had  been  seeking.  They  began  to 
suspect  their  clever  little  informant, 
and  when  it  was  discovered  that 
she  had  been  spending  money  be- 


yond the  amount  of  her  wages  in  the 
nearest  town  within  a  few  days  of 
the  burglary,  out  of  the  very  purse 
which  was  missing,  the  police  felt 
certain  that  they  had  got  the  real 
criminal,  and  she  was  duly  arrested 
and  committed  to  the  Quarter  Ses- 
sions. I  was  instructed  for  the  de- 
fense. It  transpired  that  the  pris- 
oner was  much  given  to  reading  penny 
dreadfuls,  and  that  for  weeks  before 
the  burglary,  she  had  discussed  the 
possibility  of  such  a  thing  happen- 
ing with  a  fellow  servant  who  shared 
her  room.  There  was  also  of  course 
the  damaging  fact  that  she  was  in 
possession  of  the  missing  purse  and 
had  been  spending  money  freely. 
In  fact  there  was  little  or  no  moral 
doubt  that  she  was  guilty. 

On  the  other  hand  there  was  a 
good  deal  to  be  said  for  the  defense. 
If  the  prisoner  was  guilty,  she  was 
evidently  a  very  clever  actress,  for 
beyond  all  question  she  had  made 
the  whole  countryside  believe  in 
the  genuineness  of  her  story ;  and 
there  was  of  course  the  admission  of 
the  farmer  that  he  had  heard  the 
footsteps  of  the  retreating  burglars 
and  fired  a  shot  at  them.  I  made 
the  very  most  of  this,  and  though 
the  farmer  tried  to  get  out  of  it  by 
saying  that  he  must  have  imagined 
the  footsteps,  as  no  doubt  he  had, 
I  succeeded  in  convincing  the  jury, 
at  the  end  of  a  hard-fought  case, 
that  it  would  be  dangerous  to  con- 
vict, and  my  client  was  acquitted. 
I  have  only  given  an  imperfect  out- 
line of  the  case.  The  extraordinary 
feature  of  it  was  the  amazing  im- 
agination of  an  uneducated  servant 
girl,  and  the  skillful  way  in  which 
she  built  up  the  details  of  a  story 
which   deceived   her   master,   hood- 


66S 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  345. 


winked  the  police,  and  created  a 
general  feeling  of  uneasiness  through- 
out the  country.  If  she  had  l)Ut 
left  out  of  her  description  the  mus- 
tache   and    patent    leather    hoots, 


prol)al)ly  suspicion  would  never  have 
l)een  excited  against  her,  and  the 
burglary  would  have  taken  its  place 
in  the  list  of  crimes  beyond  the  in- 
genuity of  the  police  to  discov^er. 


345.    DR.  RANNEY'S  CASE. 
Cross-examination .      190S.      p.  66.) 

.  .  .  Diu'ing  the  lifetime  of  Dr. 
J.  \V.  Ranney,  there  were  few 
physicians  in  this  country  who  were 
so  frequently  seen  on  the  witness 
stand,  especially  in  damage  suits. 
So  expert  a  witness  had  he  become 
that  Chief  Justice  Van  Brunt  many 
years  ago  is  said  to  have  remarked, 
"  Any  lawyer  who  attempts  to  cross- 
examine  Dr.  Ranney  is  a  fool."  A 
case  occurred  a  few  years  before 
Dr.  Ranney  died,  however,  where 
a  failure  to  cross-examine  would 
have  been  tantamount  to  a  confes- 
sion of  judgment,  and  the  trial  law- 
yer ha\ing  the  case  in  charge, 
though  fully  aware  of  the  dangers, 
was  left  no  alternative,  and  as  so 
often  happens  where  "  fools  rush  in," 
made  one  of  those  lucky  "bull's 
eyes"  that  is  perhaps  worth  re- 
cording. 

It  was  a  damage  case  brought 
against  the  city  by  a  lady  who,  on 
her  way  from  church  one  spring  morn- 
ing, had  tripped  over  an  obscure  en- 
cumbrance in  the  street,  and  had, 
in  consequence,  been  practically 
bedridden  for  the  three  years 
leading  up  to  the  trial.  She  was 
brought  into  the  court  room  in  a 
chair  and  was  placed  in  front  of  the 
jury,  a  pallid,  pitial)le  ol)ject,  sur- 
rounded by  her  women  iriends,  who 
acted  upon  this  occasion  as  nurses, 
constantly  bathing  her  hanrls  and 
face  with  ill-smelling  ointments,  and 
administering  restoratives,  with 
marked  effect  upon  the  jury.  Her 
coiniscl,  Kx-cliief  Justice  Xoah  Davis, 
claimed  that  her  spine  iiad  been  per- 
manently injured,  and  asked  the 
jury  for  -SoO, ()()()  damages.  It  ap- 
peared that  Dr.  Ranney  had  been 
in  constant  attendance  upon  the 
patient   ever  since   the  day   of  her 


(Francis  L.  Wellman.      The  Art  of 

accident.  He  testified  that  he  had 
visited  her  some  three  hundred  times, 
and  had  examined  her  minutely  at 
least  two  hundred  times,  in  order  to 
make  up  his  mind  as  to  the  abso- 
lutely correct  diagnosis  of  her  case, 
which  he  was  now  thoroughly  satis- 
fied was  one  of  genuine  disease  of  the 
spinal  marrow  itself.  Judge  Davis 
asked  him  a  few  preliminary  ques- 
tions, and  then  gave  the  doctor  his 
head  and  let  him  "  turn  to  the  jury 
and  tell  them  all  about  it."  Dr. 
Ranney  spoke  uninterruptedly  for 
nearly  three  quarters  of  an  hour. 
He  described  in  detail  the  sufferings 
of  his  patient  since  she  had  been 
under  his  care  ;  his  efforts  to  relieve 
her  pain  ;  the  hopeless  nature  of  her 
malady.  He  then  proceeded  in  a 
most  impressive  way  to  picture  to 
the  jury  the  gradual  and  relentless 
progress  of  the  disease  as  it  assumed 
the  form  of  creeping  paralysis,  in- 
volving the  destruction  of  one 
organ  after  another  until  death  be- 
came a  blessed  relief.  At  the  close 
of  this  recital,  without  a  question 
more.  Judge  Davis  said  in  a  calm 
but  triumphant  tone,  "  Do  you  wish 
to  cross-examine  ?" 

Now  the  point  in  dispute  —  there 
was  no  defense  on  the  merits  — 
was  the  nature  of  the  plaintifT's 
malady.  The  city's  medical  wit- 
nesses were  unanimous  that  the  lady 
had  not,  and  could  not  have,  con- 
tracted spinal  disease  from  the  slight 
injury  she  had  received.  They 
styled  her  complaint  as  "  hysterical," 
existing  in  the  {)atient's  mind  alone, 
and  not  inflicating  nor  involving  a 
single  diseased  organ  ;  but  the  jury 
evidently  all  believed  Dr.  Ranney, 
and  were  anxious  to  render  a  verdict 
on  his  testimony.  .  .  .     The  cross- 


No.  345.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      669 


examiner  first  directed  his  questions 
toward  developing  l)efore  the  jury 
the  fact  that  the  witness  had  been 
the  medical  expert  for  the  New 
York,  New  Haven,  and  Hartford 
R.  R.  thirty-five  years,  for  the  New 
York  Central  R.  R.  forty  years,  for 
the  New  York  and  Harlem  River 
R,  R.  twenty  years,  and  so  on ; 
until  the  doctor  was  forced  to 
admit  that  he  was  so  much  in  court 
as  a  witness  in  defense  of  these 
various  railroads,  and  was  so  oc- 
cupied with  their  affairs  that  he 
had  but  comparatively  little  time 
to  devote  to  his  reading  and  prac- 
tice. 

Counsel  (perfectly  quietly).  — 
"Are  you  able  to  give  us,  doctor, 
the  name  of  any  medical  authority 
that  agrees  with  you  when  you  say 
that  the  particular  group  of  symp- 
toms existing  in  this  case  points  to 
one  disease  and  one  only  ?" 

Doctor.  —  "  Oh,  yes,  Dr.  Ericson 
agrees  with  me." 

Counsel.  —  "  Who  is  Dr.  Ericson, 
if  you  please?" 

Doctor       (with      a      patronizing 

smile).  —  "Well,  Mr.   ,  Ericson 

was  probably  one  of  the  most  famous 
surgeons  that  England  has  ever 
produced."  (There  was  a  titter  in 
the  audience  at  the  expense  of 
counsel.) 

Counsel.  —  "  Wliat  book  has  he 
written  ?  " 

Doctor  (still  smiling).  —  "He  has 
written  a  book  called  Ericson  on 
the  Spine,  which  is  altogether  the 
best  known  work  on  the  subject." 
(The  titter  among  the  audience  grew 
louder.) 

Counsel.  —  "  When  was  this  book 
published  ?" 

Doctor.  —  "  About  ten  years  ago." 

Counsel.  —  "  Well,  how  is  it  that 
a  man  whose  time  is  so  much  oc- 
cupied as  you  have  told  yours  is, 
has  leisure  enough  to  look  up  medical 
authorities  to  see  if  they  agree  with 
him  ?" 

Doctor  (fairlv  beaming  on  coun- 
sel). —  "Well,"  Mr. ,    to     tell 

you  the  truth,  I  have  often  heard  of 


you,  and  I  half  suspected  you  would 
ask  me  some  such  foolish  question ; 
so  this  morning  after  my  breakfast, 
and  before  starting  for  court,  I  took 
down  from  my  lil)rary  my  copy  of 
Ericson's  book,  and  found  that  he 
agreed  entirely  with  my  own  diagno- 
sis in  this  case."  (Loud  laughter 
at  expense  of  counsel,  in  which  the 
jury  joined.) 

Counsel  (reaching  imder  the 
counsel  table  and  taking  up  his  own 
copy  of  Ericson  on  the  Spine, 
and  walking  deliberately  up  to  the 
witness).  —  "Won't  you  be  good 
enough  to  point  out  to  me  where 
Ericson  adopts  your  view  of  this 
case  ?  " 

Doctor  (embarrassed).  —  "Oh,  I 
can't  do  it  now;  it  is  a  very  thick 
book." 

Counsel  (still  holding  out  the  book 
to  the  witness).  —  "  But  you  forget, 
doctor,  that  thinking  I  might  ask 
you  some  such  foolish  question, 
you  examined  your  volume  of  Eric- 
son this  very  morning  after  break- 
fast and  before  coming  to  court." 

Doctor  (becoming  more  embar- 
rassed and  still  refusing  to  take  the 
book).  —  "I  have  not  time  to  do  it 
now." 

Counsel.  —  "  Time!  why  there  is 
all  the  time  in  the  world."  (Counsel 
and  witness  eye  each  other  closely.) 

Counsel  (sitting  down,  still  eyeing 
witness).  —  "I  am  sure  the  court 
will  allow  me  to  suspend  my  ex- 
amination until  you  shall  have  had 
time  to  turn  to  the  place  you  read 
this  morning  in  that  book,  and  can 
re-read  it  now  aloud  to  the  jury." 

Doctor  (no  answer). 

The  court  room  was  in  deathly 
silence  for  fully  three  minutes.  The 
witness  woithln't  say  anything, 
counsel  for  plaintiff  didn't  dare  to 
say  anything,  and  counsel  for  the 
city  didn't  want  to  say  anything; 
he  saw  that  he  had  caught  the  wit- 
ness in  a  manifest  falsehood,  and 
that  the  doctor's  whole  testimony 
was  discredited  with  the  jury  unless 
he  could  open  to  the  paragraph  re- 
ferred to,  —  which  counsel  well  knew 


670 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  346. 


did  not  exist  in  the  whole  work  of 
Ericson. 

At  the  expiration  of  a  few  minutes, 
Mr.  Justice  Barrett,  who  was  presid- 
ing at  the  trial,  turned  quietly  to 
the  witness  and  asked  him  if  he 
desired  to  answer  the  question,  and 
upon  liis  replyinjj  that  he  did  not 
intend    to    answer    it    anv    further 


than  he  had  already  done,  he  was 
excused  from  the  witness  stand  amid 
almost  breathless  silence  in  the  court 
room.  .  .  . 

After  ten  days'  trial  the  jury  were 
unable  to  forjiet  the  collapse  of  the 
plaintiff's  principal  witness,  and 
failed  to  agree  upon  a  verdict. 


346.    PARNELL  COMMISSION' 

day,  "  Times  "  Rep.,  pt.   13,  p.  10L>.j 

[In  support  of  the  charge,  against 
Mr.  Parnell  and  others,  of  using  the 
Land  League  to  commit  crime  and 
intimidation,  the  speeches  to  the 
pul)lic  and  the  doings  at  the  League 
meetings  were  often  proved  by 
Government  constables,  spies,  or 
other  prejudiced  persons,  and  the 
reports  were  apt  to  be  partial  and 
misleading;  every  such  witness  was 
accordingly  tested  with  reference  to 
the  correctness  of  his  report ;  this 
testing  turned  out  for  one  of  them  as 
follows  :] 

A.  "  Some  months  before  Lyden's 
murder  I  was  at  a  meeting  at  Mrs. 
Walsh's  house.  There  were  several 
persons  asseml)led  there.  Varilly 
took  the  chair." 

Q.  "Was  anything  proposed  or 
said  about  any  person's  cattle?" 
A.  "Yes.  ...  A  resolution  was 
come  to  about  the  killing  of  these 
cattle.  Some  of  those  present  left 
the  room  for  the  purpose  of  killing 
them."   .   .   . 

On  cross-examination:  Q.  "My 
learned  friend  has  put  several  rather 
big  words  to  you  about  some  gentle- 


S  PROCEEDINGS.     (1888.     48th 

man  taking  the  chair.  Was  there 
a  chair  to  take  at  Walsh's?"  A. 
"  I  cannot  understand  you." 

Q.  "  Well ;  but  you  know  you 
said  that  Mr.  Varillv  took  the 
chair?"     A.    "He  did.'' 

Q.  "What  do  you  mean?"  A. 
"He  was  the  chairman." 

Q.  "What  did  he  do?"  A.  "To 
attend  the  meetings. 

Q.  "What  did  he  do?"  A.  "He 
told  them  that  there  should  be 
cattle  drowned." 

Q.  "You  have  been  asked  by  my 
learned  friend  w^iether  a  resolution 
was  passed.  What  is  a  resolution  ?  " 
A.    "I  could  not  tell  you." 

Q.  "  You  have  told  us  there  was 
a  resolution.  Do  you  know  what 
that  meant?"     A.    "No." 

there     a    secretary  ? " 


Q.    "Was 
A.    "Yes." 

Q.    "What 
tell  anvbodv. 

Q.    "Were 
"I  was  not." 

Q.    "Was 
A.    "I  do  not  know 
was  or  not." 


is  it?"     A.    "Not  to 
vou    secretarv?"     A. 


there 


a    secretary?" 
wdiether  there 


347.  MOBILE  &  O.  R.  CO.  v.  STEAMER  NEW  SOUTH,  {circa 
187.').  r.  S.  District  Court,  Southern  District  of  Illinois,  ex  rel.  Prof. 
Barry  Gilbert,  of  Iowa  State  University.) 


An  action  was  brought  by  one 
steamboat  company  on  the  lower 
^Mississippi  against  another  for  in- 
juries sustained  in  tiie  sinking  of  one 
of  its  vessels  in  a  collision  caused  by 
the  careless  backing  out  of  the  Cairo 
harbor  of  a  boat  of  the  defendant 
company.      Because  of    the    harbor 


and  pilot  regulations,  it  was  essential 
to  the  plaintiff's  case  to  show  that 
the  collision  had  taken  place  in  the 
middle  of  the  river,  and  not  two 
thirds  of  the  way  across,  as  the  de- 
fendant contended.  Several  colored 
deck  hands  of  the  defendant  had 
sworn  that  the  collision  took  place 


III.       TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      671 


two  thirds  of  the  way  across.  One 
in  particuhir  was  vehement  in  his 
declarations  that  he  kneio  it  was 
two  thirds  across,  as  he  had  noticed 
it  definitely  at  the  time.  The  coun- 
sel for  the  plaintiff,  Mr.  ir.  B.  Gil- 
bert, on  the  cross-examination,  took 
a  sheet  of  paper,  foldefl  it  once  at  the 
center,  and  said:  "Now,  that's 
half,  isn't  it?"  "Yes,  suh."  Fold- 
ing it  over  in  halves  again,  he  said, 
"NoM%  that's  a  third,  isn't  it?" 
"Yes,     suh!"     (promptly).      Then 


opening  out  the  sheet,  thus  creased, 
into  four  divisions,  the  lawyer  said, 
pointing  to  the  first,  "John,  here's 
one  third  ?"  "Yes,  suh."  To  the 
second,  "  Here's  two  thirds."  "Yes, 
suh."  To  the  third,  "That's  three 
thirds."  "Yes,  suh."  "John, 
we've  got  four  thirds.  What  are  we 
going  to  do?"  "  Dunno,  suh;  throw 
away  the  fourth  one,  I  reckon. 
But  I  know,  suh,  that  the  two 
boats  struck  right  there  at  the  end 
of  the  second  third!" 


348.    LADY    IVY'S    TRIAL.      ( 

555,  569.) 

[This  suit  of  ejeclment  involved  the 
defendant  Lady  Ivy's  title  to  a  large 
estate  containing  numerous  small 
parcels  of  land.  She  proved  her 
title  to  some  of  them  by  a  chain  of 
old  deeds  discovered  (as  alleged) 
by  one  Knowles,  a  neighbor,  while 
searching  some  musty  deed  boxes 
in  his  own  garret.  The  particular 
parcel  of  land  here  under  inquiry 
depended  on  the  title  of  a  prior 
grantee,  one  Stepkins,  and  the  deed 
that  would  give  Stepkins  title  would 
be  from  one  Marcellus  Hall  as 
grantor  to  intervening  parties.  This 
old  deed  having  been  produced, 
Knowles  was  now  called  for  the  de- 
fendant to  testify  to  the  circum- 
stances of  his  discovery  of  it.  It 
should  be  remembered,  in  following 
Knowles's  story,  that  by  his  own 
account  he  knew  nothing,  when 
searching,  about  Hall's  connection 
with  the  title  ;  he  was  searching  only 
for  some  Stepkins  deed.] 

Att.-Gen.  — Mr.  Knowles,  do  you 
know  anything  of  that  deed  ?  When 
did  you  first  see  it  ?  Mr.  Williams. 
—  And  where  had  you  it  ? 

Knowles.  —  My  lord,  I  had  it 
in  a  garret,  in  a  kind  of  a  nook, 
about  six  foot  long,  and  three  foot 
and  a  half  wide,  in  my  own  house, 
in  the  garret  among  other  writings. 

L.  C.  J.  Jeffreys.  —  How  came 
you  to  have  them  ?  Knowles.  — 
As  I  was  executor  to  Winterburn. 

Mr.  Powis. — Pray,  Mr.  Knowles, 


16S4.      Howell's    State    Trials.     X, 

will  you  tell  upon  what  occasion  you 
looked  there  and  found  them  ?  Serg. 
Pemherton.  —  Ay,  pray  give  'an  ac- 
count of  the  whole.  Knowles.  — 
My  lord,  upon  the  2d  of  August, 
1682.  was  the  first  time  I  ever  saw 
my  Lady  Ivy  to  my  knowledge  ;  and 
she  was  informed  by  one  Mr.  Vicarer, 
that  I  had  several  writings  of  Win- 
terburn's  :  I  told  her  I  had  so,  and 
my  lady  desired  me  to  search  among 
them,  if  there  were  any  writings 
that  concerned  Stepkins's  estate ;  I 
told  her  it  would  take  up  a  month's 
time  to  look  them  all  over,  for  there 
was  a  great  quantity  of  them.  She 
said,  I  would  do  her  a  great  kindness, 
if  I  would  look ;  I  promised  her  I 
would  :  and  upon  the  4th  of  Sep- 
tember, I  think,  I  found  the  deed.  .  .  . 
L.  C.  J.  —  Read  it ;  read  the  de- 
mise. .  .  .  But,  Mr.  Knowles,  let 
me  ask  you  a  question  or  two  :  as  I 
understood,  you  said  my  Lad}^  Ivy 
desired  you  to  look  among  Winter- 
burn's  writings,  for  deeds  that  con- 
cerned Stepkins's  estate  ?    Knowles. 

—  Yes,  my  lord. 

Where  was  that  ?  —  That  was  at 
her  house. 

And  when  did  you  find  this  deed  ? 

—  I  found  the  deed  in  September, 
before  anybody  came  to  look  with 
me,  or  was  in  the  place  with  me. 

Was  there  anybody  w^ith  you, 
when  you  found  the  deed  ?  —  No. 

Then  you  found  it  yourself  ?  — 
Yes. 


672 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  348. 


Did  you  read  it  ?  —  I  did  tlie  out- 
side ;  what  was  I  concerned  further  ? 

Nay,  do  not  he  angry  ;  when  thou 
art  most  cahn,  thou  speakest  so  fast 
a  man  can  scarce  understand  thee ; 
answer  my  question  fairly  :  you  say 
you  read  it,  what  part  was  it  you 
read  ?  —  The  backside,  the  out- 
side. .  .  . 

L.  C.  J.  — .  .  .  When  first  saw 
vou  that  deed  ?  —  In  September, 
1(>S2. 

How  do  you  know  that  ?  —  I  put 
my  hand  to  it. 

Did  you  read  the  inside  of  that 
deed  ?  —  No,  I  (Hd  not. 

L.  C.  J.  —  Look  you,  then,  we  ask 
you  how  you  came  to  know  it  was 
a  deed  belonging  to  Stepkins  ?  —  I 
read  the  backside,  and  put  my  hand 
to  it. 

L.  C.  J.  -—  How  came  you  to  put 
your  hand  to  this  deed  as  belonging 
to  Stepkins,  when  you  never  looked 
into  the  deed  (as  you  have  already 
sworn]?  —  When  I  found  this  deed 
to  have  written  upon  it  "  Marcellus 
Hall,"  I  did  believe  it  was  something 
that  concerned  the  Stepkins. 

L.  C.  J.  —  Let  us  see  the  deed  now. 
You  say  that  was  the  reason,  upon 
your  oath?  —  Yes,  it  was. 

L.  C.  J.  —  Give  Mr.  Sutton  [the 
defendant's  attorney]  his  oath.  Look 
upon  the  outside  of  that  deed,  and 
tell  us  whose  handwriting  that  is. 
Sutton.  — AW  but  the  word  "Lect." 
is  my  handwriting. 

L.  C.  J.  —  Then  how  couldst 
thou  [Knowles]  know  this  to  be- 
long to  the  Stepkins  by  the  words 
"Marcellus  Hall"  when  you  first 
discovered  this  deed  in  September, 
1(».S2,  and  you  found  it  by  yourself 
and  put  your  hand  to  it,  and  yet  that 
"Marcellus  Hall"  be  written  by 
Mr.  Sutton,  which  nuist  be  after 
that  time  ? 

Sol. -Gen.  (for  defendant).  —  Here 
are  multitudes  of  deeds,  and  a  man 
looks  on  the  inside  of  some  anfl  the 
outside  of  others;  is  it  possible  for 
a  man  to  speak  positively  as  to  all 
the  particular  deeds,  without  being 
lialde  to  mistake  ? 


L.  C.  J.  —  Mr.  Solicitor,  you  say 
well.  If  he  had  said,  "  I  looked  upon 
the  outside  of  some  and  the  inside  of 
others,  and  wherever  I  saw  cither 
on  the  outside  or  in  the  inside  the 
name  of  Stepkins  or  Marcellus  Hall, 
I  laid  them  by  and  thought  they 
might  concern  my  Lady  Ivy,"  that 
had  been  something.  But  when  he 
comes  to  be  asked  about  this  particu- 
lar deed,  and  he  upon  his  oath  shall 
declare  that  to  be  the  reason  why  he 
thought  it  belonged  to  Stepkins 
[namely!  l)ecau.se  of  the  name  of 
"Marcellus  Hall"  on  the  outside, 
and  ne\-er  read  any  part  of  the  in- 
side, when  Sutton  swears  "Marcel- 
lus Kail  "  was  [later]  written  by  him, 
what  would  you  have  a  man  say  ? 

Sol. -Gen.  —  My  lord,  I  have  but 
this  to  say ;  if  there  were  never  a 
deed  deli\'ered  by  Knowles  to  my 
Lady  Ivy,  or  Sutton,  where  Marcel- 
lus Hall's  name  was  written  on  the 
backside  of  it,  but  by  Mr.  Sutton  ; 
I  confess  it  were  a  strong  objection. 
But  where  there  are  other  deeds, 
and  a  great  many,  a  man  may  easily 
be  mistaken.  It  is  impossible  for 
any  man,  in  a  multitude  of  deeds 
that  he  finds  among  a  great  parcel, 
and  delivers  many  of  them  out,  to 
take  it  upon  his  memory  particu- 
larly, which  he  looked  on  the  inside 
of  and  which  he  looked  on  the  back- 
side or  outside  of. 

L.  C.  J.  —  Did  he  not  give  it  as 
a  particular  reason  of  his  knowledge 
that  they  belonged  to  my  Lady 
Ivy  ?  .  .  .  And  you  shall  never 
argue  me  into  a  belief,  that  it  is 
impossible  for  a  man  to  give  a  true 
reason,  if  he  have  one,  for  his  remem- 
brance of  a  thing. 

Sol.-Gc72.  —  I  beg  your  pardon,  my 
lord  ;  as  I  apprehend  him,  he  swore 
he  looked  into  the  inside  of  some,  and 
the  outside  of  others,  and  there  were 
a  great  many  of  them. 

L.  C.  J.  —  And  I  beg  your  pardon, 
Mr.  Solicitor,  I  know  what  he  swore 
as  well  as  anybody  else  :  if  indeed  he 
had  sworn  cautiously,  and  with 
care,  it  might  have  been  taken  for 
a  slip,  or  a  mistake. 


No.  348.       III.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      673 


Att.-Gen.  —  My  lord,  we  must 
leave  it  upon  its  own  weight.  But 
we  are  not  come  to  our  title  yet :  I 
have  the  deed  in  my  hand,  which  is 
a  very  old  one,  and  therefore  needs 
not  such  exact  proof.  He  is  mis- 
taken, we  do  own  it ;  and  I  must 
appeal  to  the  court,  whether  a  man 
may  not  be  mistaken  in  a  great 
multitude  of  deeds. 

L.  C.  J.  —  \Yell,  now,  after  all 
this  is  done,  let  him  give  an  account 
how  he  came  to  know  this  to  belong 
to  Stepkins,  or  my  Lady  Ivy,  if  he 
can.  I  speak  it  not  to  prejudice 
your  cause,  but  only  to  have  the 
truth  come  out.  But  for  the  wit- 
ness that  swears,  it  may  affect  him 
I  assure  you.  Give  him  the  deed, 
and  let  him  look  upon  it.  Look 
upon  the  inside,  and  look  upon  the 
outside  too.  Knowles.  —  I  believe, 
my  lord,  upon  better  consideration, 
I  have  read  this  deed  before  now. 

L.  C.  L.  —  Very  well ;  and  yet 
you  swore  the  contrary  just  now. 
Knowles.  —  I  was  in  a  maze,  my 
lord. 

L.  C.  J. —  I  am  sure  thou  sworest 
wildly. 

Sol. -Gen.  —  Pray  what  deed  did 
you  take  it  to  be  at  first  ?     Knowles. 

—  The  lease  of  128  years. 

L.  C.  J.  —  Prithee  read  it  now  to 
us.  Knowles  (reads) .  — "This  inden- 
ture made  the  22d  day  of  December." 

L.  C.  J.  —  Between  whom  ? 
Knowles  (reads).  —  "Between  Mar- 
cellus  Hall  of  Radclift",  miller,  of  the 
one  part,  and  John  Carter,  oar-maker, 
of  the  other  part,  witnesseth,  that 
the  said  Marcellus  Hall  hath  de- 
mised, granted,  and  to  farm  letten 
to  the  said  John  Carter,  all  that 
wharf  lying  in  Radcliff,  where  late 
a  mill  stood,  and  called  Radcliff 
Mill." 

L.  C.  J.  —  Can  you  say  you  ever 
read  so  much  before  ?  Knowles.  — 
I  believe  I  did. 

L.  C.  J.  —  When  was  it  ?    Knowles. 

—  In  September,  1682. 

L.  C.  J.  —  Then  you  read  it  before 
you  showed  it  to  my  Lady  Ivy  ? 
Knowles.  —  Yes,  my  lord. 


L.  C.  J.  —  And  you  found  what 
the  contents  were  by  reading? 
Knowles.  —  Yes,  my  lord. 

L.  C.  J.  —  Did  you  read  it  through  ? 
Knowles.  —  No,  I  did  not,  I  believe. 

L.  C.  J.  —  How  far  do  you  think 
you  read  ?  Knowles.  —  As  far  as  I 
have  read  now. 

L.  C.  J.  —  Did  you  find  anything 
there  of  the  name  of  Stepkins  ? 
Knowles.  — No,  not  in  that  I  did  not. 

L.  C.J.  —  I  would  desire  to  know 
of  you,  who  it  was  that  came  to  my 
Lady  Ivy,  to  inform  her  you  had 
such  and  such  writings  ?     Knowles. 

—  ...  The  first  time  that  I  saw  her 
was  the  2d  of  August,  as  near  as  I  can 
remember,  and  then  I  told  her,  I  was 
executor  to  Winterburn,  and  had  a 
great  many  writings.  Said  she,  do 
.you  know  the  hand  of  Stepkins  ? 
if  you  do,  and  can  find  any  writings 
that  relate  to  Stepkins,  you  will  do 
me  a  great  kindness. 

L.  C.  J.  —  Did  she  name  any- 
body else  to  you  ?  Knoioles.  — 
She  named  one  Lun,  and  one  Barker, 
and  one  Holder,  and  several  others ; 
I  do  not  remember  all. 

L.  C.  J.  —  Was  there  any  mention 
made  of  one  Collet  ?  Knowles.  — 
No. 

L.  C.  J.  —  W' as  there  of  one 
Donne  ?  Knoides.  —  Of  one  Lun 
there  was. 

L.  C.  J.  —  Of  one  Fecknam  ? 
Knowles.  —  No. 

L.  C.  J.  — Of  one  May?    Knowles. 

—  No. 

L.  C.  J.  —  One  Joan  Hall  ?  Knou'les. 

—  No. 

L.  C.  J.  —  W' as  there  any  men- 
tion made  of  any  Hall  ?     Ktwwles. 

—  Yes,  there  was. 

L.  C.  ./.  —  What  Hall  did  she 
speak  of  ?  Knowles.  —  I  am  not 
certain  whether  any  Hall  was  named 
or  no. 

Att.-Gen.  —  He  says,  he  is  sure 
there  was  of  Stepkins,  and  several 
others,  but  not  of  any  Hall. 

L.  C.  J.  —  He  does  so,  Mr. 
Attorney.  But  now  I  would  ask 
him  this  question ;  if  there  were 
no  mention  of  any  Hall,  how  came 


674 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  349. 


you  to  find  out  that  this  deed  from 
Marcelhis  Hall  to  Carter  should  af- 
fect Stepkins,  or  any  Lady  Ivy  ? 
Knowlcs.  —  My  lord,  1  will  give  you 
an  account  of  that. 

/..  C.  J.  —  Ay,  do  if  you  can. 
Knoirlcs.  —  This  was  at  the  first 
time  that  I  saw  my  Lady  Ivy,  that 
this  discourse  was  between  us  ;  upon 
another  discourse,  at  another  time, 
Hall  was  mentioned  to  me.  .  .  . 

L.  C.  J.  —  Who  was  it  first  spoke 
to  you  to  inquire  about  the  Halls  ? 
Ktiowlcs.  —  My  Lady  I^■y  spoke  to 
me  about  Hall  when  I  gave  her  ac- 
count of  some  deeds  I  had  found.  .  .  . 

L.  C.  J.  —  The  first  time,  did  you 
give  my  Lady  Ivy  an  account  that  you 
had  found  anything  ?  Knowles.  — 
Yes,  I  gave  her  an  account  of  the 
lease  of  128  years.  .  .  . 

L.  C.  J.  —  Did  you  find  that 
lease,  or  this  deed  first  ?  Knowles. 
—  The  lease. 

L.    C.    J.  —  When   did    vou   first 


find  this  deed  ?  Knowles.  —  The 
4th  of  September  I  found  the  lease, 
and  within  fourteen  or  fifteen  days 
after  I  found  the  rest.   .   .   . 

L.  C.  J.  —  What  day  was  it  my 
Lady  Ivy  first  spoke  to  you  to 
look  after  the  Halls  ?  Knowles.  — 
Within  a  week  after  I  first  saw  her. 

L.  C.  J.  —  Was  it  before  you  found 
the  lease  you  speak  of  ?  Knowles. 
—  Yes,  it  was  before. 

L.  C.  J.  —  How  comes  it  to  pass 
then,  that  you  did  not  find  this  deed 
at  the  first  looking,  which  was  the 
4th  of  September,  when  you  found 
that  lease,  you  say  ? 

A  ft. -Gen.  —  We  must  lay  aside  the 
testimony  of  this  man. 

L.  C.  J.  —  Ay,  so  you  had  need. 

[The  defendant  was  afterwards 
indicted  for  forging  these  deeds ; 
and  it  was  amply  proved  that  she 
and  Knowles  had  manufactured 
and  aged  a  large  quantity  of  sucb 
documents.! 


349.    THE  POPISH  PLOT.     ( 

infra.) 

[Charles  II  had  been  restored  to 
the  throne  in  1660.  But  the  politi- 
cal antagonism  l)etween  Protestants 
and  Romanists  continued.  Extrem- 
ists in  each  part\'  hated  and  feared 
the  other.  ( "harles  II  was  nominally 
a  Church  of  England  Protestant; 
but  his  l)rother  and  to-be  successor, 
James  II,  then  duke  of  York,  was 
an  avowed  Romanist.  P^anaticism 
and  popular  excitement  would  be- 
lieve anything  against  the  opponents. 
In  1678  the  .so-called  Popish  Plot 
was  discovered,  —  a  plot  by  certain 
Jesuit  priests  and  others  to  assas- 
sinate the  king,  massacre  the  Prot- 
estants, and  burn  London.  The 
principal  accused  were  Whitcbread, 
Ireland,  Harcourt,  Langhorn,  Wake- 
man,  (jrove,  and  Gavan.  All  were 
tried  in  1678-1679,  found  guilty,  and 
executed.  The  two  principal  wit- 
nesses against  them  were  Titus 
Oates  and  Williani  Hedlow,  who  be- 
came informers  and  recounted  the 
various    plans    of    the    conspiracy, 


1678-79.     Howell's  State  Trials,  uhi 

which  they  had  originally  entered, 
or  pretended  to  enter.  In  Oates's 
testimony,  a  principal  fact  was  the 
alleged  meetings  of  the  conspirators 
at  London,  in  August,  1678.  The 
accused  denied  these  meetings ;  Ire- 
land, in  particular,  asserted  that  he 
was  not  in  London  during  that 
month.  Testimony  as  to  that  fact 
in  the  trials  of  Ireland  and  White- 
bread  here  follows.] 

^  {><)  Ireland's  Trial  (1678.  How- 
ell's State  Trials,  VII,  110).  .   .  . 

Fenwick.  —  Where  was  this  meet- 
ing, and  when  ?  Bedlow.  —  Last 
August,   at   Harcourt's   chamber. 

Who  were  present  there  ?  Bed- 
low.  —  Be  pleased  to  give  me  leave 
to  go  on  ;  I  will  tell  you  by  and  by  : 
Then  I  understood,  as  I  said,  that 
the  plan  was  to  kill  the  king,  but 
that  Pickering  and  Grove  failing  of 
it,  they  had  hired  four  ruffians  that 
were  to  go  to  Windsor,  and  do  it 
there.  .  .  .     About    the  latter    end 


No.  349.     III.      TESTIMONIAL   INTERPRETATION.      B.    COMMON    INCIDENTS        675 


of  August,  or  the  beginning  of 
September  (but  I  believe  it  was  the 
latter  end  of  August),  I  came  to 
Harcourt's  chamber,  and  there  was 
Ireland  and  Pritchard,  and  Picker- 
ing, and  Grove. 

L.  C.  J.  —  ^Yhat  part  of  August 
was  it?  —  The  latter  end. 

Do  you  say  it  positively,  that  it 
was  the  latter  end  of  August  ?  —  My 
lord,  it  was  in  August ;  I  do  not 
swear  positively  to  a  day. 

But  you  say  it  was  in  August  ? 
Ireland.  —  And  that  we  were  there 
present  ?  Bcdlow.  —  You  were  there, 
and  Grove,  and  Pickering. 

Ireland.  —  Did  you  see  me  before  ? 
Bedlow.  —  You  were  present  there, 
and  Grove,  and  Pickering,  and  Pritch- 
ard, and  Fogarthy,  and  Harcourt, 
and  I. 

L.  C.  J.  —  What  did  you  talk  of 
there  ?  Bedlow.  —  That  the  ruf- 
fians missing  of  killing  the  king  at 
Windsor,  Pickering  and  Grove  should 
go  on,  and  that  Conyers  should  be 
joined  with  them  ;  and  that  was  to 
assassinate  the  king  in  his  morning 
walks  at  Newmarket.  .  .  . 

L.  C.  J.  —  Now,  gentlemen,  you 
shall  have  liberty  to  make  your  full 
defense. 

Defense. 

Ireland.  —  First,  I  shall  endeavor 
to  prove  there  are  not  two  wit- 
nesses against  me :  for  that  which 
he  says,  of  my  being  at  Harcourt's 
chamber  in  August,  is  false ;  for 
I  will  prove  I  was  all  August  long 
out  of  town,  for  I  was  then  in 
Staffordshire. 

L.C.J.  —  Call  your  witnesses.  .  .  . 

Recorder.  —  To  save  him  that 
labor,  the  king's  evidence  will  prove, 
that  he  was  in  town  at  that  tim.e. 

Serg.  Baldwin.  —  Swear  Saran 
Paine.     Which  was  done. 

Serg.  Baldwin.  —  My  lord,  this 
person  was  Mr.  Grove's  maid. 

L.  C.  J.  —  I  believe  you  know 
your  maid,  Mr.  Grove,  don't  you  ? 
Look  upon  her,  she  was  your  servant. 
Grove.  —  Yes,  my  lord,  she  was  so, 
she  is  not  so  now. 

L.    C.    J.  —  Do    vou    know    Mr. 


Ireland  ?  Sarah  Paine.  —  Yes,  my 
lord. 

Do  you  know  whether  Mr.  Ire- 
land was  in  town  in  August  last, 
or  no  ?  Sarah  Paine.  —  I  saw  him 
at  his  own  house  about  a  week  before 
I  went  with  my  lord  Arlington  to 
Windsor. 

L.  C.  J.  —  When  was  that  ? 
Sarah  Paine.  —  That  was  about  a 
week  after  the  king  was  gone 
thither. 

L.  C.  J.  —  Sir  Thos.  Doleman, 
what  day  was  it  the  king  was  gone 
thither  ?  Sir  T.  Doleman.  —  About 
the  13th  of  August. 

L.  C.  J.  —  Thirteen  and  seven  is 
twenty  ;  then  you  went  to  Windsor 
about  the  20th,  it  seems,  and  you 
say  that  eight  days  before  you  saw 
Mr.  Ireland  at  his  own  house  ?  S. 
Paine.  —  Yes,  my  lord,  about  eight 
or  nine  days  before  that ;  I  did  see 
him  at  the  door  of  his  own  house, 
which  was  a  scrivener's  in  Fetter- 
Lane.  He  was  going  into  his  own 
lodging. 

L.  C.  J.  —  How  long  had  you 
known  him  before  that  time  ?  S. 
Paine.  —  My  lord,  I  knew  him,  for 
he  came  often  to  our  house,  when  I 
lived  at  Mr.  Grove's ;  he  was  the 
man  that  broke  open  the  packet 
of  letters  that  my  master  carried 
about  afterwards,  and  he  sealed  all 
the  packets  that  went  beyond  the 
seas.  And  he  opened  them  still 
when  the  answers  returned  back 
again. 

Ireland.  —  Now  must  all  the  peo- 
ple of  my  lodging  come  and  wit- 
ness that  I  was  out  of  my  lodging 
all  August. 

L.  C.  J.  —  Call  them.  Ireland. 
—  There  is  one,  Anne  Ireland. 

L.  C.  J.  —  Crier,  call  her. 

Crier.  —  Anne  Ireland  :  Here  she 
is. 

L.  C.  J.  —  Come,  mistress,  what 
can  you  say  concerning  your 
brother's  being  out  of  town  in 
August?  A.  Ireland.  —  My  lord, 
on  Saturday  the  3d  of  August  he 
set  out  to  go  into  Staffordshire. 

L.  C.  J.  —  How  long  did  he  con- 


676 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  319. 


tinue  there?  A.  Inland. — Till  it 
was  a  fortnight  before  Michaelmas. 

/..  C.  J.  —  How  can  you  remember 
that  it  was  jvist  the  3d  of  August  ? 
A.  Ireland.  —  I  remember  it  by  a 
very  good  circimistance,  because  on 
the  Wednesday  before,  my  brother 
and  my  mother,  and  I  were  invited 
out  to  dinner ;  we  stayed  there  all 
night,  and  all  Thursday  night,  and 
Friday  night  my  brother  came  home, 
ami  on  Saturday  he  set  out  for 
Staflordshire. 

L.  C.  J.  —  'Where  was  it,  maid, 
that  you  saw  him  ?  S.  Paine.  —  I 
saw  him  going  in  at  the  door  of  their 
own  house. 

L.  C.  J.  —  When  was  that  ?  .S. 
Paine.  —  About  a  week  before  I 
went  with  my  lord  chamberlain  to 
Windsor,  which  was  a  week  after 
the  king  went  thither. 

L.  C.  J .  —  That  must  be  about 
the  12th  or  13th.  Are  you  sure  you 
saw^  him  ?  iS.  Paine.  —  Yes,  my 
lord,  I  am  sure  I  saw  him. 

L.  C.  J.  —  Do  you  know  this  maid, 
Mr.  Ireland  ?  Ireland.  —  I  do  not 
know  her,  my  lord. 

L.  C.  J.  —  She  knows  you  by  a 
\ery  good  token.  You  used  to 
break  open  the  letters  at  her  rnas- 
ter's  hou.se,  and  to  seal  them. 

S.  Paine.  —  He  knows  me  very 
well,  for  I  have  carried  several 
letters  to  him,  that  came  from  the 
carrier  as  well  as  those  that  came 
from  beyond  sea. 

L.  C.  J.  —  They  will  deny  any- 
thing in  the  world. 

Ireland.  —  I  profess,  I  do  not 
know  her.  Twenty  people  may 
come  to  me,  and  yet  i  not  know 
them  ;  and  she,  having  been  Mr. 
Grove's  servant,  may  have  l)rought 
me  letters,  and  yet  I  do  not  remem- 
ber her.  Hut,  my  lord,  here  is  my 
mother,  Eleanor  Ireland,  that  can 
testifv  the  .same. 

A.  C.  ./.  —  ('all  her  then. 

Crier.  —  Eleanor  Ireland.  K.  Ire- 
land. —  Here. 

L.  C.  J.  — Can  vou  tell  me  when 


your  son  went  out  of  town?  —  He 
went  out  of  town  the  3d  of  August, 
towards  Staffordshire. 

Inland.  —  My  lord,  there  is  Mr. 
Charles  Giti'ord  will  prove  that  I 
was  a  week  after  the  beginning  of 
September  and  the  latter  end  of 
August  in  Staffordshire. 

L.  C.  J.  —  That  will  not  do :  for 
she  says  that  she  saw  you  in  Lon- 
don about  the  10th  or  12th  of 
August ;  and  she  makes  it  out  by  a 
circumstance,  which  is  better  evi- 
dence than  if  she  had  come  and 
sworn  the  precise  day  wherein  she 
saw  him  ;  for  I  should  not  have 
been  satisfied  unless  she  had  given 
me  a  good  account  why  she  did  know 
it  to  be  such  a  day.  She  does  it  by 
circumstances  by  which  we  must 
calculate  that  she  saw  you  about  the 
12th  or  13th  day.  .  .  .  You  say 
you  went  out  of  town  the  3d  of 
August ;  who  can  swear  you  did  not 
come  back  again  ?  Ireland.  —  All 
the  house  can  testify  I  did  not  come 
to  my  lodging.  E.  Ireland.  —  He 
went  out  of  town  the  3d  of  August, 
and  did  not  return  till  a  fortnight 
before  Michaelmas.  .  .  .  Gates.  — 
IVIy  lord,  .  .  .  when  we  pretended  to 
go  into  the  country,  we  have  gone 
and  taken  a  chamber  in  the  city, 
and  have  had  frequent  cabals  at  our 
chambers  there.  Mr.  Ireland  writ 
a  letter  as  dated  from  St.  Omers, 
when  I  took  my  leave  of  him  at  his 
own  chamber,  wdiich  was  betwixt 
the  12th  and  24th  in  London.  He 
was  there ;  and  afterwards  when 
I  went  to  Fenwick's  chamber  he 
came  thither ;  a  fortnight  or  ten 
days  at  least,  I  am  sure  it  was  in 
August. 

L.  C.  J.  —  Here  are  three  wit- 
nesses upon  oath  about  this  one 
thing.  .  .  .  Gates.  —  W' hereas  he 
says,  that  the  beginning  of  Septem- 
ber he  was  in  Staffordshire,  he  was 
in  town  the  1st  of  September,  or 
2d  '  for  then  I  had  of  him  twenty 
shillings. 

Ireland.  —  This    is    a    most    false 


'  This  is  the  statomciit  on  which  one  of  Gates'  subsequent  imlietnu-iits  for  perjury  was 
based. 


No.  349.       III.     TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      677 


lie ;  for  I  was  then  in  Staffordshire. 
And  the  witnesses  contradict  them- 
selves ;  for  the  one  saith,  he  took 
his  leave  of  me,  as  going  to  St. 
Omers  the  12th ;  the  other  saith,  it 
was  the  latter  end  of  August  I  was 
at   Harcourt's   chamber. 

L.  C.  J.  —  He  does  not  say  you 
went,  but  you  pretended  to  go. 

A.  Ireland.  —  Here  is  one  Harri- 
son, that  was  a  coachman  that  went 
with  them. 

L.  C.  J.  —  Well,  what  say  you, 
friend  ?  Do  you  know  Mr.  Ireland  ? 
Harrison.  —  I  never  saw  the  man 
before  that  time  in  my  life,  but  I 
met  with  him  at  St.  Albans. 

L.     C.     J.  —  When  ?       Harrison. 

—  The  5th  of  August.  There  I  met 
with  him,  and  was  in  a  journey  with 
him  to  the  16th. 

L.  C.  J.  —  What  day  of  the  week 
was  it  ?     Harrison.  —  Of  a  Monday. 

L.  C.  J.  —  Did  he  come  from 
London  on  that  day  ?       Harrison. 

—  I  cannot  tell  that.  But  there  I 
met  him. 

L.  C.  J.  —  What  time  ?  Harri- 
son.  —  In    the    evening. 

L.  C.  J.  —  Whereabouts  in  St. 
Albans  ?  Harrison.  —  At  the  Bull- 
inn  where  we  lodged. 

L.  C.  J.  —  Mr.  Ireland,  you  say 
you  went  on  Saturday  out  of  town, 
did  you  stay  at  St.  Albans  till  Mon- 
day ?  Ireland.  —  No,  I  went  to 
Standon  that  day,  and  lay  there  on 
Saturday  and  Sunday  night ;  on 
Monday  I  went  to  St.  Albans. 

L.  C.  J.  —  What,  from  thence  ? 
Ireland.  —  Yes,   my  lord. 

L.  C.  J.  — Why  did  you  go  thither  ? 
Was  that  in  your  way  ?      Ireland. 

—  I  went  thither  for  the  company  of 
Sir  John  Southcot  and  his  lady. 

L.  C.  J.  —  How  did  you  know 
that  they  went  thither?        Ireland. 

—  I  understood  they  were  to  meet 
my  lord  Ashton  and  lady  there. 

i.  C.  J. —  What,  oil  Monday 
night?        Ireland. — Yes,    my   lord. 

Harrison.  —  From  whence  I  went 
with  him  to  Tixwel,  to  my  lord 
Ashton 's  house,  there  we  were  all 
with  him. 


L.  C.  J.  —  Were  you  my  lord 
Ashton's  coachman  ?  Harrison.  — 
No,  my  lord,  I  was  ser\ant  to  Sir 
John  Southcot. 

L.  C.  J.  —  How  came  you  to  go 
with  them  ?  Harrison.  —  Because 
my  lord  Ashton  is  my  lady  South- 
cot's  brother. 

L.  C.  J .  —  How  long  was  you  in 
his  company  ?  Harrison.  —  From 
the  5th  of  August  to  the  16th,  and 
then  I  was  with  him  at  West- 
Chester. 

Mr.  Just.  Atlcins.  —  You  have  not 
yet  talked  of  being  at  West-Chester 
all  this  while.  Ireland.  —  My 
lord,  I  must  talk  of  my  journey  by 
degrees. 

L.  C.  J.  —  Before  you  said  you 
were  all  August  in  Staffordshire ; 
come,  you  must  find  out  some 
evasion  for  that.  Ireland.  —  In 
Staffordshire,    and    thereabouts. 

L.  C.  J.  —  You  witness,  who  do 
you  live  with  ?  Harrison.  —  With 
Sir  John  Southcot. 

L.  C.  J.  —  Who  brought  you 
hither  ?  Harrison.  —  I  came  only 
by  a  messenger  last  night.   .   .   . 

L.  C.  J.  —  Fellow,  what  town  was 
that  in  Staffordshire  ?  tell  me 
quickly.  Harrison.  —  It  was  Tix- 
wel, by  my  lord  Ashton's ;  there 
we  made  a  stay  for  three  or  four 
days,  then  we  went  to  Nantwich, 
and  so  to  AVest-Chester. 

L.  C.  J.  —  Were  not  you  at  Wol- 
verhampton with  him  ?  Harrison. 
—  No,  my  lord,  I  was  not  there, 
left  him  at  West-Chester.  Ire- 
land. —  ]My  lord,  I  was  at  Wolver- 
hampton with  Mr.  Charles  Gilford, 
and  here  he  is  to  attest  it. 

L.  C.  J.  —  Well,  sir,  what  say 
you  ?  Gifford.  —  My  lord,  I  saw 
him  there  a  day  or  two  after  St. 
Bartholomew's  day,  there  he  con- 
tinued till  the  9th  of  September ; 
the  7th  of  September  I  saw  him 
there,  and  I  can  bring  twenty,  and 
twenty  more,  that  saw  him  there. 
Then,  as  he  said,  he  was  to  go  to- 
wards London,  I  came  again  thither 
on  the  9th,  and  there  I  found  him. 
And  this  is  all  I  have  to  say. 


67! 


PART    11.       TESTIMONIAL    EVIDENCE 


No.  349. 


Ootes.  —  My  lord,  1  do  know  that 
(lay  in  September  I  speak  of  by  a 
particular    circumstance. 

Ireland.  —  My  lord,  there  is  one 
William  Bowdrel,  that  will  testify 
the  same,  if  I  might  send  for  him. 

L.  C.  J.  —  Wh>'  haven't  you  him 
here?  Ireland.  —  She  hath  done 
what  she  can  to  bring  as  many  as 
she  could.  .  .  .  \Ve  could  have  had 
them,  if  we  had  time.  .  .  . 

L.  C.  J.  —  Well,  if  you  have  any 
more  to  say,  say  it.  Ireland.  — 
My  lord,  I  have  produced  witnesses 
that  prove  what  I  have  said. 

L.  C.  J.  —  I  will  tell  you  w^hat 
you  have  proved,  you  have  produced 
your  sister  and  your  mother  and 
the  servant  of  Southcot ;  they  say 
you  went  out  the  third  of  August, 
and  he  gives  an  account  you  came 
to  St.  Albans  on  the  oth,  and  then 
there  is  another  gentleman,  Mr. 
Gifford,  who  says  he  saw  you  at 
Wolverhampton  till  about  a  week 
in  Septeml)er.  Mr.  Gates  hath 
gainsaid  him  in  that,  so  you  have 
one  witness  against  INIr.  Gates  for 
that  circumstance.  It  cannot  be 
true  what  Mr.  Gates  says,  if  you 
were  there  all  that  time,  and  it  can- 
not be  true  what  Mr.  Gifford  says, 
if  you  were  in  London  then.  And 
against  your  two  witnesses,  and  the 
coachman,  there  are  three  witnesses, 
that  swear  the  contrary,  Mr.  Gates, 
Mr.  Bedlow,  and  the  maid ;  so 
that  if  she  and  the  other  two  be 
to  be  believed,  here  are  three  upon 
oath  against  your  three  upon' bare 
affirmation.   .   .   . 

Then  the  Lord  Chief  Justice 
directed  the  jury  thus  : 

L.  C.  J.  —  Gentlemen,  you  of  the 
jury.  .  .  .  It  may  seem  hard,  per- 
haps, to  convict  men  upon  the 
testimony  of  their  fellow-offenders, 
and  if  it  had  been  possil)le  to  have 
brought  other  witnesses,  it  had  been 
well  :  but,  in  things  of  this  nature, 
you  cannot  expect  that  the  witnesses 
should  l)e  absolutely  spotless.  .  .  . 
Ireland  ol)jects,  that  Bedlow  charges 
him  in  August,  when  he  was  out  of 
town  all  that  time,  and  that  there- 


fore the  testimony  of  one  of  the  wit- 
nesses cannot  be  true.  And,  Ui 
prove  this,  he  calls  his  mother,  his 
sister,  and  Sir  John  Southcot 's  man, 
and  Mr.  Gifford.  His  mother  and 
sister  say  expressly,  that  he  went 
out  of  town  the  third  of  August,  and 
the  servant  says,  that  he  saw  him  at 
St.  Albans  the  5th  of  August,  and 
continued  in  his  company  to  the 
l()th  (so  that  as  to  that,  there  is 
a  testimony  both  against  Mr.  Bed- 
low  and  against  Mr.  Gates) ;  and 
Mr.  Gifford  comes  and  says,  he 
saw  him  at  the  latter  end  of  August 
and  beginning  of  September  at  Wol- 
verhampton ;  whereas  Mr.  Gates 
hath  sworn,  he  saw  him  the  12th  of 
August,  and  the  1st  or  2d  of 
September,  and  tells  it  by  a  particu- 
lar circumstance.  Wherein,  I  must 
tell  you,  it  is  impossible  that  both 
sides  should  be  true.  But  if  it 
should  be  a  mistake  only  in  point  of 
time,  it  destroys  not  the  evidence, 
unless  you  think  it  necessary  to  the 
substance  of  the  thing.  If  you 
charge  one  in  the  month  of  August 
to  have  done  such  a  fact,  if  he  deny 
that  he  was  in  that  place  at  that 
time,  and  proves  it  by  Avitnesses,  it 
may  go  to  invalidate  the  credibility 
of  a  man's  testimony,  but  it  does 
not  invalidate  the  truth  of  the  thing 
itself,  which  may  be  true  in  sub- 
stance, though  the  circumstance  of 
time  differ.  And  the  question  is, 
whether  the  thing  be  true  ?  Against 
this,  the  counsel  of  the  king  have 
three  that  swear  it  positively  and 
expressly,  that  Ireland  was  here. 
Here  is  a  young  maid  that  knew 
him  very  well,  and  was  acquainted 
with  him,  and  with  his  breaking  up 
of  letters ;  and  she  is  one  that  was 
Grove's  servant :  She  comes  and 
tells  you  directly,  that  about  that 
time,  which,  by  computation,  was 
about  the  twelfth  of  August,  she 
saw  him  go  into  his  own  house ; 
which  cannot  be  true,  if  that  be 
true  which  is  said  on  the  other  side ; 
and  she  does  swear  it  upon  better 
circumstances  than  if  she  had  barely 
l)itched  upon  a  day ;    for  she  must 


No.  349.       III.     TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      679 


have  satisfied  me  well,  for  what 
reason  she  could  remember  the  day 
so  positively,  ere  I  should  have  be- 
Heved  her  :  But  she  does  it,  remem- 
bering her  going  to  my  lord  Arling- 
ton's service,  which  was  a  week  after 
the  king  went  to  Windsor ;  which  is 
sworn  to  be  about  the  13th  of  August, 
and  a  week  before  her  going  it  was 
that  she  saw  Ireland  at  his  own 
door.  What  arts  they  have  of  evad- 
ing this,  I  know  not.  .  .  .  But  the 
fact  against  them  is  here  expressly 
sworn  by  two  witnesses  ;  if  you  have 
any  reason  to  disbelieve  them,  I 
must  leave  that  to  you. 

(h)  Whitebread's  Trial  (1679. 
Howell's    State    Trials,  MI,  327). 

Oates. —  Now,  my  lord,  we  are  ar- 
rived to  our  business  in  August ; 
about  the  12th  of  August,  as  near  as 
I  remember,  but  it  was  between  the 
8th  and  the  12th,  therein  I  am 
positive,  Ireland,  who  is  executed, 
took  his  leave  of  us,^  as  if  we  were 
to  go  to  St.  Omers. 

L.  C.  J.  —  Where  did  he  take  his 
leave  ?  Oates.  —  At  his  chamber 
in  Russel  street.  Ireland  went  out 
of  town,  and  Fenwick,  by  that 
means,  was  to  be  treasurer  and  pro- 
curator to  the  society  altogether.  .  .  . 

L.  C.  J.  —  I  am  mistaken,  if  you 
have  not  testified  that  Ireland  was 
in  town  in  August  and  September 
with  Harcourt.  Oates.  —  Ireland 
took  his  leave  of  London  betwixt  the 
8th  and  the  12th  of  August,  as  to 
go  to  St.   Oraers. 

L.  C.  J.  —  Here  is  the  matter ; 
they  must  have  right,  though  there 
be  never  so  much  time  lost,  and 
patience  spent.  Say  they,  we  must 
prove  and  contradict  men  by  such 
matters  as  we  can ;  people  may 
swear  downright  things,  and  it  is 
impossible  to  contradict  them  ;  but 
we  will  call  witnesses  to  prove  those 
particulars  that  can  be  proved : 
say    where    Mr.     Ireland    was     in 


leave  of  us  in  town  in  August,  and 
that  was  between  the  8th  and  12th 
at  Harcourt's  chamber.  .  .  . 

L.  C.  J.  —  Look  you  now,  mind 
what  he  says,  Ireland  and  Fenwick 
were  together  in  August,  between 
the  8th  and  the   12th.   .   .   . 

[Drfrnsr.  After  calling  some  of 
the  former  witnesses  to  prove  Ire- 
land's departure  from  London  on 
Aug.  3,] 

I^ady  Southcot  stood  up. 

L.  C.  J.  —  How  long  were  you  in 
Mr.  Ireland's  company  ?  —  From 
the  5th  of  August  to  the  16th. 

L.  C.  J.  —  What,  every  day  ?  — 
Yes,  every  day.  .  .  . 

Then  Sir  John  Southcot  was 
called,  and  appeared. 

L.  C.  J.  —  Did  you  know  Mr. 
Ireland  ?  —  Yes,  I  did  know  him 
by  face. 

W  here  did  you  see  him  ?  —  I  saw 
him  the  5th  of  August,  at  St.  Albans. 

And  did  he  travel  along  with 
you  ?  —  Yes,  he  did  travel  along 
"with  us  the  6th,  7th,  8th,  and  9th. 

How  many  days  did  he  travel 
along  with  you  ?  —  He  traveled 
along  with  us  four  days  together,  I 
am  sure. 

L.  C.  J.  —  What,  from  the  5th 
to  the  9th  ?  —  Yes,  sir. 

Is  this  all  that  you  can  say  ? — 
Yes,  my  lord.  .  .  . 

Then  Mr.  Edward  Southcot  stood 
up. 

L.  C.  J.  —  Were  you  here  when 
Ireland   was   tried  ?  —  No. 

Did  you  see  Mr.  Ireland  in  August 
last  ?  —  The  3d  of  August  he  came 
down  to  my  lord  Ashton's  at  Stan- 
more,  they  said  so ;  but  I  cannot 
swear  he  came  that  night ;  but  I 
saw  him  very  early  the  next  morn- 
ing ;  the  5th  we  went  to  St.  Albans, 
and  we  kept  on  till  we  came  to  Tix- 
all ;  and  I  was  in  his  company  from 
the  4th  to  the  16th. 

L.  C.  J.  —  Why,  you  hear  what 
he  says,  he  was  in  company  with 
him  everv  dav  from  the  4th  to  the 
16th.  .  /. 


August.        Oates.  —  He      took      his 

'This  was  the  perjury  assigned  in  the  second  count  of  the  indictment  upon  wliich  Oates 
was  convicted,  May  9th,  1685. 


680 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  349. 


Sir  Cr.  LrriJiz  [for  the  prosecution]. 

—  Gentlemen  of  the  jury,  you  have 
heard  the  prisoners,  and  they  have 
had  a  great  deal  of  time  to  make 
their  defense.  .  .  .  By  chance  we 
have  a  witness  still  to  give  you  satis- 
faction, that  ]Mr.  Ireland  was  in 
London  at  that  time  that  Mr.  Gates 
did  swear  him  to  be.  We  will  begin 
with  that  witness  about  Ireland. 
And  then  we  will  call  our  witnes.ses 
to  prove  that  Mr.  Gates  was  in 
England,  and  did  come  over  when 
he  said  he  did.  Call  Sarah  Paine. 
(Who  was  sworn.) 

Sir  Cr.  Lcvinz.  —  What  time  did 
you  see  Mr.  Ireland  in  London  ''.  did 
you  see  him  in  August  last  ?  8. 
Paine.  —  I  saw  him  about  seven  or 
eight  days  before  I  came  to  m^'  Lord 
Chamberlain,  and  that  was  about  a 
week  before  the  king  went  to  Wind- 
sor. 

L.  C.  J.  —  Where  did  you  see 
him  ?  —  At  his  own  door  in  Russel 
street. 

L.  C.  J.  —  Did  you  speak  to  him  ? 

—  No,  I  know  him  very  well,  and 
saw  him  as  I  came  by.  .  .  . 

Sir  Cr.  Levinz.  —  How  long  did 
you  look  upon  him  ?  Did  you  see 
him  go  in  ?  Did  you  see  his  face  or 
his  back  ?  —  I  saw  his  face,  and 
made  him  a  curtsy. 

L.  C.  J .  —  This  she  said  to  Ire- 
land's face. 

Justice  Dolbcn.  —  Your  evidence 
is,  that  Mr.  Ireland  went  out  of 
town  the  5th  of  August,  and  she 
says  she  saw  him  about  that  time, 
which  must  be  the  12th  or  14th  of 
August. 

Gavan.  —  How  does  she  prove  it  ? 
She  does  not  say  she  spoke  with  him. 

Justice  Dolbcn.  —  She  swears  it. 

Sir  Cr.  Levinz.  —  Now  we  must 
prove  what  time  the  king  went  to 
Windsor. 

L.  C.  J .  —  Sir  Thomas  Doleman, 
what  time  in  August  did  the  king 
go  to  Windsor  last  sununer?  —  Sir 
Than.  JJolrman.  —  I  believe  (I  can- 
not charge  my  memory  so  well)  it 
was  the  l.'Uh  ;  it  was  about  the  12th 
or  13th.  .  .  . 


L.  C.  J.  —  And  when  do  3'ou  say 
you  saw  Ireland  ?  S.  Paine.  —  I 
saw  him  seven  or  eight  days  before 
I  went  to  my  Lord  Chamberlain's, 
which  was  liefore  my  lord  went  to 
Windsor,  and  that  was  a  week  after 
the  king  went  thither. 

Sir  Cr.  Lcvinz.  —  Now  I  will  tell 
you  what  she  says ;  she  says  she 
saw  Ireland  a  week  before  she  went 
to  my  Lord  Chamberlain's,  and  she 
saw  him  go  into  Grove's  house, 
where  he  did  usually  go  for  letters ; 
she  says  she  saw  his  face,  and  made 
him  a  curtsy ;  and  that  this  was  a 
week  before  she  went  to  my  Lord 
Chamberlain's,  and  that  was  a 
week  after  the  king  went  to  W^indsor. 
Now  the  time  that  Mr.  Gates  pitches 
upon  is  between  the  8th  and  12th 
of  August,  which  by  computation 
is  the  time  she  speaks  of. 

Gavan.  —  And  our  witnesses  go 
from  the  3d  of  i\ugust  to  the  14th 
of  September. 

(r)  Gates's  Trial  (IGSo.  How- 
ell's State  Trials,  X,   1239). 

[After  the  panic  of  the  Popish 
Plot  had  subsided,  suspicion  began 
to  arise  that  it  had  been  a  false 
alarm,  and  that  Gates  and  Bedlow 
had  composed  a  story  to  take  ad- 
vantage of  the  state  of  popular  ex- 
citement. Upon  this  reaction.  Gates 
was  put  on  trial  for  perjury.]  .   .  . 

Att.-Gcn.  —  May  it  please  your 
lordship,  and  you  gentlemen  of  the 
jury ;  Mr.  Gates  stands  indicted 
for  having  perjured  himself ;  the 
instances,  gentlemen,  that  we  charge 
him  with,  are  these :  first,  what 
he  swore  at  the  trial  of  Ireland  ;  and 
we  say,  that  at  that  trial  he  did 
swear  Ireland  was  in  town  the  1st  or 
2d  of  September,  1678.  The  second 
instance  is,  what  he  swore  at  the 
trial  of  the  Five  Jesuits ;  and  there 
we  say,  he  did  swear,  that  Ireland 
was  in  town  between  the  Sth  and 
12th  of  August,  and  that  he  took 
his  leave  of  him  here  in  town  at  his 
chamber  in  Russel  street ;  and  we 
do  charge  liim  by  this  indictment, 
that  he  has  forsworn  himself  in  both 


No.  349.       III.    TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      681 


instances ;  and  that  Ireland,  gentle- 
men, was  neither  in  town  between 
the  8th  and  12th  of  August,  nor 
the  first  or  second  of  September. 
And  we  shall  make  it  out  very  evi- 
dently :  for,  gentlemen,  as  to  the 
proof  in  this  case,  our  case  stands 
thus  :  we  say,  that  the  3d  of  August, 
1678,  Ireland  went  into  Hertford- 
shire, to  a  house  of  my  lord  Ashton's, 
and  from  thence  went  into  Stafford- 
shire. .  .  .  and  did  not  return  till 
after  the  9th  of  September.  And 
for  this,  we  call  Ann  Ireland  (who 
was  sworn). 

Sol.-Gen.  —  Mrs.  Ireland,  pray 
where  did  you  take  your  leave  of 
your  brother,  Mr.  Ireland,  who  was 
executed  in  summer,  1678,  and 
when  ?  Mrs.  A.  Ireland.  —  I  took 
.my  leave  of  him  the  beginning  of 
August. 

Sol.-Gen.  —  What  day  in  August, 
do  you  remember  ?  A.  Ireland. 
—  The  3d  of  August. 

Sol.-Gen.  —  Where  was  it?  A. 
Ireland.  —  In  my  own  lodging. 

L.  C.  J.  —  Where  was  your  lodg- 
ing ?  A .  Ireland. —  In  Russel  street, 
Covent   garden. 

L.  C.  J.  —  Now  tell  us  again  the 
time  when  it  was  ?  vl.  Ireland.  — 
It  was  on  Saturday  morning,  as  I 
remember,  the  3d  of  August,  the 
Saturday  after  St.  Ignatius's  day. 

L.  C.  J.  —  How  come  you  to 
remember  so  particularly,  that  it 
was  then  ?  A.  Ireland.  —  Because 
upon  St.  Ignatius's  day,  we  were 
invited  to  Mr.  Gilford's,  at  Hammer- 
smith ;  my  brother,  my  mother, 
and  I  were  invited  to  stay  all  night : 
but  my  brother  refused  to  stay, 
because  — 

L..  C.  J.— Which  brother  ?  What 
was  his  name?  A.  Ireland. —  Wil- 
liam Ireland. 

L.  C.  J.  —  Did  they  stay  there  ? 
A.  Ireland.  —  No,  my  lord,  my 
brother  came  home  on  foot,  but  we 
stayed  all  night. 

Att.-Gen.  —  Here  is  an  almanac  of 
that  year ;  and  the  3d  of  August 
was  on  Saturday.  A.  Ireland.  — 
He  said  he  could  not  stay,  because 


he  was  to  go  into  the  country  upon 
Saturday.  I  asked  him,  "Why  he 
would  set  out  on  Saturday  ?  "  And 
says  he,  "I'll  go  to  Standen,  there  I 
shall  meet  with  my  lord  Ashton, 
and  his  family ;  and  have  an  op- 
portunity to  go  with  him  into 
Staffordshire."  .  .  . 

yl«.-G'c?i.  —  What  day  of  the 
week  was  St.  Ignatius's  day?  .1. 
Ireland.  —  St.  Ignatius's  day  was  on 
Wednesday. 

L.  C.  J.  —  What  day  of  the  month 
is  St.  Ignatius's  day  ?  A.  Ireland. — 
It  is  either  the  last  day  of  July,  or 
the  1st  of  August.  .  .  . 

Att.-Gen.  —  Mrs.  Ireland,  when 
did  you  see  him  again?  A.  Ire- 
land.—  Just  a  fortnight  before 
Michaelmas,    and   not    before.  .  .  . 

.iff. -Gen.  —  Pray  swear  Mrs. 
Duddle,  and  Mrs.  Quino.  (Which 
was  done.) 

Sol.-Gen.  —  Come,  Mrs.  Duddle, 
do  you  remember  when  Mr.  Ireland 
went  out  of  town  in  the  year  1678  ? 
Mrs.  Duddle. — To  the  best  of 
my  remembrance  it  was  the  3d  of 
August. 

Sol.-Ge7i.  —  Why  do  you  think 
it  was  the  3d  of  August  ?  Dludde. 
—  He  went  for  a  recreation  out  of 
town  three  days  before,  which  was 
upon  an  holiday,  St.  Ignatius's  day ; 
and  he  went  out  of  town  one  night 
then,  and  he  came  and  stayed  but 
two  nights  after ;  and  went  out  of 
town  upon  the  Saturday. 

L.  C.  J.  —  Did  he  stay  out  of 
town  one  night?  Duddle. — Yes, 
he  stayed  out  of  town  all  night. 

L.  C.  J.  —  Are  you  sure  he 
stayed  there  all  night  ?  Duddle.  — 
I  am  sure  he  stayed  but  one 
night. 

L.  C.  J.  —  But  what  say  you  to 
that,  Mr.  Attorney  ?  this  witness 
contradicts  the  other  ? 

Just.  Wifhins.  —  Ay,  plainly. 
Duddle.  —  Mrs.  Ireland,  and  Mrs. 
Anne  Ireland,  and  he  went  out  upon 
a  recreation  out  of  town,  it  being  a 
holiday ;  and  I  remember  well, 
that  was  of  a  Wednesday  ;  and  that 
Saturday  he  went  away,  and  never 


682 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  349. 


came  again  till  a  fortnight  before 
Michaelmas. 

L.  C.  J.  —  But  mind  my  question, 
woman.        Ditddlr.  —  Yes,  my  lord. 

L.  C.  ./.  —  Did  he  come  home  that 
night  he  went  on  the  recreation  ? 
Duddlr.  —  I  do  not  know. 

L.  C.  ./.  —  But  just  now,  you 
swore  he  stayed  out  all  night. 
Diiddlc. —  Xo,  my  lord. 

L.  C.  J.  —  Yes,  but  you  did 
though  ;  prithee  mind  what  thou  art 
about.  Diiddlc.  —  I  do  not  say  he, 
but  I  am  sure  his  sister  and  the  com- 
pany stayed  out  that  night.  I  re- 
member very  well,  he  went  the  third 
day  after,  which  was  Saturday.  And 
]Mr.  Jcnnison  came  to  ask  him  for 
three  Aveeks  after ;  and  there  was  a 
person  of  quality  with  him  in  the 
coach,  I  think  it  was  Sir  ]\Iiles 
^Vharton.  And  he  asking  for  him, 
they  gave  him  an  account,  that 
they  had  not  heard  from  him  since 
he  went ;  which  was  then  three 
weeks  after  he  was  gone.  And  I 
remember  well,  he  difl  not  come  to 
town  again  till  a  fortnight  before 
Michaelmas. 

L.  C.  J.  —  How  can  you  tell  that  ? 
Diiddlc.  —  My  lord,  I  can  tell  it 
very  well ;  for  I  was  almost  every 
night  in  the  room  where  he  used  to 
lie ;  and  there  lay  a  gentlewoman 
there  that  I  knew. 

L.  C.  J.  —  What  was  her  name  ? 
Diiddle.  —  Mrs.  Eagleston. 

L.  C.  J.  —  How  came  she  to  lie 
there?  Duddlr.  —  Her  maid  fell 
sick,  and  she  changed  her  own  cham- 
ber, and  lay  there  all  the  time  he  was 
out  of  town. 

Gates.  —  My  lord,  is  this  good 
evidence  ? 

L.  C.  J.  —  Ay,  why  not  ?  Oaics. 
—  My  lord,  I  think  she  contradicts 
the  other  witness ;  for  she  says  he 
lay  out  two  nights. 

L.  C.  J.  —  Xo,  there  yor,  are 
mistaken  too.  lint  I  tell  you  what 
I  did  observe  before.  Mrs.  Anne 
Ireland  swore,  that  they  difl  stay  all 
night;  but  Mr.  Ireland  refused  to 
stay  there,  but  would  go  home,  Ijc- 
cause  he  was  to  go  his   journey  on 


Saturday.  Then  this  woman  comes, 
and  she  said  at  first,  that  he  went 
out  of  town  on  the  Wednesday,  and 
stayed  out  all  night,  and  lay  at  home 
but  two  nights,  and  then  went 
away.  But  now,  when  I  put  her  in 
mind  to  take  care  what  she  said,  she 
swears,  she  is  sure  the  sister  lay  out, 
but  she  is  not  sure  of  Ireland's  lying 
out ;  but  she  is  positive  he  went 
away  on  Saturday,  the  3d  of  Au- 
gust, and  returned  not  till  a  fort- 
night before  Michaelmas. 

Dates.  —  My  lord,  I  humbly  con- 
ceive, she  having  once  sworn  false  — 

L.  C.  J.  —  Ay,  but  she  immedi- 
ately recollected  herself.  .  .  . 

A  ft. -Gen.  —  X^ow  swear  my  lord 
Ashton.  (Which  was  done.)  W^e 
will  bring  Ireland  now  upon  the  3d 
of  August  at  night,  to  my  lord 
Ashton 's  house,  at  Standen. 

Sol. -Gen.  —  Pray  will  your  lord- 
ship give  my  lord  and  the  jury  an 
account,  when  Air.  Ireland  came  to 
your  house,  and  how  far  he  traveled 
with  you  afterward  ?  Lord  Ash- 
ton. —  My  lord,  being  in  town,  I  was 
spoke  to,  and  desired  that  Mr. 
Ireland  might  have  the  opportimity 
of  going  in  my  company  down  into 
Staffordshire  ;  which  I  consented  to. 
I  went  out  of  tow'n,  as  I  remember, 
the  latter  end  of  July,  1678,  and  this 
same  Mr.  Ireland  came  to  me  at  my 
house  in  Hertfordshire,  at  Standen, 
upon  the    3d  of    August,  at  night. 

L.  C.  J.  —  What  day  of  the  week 
was  that,  my  lord  ?  Lord  Ashton. 
—  As  I  remember,  it  was  Saturday, 
and  in  the  evening. 

L.  C.  J.  —  How  long  did  he  stay 
with  your  lordship  ?  Lord  Ashton.  — 
My  lord,  I  stayed  till  Monday  at 
Standen ;  and  upon  Monday  he 
went  into  my  company  to  St.  Albans, 
which  was  the  oth  of  August. 

Att.-Gen.  — Whither  then  did  you 
go,  my  lord  ?  Lord  Ashton.  — 
There  I  met  with  my  brother  and 
sister  Southcot. 

L.  C.  J.  —  Sir  John  Southcot  you 
mean,  my  lord  ?  Lord  Ashton.  — 
Yes,  my  lord.  And  thence,  in  four 
days  we  went  to  my  house  at  Tixhall. 


No.  349.     III.       TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      683 


L.  C.  J.  —  Did  Mr.  Ireland  travel 
with  you  all  the  way  ?  Lord 
Ashton.  —  I  cannot  charge  my 
memory,  my  lord,  that  he  did,  so  as 
particularly  to  swear  it ;  but  there 
he  came  into  my  company  some- 
times at  Tixhall ;  but  I  cannot  tell 
the  particular  days ;  nor  could  I 
speak  positively  to  those  things  that 
I  have  spoke  to  now,  but  that  I 
find  in  my  Notebook,  that  at  that 
time  he  did  come  to  my  house  at 
Standen,  and  did  go  with  me  to  St. 
Albans. 

AW.-Gcn.  —  Pray,  my  lord,  did  he 
go  that  journey  to  Tixhall  along 
with  you  ?  Lord  Ashton.  —  I  can- 
not say  positively  that,  Mr. 
Attorney,  but  I  have  a  general 
notion  that  he  did.  .  .  . 

Att.-Gcn.  —  Swear  Sir  Edward 
Southcot.     (Which  was  done.)  .  .  . 

Att.-Gcn.  —  We  desire  Sir  Edward 
Southcot  would  give  an  account, 
whether  he  met  Mr.  Ireland  at  my 
lord  Ashton's  ?  And  when  ?  Sir 
Edward  Souihcot.  —  I  was  with  my 
lord  Ashton  in  his  company. 

L.  C.  J.  —  When  was  that,  Sir  ? 
Sir  E.  Southcot.  —  The  4th  of 
August  I  saw  Mr.  Ireland  at  my  lord 
Ashton's.  .  .  . 

L.  C.  J.  —  Pray,  Sir,  go  on  with 
your  evidence.  Sir  E.  Southcot.  — 
Upon  Monday  we  began  our  journey 
to  Tixhall,  and  went  that  night  to 
St.  Albans,  where  we  met  my  father 
and  mother,  and  thence  we  con- 
tinued on  our  journey  the  next  day. 

L.  C.  J.  —  Was  he  with  you 
there  that  day  you  went  to  St. 
Albans  ?  Sir  E.  Southcot.  —  He 
was  with  us,  I  remember  very 
particularly.  It  was  hot  weather, 
and  my  lord  Ashton  invited  him 
into  the  coach ;  for  before  he  was 
riding  by  the  coach  side,  and  there  I 
remember  a  particular  discourse 
that  he  and  my  lord  Ashton  had  ; 
from  thence  we  went  on  to  North- 
ampton, and  came  there  Tuesday 
night.  .  .  . 

Where  did  you  lie  there  ?  Sir  E. 
Southcot.  —  We  lay  at  the  sign  of 
the    George ;     it    was    Sir    William 


Farmer's  house,  but  made  use  of 
for  an  inn,  because  the  town  was 
burnt  down. 

L.  C.  J.  —  Was  Mr.  Ireland  with 
you  all  that  day  ?     Sir  E.  Southcot. 

—  He  rode  with  us  all  the  day. 

L.  C.  J.  — And  you  took  notice  of 
it,  because  of  his  horse,  you  say  ? 
Sir  E.  Southcot.  —  Yes,  he  had  a 
very  pretty  horse,  my  lord  ;  and  my 
brother  bought  the  horse  of  him 
after  we  came  back  again. 

L.  C.  J.  —  Whither  went  ye  the 
next  day  ?  Sir  E.  Southcot.  —  The 
next  night  we  lay  at  the  Bull  in 
Coventry,  and  from  thence  on 
Thursday,  we  arrived  at  my  lord 
Ashton's  at  Tixhall.  .  .  . 

Att.-Gcn.  — So  then,  my  lord,  we 
are  gotten  to  Tuesday,  the  13th  of 
August,  which  is  past  the  time  of 
the  perjury  that  is  laid  second  on  the 
Indictment ;  but  in  point  of  time,  is 
the  first  that  happened,  for  he  swore 
that  Ireland  took  his  leave  of  him, 
and  others  here  in  town,  between 
the  8th  and  12th  of  August. 

Sol.-Gen.  —  Where  did  you  go  on 
Tuesday,  Sir  ?  Sir  E.  Southcot.  — 
Towards  Wales.  .  .  . 

L.  C.  J.  —  Where  were  you  the 
next  night  ?  Sir  E.  Southcot.  — 
The  next  day  we  reached  to  St. 
Winifred's  Well. 

L.  C.  J.  —  Where  did  you  lie 
there  ?  Sir  E.  Southcot.  —  At  the 
Star,  which  is  the  great  inn  there. 

L.  C.  J.  —  It  is  so. 

Att.-Gcn.— Was  Mr.  Ireland 
there  with  you  ?     Sir   E.    Soidhcot. 

—  Yes,  he  was. 

Att.-Gcn.  —  Whither  did  ye  go 
then?  Sir  E.  Southcot.  —  We  stayed 
not  but  one  day  at  Holy-well ; 
for  we  arrived  there  pretty  late  at 
night,  and  all  the  morning  we  spent 
there,  and  went  away  in  the  after- 
noon, and  came  that  evening  to 
Chester,  and  lay  there  only  one 
night,  and  came  the  next  day  to 
Tixhall  again. 

Att.-Gcn.  —  Which  was  Friday, 
the  IGth  of  August.  .  .  . 

Att.-Gen.  —  Swear  Mr.  George 
Hobson.     (Which  was  done.) 


684 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  349. 


SoL-Gen. — "Were  you  in  the 
journey  to  Tixhall  with  Mr.  IreUmd 
and  my  lord  Ashton  in  1(578? 
Hohson.  —  Yes,  I  was  so,  my  lord. 

Sol. -Gin.  —  Pray  tell  all  your 
knowlcdj^e  of  the  matter.     Hohson. 

—  From  the  3d  of  August  till  the 
16th  at  nijiht,  I  was  present  with 
him  every  ilay.  .  .  . 

Att.-Gvn.  —  So,  my  lord,  you  see, 
that  the  17th  of  August  he  de- 
parted from  my  lord  Ashton's. 
Now  we  shall  call  Mrs.  Harwell  to 
give  you  an  account  whither  he 
went  on  the  17th.  Swear  Mrs. 
Jane  Harwell.     (Which  was  done.) 

Sol. -Gen.  —  Where  do  you  live, 
Mrs.  Harwell  ?  Mrs.  Harwell.  — 
I  live  now  in  town,  my  lord. 

Sol.-Gen.  —  Where  did  you  li\e 
in  the    year    1678?     Mrs.  Honrell. 

—  At  Wolverhampton. 

Sol. -Gen.  —  Did  you  know  ]Mr. 
Ireland,  he  that  was  executed  ? 
Mrs.  Harwell.  —  ^  ery  well,  my  lord. 

Sol.-Gen. — When  did  he  come 
to  your  house  at  Woherhampton  ? 
Mrs.  Harwell. — The  17th  of  Au- 
gust, 1678. 

Sol.-Gen.  —  What  day  of  the 
week  was  it  ?  Mrs.  Harwell.  — 
Upon  Saturday. 

Sol.-Gen.  —  From  whence  did  he 
say  he  came  at  that  time  ?  Mrs. 
Harwell.  —  I  do  verily  believe  it 
was  from  Tixhall  that  he  came ;  I 
cannot  positively  say. 

Sol.-Gen.  —  How  long  stayed  he 
there  ?  Mrs.  Harioell.  —  He  came 
to  my  house  the  17th  of  August, 
1678.  He  stopped  there  that  night, 
and  I  think  he  lay  in  my  house 
every  night  till  the  2(kh  of  the  same 
month.  Upon  the  19th  day,  after 
dinner,  I  went  with  him  a  good  part 
of  the  town  of  Woherhampton  ; 
and  upon  Friday  following,  which 
was  the  23d,  he  went  a  little  way 
out  of  town,  to  a  fair  hard  by,  and 
returned  the  same  day,  and  stayed 
at  my  house  the  next  day,  being 
Bartholomew  day.  The  next  day 
being  the  2oth,  being  Sunday,  he 
was  at  my  house,  and  he  stayed,  as 
I  said,  every  night,  and  lay  at  my 


house ;  and  went  away  on  IVIonday 
the  26th  of  August.  It  was,  to  the 
best  of  my  remembrance,  in  the 
morning. 

Sol.-Gen.  —  Whither  did  he  say 
he  was  going,  when  he  went  from 
your  house  on  the  26th  ?  Mrs. 
Harwell.  —  I  think  to  Tixhall,  he 
said. 

Sol.-Gen.  —  When  did  you  see  him 
again  after  that  ?  Mrs.  Harwell.  — 
He  returned  to  me  again  the  4th  of 
September  following.  That  night 
he  supped  at  my  house,  and  lay  there  ; 
and  he  stayed  at  my  house  Thurs- 
tlay  the  5th  of  September,  Friday 
the  6th,  and  he  went  away  on  the 
7th  from  me  for  good  and  all. 

Att.-Gen.  —  Whither  did  he  go 
then?  Mrs.  Harwell.— To  Tix- 
hall, I  think,  I  cannot  tell.  .  .  . 

Gates.  —  I  desire  to  know, 
whether  this  gentlewoman  was  at 
Ireland's  trial '!  Mrs.  Harwell.  — 
No,  my  lord  ;  but  I  heard  that  upon 
the  17th  of  December  following, 
Mr.  Ireland  was  tried  at  the  Old 
Bailey  for  High  Treason.  Upon 
the  19th,  I  was  informed  by  the 
post  what  was  sworn  against  him ; 
and  particularly  as  to  this  time, 
which  I  knew  to  be  false.  And 
upon  my  own  costs  and  charges  I 
sent  an  express  away  to  town  here  to 
a  friend  that  I  knew,  upon  reading 
the  letter  that  was  written  to  me, 
that  Mr.  Ireland  was  falsely  ac- 
cused ;  and  by  that  express  also  I 
sent  a  petition,  humbly  beseeching 
his  late  majesty,  that  we  might  bring 
in  witnesses  to  prove,  that  Mr. 
Ireland  was  in  Staffordshire,  when 
Mr.  Oates  swore  he  was  in  town ; 
and  upon  that  the  king  stayefl  the 
execution  about  five  weeks.  We  did 
hope  for  a  second  trial,  but  we  could 
not  obtain  it ;  and  he  was  executed. 
I  did  it  at  my  own  cost  and  charges  ; 
for  I  thought  it  my  duty,  if  I  could, 
to  save  his  life,  knowing  that  to  be 
false  which  was  sworn  against  him. 

L.  C.  J.  —  She  speaks  gravely 
and  soberly,  upon  my  word. 

Just.  Withins.  —  So  she  does  in- 
deed. 


No.  349.       III.     TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      685 


Att.-Gcn.  —  We  have  abundance 
of  them,  my  lord.  .  .  . 

Att.-Gen.  —  Well,  for  the  pres- 
ent, we  do  not  design  to  call  any 
more  witnesses. 

L.  C.  J.  —  Then  let  us  hear  what 
you  say  to  it. 

Oatcs.  —  My  lord,  here  is  an  in- 
dictment exhibited  against  me, 
which  sets  forth,  that  I  should 
swear  at  Mr.  Ireland's  trial,  that 
Mr.  Ireland  was  in  town  the  1st 
and  2d  of  September ;  and  it  sets 
forth,  that  in  truth  he  was  not  in 
town ;  and  likewise  it  sets  forth, 
that  I  swore  at  the  trial  of  the  Five 
Jesuits,  that  Mr.  Ireland  took  his 
leave  of  me  and  others  here  in  town 
at  his  lodgings  in  Russel  street, 
between  the  8th  and  12th  of  August ; 
whereas  the  perjury  there  assigned, 
is  this.  That  he  did  not  take  his 
leave  of  me,  or  any  other  person, 
betwixt  the  8th  and  12th  of  August, 
at  his  lodging  in  Russel  street.  .  .  . 
Here  is  nothing  but  a  bare  point  of 
time  upon  which  this  perjury  is 
assigned ;  when  the  substance  of 
the  testimony  that  I  gave  at  the 
trials  of  Mr.  Ireland  and  the  rest, 
about  the  Pypish  Plot,  is  not  as- 
signed as  any  perjury  at  all ;  it  is 
only  a  circumstance  of  time  and 
place.  .  .  .  'Tis  hard  and  unrea- 
sonable to  tie  up  witnesses  that 
come  to  discover  plots  and  con- 
spiracies, to  speak  positively  as  to 
circumstance  of  time  and  place, 
and  every  little  punctilio  in  their 
evidence,  to  bind  them  up  to  such 
niceties  in  the  delivery  of  their 
testimonies,  as  to  time  and  place. 
It  is  usual  to  speak  with  latitude 
as  to  such  kind  of  things,  and  'tis 
probable  my  evidence  which  is  now 
in  question  was  not  that  Ireland  was 
the  1st  or  2d  of  September  positively 
here  in  town  ;  but,  my  lord,  I  did, 
I  believe,  give  myself  a  latitude, 
and  would  not  confine  myself  to 
either  the  1st  or  2d,  5th,  6th,  7th, 
or  8th ;  but  my  lord,  that  he  was  in 
September  there,  I  am  positive.  .  .  . 
Then,  my  lord,  I  shall  begin  with 
my    proofs :     .    .    .     Mr.    Jennison 


was  used  as  a  witness  in  the  trial 
of  Sir  George  Wakeman,  and  so  was 
Mr.  Bowes,  and  Mr.  Burnet,  who 
was  produced  to  prove  the  cir- 
cumstance of  Mr.  Jennison's  evi- 
dence ;  but,  my  lord,,  since  I  cannot 
have  the  benefit  of  his  evidence,  nor 
of  Sarah  Paine's,  I  must  only  sum 
up  all  I  have  to  say  in  two  or  three 
words.  My  lord,  besides  that  what 
I  did  deliver  in  evidence  at  those 
trials,  I  gave  in  upon  oath ;  you 
have  Mr.  Bedloe's  evidence  at  the 
trial  of  Ireland,  testified  by  Mr. 
Blaney :  and  the  testimony  of  him 
as  a  dying  man,  given  in  to  my  now 
lord  keeper,  wherein  he  averred, 
that  what  he  had  spoken  of  the  plot, 
was  all  true.  XxiA  you  hear  that  he 
swore,  Mr.  Ireland  was  here  in  town 
in  August,  and  so  did  Sarah  Paine 
too ;  and  I  think  upon  myself  as 
very  hardly  used,  to  have  such  a 
part  of  my  testimony  brought  in 
question,  after  witnesses  are  dead, 
or  gone  out  of  the  way.  .  .  . 

Sol.-Gen.  —  May  it  please  your 
lordship,  and  you,  gentlemen  of  the 
jury,  the  ciuestion  that  you  are  to 
try,  is  a  perjury,  which  is  charged 
on  the  defendant  Titus  Oates,  for 
swearing  that  William  Ireland  was 
in  town  upon  the  first  or  second  of 
September,  1678.  And  likewise,  for 
swearing,  that  he  took  his  leave  of 
him  at  his  chamber  in  Russel  street, 
between  the  eighth  and  twelfth  of 
August,  1678.  .  .  .  And  now,  let 
all  tne  world  be  judge,  if  there  be 
any  possible  room  left,  that  any 
one  word  Mr.  Oates  has  said  can  be 
true ;  even  giving  him  the  latitude 
of  time  he  himself  desires,  and  says 
all  witnesses  must  be  allowed.  No, 
there  is  not  one  minute  for  him, 
wherein  he  can  be  verified  in  any  one 
tittle  of  his  evidence,  as  to  Ireland's 
being  in  town.  And  this  is  that 
which  I  call  (and  sure,  well  I  may 
so  call  it)  a  demonstrative  proof, 
that  what  Oates  did  swear  is  utterly 
false.  Gentlemen,  the  jury  had 
not  this  evidence  at  the  trial  of  Ire- 
land :  some  there  were  that  went 
out  of  the  town  with  him  ;  and  some, 


686 


PART    II.       TESTIMONIAL   EVIDENCE 


No.  349, 


one  or  two  of  ^Vol^•erhampton, 
were  at  the  Five  Jesuits'  trials ;  but 
not  above  five  or  six  in  all  of  these 
forty  odd,  that  now  appear.  True 
indeed  it  is,  all  these  were  not  there ; 
and  Ireland  upon  that,  unfortunately 
suffered  ;  for  so  I  may  take  leave  to 
say,  it  was  unfortunately.  .  .  . 

L.  C.  J.  —  Gentlemen  of  the 
jury,  this  case  has  taken  up  a  great 
deal  of  time ;  but  it  is  a  case  of  that 
moment  and  consequence,  that  sure 
no  time  ought  to  be  thought  too 
long,  that  is  employed  for  the  dis- 
covering of  the  truth,  so  necessary 
to  be  discovered,  as  the  matter  now 
in  question.  .  .  .  First,  You  must 
observe,  that  this  indictment  against 
Gates,  is  for  committing  willful  and 
corrupt  Perjury  ;  which  is  also  said  to 
be  done  maliciously.  And  if  it  were 
false,  surely  it  was  malicious ;  be- 
cause by  his  false  oath  have  innocent 
men  been  convicted,  condemned, 
and  executed.  Secondly,  You  are 
to  consider,  how  far  the  thing  goes, 
to  make  it  material  to  the  issue  :  for 
if  it  were  upon  a  nicety  only,  or  a 
catch,  or  any  of  those  fine  words, 
that  he  has  been  pleased  to  make 
use  of,  it  were  not  fit  to  perjure  him 
upon  it.  But  it  is  certainly  very 
material :  for  time  and  place  are 
matters  substantial  to  discover  truth 
and  falsehood  by ;  as  in  the  case  of 
Susannah,  the  perjury  of  the  Elders, 
as  you  may  remember,  was  detected 
by  those  very  circumstances.  .  .  . 
Besides,  I  must  observe  to  you,  with 
what  caution,  care,  and  sobriety, 
both  of  expression  and  action,  all 
these  gentlemen  and  women  have 
delivered  their  testimony,  with  the 
greatest  tenderness  and  care  that 
possil)ly  could  l)e :  and  as  well  as 
they  have  given  it  with  caution, 
so  I  cannot  but  put  it  home  to  you, 
gentlemen  at  the  l)ar,  to  give  it  its 
due  consideration. 

For  though  the  other  juries  did 
believe    Gates,    and    not    them,    at 


that  time ;  yet  that  is  not  to  be 
your  measure,  because  you  have  not 
the  same  reason  to  do  it.  Could 
any  person  think,  that  there  should 
be  such  villains  upon  earth  as  im- 
pudently to  swear  downright  treason, 
against  their  fellow  subjects,  if  there 
were  no  truth  in  the  accusation  ? 
That  was  the  thing  that  guided 
those  juries,  who  were  all  of  them, 
no  doubt,  very  honest  men ;  and 
that  was  it,  which  influenced  the 
parliament  to  do  what  they  did  in 
the  matter.  For  it  was  morally 
impossible  to  be  thought,  any  such 
wickedness  could  be  so  publicly 
attempted.  But,  God  be  thanked, 
the  eyes  of  all  honest  and  under- 
standing men  are  opened ;  and  we 
see  the  fault  was  in  our  credulity. 
.  .  .  And  this  I  say  to  you, 
gentlemen,  with  a  purpose  to  vindi- 
cate those  persons  who  were  con- 
cerned as  jurors  in  the  trials  of  all 
those  causes ;  because  that  is  the 
thing  much  harp'd  upon,  and  aimed 
at :  That  because  he  was  believed 
before,  to  disbelieve  him  now  would 
cast  a  reflection  upon  the  juries ; 
whereas,  if  that  opinion  hold,  never 
will  there  be  any  sucl^  thing  as  per- 
jury detected,  so  long  as  the  sun 
and  moon  endure :  for  if  a  verdict 
be  obtained  upon  false  testimony, 
and  it  shall  be  enough  for  the 
witness  to  say,  I  was  believed  at 
such  a  trial,  and  therefore  do  not 
you  offer  to  prosecute  me  for  per- 
jury :  That  would  be  the  finest 
doctrine  that  could  be  taught,  to 
give  a  license  to  destroy  all  truth, 
justice,  and  human  society.  There- 
fore, I  leave  it  home  upon  you. 
Upon  your  consciences  be  it.  .  .  . 
Then  the  Jury  withdrew,  to  con- 
sider their  Verdict ;  and,  after  half 
an  hour's  recess,  returned  to  the  bar  ; 
and  answering  to  their  names,  de- 
livered in  their  Verdict,  "That  the 
defendant  was  Guilty  of  the  Per- 
jury whereof  he  stood  indicted. " 


No.  350.       III.     TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      687 


350.    JAMES    BYRNE'S    TRIAL.      (1803.     Howell's  State   Trials. 


XXVIII,  808.) 

Mr.   0' Grady  opened   the  indict- 
ment [for  treason]. 

Mr.  Attorni'ii-GcncraJ.  —  My  Lord.s 
and  Gentlemen  of  the  Jury :  The 
indictment  has  been  read.  .  .  .  Ac- 
cording to  the  information  which  I 
have,  it  is  stated,  that  this  man  ap- 
peared a  little  on  one  side  of  the 
party  of  rebels  in  Thomas  street, 
who  were  met  by  lieutenant  Brady 
—  he  came  suddenly  upon  the  pris- 
oner, who  had  a  pike  in  his  hand  ; 
upon  perceiving  the  persons  who 
came  near  him,  he  threw  away  his 
pike  and  endeavored  to  run,  but 
was  immediately  seized.  After  a 
soldier  had  taken  him  he  struggled 
to  escape,  so  that  it  was  necessary 
for  a  second  soldier  to  assist  in 
securing  him.  Gentlemen,  the  pris- 
oner as  I  understand,  is  not  a  native 
of  Dublin,  he  is  a  baker  in  the  town 
of  Naas.  I  cannot  conjecture  what 
brought  him  to  Dublin  that  evening, 
unless  for  the  treasonable  purpose 
with  which  we  charge  him.  It  is 
for  him  to  show  that  he  was  occupied 
in  that  hour  upon  lawful  business, 
notwithstanding  the  agitation  which 
then  prevailed  in  the  street.   .   .   . 

Felix  Brady,  Esq.,  sworn.  Ex- 
amined by  the  Solicitor-General. 

You  are  a  lieutenant  of  the  21st 
regiment  ?  — -  Y'es. 

Where  were  you  stationed  upon 
the  23d  of  July  last?  — At  Cork 
street  barracks. 

Did  you  at  any  time  of  the  night 
see  any  number  of  people,  and  men- 
tion what  happened  ?  —  I  went  out 
with  a  party,  between  forty  and 
fifty  men,  for  the  purpose  of  going 
to  Usher's  island,  to  report  to  Col. 
Browne  the  information  I  had  re- 
ceived, of  an  armed  mob  being  in 
the  city.  ...  I  then  ordered  my 
men  to  form  subdivisions,  and 
prime  and  load.  I  heard  an  huzza 
in  front,  and  a  great  noise  of  men 
coming  forward  —  I  heard  their 
feet,  but  could  not  see  them.  When 
they  advanced  near  me,  the  leading 


subdivision  fired  a  volley ;  then 
the  men  kept  up  an  independent  fire, 
and  from  their  light  I  observed  near 
me  on  the  left,  .some  men  with  pikes  ; 
they  fled  in  all  directions  when  the 
firing  was  kept  up  about  two  minutes, 
leaving  six  killed  and  one  dying 
close  by  me.  ...  I  saw  the  pris- 
oner at  the  bar  at  the  guardhouse 
in  James's  street ;  he  was  brought 
there  by  the  men  with  me,  and 
lodged  in  the  guardhouse.   .   .   . 

Feli.v:  Bradi/,  Esq.,  cross-examined 
by  Mr.  MacNally. 

You  mentioned  that  the  night 
was  very  dark  ?  —  It  was. 

Had  you  or  your  party  any  kind 
of  light  ?  —  None,  but  the  flashing 
of  the  pans. 

Upon  the  discharge  of  the  pieces 
by  your  men,  there  must  have  been 
a  smoke  between  the  rebels  and  the 
soldiers  ?  —  That  of  course,  if  the 
wind   blew   it  against   the  soldiers. 

But  it  was  a  cahii  night  ?  —  It  was. 

Then  the  smoke  would  form  a 
screen  between  the  two  parties  ?  — 
I  think  it  would  go  up. 

But  for  some  time,  would  not  the 
smoke  create  a  darkness  between 
your  men  and  the  opposite  party  ? 

—  It   is   reasonable   that   it   would. 
Court.  —  Could  you  see  the  men 

with  pikes,  notwithstanding  the 
smoke  ?  — -I  could,  and  did  see  them 
with  pikes  like  white  poles ;  the 
men  I  saw  were  upon  my  left,  not 
in  front,  so  I  saw  them  distinctly.  . . . 

Robert  Watt  sworn.  Examined  by 
Mr.   Townsend. 

Look  about  and  try  if  you  know 
the   prisoner   at   the   bar  ?  —  I   do. 

You  belong  to  the  21st  regiment  ? 

—  lam  a  private  in  that  regiment. 
When  did  you  first  see  the  prisoner  ? 

—  I    saw    him    in    Thomas    street. 
Upon  what  day  ?  —  On  the  night 

of  the  23d  of  July. 

Were  you  there  upon  dutv  ?  — 
Yes. 

Under  whose  command  ?  —  Under 
lieutenant  Bi'ady. 


688 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  350 


You  were  one  of  his  party  ?  —  Yes. 

In  what  situation  were  you  ?  — 
I  was  in  the  second  division,  the 
left-hand  man,  close  by  the  pave- 
ment when  the  firing  began. 

Where  did  you  see  the  prisoner? 

—  I  saw  the  prisoner  on  the  pave- 
ment with  a  pike  on  his  shoulder 
aliout  two  yards  from  me. 

Do  you  know  the  distinction 
between  the  pavement  and  what  we 
call  the  flags  ?  —  I  call  them  both 
pavement ;  one  is  called  broad 
pavement. 

That  is  the  flagged  part  ?  —  Yes. 

Was  it  there  you  saw  the  prisoner  ? 

—  Yes. 

What  did  you  do  ?  —  I  cried  out 
to  him,  to  stop ;  when  I  said  that, 
he  threw  his  pike  from  him,  and  I 
seized  him. 

Why  did  you  desire  him  to  stop  ? 

—  He  was  endeavoring  to  pass  us. 
Did  he  stop  when  you  bid  him  ?  — 

He  then  threw  his  pike  from  him, 
and  I  caught  him  by  the  breast 
and  brought  him  among  the  men. 

Did  he  submit  ?  —  No  ;  he  strug- 
gled to  get  off,  and  I  was  obliged  to 
get  another  soldier  to  my  assist- 
ance. .  .  . 

Did  you  take  the  prisoner  into 
the  barrack  ?  —  Yes  ;  he  was  taken 
inside.  .  .  . 

Robert  ]]'aU  cross-examined  bv 
Mr.  Ball.  ... 

You  say  when  the  firing  began  you 
saw  this  man  ?  —  Yes.  .  .  . 

In  what  direction  was  the  volley  ? 

—  Straight  down  the  street. 

How  far  was  the  first  division 
advanced  before  the  second  ?  — 
About  six  paces. 

W^cre  you  in  front  or  rear  of  the 
second  subdivision  ?  —  In  front. 

W^hen  you  saw  this  man  he  was  en- 
deavoring to  pass  ?  —  He  was.  .  .  . 

Your  face  was  to  Thomas  Street  ? 

—  Yes,  down  towards  the  market 
house. 

And  his  was  to  James's  Street  ?  — 
It  was. 

Was  he  running  fast?  —  He  was. 

It  was  when  he  moved  you  saw 
him  ?  —  Yes. 


The  night  was  dark  ?  —  It  was. 

Suppose  you  had  moved  sideways 
to  the  left  and  he  had  stopped,  how 
near  would  he  be  to  you  ?  —  W  hen 
I  bid  him  stop,  I  only  stepped  to  the 
flags  and  gripped  him. 

Then  he  was  close  to  you,  and  you 
were  in  the  second  division  ?  — Yes. 

Five  or  six  paces  behind  the  first 
division  ?  —  Yes. 

They  fired  towards  the  market 
house  ?  —  Yes. 

And  he  was  upon  a  line  with  you 
behind    the    first    division  ?  —  Yes. 

How  many  feet  do  you  reckon  in  a 
pace  ?  —  Five  feet. 

Then  you  were  thirty  or  five  and 
twenty  feet  behind  the  first  divi- 
sion ?  —  Not  so  much.  .  .  . 

James  Waddle  Xorth  sworn.  — 
Examined   by  the  Attorney-General. 

You  are  a  private  in  the  21st 
regiment  ?  —  I  am. 

W^here  were  you  on  duty  the  night 
of  the  23d  of  July  ?  —  I  was  taken 
from  Cork  street  to  James's  street 
and  Thomas  street,  under  the  com- 
mand of  lieutenant  Brady. 

Did  you  ever  see  the  prisoner  at 
the  bar  before  ?  —  I  did. 

When  did  you  first  see  him  ?  — 
As  near  as  I  recollect  about  ten 
o'clock  on  the  night  of  the  23d  of 
July  in  Thomas  street. 

Mention  the  circumstances  at- 
tending your  having  taken  notice  of 
him  ?  —  I  was  in  the  second  sub- 
division under  lieutenant  Brady's 
command,  and  seeing  W^att  go  out 
of  his  rank  to  take  a  prisoner,  I 
made  after  him,  and  came  up  as  the 
prisoner  threw  down  his  pike ;  I 
came  up  time  enough  to  hear  the 
pike  fall,  but  did  not  actually  see 
the  pike  in  the  prisoner's  possession. 

What  did  you  do  then  ?  —  W' att 
brought  the  prisoner  to  the  division, 
he  was  struggling  very  hard  for 
liberty.   .  .  . 

Did  you  see  him  by  candlelight 
that  night  ?  —  Not  till  I  saw  him 
at  the  commander  of  the  forces ; 
but  I  had  no  occasion,  being  so  close 
to  him,  and  by  the  lamp  I  could  see 
his  person. 


No.  350.       III.     TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      689 


Jury.  —  What  became  of  the 
pike  ?  —  It  was  taken  by  the  men  of 
the  division  with  the  rest.  .  .  . 

You  said  you  did  not  see  the  pike, 
but  heard  it  fall ;  how  do  you  know 
it  fell  from  him  ?  —  From  the  place 
in  which  it  fell. 

Was  there  any  other  person  near 
him  ?  —  No  one  but  Watt.  .  .  . 

Defense. 

Mr.  MacNaUy.  —  My  Lords  and 
Gentlemen  of  the  Jury :  .  .  .  The 
case  of  my  client  as  to  matter  of 
fact  is  simply  this :  He  has  been 
called  upon  to  account  for  the  oc- 
casion which  brought  him  to  Dublin 
from  his  place  of  usual  residence, 
.  .  .  The  prisoner,  gentlemen,  is 
a  baker,  and  he  will  satisfy  you,  that 
some  time  previous  to  the  rebellion, 
in  consequence  of  a  failure  of  busi- 
ness in  the  county  of  Kildare,  he 
came  to  Dublin,  and  determined  on 
taking  a  house  in  Rings-end,  for 
the  purpose  of  carrying  on  trade  in 
that  village,  and  thereby  earning 
an  honest  livelihood  for  himself  and 
family.  But  it  may  be  asked,  what 
brought  him  to  Thomas  street  at  so 
critical  a  time  ?  I  answer,  as  in- 
structed, a  brother-in-law  of  his 
dwelt  there,  and,  while  seeking  for  a 
proper  habitation,  he  resided  with 
him.  It  appears  that  on  the  20th 
of  July  he  was  at  Rings-end  making 
arrangements  for  his  business. 
Upon  returning  to  Thomas  street 
to  the  house  of  his  brother-in-law,  on 
the  23d,  he  was  taken  into  custody. 
.  .  .  Consider  whether  he  might 
not  have  repaired  to  Thomas  street 
utterly  ignorant  of  the  disturbance 
which  had  commenced  and  raged 
in  his  absence,  and  which  at  the 
time  of  his  arrival  there  had  nearly 
subsided.  .  .  . 

As  to  the  witnesses  produced  for 
the  purpose  of  identifying  the  pris- 
oner as  one  of  the  acting  conspira- 
tors —  as  one  of  those  Avho  were 
levying  war  against  the  Crown  by 
opposing  the  king's  troops,  I  do  not 
impeach  the  testimony  of  the  sol- 
diers, by  imputing  to  them  willful 
perjury  —  I    see     no    motive     for 


their  swearing  falsely ;  on  the  con- 
trary, I  cannot  say  they  do  not  de- 
serve credit  as  to  many  of  the  facts 
they  have  sworn  to.  But  in  a  scene 
of  such  darkness  and  confusion,  with- 
out impeaching  their  integrity,  I  may 
fairly  advance  the  probability  of 
their  having  been  mistaken  —  and, 
upon  discrimination  of  their  evi- 
dence, taking  it  in  a  comparative 
view,  you  will  find  they  have  been  in- 
consistent. What  is  the  evidence  ? 
One  soldier  says,  "the  prisoner 
was  taken  and  he  struggled,  but  he 
had  no  pike."  The  other  soldier 
says,  "I  heard  a  pike  fall";  but  he 
candidly  admitted  he  did  not  see  the 
weapon  ;  —  then  observe,  there  is  no 
proof  from  either  of  those  men,  that 
the  prisoner  had  a  pike,  and  a  jury 
are  not  to  conclude  guilt  from  infer- 
ences. Again,  I  do  say,  one  of  those 
soldiers  swore  rashly,  and  incon- 
siderate swearing  goes  strongly  to 
create  doubt  in  the  mind  of  the 
hearer ;  I  repeat  it,  I  do  not  charge 
the  man  with  willful  want  of  vera- 
city, but  with  rashne'ss,  resulting 
perhaps  from  too  much  zeal.  He 
swears  he  knew  the  prisoner  by  the^ 
flashes  of  the  pan  when  the  soldiers 
fired.  Does  that  evidence  deserve 
implicit  credence  ?  I  say  the  flash 
from  the  pans  could  not  have  as- 
sisted the  sight  of  the  soldier,  so  as 
to  enable  him  to  discern  the  features 
of  a  stranger  with  sufficient  ac- 
curacy to  identify  his  person  upon 
oath.  It  has  been  known  that  the 
light  of  the  sun  has  deceived  men  of 
great  sense  and  sagacity ;  it  so 
happened  a  few  years  ago  in  Eng- 
land. Sir  Thomas  Davenport  an 
eminent  English  barrister,  a  gentle- 
man of  acute  mind,  and  strong 
understanding,  swore  positively  to 
the  persons  of  two  men,  whom  he 
charged  with  robbing  him  and  his 
lady  in  the  open  daylight.  He  was 
positive,  and  the  hour  he  stated  was 
about  two  o'clock  in  the  afternoon. 
But  it  was  proved,  by  the  most 
conclusive  evidence,  that  the  men 
on  trial  were,  at  the  time  of  the 
robbery,    attending   a   company   at 


690 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  350. 


dinner,  one  as  master  of  the  tavern, 
the  other  as  waiter,  at  so  remote  a 
(Hstance  from  where  Sir  Thomas  was 
rohbecl,  that  the  tiling  was  impossi- 
ble. The  consequence  was,  the 
men  were  acquitted  ;  and  some  time 
after  the  robbers  were  taken,  and 
the  articles  taken  from  Sir  Thomas 
and  his  lady  found  upon  them. 
Sir  Thomas,  on  seeing  these  last 
men,  candidly  acknowledged  his 
mistake  —  and,  as  I  have  heard, 
gave  a  recompense  to  the  persons 
he  prosecuted,  and  who  narrowly 
escaped  conviction.  I  obtrude  this 
anecdote  on  your  consideration, 
gentlemen  of  the  jury,  to  show  that 
evidence  of  identity,  however  posi- 
tive the  witness  may  be,  or  however 
credible,  ought  to  be  received  with 
the  most  delicate  caution.  When 
a  man  discharges  a  gun  with  the  lock 
close  to  his  eye,  in  my  humble 
opinion,  so  far  from  the  flash  as- 
sisting the  sight,  it  would  dazzle 
and  render  the  object  before  him 
confused.  The  flash  may  illumine 
for  an  instant,  the  figure  of  a  man, 
and  make  it  perceptible,  if  near, 
l)ut  cannot  distinguish  his  features 
with  sufficient  accuracy  to  enable 
the  party  discharging  the  piece  to 
swear  to  them  —  the  flash  throws  a 
light  on  the  object,  but  that  light 
has  no  continuance,  it  is  momentary, 
and  there  is  not  time  for  the  mind 
to  be  impressed  by  a  certain  iflea  of 
any  object  seen  through  such  a 
medium.  Consider,  gentlemen,  all 
the  circumstances  —  the  night  was 
dark,  every  shot  was  increasing  the 
smoke  collecting  about  them,  and 
the  smoke  increased  the  darkness. 
The  bravest  man  is  not  without 
feeling  on  such  occasions  ;  when  the 
battle  rages,  even  the  soldier  looks 
more  to  himself  than  to  others. 
I  ask  you,  then,  how  is  it  possible 
for  one  man  to  swear  to  the  identity 
of  another  man  on  such  an  occa- 
sion ?  .  .  . 

Jeremiah  MnrShrr  sworn.  Ex- 
amined by  Mr.  Ball. 

Where  do  you  live  ?  —  I  have  a 
house  at  Rings-end. 


Who  occupied  it  lately  ?  —  One 
James  Carroll. 

When  did  he  leave  it  ?  —  Six 
months  ago. 

Have  you  let  it  ?  —  I  was  going 
to  let  it. 

To  whom  ?  —  To  James  Byrne, 
the  prisoner. 

What  business  was  he  about  to 
follow  there  ?  —  As  I  understood 
from  himself,  it  was  for  the  baking 
business.   .   .  . 

James  Kearney  sworn.  Ex- 
amined by  Mr.  XacXaUi/. 

Do  vou  know  the  prisoner  at  the 
bar  ?  —  I  do. 

Do  you  know  the  last  witness  ?  — 
I  do. 

Were  you  at  the  residence  of  the 
last  witness  with  the  prisoner  ?  —  I 
was. 

Upon  what  day  ?  —  On  Thursday. 

In  what  month  ?  —  Three  days 
before  the  disturbance  in  Thomas 
street. 

What  occasion  had  you  to  go 
with  the  prisoner  ?  —  When  Mr. 
Byrne  came  to  town  he  called  to  me 
at  Rings-end,  and  inquired  of  me,  if 
I  knew  any  place  at  Rings-end,  or 
about  the  place,  that  would  answer 
for  public  business  for  his  wife,  and 
that  he  would  build  an  oven  in ;  I 
told  him  of  a  house  in  Rings-end, 
with  a  bill  upon  it,  which  I  thought 
would  answer ;  he  said  after  some 
time  when  the  business  would  go  on, 
he  would  knock  up  an  oven,  and  I 
would  be  a  partner. 

What  business  were  you  ?  —  A 
baker. 

A  master,  or  journeyman  ?  —  A 
master  formerly  ;  but  have  dropped 
it,  not  making  anything  of  it. 

Of  what  l)usiness  is  the  prisoner  ? 

—  A  baker. 

How  long  have  you  known  him  ? 

—  Thirty  years.  I  worked  journey 
work  for  him.  We  went  to  Shee's 
and  had  some  porter ;  he  was  lame 
from  an  accident  of  the  mail  coach 
going  over  his  leg,  and  we  returned 
to  my  house,  where  Mr.  Byrne  slept. 

Did  Byrne  go  to  see  the  house  ?  — 
He  did  not. 


No.  350.     III.       TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      691 


He  slept  at  your  house  ?  —  He 
did,  two  nights,  Thursday  and 
Friday. 

Was  he  there  on  Saturday  ?  —  He 
was. 

How  long  did  he  stay  ?  —  Till 
two  o'clock,  we  were  waiting  for 
Shee,  who  was  to  come  down  to 
show  the  house,  but  he  did  not  come. 

Did   Corcoran  show   the   house  ? 

—  The  taproom  belonged  to  one 
Brennan,  and  Corcoran  had  the 
setting  of  it ;  Brennan  said  a  tailor, 
next  door,  had  offered  money  for  it. 

Can  you  tell  whether  it  was  at  a 
sufficient  price  ?  —  I  cannot  tell. 

At  what  time  did  the  prisoner 
leave  Rings-end  on  Saturday  ?  — 
After  two,  drawing  to  three. 

Where  did  he  go  ?  —  To  my  house, 
No.  13,  Townsend  street. 

W^ere  you  with  him  ?  —  Yes. 

How  long  did  he  stay  there  ?  — 
Wliy,  by  the  time  we  parted  at  the 
new  street,  it  was  half  past  nine 
o'clock. 

What  new  street  ?  —  Near  the 
New-bridge. 

Then  you  parted  with  him  ?  — 
Yes ;  he  told  me  he  intended  to  go 
over  the  water,  to  see  if  Mr. 
Kennedy  had  come  from  TuUamore. 

Is  Mr.  Kennedy  a  corn  factor  in 
Abbey  street  ?  —  Yes. 

James  Kearney  cross-examined  by 
Mr.  Plunket. 

You  ha\'e  known  the  prisoner  a 
longtime? — Yes,  thirty  years.  .  .  . 

At  what  time  of  the  day  did  he 
come  to  you  on  Tuesday  ?  —  About 
two  o'clock.  .  .  . 

You  went  immediately  with  the 
prisoner?  —  I  did,  as  soon  as  I 
drew  a  batch  of  bread. 

You  went   down   to   MacShee's  ? 

—  Yes. 

It  was  then  near  three  o'clock  ?  — 
It  was. 

Did  you  return  home  after  leav- 
ing him  there  ?  —  No,  we  returned 
together.  We  stopped  at  Lynch's, 
my  employer,  who  disputed  with 
me  because  I  was  getting  this  house 
for  Byrne. 

But  then  vou  returned  to  Town- 


send  street  ?  —  Yes,  and  stripped  and 
went  to  bed. 

So  that  it  was  bedtime  when  you 
returned  to  town  ?  —  It  was  late. 
AVhat  hour  was  it  ?  —  About  nine. 

It  was  two  o'clock  when  Byrne 
went  to  you  ?  —  Yes. 

Then  you  arrived  at  MacShee's 
about  half  past  three,  and  returned 
home  at  nine,  so  that  you  must 
have  delayed  four  hours  with  the 
artillery  ?  —  I  do  not  say  that ;  I 
was  there  three  quarters  of  an  hour. 

How  do  you  account  for  four 
hours,  after  allowing  sufficient  time 
for  walking  ?  —  I  went  to  Mr. 
Toole's  and  got  some  bread  and 
cheese. 

But  how  do  you  explain  the  four 
hours  ?  Were  you  not  at  the  Pigeon- 
house  looking  at  the  stores  and 
cannon  ?  —  I  never  did  ;  I  did  not 
advance  the  breadth  of  my  nail.  .  .  . 

At  what  time  did  you  and  Byrne 
separate?  —  About  half  past  nine. 

Where?  —  At  the  new  street,  be- 
tween the  college  and  the  bridge. 

W^hy  did  he  not  sleep  with  you 
that  night  ?  —  He  said,  he  wanted 
to  see  Mr.  Kennedy ;  and  said  he 
would  go  to  his  brother-in-law's,  as 
he  wanted  to  be  off  in  the  packet 
next  morning. 

That  was  to  go  home  to  Naas  ? 

—  Yes. 

At  six  in  the  morning  ?  —  Yes.  .  .. 

You  heard  of  no  disturbance  on 
Saturday,  the  2.3d  of  July?— No, 
not  a  word  till  the  next  day. 

When  on  the  next  day?  —  Be- 
tween ten  and  eleven,  when  I  got 
up.  I  worked  very  hard,  and  I 
sleep  generally  on  Sunday  morning ; 
when  a  man  is  twenty  hours  on  foot, 
he   sleeps   a  good   deal   afterwards. 

Had  you  worked  that  Saturday  ? 

—  No,  I  did  not  work  at  all  that  day  ; 
but  from  the  habit  of  working  hard 
upon  Saturday,  I  generally  sleep 
upon  Sunday  ;  and  having  to  go  to 
work  early  the  next  morning,  I  slept 
upon  that  morning. 

Did  you  work  any  that  night  be- 
tween ten  and  eleven  o'clock  ?  —  No. 
When  vou  heard  of  the  disturb- 


692 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  350. 


ance  in  Thomas  street,  did  you  go 
to  inquire  whether  your  friend  had 
gone  in  the.  packet  ?  —  I  did  not ;  I 
thought  there  was  no  danger  of  an 
innocent  fellow  at  any  time. 

Why  did  he  go  without  seeing  Mr. 
Kennedy  ?  —  How  can  I  tell  ? 

Did  he  not  tell  you?  —  No;  not 
whether  he  was  come  home  or  not. 

Peter  Butler  sworn.  Examined 
for  the  prisoner  by  Mr.  Ball. 

Where  do  you  live?  —  In  Abbey 
street. 

What  is  your  business  ?  —  A  baker. 

Do  vou  know  Mr.  Kennedy  ?  —  I 
do. 

Does  he  live  in  Abbey  street  ?  — 
He  does. 

Whom  do  you  work  for  ?  —  I  carry 
on  l)usiness  for  myself. 

What  business  does  Mr.  Kennedy 
follow  ?  —  He  bakes  biscuits  for  gov- 
ernment. 

Did  you  ever  see  the  prisoner  at 
Mr.  Kennedy's  house?  —  Often. 

How  near  do  you  live  to  Mr. 
Kennedy  ?  —  Almost  opposite  his 
door. 

Did  vou  see  the  prisoner  the  night 
of  the  23d  of  July  ?  —  I  did. 

Where  ?  —  At  my  own  house. 

At  what  hour  did  you  first  see  him 
that  evening  ?  —  Very  near  nine. 

When  did  he  leave  you? — About 
half  past  ten ;  he  would  stay  till 
morning  if  I  could  drink  with  him  ; 
I  was  not  well,  and  I  said  to  him, 
it  was  a  shame  for  him  to  stay  so 
long  in  town.  He  said  he  had  been 
taking  a  house  in  Rings-end  with 
Kearney  and  had  been  drinking 
with  him  ;  I  said,  it  was  a  shame  for 
him  to  keep  such  company ;  he 
said  the  man  lived  in  the  place,  and 
he  was  taking  his  assistance. 

Where  did  the  prisoner  lodge? 
—  At  Gilligan's  house  in  Thomas 
street. 

Whereabouts?  —  In  the  middle  of 
the  street,  up  beyond  Dirty  lane, 
near  James's  gate. 

Peter  Butler  cross-examined  l)y 
Mr.    Town.sencl.   .   .   . 

You  drank  with  him  that  night? 
— Yes,  we  had  some  porter;  he  stayed 


with  me  some  time,  about  three 
quarters  of  an  hour,  the  girl  was 
w'ashing  the  parlor  and  we  agreed 
to  go  to  another  place,  after  he 
had  been  half  an  hour  at  my  house, 
and  then  we  went  to  another  place 
and  had  some  porter,  he  stayed  till 
I  am  sure  it  v.'as  past  ten  o'clock. 

Perhaps  it  was  eleven? — No,  it 
was  not. 

What  night  was  it?  —  Saturday 
night. 

W^as  not  his  lotlging  at  Townsend 
street  ?  —  He  slept  there,  as  I  under- 
stood. 

And  lived  with  Kearney?  —  I  be- 
lieve so  ;  nobody  would  treat  him  as 
that  man  did. 

Then  after  ten  o'clock  he  was  to 
go  to  Thomas  street  after  sleeping 
two  nights  at  another  place?  —  He 
w'ould  have  stayed  with  me  all  night : 
I  said  it  was  a  shame  for  him  to  be 
so  late ;  he  said  the  hostler  would 
let  him  in. 

You  say,  he  would  have  stayed 
longer  with  you  ?  —  He  would  ;  he 
wanted  me  to  go  to  another  place 
to  drink  more ;  but  I  pushed  hira 
away  and  said  he  was  an  unfortunate 
fellow.  .  .  .    ' 

.  .  .  (Here  the  evidence  on  behalf 
of  the  prisoner  closed.) 

Felix  Brady,  Esq.,  again  called  and 
examined  by  the  court. 

Be  as  accurate  as  you  can  as  to  the 
time  the  action  took  place  in  Thomas 
street? — To  the  best  of  my  recol- 
lection, it  could  not  be  more  than 
half  past  nine,  and  as  far  as  I  rec- 
ollect we  were  returning  from  James's 
street  by  ten  o'clock  and  rather  be- 
fore it. 

Jury.  —  Are  you  positive  that 
the  action  was  over  at  half  past  ten  ? 
—  I  am  positive  of  that.   .   .   . 

j\Ir.  Ball.  —  My  Lord,  and  Gentle- 
men of  the  Jury  :  I  have  a  more 
oppressive  feeling  in  rising  to 
address  you  upon  this  case,  than 
has  ever  attended  me  upon  any 
other  occasion,  though  even  in 
itself  of  equal  importance,  from  the 
nature  of  the  evidence  that  has  been 
given  —  a    series    of    evidence    de- 


No.  350.    HI.    TESTIMONIAL   INTERPRETATION.      B.    COMMON    INCIDENTS 


693 


manding  a  most  miimte  examina- 
tion and  comparison  of  facts  and 
circumstances.  .  .  .  There  is  not  a 
single  fact  of  any  sor.t  imputed  to 
the  prisoner  by  the  witnesses  for 
the  prosecution,  nor  any  circum- 
stance in  the  smallest  degree  affect- 
ing him,  except  the  one  circumstance 
of  the  pike ;  and  out  of  a  guard  of 
fifty  soldiers  and  their  officer,  not 
one  person  has  been  able  to  say  any- 
thing as  to  that  fact,  except  one 
single  soldier ;  of  the  evidence  of 
that  single  soldier,  and  the  circum- 
stances accompanying  the  facts 
which  he  has  stated,  I  entreat  your 
cool  and  cautious  investigation  ;  — 
consider  the  position  of  the  several 
partie*  concerned  in  the  transac- 
tion —  the  soldiers  were  proceeding 
in  an  easterly  directicHi,  the  rebels 
were  before  them,  the  first  division 
of  the  military  were  advanced  five 
or  six  paces  before  the  second,  the 
prisoner  was  discovered  on  a  line 
with  the  second  division,  his  face 
towards  the  west  —  the  night  was 
extremely  dark  —  there  was  no  ray 
of  light  to  exhibit  any  object  except 
that  which  proceeded  from  the  fire 
of  the  musketry.  A  volley  was  fired 
by  the  front  division,  and  by  the 
light  of  that  volley,  fired  behind  the 
prisoner's  back  and  five  or  six  paces 
from  him  the  soldier  affects  to  say, 
that  he  not  only  saw  the  pike  fall 
from  the  prisoner's  hand,  but  that 
he  also  saw  and  distinguished  his 
face,  and  it  is  in  evidence  that  the 
wind  was  blowing  from  the  east,  and 
therefore  by  throwing  the  smoke 
back  upon  the  party  must  have 
materially  increased  the  obscurity 
and  darkness  of  the  scene.  I  do 
not  wish  to  argue  on  the  inten- 
tional truth  or  falsehood  of  the  evi- 
dence of  the  soldier;  it  is  possible 
he  may  have  intended  to  deceive, 
or  he  may  have  intended  to  give  just 
and  true  evidence  according  to  his 
view  and  conception  of  the  facts  — 
which  at  best  must  be  confused,  if 
not  absolutely  doubtful  and  un- 
certain —  but  you,  gentlemen,  will 
consider  whether  it  is  possible,  that 


the  light  of  muskets  fired  from  the 
west,  when  the  wind  was  easterly, 
could  show  the  face  of  a  man  at  such 
a  distance,  and  in  such  a  relative 
position  —  back  to  back  with  the 
soldiers  who  fired.  And  even  though 
you  should  think  it  physically  pos- 
sible, your  next  consideration  will 
be,  whether  such  a  light  may  not 
possibly  have  misled  the  soldier,  and 
whether  with  a  good  intention,  he 
may  not  state  that  to  you  which  he 
may  believe  to  be  true,  and  yet 
you  may  be  of  opinion,  that  he  could 
not  have  such  an  accurate  knowl- 
edge of,  as  to  authorize  you  to  take 
away  the  life  of  a  fellow  creature  — 
and  the  more  especially  as,  inde- 
pendent of  any  case  made  out  by 
the  prisoner,  he  was  stated  by  the 
witnesses  for  the  crown  to  be  in 
a  situation  not  consistent  with  his 
being  a  party  in  the  rebellion.  .  .  . 
Gentlemen,  with  regard  to  the 
times  sworn  to  by  the  different 
witnesses,  there  appears  to  be  some- 
thing like  a  contradiction  between 
the  time  stated  by  the  witnesses  for 
the  prisoner,  and  that  stated  by  the 
witnesses  for  the  prosecution.  I 
do  think,  that  is  the  only  part  of 
the  evidence  upon  which  it  is  im- 
mediately necessary  to  argue  in 
support  of  the  evidence  for  the 
prisoner ;  and  convinced  as  I  am 
myself,  that  the  apparent  variance 
between  the  evidence  is  not  fatal 
to  the  credit  of  the  prisoner's  wit- 
nesses, I  have  but  little  doubt  that 
I  shall  be  aV)le  to  satisfy  your  minds 
on  that  point.  —  If  two  men,  upon 
a  certain  defined  and  single  fact, 
shall  each  give  a  different  account, 
one  certainly  must  speak  intention- 
ally false.  But  if  the  fact  be  of 
such  a  nature  as  at  all  rests  in  con- 
jecture, to  which  the  common  usage 
of  mankind  has  given  great  and 
general  latitude,  such  as  time,  exact 
precision  cannot  be  expected,  and 
a  complete  coincidence  would  be 
the  very  circumstance  which  would 
induce  a  reflecting  man  to  suspect 
that  there  was  some  practice  to 
deceive.     Mr.    Brady   says,    it   was 


694 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  350. 


lialf  past  ten  when  the  transaction 
took  phice  in  Thomas  street ;  he 
speaks  upon  belief,  not  having  re- 
sorted to  a  watch  or  clock  upon  the 
occasion.  ...  I  wouUl  appeal  to 
your  own  tried  and  frequent  ex- 
perience on  this  subject ;  I  would 
venture  to  say,  if  any  of  you  were 
called  upon  to  say  what  the  hour 
is  at  this  moment,  you  would  all 
mention  different  hours  or  parts 
of  hours,  and  that  not  one  of  you 
would  name  a  time  that  would  not 
be  refuted  by  looking  at  his  watch, 
and  in  your  watches  would  be  found 
j^erhaps  as  much  variety  as  in  the 
several  guesses  you  should  make  your- 
.selves ;  nay,  even  the  pul^lic  clocks 
of  the  town  do  not  agree.  Then  see 
what  the  supposed  contradiction 
is  —  he  was  in  company  with  a  poor 
sickly  man,  who  was  anxious  to 
get  to  his  bed,  which  he  could  not 
do  till  he  had  first  got  rid  of  his 
friend,  that  friend  too  (the  prisoner) 
something  intoxicated  —  the  night 
advanced  —  the  state  of  his  mind 
calculated  to  make  the  time  hang 
heavy  and  appear  long  —  he  is  of 
opinion,  it  was  half  past  ten  o'clock 
before  they  separated.  He  did  not 
say  it  was  so  by  his  watch  —  he  did 
not  refer  to  a  clock,  and,  if  he  had, 
it  might  have  misled  him :  his 
computation  then  might  also  de- 
ceive him.  Gentlemen,  you  cannot 
but  be  of  opinion,  that  two  men, 
intending  each  of  them  to  speak 
trutli,  may  differ  in  the  hour  at 
which  a  shot  was  fired,  or  any  other 
fact  happened,  and  may,  of  course, 
without  fraud  or  crime  or  moral 
falsehood,  give  a  different,  and  one 
of  course  innocently  a  false  account. 
—  Hut  what  is  the  inaccuracy  here  ? 
it  is,  in  my  humble  judgment,  such 
an  inaccuracy  as  sets  up  the  wit- 
ness, Butler,  and  his  credit,  instead 
of  putting  them  down.  —  Does  not 
the  prisoner  know  at  what  time 
he  was  apprehended,  as  far  as  the 
time  could  be  ascertained  ?  —  And 
is  he  to  be  charged  with  suborning 
a  witness  to  state  a  fact  which  is 
utterlv  inconsistent  with  his  defense  ? 


If  the  defense  were  fabricated,  the 
witness  would  ask,  "what  time  am 
I  to  state  you  were  with  me?"  and 
that  time  would  be  made  corre- 
spondent with  the  other  circum- 
stances :  the  witness  would  have 
been  tutored  to  state  an  hour  or 
time  that  should  not  be  contradicted 
and  refuted  l)y  the  known  and  in- 
disputable fact  of  the  prisoner's 
being  in  custody  at  the  time  he 
should  be  said  to  have  parted  with 
the  witness.  But  no  such  thing  is 
done ;  no  preconcerted  accuracy 
is  resorted  to,  and  you,  gentlemen, 
can  best  collect  the  truth  from  the 
evidence  which  has  been  given. 
The  difference  between  the  wit- 
nesses is,  that  lieut.  Brady  states 
the  prisoner  to  have  been  arrested 
at  half  past. ten  in  Thomas  street; 
Butler  states  him  to  have  left  Abbey 
street  at  half  past  ten  ;  this  amounts 
to  a  variance  evidently  proportioned 
to  the  time  the  prisoner  would  oc- 
cupy in  walking  from  Abbey  street 
to  Thomas  street ;  twenty  minutes 
would  be  a  large  allowance  for  that 
purpose ;  either  of  the  witnesses 
may  easily  be  mistaken  to  the  amount 
of  twenty  minutes ;  the  error  may 
be  all  on  one  side,  and  it  is  impos- 
sible to  decide  upon  which ;  or  both 
parties  may  be  equally  mistaken, 
each  to  the  amount  of  ten  minutes. 
I  have  said  thus  much  upon  this 
subject  —  upon  the  place  where 
the  prisoner  was  found  —  on  the 
direction  in  which  his  face  was 
turned,  and  the  species  of  light  by 
which  the  soldier  attempted  to 
justify  the  accuracy  of  his  eye ;  be- 
cause, taking  all  these  circumstances 
together,  it  is  impossible  but  they 
must  raise  a  doubt  in  your  minds. 
...  I  will  not  undervalue  your 
understandings  and  your  hearts  .so 
much  as  to  believe  it  possible,  but 
that  everything  taken  together  —  the 
utter  impossibility  of  accurate  vision 
in  the  soldier  —  the  insignificance 
of  the  difference,  or  inaccuracy  in 
point  of  time  —  the  consistency  of 
the  prisoner's  case  with  his  occupa- 
tion— .  .  .  I  say,  taking  all  these 


No.  350.       III.      TESTIMONIAL   INTERPRETATION.       B.    COMMON    INCIDENTS      695 


things  together,  you  must  entertain 
doubts  upon  the  case.  .  .  .  The 
language  of  the  hiw  in  such  cases  is 
concise  and  imperative  —  you  must 
acquit  the  prisoner.  .  .  . 
■     Reply. 

Mr.  Solicitor-General. — My  Lords 
and  Gentlemen  of  the  Jury  :  .  .  .  In 
this  case,  no  questions  of  law  or 
difficulties  in  matter  of  fact  arise. 
The  only  question  for  your  con- 
sideration is  "  what  part  the  prisoner 
took  in  the  insurrection  of  the  23d 
of  July?"  In  order  to  ascertain 
that,  I  will  first  call  your  attention 
to  the  evidence  which  has  been 
given  upon  the  part  of  the  Crown, 
and  then  to  the  exculpatory  evi- 
dence on  behalf  of  the  prisoner. 
It  appears,  that  at  half  past  nine 
o'clock,  a  party  of  the  army  arrived 
at  Thomas  street.  ...  It  appears, 
that  this  firing  kept  up,  — and  which 
from  its  nature  spread  a  continued 
glare,  not  sudden  like  a  volley,  but 
constant,  the  men  firing  one  after 
another,  —  afl^orded  a  sufficient 
degree  of  light  to  distinguish  objects. 
The  witness  Watt  was  upon  the 
left  of  the  division,  next  the  flag 
way,  and  the  prisoner  was  upon  the 
flags.  The  soldier  did  not  observe 
him  till  he  came  close,  —  which  is 
accounted  for,  not  from  want  of 
light,  but  that  the  attention  of  the 
soldier  was  directed  toward  the 
enemy  in  front,  rather  than  to  the 
place  where  the  prisoner  was.  The 
prisoner  approached  within  a  yard, 
when  he  was  called  upon  to  stop  ;  — 
at  the  time  he  was  thus  called  upon 
he  was  armed  with  a  pike,  which 
was  described  as  a  white  pole.  Is 
there  any  doubt,  that  the  witness 
could  distinguish  that  weapon 
clearly,  when  the  firing  was  going 
on  in  front,  and  lamps  were  on  the 
same  side  of  the  street  with  the 
prisoner  ?  Is  it  credible  or  doubt- 
ful in  the  slightest  degree,  that  a 
soldier  could  see  the  weapon  under 
such  circumstances  ?  But  see  how 
he  is  fortified  Ijy  the  other  witness. 
North;  —  he  heard  something  fall 
the  moment  the  first  soldier  called 


out ;  and  a  pike  is  found  at  the  feet 
of  the  prisoner.  The  first  soldier 
called  to  the  prisoner,  and  there 
being  only  a  short  interval  of  space 
between  them,  he  stepped  out  and 
seized  the  prisoner.  North  at  the 
same  time  heard  the  pike  fall,  and 
there  was  no  other  person  near  the 
prisoner  who  could  throw  it  down. 
Can  you  believe  that  the  soldier 
threw  it  down  ?  and  thei-efore  when 
the  learned  coimsel  insinuates,  that 
some  other  person  threw  down  the 
pike,  he  must  mean  the  soldier, 
which  you  cannot  believe.  Watt 
and  North  both  appear  to  be  men 
of  very  clear  understandings,  more 
capable  of  ascertaining  and  describ- 
ing facts  accurately,  than  usually 
occurs  in  their  rank  of  life.  .  .  . 
Thus  is  the  evidence  for  the  Crown 
of  that  kind  and  character  that  you 
cannot  well  refuse  your  assent  to  it. 
The  veracity  of  the  witnesses  is  not 
impeached,  and  it  is  only  said,  that 
they  may  be  mistaken.  But  it 
appears  to  me  that  there  is  no  cir- 
cumstance in  the  case  upon  which 
that  allegation  can  be  supported. 
The  two  witnesses  correspond  in 
their  testimony,  and  all  they  say 
is  irresistibly  corroborated  by  the 
conduct  of  the  prisoner  himself,  in 
making  violent  resistance,  not  only 
at  the  moment  of  his  arrest,  but 
long  after  he  was  in  the  custody 
of  the  king's  forces.  Such,  gentle- 
men, is  the  case,  as  resting  on  the 
evidence  given  by  the  witnesses 
for  the  Crown.  .  .  . 

At  a  quarter  past  nine,  Kearney 
tells  you,  he  and  the  prisoner  sep- 
arated. Where  does  he  go  ?  — 
To  a  baker  in  Abbey  street  —  he 
arri^'es  at  Butler's,  and  stays  with 
him  till  half  past  ten  —  so  that  there 
is  no  mistake  by  Butler  with  regard 
to  the  time,  as  alleged  by  the  pris- 
oner's counsel ;  he  and  Kearney 
agree  and  tally  exactly  ;  at  half  past 
nine,  he  quits  one  and  arri\es  with 
the  other ;  so  that  the  inconsist- 
ency which  was  relied  upon  to 
pro\e  there  was  no  confederacy 
amongst     the     witnesses,     is     not 


696 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  350. 


founded,  because  they  are  perfectly 
consistent.  —  But,  says  Mr.  Ball,  it 
would  be  ridiculous  to  fix  upon  an 
hour,  when  the  soldiers,  who  took 
the  prisoner,  could  ascertain  it.  — 
And  why  keep  back  the  prisoner 
from  Thomas  street  ?  —  Because  they 
knew  that  all  the  outrages,  all  the 
murders  of  that  melancholy  night, 
were  committed  in  Thomas  street 
before  ten  o'clock  —  so  that  upon 
that  account  you  can  reconcile 
their  anxiety  for  keeping  the  prisoner 
out  of  Thomas  street  till  after  ten 
o'clock.  The  prisoner  produces  no 
companion  from  Abbey  street  to 
Thomas  street,  because  there  were 
none  there  l)ut  such  as  were  impli- 
cated in  this  transaction,  and  it 
might  not  be  convenient  to  them  to 
appear.  .  .  .  Then  how  does  he 
get  into  the  situation  in  which  he 
is  found  ?  It  is  impossible  he  could 
but  as  one  of  the  rebel  party.  In 
addition  to  all  this,  it  appears,  that 
the  house,  to  which  he  alleges  he 
was  going,  is  situated  upon  the  op- 
posite side  of  the  street  from  the 
place  where  he  was  found.  But 
when  I  allude  to  the  circumstance 
of  his  going  to  Gilligan's  house,  I 
must  remind  you,  that  the  declara- 
tion of  the  prisoner  himself  is  the 
only  evidence  in  the  case  to  support 
the  assertion.  When  a  man  makes 
an  assertion,  which  becomes  ma- 
terial upon  his  trial,  and  has  wit- 
nesses to  prove  it,  if  true,  it  is  not 
to  be  regarded  unless  the  witnesses 
are  produced.  .  .  . 

I  have  attempted  to  draw  back 
your  attention  to  the  evidence  on 
the  part  of  the  Crown.  It  is  a  plain 
and  simple  narrative  against  which 
there  is  no  objection,  and  I  ha\e 
gone  through  the  evidence  of  the 
pri.soner,  only  to  meet  the  observa- 
tions of  his  counsel.  .  .  . 

Sumiiiinf/  up. 

!Mr.  Baron  Daly.  —  Gentlemen 
of  the  Jury  :  .  .  .  the  defense  set  up 
is  of  a  peculiar  nature  ;  not  so  much 
contradicting  or  controverting  di- 
rectly the  facts  which  have  been 
proved,  as  a  flcfcnsc  by  way  of  in- 


ference, from  which  you  are  called 
upon,  if  you  believe  it,  to  pronounce 
him  an  innocent  man.  It  appears 
that  the  prisoner  is  an  inhabitant 
of  Naas,  a  town  situated  sixteen 
miles  from  the  city  of  Dublin,  and 
it  certainly  was  incumbent  upon  the 
prisoner,  —  not  being  an  inhabitant 
of  Dublin,  being  found  in  such  a 
place,  and  upon  such  an  occasion,  — 
to  show  why  he  was  in  the  city  at 
that  time.  —  His  defense  is  offered 
to  show,  that  he  was  in  the  city 
upon  an  innocent  occasion.  .  .  . 
With  regard  to  the  hour,  at  which 
the  prisoner  (if  you  believe  his  wit- 
nesses) was  in  Abbey  street,  it 
differs  from  the  time  stated  by  the 
witnesses  for  the  prosecution.  If 
you  believe  the  testimony  of  lieut. 
Brady,  the  prisoner  was  in  Thomas 
street  at  a  much  earlier  hour  than 
he  could  have  been,  if  the  witnesses 
on  his  part  swear  true.  It  is  for  you 
to  judge  with  regard  to  that  con- 
tradiction ;  and  if  you  should  be- 
lieve the  witness  for  the  Crown  as  to 
the  hour,  the  conclusion  which  would 
naturally  follow,  but  which  is  for 
your  determination,  is,  that  the 
defense  is  fabricated.  The  material 
fact  to  ascertain  is,  whether  the 
prisoner  was  found  in  Thomas  street 
armed  M'ith  a  pike  against  the  king's 
troops.  That  he  was  there  is  not 
disputed  ;  that  he  struggled  is  not 
disputed  ;  and  the  only  circumstance 
upon  which  a  shade  of  doubt  is  cast, 
is,  whether  he  had  a  pike  ?  —  That 
is  not  contradicted  by  direct  evi- 
dence ;  nor  could  it  from  the  nature 
of  the  case.  But  it  is  controverted 
by  inference  —  by  showing,  that  he 
came  from  Naas  with  an  innocent 
intention,  and  therefore  was  not 
likely  to  have  a  pike.  There  is  one 
thing  remarkable,  however,  that 
though  he  said  he  resided  for  the 
occasion  in  Thomas  street,  there  is 
no  evidence  that  he  did  reside 
there.  He  himself  said,  that  he 
lodged  at  Gilligan's  in  Thomas 
street,  but  there  is  no  evidence  of 
.the  fact.  ...  If  you  believe  from 
his   own    assertion,    that   he   lodged 


No.  353.       III.      TESTIMONIAL    INTERPRETATION.      B.    COMMON    INCIDENTS      697 

in  Thomas  street,  and  that  he  was  soldier,     and    many    circumstances 

in    Abbey  street   at    the    time  his  that  flow  from  the  evidence  of   the 

witnesses  say,  and  notwithstanding  prisoner.  .  .  . 

what  the  witnesses  for  the  Crown  The  jury  retired,  and  in  five  min- 

say,    that    he    innocently    went    to  .  utes  returned  a  verdict  of  Gutlt3^  .  .  . 

Thomas    street,   and   was   standing  Prisoner.  —  I  am  as  innocent  as 

innocent!}'  there  during  the  action  the  child  unborn.     I  leave  it  to  my 

—  or   if  you   have   any   reasonable  God,  I    never    saw    a   pike    in    my 

doubt  of  that  you  ought  to  accjuit  life. 

the  prisoner.     But  in  doing  so,  you  He  was  executed  the  following  day 

must   reject   the   testimony   of   the  in  Townsend  street. 

351.  Wm.  C.  Robinson.  Forensic  Oratory;  a  Manual  for  Advocates. 
(1893.  p.  210.)  .  .  .  The  cross-examiner  may  attack  a  willful  liar  by  at- 
tempting to  involve  him  in  contradictions  with  other  witnesses  whose 
credibility  is  above  suspicion.  The  points  of  inquiry  selected  for  this  pur- 
pose must  be  related  to  the  cause,  and  either  conclusively  established  by 
evidence  already  offered,  or  capable  of  being  proved  by  that  which  is  about 
to  be  produced.  They  must  also  be  such  as  the  witness  clearly  knows,  or 
clearly  knows  that  he  does  not  know ;  for  the  contradiction  sought  is  one 
that  demonstrates  the  liar's  evil  will,  and  therefore  has  no  reference  to 
matters  of  opinion,  about  which  upright  witnesses  may  widely  differ,  nor 
to  long  past  sensations  into  which  errors  of  memory  or  perception  may  have 
innocently  entered.  On  any  of  these  points  the  cross-examiner  may  test 
the  witness  by  questions  which  do  not  disclose  their  actual  purpose,  in  the 
hope  that  he  will  make  some  statement  by  which  his  disposition  to  pervert 
the  truth  will  be  revealed.  A  single  instance  of  willful  falsehood  will  be 
sufficient  to  destroy  him.  The  maxim,  "falsum  in  uno,  falsum  in  omnibus," 
expresses  not  merely  a  rule  of  law,  but  the  natural  instinct  of  all  honest  men, 
who  will  unhesitatingly  repudiate  a  witness  when  once  his  voluntary  un- 
truthfulness appears. 

352.  Charles  C.  Moore.  A  Treatise  on  Facts,  or  the  Weight  and  Value 
of  Eindencc.  (1908.  Vol.  II,  §  1073.)  .  .  .  " Falsus  in  Uno,  Falsus  in  Omni- 
bus." It  is  a  maxim  that  if  a  witness  willfully  and  corruptly  swears  falsely  to 
a  material  fact  in  the  case,  the  Court  or  jury  is  at  liberty  to  disregard  the  rest 
of  his  testimony,  except  in  so  far  as  it  may  be  corroborated  by  other  credible 
evidence.  ...  It  is  said  that  there  is  no  maxim  of  the  law  of  evidence 
requiring  greater  caution  in  its  application,  than  that  of  "  falsus  in  uno,  falsus 
in  omnibus."  A  witness  may,  under  great  temptations,  and  in  some  isolated 
case,  swear  falsely ;  and  yet,  where  the  temptation  is  removed,  where  there 
is  nothing  to  operate  on  his  hopes  and  fears,  his  passions  and  prejudices, 
where  he  has  no  interest  in  the  matter  except  to  tell  the  truth,  his  testimony 
may  be  of  great  value.  ...  In  a  bastardy  case  in  Massachusetts  the 
following  admonitions  in  the  Court's  instructions  to  the  jury  were  pro- 
nounced free  from  objection :  "  It  is  not  true  that  because  a  witness  is  in- 
accurate as  to  some  of  the  circumstances  and  incidents  connected  with  the 
story,  the  story  is  necessarily  false  as  to  the  main  fact.  Illustrations  might 
be  given  without  number  of  this  principle.  If  one  of  your  friends  tells  you 
that  he  has  been  fishing,  and  proceeds  to  tell  you  how  many  fish  he  caught, 
and  what  they  weighed,  you  may  distrust  somewhat  the  accuracy  of  his 


698  PART    II.       TESTIMONIAL   EVIDENCE  No.  353. 

count,  or  the  correctness  of  his  scales,  without  disbelieving  the  main  fact 
that  he  went  fishing.  The  weight  or  significance  of  such  discrepancy  is 
always  a  question  of  fact.  It  may  be  such  as  to  induce  distrust  of  the  whole 
story ;    but  it  is  not  necessarily  so.   .   .   . 

Strictly  speaking,  this  maxim  is  not  applied  to  testimony  merely  because 
the  witness  has  committed  innocent  mistakes.  .  .  .  An  unintentional 
mistake  respecting  a  material  fact  may,  aild  \isually  does,  affect  the  general 
credit  of  the  witness  to  a  greater  or  less  degree  ;  l)ut  it  is  often  the  case  under 
such  circumstances  that  no  sufficient  cause  exists  for  disregarding  his  testi- 
mony respecting  other  material  matters.  .  .  .  Nevertheless,  if  a  witness  is 
proved  mistaken  in  all  his  statements  except  one  which  is  incapable  of  in- 
vestigation, the  Coiu-t  is  quite  likely  to  apply  the  maxim  in  an  inverted 
form  by  concluding  that  he  is  mistaken  in  that  one.  ...  If  a  witness 
testifies  emphatically  to  a  series  of  events  identical  in  character,  and  is 
found  to  be  mistaken  as  to  one  of  them,  perhaps  the  Court  will  say :  "  But 
he  swears  to  this  as  positively  as  to  the  others,  and  therefore  his  evidence, 
as  to  all,  should  receive  some  corroboration  before  implicit  reliance  can  be 
placed  upon  it."  E.g.  where  a  witness  testified  that  no  whistle  was  blown  or 
bell  rung  by  a  locomotive  on  approaching  a  crossing,  and  it  was  clearly 
shown  that  he  was  mistaken  as  to  the  whistle,  the  Court  remarked  that  he 
"was  equally  liable  to  be  as  to  the  ringing  of  the  bell." 

353.  John  C.  Reed.  Conduct  of  Lawsuits.  (1912.  2d  ed.  §512.)  We 
think  that  this  subdivision  [Contradiction]  occupies  the  largest  place  of  all 
in  practice.  There  is  serious  disagreement  of  testimony  in  the  large  majority 
of  cases,  and  it  is  nearly  always  the  main  problem  to  deal  with.  To  men- 
tion but  one  instance  of  frequent  occurrence,  the  parties,  with  their  families, 
are  often  arrayed  against  each  other.  We  drop  the  thread  of  our  connec- 
tion for  a  moment  to  say  that  it  is  better  for  you,  if  you  can,  to  show  that 
there  is  actually  nothing  but  apparent  clashing  with  your  side,  or  that  both 
sides  can  be  reconciled  in  a  way  to  save  your  case.  Jurors,  and  judges  too, 
trying  facts,  are  loath  to  discredit  witnesses.  But  if  a  conflict  lies  right  in 
your  way,  you  must  needs  try  to  show  that  the  evidence  of  the  other  side 
on  the  point  is  to  be  disregarded,  while  yours  is  to  be  accepted.  Where 
the  former  is  palpably  suspicious  or  grossly  improbable,  you  will  have  but 
little  trouble.  But  the  common  difliculty  is  where  the  colliding  witnesses 
are  all  honest  and  intelligent,  or  where  there  are  circumstances  strongly 
opposing  you.  Here  you  must  have  the  acumen  to  find  the  turning  point, 
and  the  talent  to  show  with  patience  that  what  seems  to  be  the  superiority 
of  the  adversary  upon  it  is  deceptive,  and  is  really  unequal  to  your  side. 
One  witness  of  yours,  from  his  greater  experience  upon  the  subject,  his 
better  means  of  knowing,  his  more  complete  agreement  with  the  probabilities 
and  the  indisputable  evidence,  or  a  stubborn  and  speaking  fact  in  your  favor, 
may  decidedly  overl)alance  the  more  numerous  proofs  offered. 

'354.  Hans  Gross.  Criminal  Investigation.  (1907.  transl.  J.  and  J.  C. 
Adam,  p.  104.)  The  witness  may  pretend  that  a  certain  man  has  read  him 
something,  whereas  the  man  in  question  can  neither  read  nor  write.  Again, 
a  witness  affirms  that  his  house  was  in  danger  of  catching  fire,  although  it 
was  not  in  tiic  direction  in  which  the  wind  was  blowing  at  the  time ;   or  he 


No.  355.       III.      TESTIMONIAL    INTERPRETATION.       B.    COMMON    INCIDENTS      099 

asserts  he  remained  out  of  doors  half  an  hour  with  naked  feet,  although  the 
snow  was  knee-deep.  The  witness  states  that  the  river  frequently  rises  so 
high  that  it  overflows ;  we  have  only  to  look  at  the  stones  emerging  but  a 
little  above  the  water,  to  see  that  they  are  covered  with  a  thick  bed  of  moss 
which  would  not  be  there  if  the  stones  were  frequently  submerged.  The 
witness  says  his  son  had  already  drawn  his  attention  to  something ;  a  small 
calculation  shows  that  at  the  time  in  question  the  son  was  only  four  years 
old.  Similar  examples  of  contradictions  and  self-evident  impossibilities 
are  frequently  met  with  in  our  records ;  they  supply  the  surest  method  of 
demonstrating  to  the  witness  the  falsity  of  his  deposition,  —  but  we  must 
first  discover  them.  This  is  never  very  difficult  if  one  gives  sedulous  atten- 
tion to  the  examination,  listens  carefully  to  the  reading  of  the  record,  and 
always  pictures  to  one's  self  in  imagination  what  the  witness  has  related. 
The  last  is  indispensable  and  of  the  greatest  assistance.  Words  alone  do  not 
contradict  each  other  so  strongly  or  clearly  as  facts,  or  at  least  one  does  not 
notice  so  clearly  the  contradiction  in  the  words.  But  if  we  compel  our- 
selves to  build  up  in  our  mind  the  scene  as  the  witness  has  described  it,  or 
as  we  know  it  from  previous  recitals,  and  to  adjust  what  we  are  told  with 
what  we  already  know,  if  in  the  course  of  the  narrative  of  the  witness  we 
follow  closely  the  facts  and  allow  in  thought  the  whole  scene  to  unroll  itself 
at  the  very  spot  where,  according  to  our  previous  information,  it  must  have 
taken  place,  it  is  almost  impossible  for  an  improbability  or  an  impossibility 
to  escape  us. 

355.  John  H.  "WiGMORE.  Principles  of  Judicial  Proof .  (1913.)^  If  an 
eye  witness  to  a  homicide  swears  that  the  murderer  bore  a  scar  upon  his 
cheek,  and  the  accused  is  perceived  by  the  jury  to  have  no  such  scar,  it  is 
plain  that  on  that  particular  point  the  witness  is  wholly  in  error.  If  the 
same  witness  should  testify,  among  other  circumstances,  that  the  killing  was 
done  at  night,  by  the  light  of  the  full  moon,  and  a  reference  to  an  almanac 
should  show  that  the  moon  did  not  appear  in  that  place  on  that  night,  in  a 
similar  way  his  error  on  that  point  would  be  apparent.  If  his  testimony 
should  assert,  among  other  things,  that  the  assailant  wore  a  white  hat,  and 
on  the  other  side  five  unimpeachable  eye  witnesses  should  attest  that  the 
assailant  wore  a  black  hat,  then  the  same  result  would  follow,  provided  the 
testimony  of  the  opposing  witnesses  were  believed.  Suppose,  again,  that  he 
makes  the  same  assertion  as  to  a  white  hat,  and  five  unimpeachable  witnesses 
swear  that  the  accused  never  owned  or  possessed  a  white  hat,  the  same  result 
would  follow,  provided,  first,  that  the  testimony  of  the  opposing  witnesses 
were  believed,  and,  secondly,  that  the  impossibility  also  be  accepted  of  the 
accused  having  been  able  to  obtain  temporarily  a  white  hat.  Now  in  all  four 
of  these  instances  the  immediate  probative  effect  is  the  same,  namely,  the 
witness  is  perceived  by  the  tribunal  to  he  in  error  on  a  particular  point;  the 
difference  between  the  instances  consists  merely  in  the  method  of  making  the 
error  clear  to  the  tribunal.  In  the  first  instance,  the  senses  of  the  tribunal 
itself  determine  by  inspection  and  without  ordinary  evidence  ;  in  the  second 
instance,  the  error  appears  by  means  of  hearsay  testimony  of  an  ordinarily 
incontrovertible  sort ;  in  the  third  instance  it  is  necessary  that  faith  be  given 
to  the  opposing  testimony  before  the  error  can  be  accepted ;  in  the  fourth 
1  [Adapted  from  the  same  author's  Treatise  on  Evidence.     (1905.     Vol.  II,  §  1000).] 


700  PART    II.       TESTIMONIAL   EVIDENCE  No.  355. 

instance,  it  is  necessary,  not  only  that  the  opposing  testimony  be  beHeved, 
but  also  that  certain  circumstantial  facts  additionally  be  accepted  as  existing 
and  as  probative  before  the  error  can  be  accepted.  Whatever  the  method  of 
proving  the  contrary  of  the  witness's  asserted  fact,  the  ultimate  result  aimed 
at  is  the  same,  namely,  to  persuade  the  tril)unal  that  the  witness  has  com- 
pletely erred  on  that  particular  point.  Now  the  commonest  instances  in 
practice  are. the  third  and  the  fourth,  i.e.  the  marshaling  of  one  or  more 
witnesses  (with  or  without  other  circumstantial  evidence)  who  deny  the  fact 
asserted  by  the  first  witness  and  maintain  the  opposite  to  be  the  truth. 
Thus,  the  dramatic  feature  of  the  attempt  to  prove  the  error  is  a  contra- 
diction of  the  first  witness  by  one  or  more  in  opposition.  Yet  this  contra- 
diction in  itself  does  nothing  probatively,  nor  unless  the  contradicting 
witness  or  witnesses  are  believed  in  preference  to  the  first  one,  i.e.  imless 
Ais  error  is  established.  It  is  not  the  contradiction,  but  the  truth  of  the 
contradicting  assertion  as  opposed  to  the  first  one,  that  constitutes  the 
probative  end.  Nevertheless,  the  contradiction,  being  the  usual  and  prom- 
inent feature  of  the  process  by  which  that  end  is  aimed  at,  has  served  as 
the  common  name  to  designate  the  probative  end  itself.  This  is  not 
wrong,  provided  it  be  clearly  understood  what  that  end  is. 

Such  being  the  real  probative  end  which  the  contradiction  is  intended  to 
serve,  what  is  the  exact  nature  of  that  probative  eflfect  ?  Assume  that  the 
end  is  accomplished,  and  that  the  tribunal  accepts  as  a  fact  that  the  witness 
is  completely  in  error  on  that  particular  point,  what  is  the  place  of  this  fact 
in  the  general  system  of  discrediting  or  impeaching  evidence  ? 

The  peculiar  feature  of  this  probative  fact  of  Error  on  a  particular  point  is 
its  deficiency  with  respect  to  definiteness  and  its  potency  with  respect  to 
possible  significance.  Looking  back  over  the  various  other  kinds  of  testi- 
monial phenomena  considered  already,  it  will  be  seen  that  the  evidence 
was  aimed  clearly  and  specifically  at  a  particular  defect ;  it  showed  either 
that  or  nothing.  Former  perjury  would  indicate  probably  a  deficient  sense 
of  moral  duty  to  speak  truth ;  relationship  to  the  party,  a  probable  inclina- 
tion to  distort  the  facts,  consciously  or  unconsciously ;  misjudgment  of  a 
test  specimen  of  handwriting,  a  probable  lack  of  skill  in  judging  of  writings  ; 
and  so  on.  Now  the  present  sort  of  fact  is  not  offered  as  definitely  showing 
any  specific  defect  of  any  of  these  kinds,  and  yet  it  may  justify  an  inference 
of  the  existence  of  any  one  or  more  of  them.  We  know  simply  that  an  erro- 
neous statement  has  been  made  on  one  point,  and  we  infer  that  the  witness 
is  capable  of  making  an  erroneous  statement  on  other  points.  The  source 
might  be  a  mental  defect  as  to  powers  of  observation  or  recollection  ;  it 
might  l)e  a  lack  of  veraciousness ;  it  might  be  bias  or  corruption  ;  it  might 
l)e  lack  of  experiential  capacity ;  it  might  be  lack  of  opportimity  of  knowl- 
edge. As  to  all  this,  nothing  can  be  specified.  The  inference  is  only  that 
since,  for  this  proved  error,  there  was  some  unspecified  defect  which  became  a 
source  of  error,  the  same  defect  may  equally  exist  as  the  source  of  some  other 
error,  otherwise  not  apparent.  No  doubt  the  repetition  of  instances  aft'ects 
the  strength  of  the  infi-rence  ;  i.e.  if  a  witness  has  testified  to  ten  separate 
points,  and  if  his  a.ssertions  are  proved  to  be  incorrect  not  merely  upon  one 
but  upon  six  of  the.se  points,  one  is  more  inclined  to  believe  that  the  under- 
lying defective  quality,  whatever  it  may  be,  is  radical  and  complete,  and  to 
assume  easily  that  it  ;i])pli('s  to  and  aniuds  his  assertions  on  all  the  remaining 


No.  355.    III.     TESTIMONIAL    INTERPRETATION.      B.    COMMON    INCIDENTS  701 

points.  But  it  is  still  true  that  the  error  in  itself  does  not  definitely  indicate 
any  one  specific  defect ;  that  there  is  no  attempt  consciously  to  analyze  its 
bearings  in  that  respect ;  and  that  the  typical  probative  process  is  that  of 
inferring  a  general  defective  trustworthiness  on  other  points  from  proved 
defective  trustworthiness  on  one  point. 

It  will  thus  be  seen,  as  above  suggested,  that  the  strength  and  usefulness 
of  this  sort  of  evidence  consists  in  the  wide  range  of  defective  qualities  which 
it  opens  to  our  inference ;  and  that  its  weakness  consists  in  the  indefiniteness 
of  its  inference. 

In  view  of  this  source  of  its  weakness,  is  there  no  way  of  determining 
more  accurately  the  significance  of  such  errors  ? 

In  so  far  as  the  point  on  which  the  proved  error  exists  is  removed  in  con- 
ditions and  circumstances  from  the  point  as  to  which  the  inference  of  other 
error  is  desired  to  be  drawn,  the  possil)le  explanations  (in  the  way  of  defec- 
tive qualities)  multiply  which  may  be  accepted  without  necessarily  accepting 
one  which  applies  to  the  desired  point ;  conversely,  in  so  far  as  the  conditions 
and  circumstances  are  the  same,  then  the  explanations  tend  to  become  iden- 
tical, i.e.  so  that  the  defective  quality,  whatever  it  was,  that  caused  the 
proved  error,  must  have  operated,  more  or  less  certainly,  to  cause  error  also 
on  the  point  at  issue,  so  closely  connected  with  it  in  conditions  and  circum- 
stances. For  example,  suppose  a  witness'  main  assertion  to  be  that  the 
accused  struck  the  first  blow  in  an  affray.  Suppose  it  then  to  appear  that 
this  witness,  four  years  ago,  incorrectly  asserted  that  a  street  car  conductor 
had  not  returned  him  the  right  amount  of  change  after  payment  of  fare ; 
or  that  two  years  ago  he  incorrectly  asserted  that  Yankton  was  the  capital 
of  South  Dakota;  or  that  one  year  ago  he  incorrectly  asserted  that  his 
brother  was  in  California ;  or  that  one  month  ago  he  incorrectly  stated  the 
day  of  the  month  ;  in  all  these  instances  the  significance  of  the  error  is  felt 
logically  to  be  trifling,  because  the  defect  which  was  the  source  of  any  one  of 
those  errors  may  not  be  operating  with  respect  to  his  assertion  now  in  ques- 
tion, and  the  probability  of  its  operating  is  so  indefinite  as  not  to  be  worth 
considering.  But  suppose  it  to  appear  that  another  assertion  of  this  wit- 
ness, that  the  deceased  had  no  weapon  in  his  hand  when  struck,  is  incorrect ; 
now  we  may  begin  to  attach  significance  to  this  error,  because  the  source  of 
it,  while  it  need  not  be  also  operating  as  to  the  main  assertion  in  question,  is 
much  more  likely  to  be  operating.  Or,  if  the  error  consist  in  asserting  that 
the  deceased  was  knocked  down  by  the  accused's  blow  (when  in  truth  he 
remained  standing),  the  error  is  vital,  because  the  defective  source  of  that 
assertion  must  almost  necessarily  have  operated  also  for  the  assertion  that 
the  accused  struck  first ;  and,  if  the  former  assertion  appears  to  be  untrust- 
worthy, the  latter  must  fall  with  it  (so  far  as  this  witness's  testimony  is  con- 
cerned). 

Thus,  an  error  upon  a  distant  and  distinct  matter  is  logically  much  in- 
ferior in  value  to  an  error  upon  a  closely  connected  matter,  in  its  bearing 
upon  the  trustworthiness  of  the  assertion  in  question.  This  seems  to  be 
the  logical  foundation  for  the  readiness  of  our  law  to  draw  a  distinction,  in 
allowing  proof  of  such  errors  between  matters  "  collateral "  and  other  matters. 
But  it  remains  true  that  "  collateral "  errors,  though  only  remotely  probative, 
may  be  still  probative. 


TITLE  III  {continued):   TESTIMONIAL  INTERPRETATION 

SUBTITLE  C:       SUNDRY     ILLUSTRATIONS    OF    THE    FALLIBILITY 

OF  TESTIMONY 


356.    THE    DISBELIEVED    CHILD'S    CASE.       Dk.     Buchholz. 


{Testimony.      H.    Gross'   Archiv  fiir 
inalistik,  1909,  Vol.  XXXV,  p.  128.) 

Some  years  ago  my  wife,  with  our 
six-year-old  son,  was  paying  a  visit 
to  her  parents.  One  day  the  boy 
went  out  for  a  walk  with  his  grand- 
mother. On  his  return  he  told  us 
that,  while  they  were  out,  his  uncle 
had  shaken  hands  with  him  and 
asked  to  he  remembered  to  my  wife. 
The  grandmother,  however,  on  hear- 
ing this  statement,  said  that  no  such 
thing  happened,  or  could  have 
happened ;  for  during  the  wdiole 
walk  she  had  had  the  boy  with  her 
by  the  hand  and  no  one  had  spoken 
to  him.  But,  on  being  questioned, 
the  little  fellow  stuck  to  his  story; 
and  added  this  particular,  that  his 
uncle  had  si)oken  to  him  while  his 
grandmother  was  talking  with  an- 
other lady.  All  this  the  grandmother 
positively  denied ;  she  had  not 
talked  with  any  lady  while  out  walk- 
ing. The  grandfather,  who  took 
part  in  the  ensuing  discussion,  was 


Kriminal-Anthropologie  und  Krim- 

experienced  in  criminal  cases  (being 
at  that  time  an  examining  magis- 
trate), and  took  occasion  to  deliver 
himself  on  the  untruthful  tendencies 
of  children ;  when  just  at  that  mo- 
ment the  said  uncle  himself  ap- 
peared on  the  scene,  and  his  first 
remark  was  to  ask  if  the  boy  had 
delivered  the  message  just  given 
him  ! 

The  little  fellow  had  been  entirely 
in  the  right  as  to  the  occurrence. 
The  grandmother  acknowledged,  the 
moment  the  lady's  name  was  men- 
tioned, that  she  had  met  and  con- 
versed with  her  for  one  minute ; 
during  that  minute  the  uncle's 
incident  with  the  boy  took  place. 

But  in  a  trial  in  court,  who  would 
have  been  believed,  the  boy  or  the 
grandmother  ?  And  how  would  it 
have  turned  out  if  the  alibi  to  some 
crime  had  depended  on  these  two 
witnesses  ? 


357.    THE  COPIED  WILL.      (John  C.  Reed.     Cojiduci  of  Lmvsuits, 


1912.      2d  ed.  §  5G.j 

.  .  .  I  add  an  example  of  a  number 
of  examiners  of  an  important  paper 
falling  into  the  same  error.  A  testa- 
tor had  thus  limited  certain  prop- 
erty :  "  To  be  used  only  for  the 
support  and  maintenance  of  each 
of  them  (his  daughters),  and  the 
education  and  maintenance  of  the 
children  of  each  of  them."  Some 
three  or  four  copyists,  each  acting 
independently  of   the   others,    gave 


the  item  just  quoted  as  follows : 
"  To  be  used  only  for  the  support  of 
the  children  of  each  of  them." 
Several  certified  copies  had  been 
made,  and  but  one  had  the  words 
as  first  quoted.  A  controversy  oc- 
curred between  the  counsel  on  dif- 
ferent sides  of  a  case  involving  the 
construction  of  this  will,  as  to  the 
true  contents  of  the  item  mentioned. 
To  settle  it,  one  of  them,  interested 


702 


No.  358. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


ro3 


to  increase  the  estate  of  the  testa- 
tor's grandchildren,  wrote  to  the 
surrogate  of  another  county,  who 
had  the  custody  of  the  paper,  statr 
ing  the  contention,  without  dis- 
closing his  side,  and  asking  for  the 
truth.  The  surrogate,  thus  put 
upon  the  alert,  inspected  both  the 
record   and   the   original    will   with 


particular  pains  and  certified  the 
same  mistake.  Of  course  our  law- 
yer felt  that  his  case  was  sure.  But 
as  he  could  not  get  his  adversaries  to 
admit  the  words  to  be  as  he  con- 
tended, he  examined  for  himself 
and,  to  his  great  surprise,  found  that 
the  solitary  copy  was  right  and  all 
the  others  wrong. 


358.    PHILIP  CLARE'S  CASE. 
1876.     p.  60.) 

In  Stafford,  in  the  year  1857, 
the  body  of  a  girl  named  Elizabeth 
Hopley  was  found  in  the  canal  at 
Bradley,  early  on  the  morning  of 
the  30th  of  April.  There  were 
no  marks  of  violence.  About  ten 
o'clock  on  the  previous  evening  she 
had  left  the  house  of  her  aunt  for 
the  purpose  of  going  to  the  place 
where  a  young  man,  to  whom  she 
was  engaged  to  be  married,  was  in 
the  habit  of  working.  Her  road  led 
past  the  place  where  her  body  was 
found,  and  it  was  supposed  that, 
dazzled  by  the  light  of  some  coke 
fires,  she  had  missed  her  way,  and 
fallen  over  the  low  wall  by  which 
the  canal  was,  at  that  spot,  very 
insufficiently  guarded. 

About  three  weeks,  however,  after 
the  girl's  death,,  a  neighbor,  of  the 
name  of  Samuel  Wall,  declared  that 
Elizabeth  Hopley  had  been  mur- 
dered, and  that  he  had  been  present 
when  the  crime  was  committed. 
A  day  or  two  afterwards  he  was 
summoned  before  the  magistrates, 
when  he  told  the  following  story. 
He  said  that  on  the  night  of  the  29th 
of  April  he  was  on  duty  as  a  private 
watchman  on  some  premises  near 
a  bridge  which  crossed  the  railv.ay ; 
that  he  saw  two  persons,  a  man  and 
a  woman,  on  the  bridge,  and  heard 
a  woman's  voice  say,  "Philip,  don't 
kill  me  !  You  said  you  would  kill 
me  before!"  That  the  man  then 
raised  his  hand  and  struck  the 
woman  a  violent  blow  on  the  head, 
which  knocked  her  down.  Upon 
this  he  went  up,  and  instantly  rec- 
ognized    the    man    as    one    Philip 


(John    Paget.     Judicial    Puzzles. 

Clare,  whojn  he  well  knew.  He 
exclaimed,  "Philip,  you'll  have  to 
suffer  for  this!"  Clare  turned 
round  and  replied,  "If  you  speak, 
I'll  serve  you  the  same!"  Clare 
then  lifted  the  young  woman  up 
from  the  ground,  and,  followed  by 
Wall,  carried  her  over  the  railway 
bridge,  and  down  a  road  past  some 
cottages,  until  he  came  to  the  canal. 
Here  he  paused,  and  turning  round 
again  upon  Wall,  said,  "Now,  if 
you  speak  or  tell  any  one,  I  will  kill 
you.  I  will  serve  you  the  same  way 
as  I  served  her,  and  set  some  one 
else  to  watch  instead."  He  then, 
in  Wall's  presence,  plunged  the 
woman,  who  still  seemed  helpless 
and  insensible,  into  the  canal, 
close  to  the  spot  where,  the  next 
morning,  her  body  was  discovered. 
Wall  fixed  the  time  when  this  oc- 
curred as  twenty  minutes  after 
midnight ;  and  it  must  be  remarked 
that  he  was  employed  as  a  watch- 
man, and  was  likely  to  be  habitually 
observant  of  the  time.  He  said 
that  he  returned  to  his  employer's 
premises,  being  prevented  J)y  his 
fear  of  Clare  from  giving  any  alarm  ; 
that  after  about  a  quarter  of  an  hour 
had  elapsed,  Clare  came  to  him  and 
renewed  his  threats,  when,  terrified 
by  the  apprehension  of  immediate 
violence,  he  locked  himself  up  in  the 
engine  house  until  daylight. 

Upon  this  statement,  Clare  was 
taken  into  custody,  and  committed 
for  trial.  At  his  trial  Wall  repeated 
the  story  he  had  told  the  magis- 
trates. There  was  a  total  absence 
of    confirmation.     It    was    met    by 


ro4 


PART    II.      TESTIMONIAL   EVIDENCE 


No.  359. 


proof  that  the  body  showed  no 
sign  of  having  received  any  blow 
of  the  kind  described  by  Wall ; 
that  there  had  been  men  at  work 
pumping  water  during  the  whole 
night  in  the  immediate  neighbor- 
hood, who  must,  in  all  probability, 
have  heard  something,  had  the 
afYair  taken  place  as  Wall  described. 
It  was  shown,  moreover,  that  from 
half  past  six  until  about  eleven  p.m., 
Clare  had  been  in  a  public  house 
at  Bilston,  which  he  left,  in  com- 
pany with  four  other  men,  one  of 
whom  accompanied  him  till  within 
half  a  mile  of  his  own  house.     An- 


other witness,  a  neighbor,  proved 
that  about  twelve  o'clock  he  met 
Clare,  and  entered  into  conversation 
with  him  near  his  own  door;  that 
they  remained  together  until  two 
o'clock  next  morning.  There  could 
not  be  the  slightest  doubt  of  Clare's 
innocence,  and  the  jury,  of  course, 
at  once  acquitted  him. 

Nor  could  there  be  any  doubt  that 
Wall  believed  the  story  told.  The 
minuteness,  the  particularity,  the 
graphic  details,  the  conversation,  all 
bear  the  stamp  of  that  subjective  truth, 
which  our  language  has  no  word 
to  distinguish  from  objective  truth. 


359.    JOSEPH    LESURQUES'    CASE.       (James   Ram.       On    Facts 
as  Subjects  of  Inquiry  by  a  Jury.      1873.      3d  Amer.  ed.      p.  420.) 


In  the  month  of  April,  1796,  a 
young  man  named  Joseph  Lesurques 
arrived  in  Paris  from  Douai,  his 
native  town.  He  was  thirty-three 
years  of  age,  and  possessed  a  fortune 
equal  to  six  hundred  pounds  a  year. 
He  hired  apartments,  and  made 
preparations  for  residing  perma- 
nently in  Pans.  One  of  his  first 
cares  was  to  repay  one  Guesno,  of 
Douai,  two  thousand  francs  he  had 
borrowed  of  him.  On  the  following 
day  Guesno  invited  Lesurques  to 
breakfast.  They  accordingly  went 
to  a  refreshment  room,  in  company 
with  two  other  persons,  one  of 
whom,  named  Couriol,  happened 
to  call  just  as  they  were  sitting 
down  to  table.  After  breakfast 
they  proceeded  to  the  Palais  Royal, 
and  having  taken  coffee,  separated. 
Four  days  afterward  >,  four  horse- 
men, mounted  on  hired  horses, 
were  seen  to  drive  out  of  Paris. 
They  all  wore  long  cloaks  and  sabers 
hanging  from  the  waist.  One  of 
the  party  was  Couriol.  Between 
twelve  and  one  o'clock  the  four 
horsemen  arriverl  at  the  village  of 
Mongeron,  on  the  road  to  Melun. 


There  they  dined,  and  then  pro- 
ceeded at  a  foot  pace  towards  Lieur- 
saint.  They  reached  Lieursaint 
about  three  in  the  afternoon,  and 
made  a  long  halt  at  the  inn,  amus- 
ing themselves  with  billiards,  and 
one  of  them  having  his  horse  shod. 
At  half  past  seven  they  remounted 
and  rode  off  towards  ]\Ielun.  About 
an  hour  later  the  mail  courier  from 
Paris  to  Lyons  arrived  to  change 
horses.  It  was  then  half  past  eight, 
and  the  night  had  been  for  some 
time  dark.  The  courier,  having 
changed  horses,  set  out  to  pass  the 
long  forest  of  Leuart.  The  mail 
at  this  period  was  a  sort  of  post- 
chaise,  with  a  large  trunk  behind 
containing  the  dispatches.  There 
was  one  place  only  open  to  the 
public,  at  the  side  of  the  courier ; 
and  the  place  was  occupied  on  that 
day  by  a  man  about  thirty  years  of 
age,  w^ho  had  that  morning  taken 
it  in  the  name  of  Laborde. 

The  next  morning  (9th  Floreal, 
year  IV  =  2Sth  April,  179(5)  the  mail 
was  found  rifled,  the  courier  dead 
in  his  seat,  and  the  j)()stilion  lying 
dead  in  the  road  —  both  being  evi- 


'  (This  world-famous  case,  dramatized  in  French  under  the  title  "Le  Courrier  de 
Lyon"  (played  by  Sir  Henry  Irving  as  "The  Lyons  Mail"),  has  been  recently  studied 
eriticfdly  by  Professor  J«;an  Appleton  of  Lyon,  in  an  article  entitled  "  L'histoire  vraie  du 
Courrier  de  Lyon,"  in  the  "Archives  d'anthropologie  criminelle,"  1912,  vol.  XXVII, 
p.  40?.— Ed.1 


No.  359. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


705 


dently  slain  with  sabers.  One  horse 
only  was  found  near  the  carriage. 
The  mail  had  been  robbed  of  seventy- 
five  thousand  livres  in  silver  and 
bank  bills.  The  officers  of  justice 
soon  discovered  that  five  persons 
had  passed  through  the  barrier  on 
their  way  to  Paris  between  four  and 
five  in  the  morning  after  the  mur- 
ders. The  horse  of  the  postilion 
was  found  wandering  about  the 
Place  Royale ;  and  they  ascertained 
that  four  horses,  covered  with  foam 
and  quite  exhausted,  had  been 
brought,  about  five  in  the  morning, 
to  a  man  named  Muiron,  Rue  des 
Fosses,  Saint  Germain  I'Auxerrois, 
by  two  persons  Avho  had  hired 
them  the  day  before.  These  two 
persons  Avere  named  Bernard  and 
Couriol.  Bernard  was  immediately 
arrested ;  Couriol  escaped.  •  A  de- 
scription was  obtained  of  the  four 
who  had  ridden  from  Paris  and 
stopped  at  Mongeron  and  Lieur- 
saint,  and  also  of  the  man  who  had 
taken  his  place  with  the  courier 
under  the  name  of  Laborde.  Cour- 
iol was  traced  to  Chateau  Thierry, 
where  he  was  arrested,  together 
with  Guesno,  the  Douai  carrier, 
and  one  Bruer,  who  happened  to  be 
in  the  same  house.  Guesno  and 
Bruer  proved  alibis  so  clearly  that 
they  were  discharged  on  arriving  at 
Paris. 

The  magistrate,  after  discharging 
Guesno,  told  him  to  apply  at  his 
office  the  next  morning  for  the  re- 
turn of  his  papers,  which  had  been 
seized  at  Chateau  Thierry ;  at  the 
same  time  he  had  sent  a  police 
officer  to  Mongeron  and  Licursaint 
to  fetch  the  witnesses,  of  whom  he 
gave  a  list.  Guesno,  being  de- 
sirous to  obtain  his  papers  as  soon 
as  possible,  left  home  the  next  day 
earlier  than  usual.  On  his  way  to 
the  office  he  met  Lesurques,  who 
consented  to  accompany  him. 
They  went  to  the  office,  and  as 
Daubenton,  the  juge-de-Paix,  had 
not  yet  arrived,  they  sat  down  in 
the  antechamber  to  await  his  arrival. 
About  two  o'clock  the  juge-de-Paix, 


who  had  entered  his  room  by  a  back 
door,  was  thunderstruck  on  being 
told  by  the  police  officer  who  had 
come  back  with  the  witnesses,  that 
two  of  them  declared  that  two  of 
the  actual  murderers  were  in  the 
house.  "Impossible!"  he  ex- 
claimed, "guilty  men  would  not 
voluntarily  venture  here."  Not  be- 
lieving the  statement  he  ordered 
the  two  women  to  be  introduced 
separately ;  and  examined  each  of 
them,  when  they  repeated  their 
statement  and  declared  they  could 
not  be  mistaken.  .  .  .  The  two- 
friends  were  immediately  arrested. 

No  time  was  lost  in  pushing  on 
the  prosecution.  Seven  persons 
were  put  upon  their  trial,  amongst 
whom  were  Couriol,  Madeleine  Bre- 
ban  (his  mistress),  Lesurques,  and 
Guesno.-  Lesurques  was  sworn  to 
most  positively  by  several,  as  being 
one  of  the  party,  at  different  places 
on  the  road,  on  the  day  of  the  rob- 
bery and  murder.  "I  attended 
them  (said  one  witness)  at  dinner 
at  Mongeron  ;  this  one  (Lesurques) 
wanted  to  pay  the  bill  in  assignats, 
but  the  tall  dark  one  (Couriol)  paid 
it  in  silver."  A  stable  boy  at  Mon- 
geron also  identified  him.  A  woman 
named  Alfroy,  of  Lieursaint,  and 
the  innkeeper  and  his  wife  of  the 
same  place,  all  recognized  him  as 
of  the  party  there — -Lesurques  de- 
claring that  he  had  never  been 
present  at  either  place.  But  the 
witnesses  were  positive,  were  unim- 
peached,  were  believed.  Lesurques 
called  fifteen  persons  of  known  pro- 
bity to  prove  an  alibi. 

Eighty  persons  of  all  classes  de- 
clared the  character  of  Lesurques 
tu    be    irreproachable. 

Legrand,  a  wealthy  jeweler  and  a 
fellow  countryman  of  the  prisoner, 
deposed  that  on  the  day  the  crime 
was  committed,  Lesurques  passed  a 
great  part  of  the  morning  at  his 
(Legrand's)  house.  His  testimony 
was  confirmed  by  another  jeweler, 
named  Aldenof.  Ledru  and  Chaui- 
ser,  two  other  witnesses,  deposed 
that  Lesurques   dined   in   company 


700 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  359. 


with  them  on  the  same  day,  in  the 
Rue  Montorgueil ;  that  they  after- 
wards went  with  him  to  a  caf6  to 
take  coffee  and  liqueurs,  and  then 
they  walked  with  him  to  the  door  of 
his  house.  Beaudart,  a  painter, 
strengthened  this  evidence,  by  de- 
cUiring  that  he  was  with  Le.surques 
at  his  apartment  at  night,  and  re- 
mained with  him  until  he  got  into 
bed.  Several  workmen  employed 
at  the  apartment  of  Lesurques 
deposed  to  their  having  seen  him 
at  different  times  in  the  days  of  the 
Sth  and  9th  Floreal. 

This  mass  of  evidence  so  effect- 
ually contradicted  the  testimony  of 
the  nine  persons  who  declared  that 
they  recognized  Lesurques  as  one 
of  the  four  horsemen  at  Mongeron 
and  Lieursaint,  and  produced  such 
a  favorable  effect  on  the  minds  of 
the  jury,  that  they  could  not  help 
showing  it  by  their  countenances. 
But  a  fatal  incident  occurred  which 
entirely  changed  the  face  of  things. 
The  jeweler,  Legrand,  in  order  to 
corroborate  his  evidence,  and  put 
the  day  of  Lesurques  being  with 
him  beyond  all  doubt,  stated  that 
on  the  Sth  Floreal,  he,  before  din- 
ner, made  an  exchange  of  jewelry 
with  the  other  jeweler,  Aldenof, 
which  transaction  was  entered  in 
his  books.  These  books  being  now 
brought  into  court  and  examined, 
it  appeared  sufficiently  clear  that 
the  original  date  of  the  entry  was 
the  9th,  and  that  an  attempt  had 
been  made,  by  scratching,  to  change 
the  nine  into  an  eight.  On  this  dis- 
covery, and  the  consequent  observa- 
tions and  questions  of  the  court, 
Legrand  became  confounded  and 
unable  to  give  any  satisfactory 
explanation. 

The  president  thereiipon  ordered 
him  into  custody,  and,  thus  terrified, 
Legrand  retracted  his  previous  de- 
positions, and  said  that  he  was  not 
certain  of  having  seen  I>esurques  on 
the  Sth,  and  that  he  had  altered  the 
book  in  order  to  give  greater  force 
to  his  evidence  in  favor  of  the  pris- 
oner, whom  he  firmly  believed  to  be 


innocent,  and  whose  life  he  deter- 
mined to  save,  even  by  perjury. 
This  circumstance  was  of  a  nature  to 
excite  great  suspicion  in  the  minds  of 
the  judges  and  the  jury  as  to  the 
whole  of  the  evidence  in  favor  of 
Lesurques,  and  to  create  a  belief 
that  all  of  the  depositions  already 
received  were  nothing  more  than 
an  act  of  connivance.  Scarcely 
were  those  w-hich  remained  to  be 
heard  listened  to,  and  the  conviction 
of  the  accused  from  this  moment 
seemed  certain.  To  so  many  ap- 
pearances against  him,  Lesurques 
constantly  replied  by  an  energetic 
denial.  When  the  jury  had  retired 
to  consider  their  verdict,  a  woman 
overcome  by  emotion  requested  to 
speak  to  the  president.  She  was, 
she  said,  urged  on  by  the  voice  of  her 
conscience  and  desired  to  spare 
that  court  a  dreadful  error.  She 
declared  that  she  knew  positively 
that  Lesurques  was  innocent,  and 
that  the  witnesses,  deceived  by  an 
inexplical)le  resemblance,  had  mis- 
taken him  for  the  real  culprit,  who 
was  named  Duboscq.  The  court 
would  not  receive  her  evidence; 
and,  under  the  impression  that  she 
had  been  suborned,  ordered  her  to 
withdraw.  This  woman,  whose 
name  was  Madeleine  Breban,  was  , 
the  mistress  of  C'ouriol  and  the  con- 
fidante of  his"  most  secret  thoughts. 
The  jury  returned  a  verdict  of 
guilty  against  Lesurques,  and  the 
court  condemned  him  to  death. 
Guesno's  alibi  was  believed,  and 
he  was  acquitted.  Couriol  was  found 
guilty.  Scarcely  had  the  judgment 
been  passed,  when  Lesurques,  rising 
up,  calmly  addressed  the  judges  as 
follows:  "I  am  innocent  of  the 
crime  which  is  imputed  to  me.  Ah  ! 
citizens,  if  it  is  frightful  to  murder 
on  the  highway,  it  is  not  less  so  to 
punish  an  innocent  man."  Couriol, 
also  condemned  to  death  in  his  turn, 
pronounced  these  w  ords  :  "  I  am 
guilty,  and  I  acknowledge  my 
crime,  but  Lesurques  is  innocent." 
He  reiterated  this  declaration  four 
times,    and    when    he    returned    to 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITV 


707 


prison,  wrote  to  his  judges  a  letter 
full  of  sorrow  and  repentance.  "  I 
never  was  acquainted  with  Le- 
surques,"  said  he;  " my  accomplices 
are  Vidal,  Roussi,  Durochat,  and 
Duboscq.  The  likeness  between 
Duboscq  and  Lesurques  has  mis- 
led the  witnesses." 

Madeleine  Brehan  presented  her- 
self, after  judgment,  to  renew  her 
declaration.  Two  other  persons  also 
joined  her  in  declaring  that  before 
the  condemnation  she  had  told  them 
that  Lesurques  had  never  any  con- 
nection with  the  prisoners,  and  that 
he  was  the  victim  of  his  resemblance 
to  Duboscq.  The  declaration  of 
Couriol,  that  he  was  justly  con- 
demned, and  his  demand  for  a 
reprieve  in  favor  of  Lesurques 
caused  a  doubt  to  arise  in  the  minds 
of  the  judges.  They  hastened  to 
demand  a  reprieve  from  the  Direc- 
tory, which,  alarmed  at  the  idea  of 
seeing  an  innocent  man  perish,  had 
recourse  to  the  legislative  body,  all 
judicial  resources  having  been  ex- 
hausted. The  message  of  the  Direc- 
tory to  the  Council  of  the  Five 
Hundred  was  pressing.  It  de- 
manded a  delay  of  the  execution, 
and  some  indication  as  to  the  course 
to  be  pursued  in  the  case.  It  con- 
cluded in  these  words :  "  Ought 
Lesurques  to  perish  on  the  scaffold 
because  he  resembles  a  criminal?" 

The  Legislative  Body  passed  to 
the  order  of  the  day,  saying  all  had 
passed  legally,  and  that  a  particular 
case  could  not  warrant  an  informa- 
tion of  form  previously  determined 
on,  and  that  to  put  aside  for  such 
reasons  a  condemnation  formally 
pronounced  by  a  jury,  would  be  to 
overturn  all  ideas  of  justice  and 
equality  before  the  laws.  The  right 
of  pardon  had  been  abolished,  and 
neither  resource  nor  hope  remained 
to  Lesurques.  He  supported  his 
fate  with  firmness  and  resignation, 
and  on  the  day  of  his  death  he  wrote 
to  his  wife  :  "  My  dear  love,  no  one 
can  avoid  his  destiny.  Since  I 
am  to  be  murdered  juridically,  I 
will  at  least  undergo  my  fate  with 


the  courage  of  a  man.  I  send  you 
my  hair,  and  when  your  children 
shall  have  grown  up  you  will  divide 
it  amongst  them."  In  a  farewell 
note  to  his  friends,  he  confined 
himself  to  expressing  this  regret : 
"Truth  has  not  been  able  to  make 
itself  heard ;  I  am  to  perish,  the 
victim  of  a  mistake."  After  his 
condemnation,  and  during  his  ap- 
peal, Lesurques  published  a  letter 
in  the  journals  addressed  to  Duboscq, 
whose  name  had  been  revealed  by 
Couriol.  In  this  he  says:  "You, 
in  whose  place  I  am  about  to  die,  be 
satisfied  with  the  sacrifice  of  my  life. 
If  ever  you  are  brought  before  a 
court  of  justice,  bear  in  mind  my 
three  children,  covered  with  op- 
probrium, their  mother  in  despair, 
and  do  not  prolong  so  many  mis- 
fortunes caused  by  the  most  funeste 
resemblance."  On  the  10th  of 
March,  1797,  Lesurques  was  exe- 
cuted. He  was  dressed  in  white  as 
a  symbol  of  his  innocence.  It 
happened  on  Holy  Thursday,  and 
he  regretted  he  was  not  to  die  on  the 
day  after,  which  was  Good  Friday. 
During  the  passage  from  the  prison 
of  the  conciergerie  to  the  Place  de 
Greve,  Couriol,  who  was  placed  on 
the  cart  by  his  side,  kept  constantly 
crying  out,  with  a  loud  voice,  to 
the  people.  "I  am  guilty,  but  Le- 
surques is  innocent."  When  Le- 
surques mounted  the  scaffold  already 
red  with  the  blood  of  Bernard,  he 
pronounced  the  following  words  in 
delivering  himself  to  the  execu- 
tioner :  "  I  pardon  my  judges,  also 
the  witnesses  whose  error  caused  my 
condemnation ;  and  Legrand,  who 
has  in  no  small  degree  procured  my 
judicial  murder.     I  die  innocent." 

The  protestations  of  innocence  of 
Lesurques,  and  above  all  the  declara- 
tions of  Couriol  at  the  scaffold, 
caused  a  great  sensation  in  the  public 
mind  ;  and  Daubenton,  the  juge  de 
paix  who  first  commenced  the  pro- 
ceedings against  him,  being  a  con- 
scientious man,  resolved  to  devote 
all  his  energy  to  the  investigation 
of  the  truth.     His  first  step  was  to 


ros 


PART    II.       TESTIMONIAL    EVIDENXE 


No.  360. 


endeavor  to  arrest  the  three  per- 
sons who  had  been  mentioned  by 
Couriol  as  his  accomplices.  Two 
years  passed  in  fruitless  eii'orts,  but 
at  length  Durochat,  who,  according 
to  the  declaration  of  Couriol,  was 
the  man  who,  under  the  name  of 
I  aborde,  occupied  the  seat  ne.\t  to 
the  courier,  was  in  custody  for  theft. 
For  this  offense  he  was  sentenced 
to  imprisonment  for  fourteen  years  ; 
but  Daubenton,  resolved  upon  ar- 
riving at  the  truth,  accompanied 
him  for  some  distance  on  the  way  to 
prison,  and  whilst  at  breakfast,  at  a 
village  on  the  road,  pressed  him  so 
hard  that  he  said,  "  Citizen,  you  are 
an  honest  man,  and  as  it  is  all  over 
with  me,  I  will  tell  you  what  you 
want  to  know."  He  then  entered 
into  a  history  of  the  whole  affair, 
declaring  that  the  criminals  were 
himself,  Couriol,  Roussi,  Vidal,  and 
I^uboscq,  whose  great  resemblance 
to  Lesurques  had  caused  the  death 
of  that  unfortunate  man.  In, con- 
sequence of  the  disclosures  of  Duro- 
chat, \'idal  w^as  arrested  a  few^  days 
afterwards  and  was  sw^orn  to  by 
several  witnesses  as  having  been  of 
the  party  who  robbed  the  mail ; 
Durochat  was  brought  to  trial  and 
condemned  to  death,  and  Vidal  was 
kept  in  prison  to  await  his  trial. 

Four  years  after  the  commission 
of  the  crime,  Duboscq  was  arrested 
and  thrown  into  prison  at  Ver- 
sailles with  Vidal.  Here  they  at- 
tempted to  escape.  Vidal  suc- 
ceeded, but  Duboscq  fell,  and, 
breaking  his  leg,  was  again  confined. 
Soon  afterwards,  however,  Duboscq, 
having  been  cured,  made  another 
attempt  to  escape,  which  was 
successful ;  but  Vidal  being  retaken 
was  brought  to  trial,  found  guilty, 
condemned  to  death,  and  executed. 


At  the  end  of  another  year, 
Duboscq  was  again  captured,  and 
being  confronted  with  all  the  wit- 
nesses who  had  sworn  to  the  guilt 
of  Lesurques,  they  declared  that 
they  had  been  deceived  by  the 
extraordinary  reseml)lance  of  the 
two,  but  they  had  now  not  the 
slightest  doubt  that  Duboscq  was 
the  criminal.  On  the  trial,  this 
testimony  w^as  reproduced,  and  the 
declaration  of  IVIadeleine  Breban 
had  due  force.  Duboscq  was  con- 
demned to  death,  and  was  executed 
on  the  3d  Ventose,  year  X.  Roussi, 
the  remaining  criminal,  was  after- 
wards taken,  and  being  tried  was  also 
condemned  to  death.  He  w'ent  to 
the  scaffold  full  of  repentance,  after 
having  signed  the  following  paper : 
"  I  declare  that  Lesurques  was  in- 
nocent ;  but  this  declaration  which 
I  have  made  to  my  confessor  is 
not  to  be  published  for  six  months." 
In  consequence  of  this  unequivocal 
evidence  of  the  innocence  of  Le- 
surques, strenuous  efforts  w'ere  made 
by  Daubenton,  on  behalf  of  the 
family  of  the  victim,  to  obtain  all 
that  was  then  possible  from  human 
justice,  namely,  the  revision  of  the 
sentence,  and  the  public  acknowl- 
edgment of  the  error  which  led  to 
his  untimely  fate.  All  his  efforts, 
how'ever,  were  fruitless.  The  right 
of  revision  no  longer  existed  in  the 
French  code.  Under  the  Directory, 
the  Consulate,  and  the  Restoration, 
the  applications  of  the  widow  and 
family  were  equally  unsuccessful. 
All  that  they  could  obtain  was  the 
restoration,  in  the  last  two  years  of 
the  elder  Bourbons,  of  a  part  of  the 
property  sequestrated  at  the  con- 
demnation of  the  unoffending  hus- 
band  and  father. 


3G0.  GREEN  McDONALD'S  CASE.  (A.  G.  W.  Carter.  The 
Old  Court  Ilousr.  {',/  Cindnnati]  1880.      p.  144.) 

But  about  this  business  of  iden-  for  it  is  a  fact  that  I,  as  prosecuting 
tity,  notwithstanding  all  the  afore-  attorney  for  this  county,  had  a  man 
said.  Judge  Read  was  more  than  sent  to  the  penitentiary  a  few 
two  thirds  right   in  what  he  said  ;      months  before  this,  for  a  crime  of 


No.  361. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


709 


which  not  the  convicted  was  guilty, 
but  this  very  veritable  aforesaid 
Joseph  Andrews  himself.  The  way 
of  it  was  thus  :  A  midnight  burglary 
and  larceny  had  been  committed 
on  a  certain  night,  a  long  time  ago, 
in  one  of  the  rooms  of  the  Dennison 
House,  then  on  Fifth  Street,  near 
Main.  One  Green  IVIcDonald,  no- 
torious among  the  police,  and  men, 
women,  and  children  of  this  city, 
was  arrested  as  the  burglar  and 
thief,  and  was  completely  identified 
as  the  very  thief  by  the  lady  in 
whose  room  the  burglary  and  theft 
was  committed,  and  with  whom  the 
robber  had  quite  a  tussle  in  the  com- 
mission of  the  crime.  Green  Mc- 
Donald was  convicted,  on  her  evi- 
dence, as  the  robber,  and,  as  his 
character  was  already  infamous,  sent 
to  the  penitentiary  for  a  long  term 
of  years.  After  Joseph  iVndrews 
was  convicted  for  the  daylight  bur- 
glary and  theft  of  silver  in  Dr.  Wood's 
mansion,  he  one  day  sent  for  me  as 
prosecuting  attorney  to  come  and 
see  him  at  the  jail.  I  went  over  and 
found  him,  deliberate  and  composed, 
and  he  said  to  me  :  "  Look  at  me ; 
view  me  well.  Don't  I  look  like 
some  one  in  this  cit}'  ?"  I  surveyed 
him,  closely  inspected  his  form  and 
features,  and  in  surprise  I  answered  : 
"  Yes ;  you  look  like  Green  Mc- 
Donald." "That's  it,"  said  he; 
"that's  it.  You  sent  that  poor 
fellow,    Green    McDonald,    to    the 


penitentiary  for  what  I  myself  did 
at  the  Dennison  house."  "Can  it 
be  possible?"  said  I.  "Yes,"  said 
he,  "  it  is  more  than  possible  ;  it  is  a 
fact."  And  to  show  me  that  he 
was  the  man,  that  he  alone  was 
guilty  of  the  Dennison  house  affair, 
and  not  Green  McDonald,  he  told 
me  all  about  it,  told  and  described 
all  the  particulars  of  the  room,  and 
the  lady,  and  all  about  the  tussle, 
and  his  own  escape  with  the  booty, 
etc.  I  was  thoroughly  astounded, 
but  as  thoroughly  convinced  that  a 
great  wrong  had  been  officially  and 
judicially  done ;  and  I  immediately 
wrote  an  official  letter  to  the  Gov- 
ernor of  the  State,  and  had  Green 
McDonald  pardoned  out  of  the 
penitentiary  as  the  only  remedy 
of  the  wrong  left,  alas  !  .  .  .  Ever 
after  this,  I  was  exceedingly  careful 
about  this  most  important  question 
of  identity  of  prisoners,  and  more 
than  one  I  let  go,  when  there  was  a 
particle  of  doubt  about  his  or  her 
identity. 

What  lessons  we  get  about  human- 
ity in  the  administration  of  so-called 
justice.  From  my  experience  as  a 
man,  a  lawyer,  a  prosecuting  attor- 
ney, and  a  judge,  and  a  long  and 
observing  experience  it  has  been,  too, 
I  am  compelled  to  say,  that  the 
most  uncertain  thing  I  know  of,  is 
human  testimony.  And  yet  we, 
poor  mortals  as  we  are,  cannot  make  a 
move  in  life  without  reliance  upon  it. 


361.    THE  PERREAUS'  CASE. 

of  Crime,  ed.  1891.  Vol.  I,  244.) 
The  circumstances  of  the  cases 
of  these  prisoners  are  of  a  very 
remarkable  description.  It  appears 
that  the  accused  persons  were  twin 
brothers,  and  were  so  much  alike 
that  it  was  with  difficulty  that  they 
were  known  apart.  Robert  Perreau 
carried  on  business  in  Golden-square 
as  an  apothecary,  and  was  in  great 
practice ;  while  his  brother  lived 
in  a  style  of  considerable  fashion, 
a  Mrs.  Margaret  Caroline  Rudd 
living  with  him  as  his  wife. 


(Camden  Pelham.    The  Chronicles 

At  the  sessions  held  at  the  Old 
Bailey  in  June  1775,  Robert  Perreau 
was  indicted  for  forging  a  bond  for 
the  payment  of  7500/.  in  the  name 
of  William  Adair,  Esq.  (then  a  great 
government  contractor),  and  also 
for  feloniously  uttering  and  pub- 
lishing the  said  bond,  knowing  it 
to  be  forged,  with  intent  to  defraud 
Messrs.  Robert  and  Henry  Drum- 
mond,  bankers.  From  the  evi- 
dence which  was  adduced  at  the 
trial,  it  appeared  that  on  the  10th 


10 


PART    11.      TESTIMONIAL   EVIDENCE 


No.  361. 


of  March,  1775,  the  prisoner  under 
trial,  whose  character  up  to  that 
time  had  been  considered  unimpeach- 
able, went  to  the  house  of  Messrs. 
Drummond,  and  seeing  Mr.  Henry 
Drummond,  one  of  the  partners,  said 
that  he  had  been  making  a  purchase 
of  an  estate  in  Norfolk  or  Suffolk, 
for  which  he  was  to  give  12,000/., 
but  that  he  had  not  sufficient  cash 
to  pay  the  whole  purchase  money. 
That  he  had  a  bond,  howe\er,  which 
Mr.  Adair  had  given  to  his  brother 
Daniel,  for  7500/.,  upon  which  he 
desired  to  raise  a  sum  of  5000/., 
out  of  which  he  was  willing  to  pay 
1400/.,  which  he  had  already  bor- 
rowed of  the  firm. 

Mr.  Drummond,  on  the  produc- 
tion of  the  bond,  had  no  sooner 
looked  at  the  signature  than  he 
doubted  its  authenticity,  and  very 
politely  asked  the  prisoner  if  he  had 
seen  Mr.  Adair  sign  it.  The  latter 
said  he  had  not,  but  that  he  had  no 
doubt  that  it  was  authentic,  from 
the  nature  of  the  connection  that 
subsisted  between  Mrs.  Rudd,  who 
was  known  to  live  with  Daniel, 
and  that  gentleman ;  a  suggestion 
having  previously  been  thrown  out 
that  she  was  his  natural  daughter. 
IMr.  Drummond,  however,  declined 
advancing  any  money  without  the 
sanction  of  his  brother,  and  he  de- 
sired Perreau  to  leave  the  bond,  say- 
ing that  it  should  either  be  returned 
on  the  next  day,  or  the  money  pro- 
duced. The  prisoner  made  no 
scruple  to  obey  this  suggestion,  and 
he  retired,  promising  to  call  again 
the  next  day.  In  the  interim,  Mr. 
Drummond  examined  the  bond  with 
greater  attention  ;  and  Mr.  Stephens, 
secretary  of  the  Admiralty,  happen- 
ing to  call,  his  opinion  was  demanded, 
when,  comparing  the  signature  to 
the  l)()nd  with  letters  which  he  had 
lately  received  from  Mr.  Adair,  he 
was  firmly  convinced  that  it  was 
forgcfl.  When  Perreau  came  on 
the  following  day,  Mr.  Drummond 
sj)oke  more  freely  than  he  had  done 
before,  and  told  him  that  he  im- 
agined   he   had    been    imposed    on ; 


but  begged,  that  to  remove  all 
doubt,  he  would  go  with  him  to  Mr. 
Adair,  and  get  that  gentleman  to 
acknowledge  the  validity  of  the 
bond,  on  which  the  money  would  be 
advanced.  This  was  immediately 
acceded  to  ;  and  on  Mr.  Adair  seeing 
the  document,  he  at  once  declared 
that  the  signature  was  a  forgery. 
The  prisoner  smiled  incredulously, 
and  said  that  he  jested ;  but  Mr. 
Adair  remarked  that  it  was  no  jest- 
ing matter,  and  that  it  lay  on  him 
to  clear  up  the  affair.  On  this  he 
went  away,  requesting  to  have  the 
bond,  in  order  to  make  the  neces- 
sary inquiries  —  a  request  which 
was  refused ;  and  persons  being 
employed  to  watch  him,  it  was 
found  that  immediately  on  his  ar- 
rival at  his  house,  he  and  his  brother 
and  Mrs.  Rudd  got  into  a  coach, 
carrying  with  them  all  the  valuables 
which  they  could  collect,  with  a 
design  to  make  their  escape.  They 
were,  however,  stopped,  and  taken 
into  custody,  and  being  conveyed  to 
Sir  John  Fielding's,  at  Bow-street, 
they  there  underwent  an  examina- 
tion, and  upon  the  e^•idence  ad- 
duced, were  committed  to  prison. 
Other  charges  were  subsequently 
brought  against  them  by  Sir  Thomas 
Frankland,  from  whom  they  had 
obtained  two  sums  of  5000/.  and 
4000/.  on  similar  forged  bonds,  as 
well  as  4000/.  which  they  had  paid 
when  the  amount  became  due  ;  and 
by  Dr.  Brooke,  who  alleged  that 
they  had  obtained  from  him  1500/. 
in  bonds  of  the  Ayr  bank,  upon  the 
security  of  a  forged  bond  for  3100/.  ; 
and  Mrs.  Rudd  was  then  admitted 
as  evidence  for  the  Crown. 

Her  deposition  then  was,  that  she 
was  the  daughter  of  a  nobleman  in 
Scotland ;  that,  when  young,  she 
married  an  officer  in  the  army  named 
Rudd,  against  the  consent  of  her 
friends ;  that  l>er  fortune  was  con- 
sideral)lc ;  that  on  a  disagreement 
with  her  husband,  they  resolved  to 
part ;  that  she  made  a  reserve  of 
money,  jewels,  and  effects,  to  the 
amount    of    13,000    pounds,    all    of 


No.  361. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY. 


711 


which  she  gave  to  Daniel  Perreau, 
whom  she  said  she  loved  with  the 
tenderness  of  a  wife ;  that  she 
had  three  children  by  him ;  that 
he  had  returned  her  kindness  in 
every  respect  till  lately,  when,  hav- 
ing been  unfortunate  in  gaming  in 
the  alley,  he  had  become  uneasy, 
peevish,  and  much  altered  to  her ; 
that  he  cruelly  constrained  her  to 
sign  the  bond  now  in  question,  by 
holding  a  knife  to  her  throat,  and 
swearing  that  he  would  murder  her 
if  she  did  not  comply ;  that,  being 
struck  with  remorse,  she  had  ac- 
quainted Mr.  Adair  with  what  she 
had  done ;  and  that  she  was  now 
willing  to  declare  every  transaction 
with  which  she  was  acquainted, 
whenever  she  should  be  called  upon 
by  law  so  to  do. 

Upon  the  cross-examination  of 
Mr.  Drummond,  however,  he  swore 
that  Mrs.  Rudd,  on  her  being  first 
apprehended,  took  the  whole  on  her- 
self, and  acknowledged  that  she  had 
forged  the  bonds ;  that  she  begged 
them  "  for  God's  sake  to  have  mercy 
on  an  innocent  man,"  and  that  she 
said  no  injury  was  intended  to  any 
person,  and  that  all  would  be  paid ; 
and  that  she  acknowledged  deliver- 
ing the  bond  to  the  prisoner.  They 
then  entertained  an  opinion  that 
the  prisoner  was  her  dupe ;  and 
Mr.  Robert  Drummond  having  ex- 
pressed a  notion  that  she  could  not 
have  forged  a  handwriting  so  dis- 
similar from  that  of  a  woman  as 
Mr.  Adair's,  she  immediately,  in 
order  to  satisfy  them  of  the  truth  of 
what  she  said,  wrote  the  name 
"William  Adair"  on  a  paper  exactly 
like  the  signature  which  appeared 
attached   to   the   bond. 

Mr.  Watson,  a  money  scrivener, 
also  deposed,  that  he  had  filled  up 
the  bonds  at  the  desire  of  one  of  the 
brothers,  and  in  pursuance  of  in- 
structions received  from  him  ;  but 
he  hesitated  to  fix  on  either,  on 
account  of  their  great  personal  re- 
semblance ;  and  being  pressed  to 
make  a  positive  declaration,  he 
fixed  on  Daniel  as  his  employer. 


The  case  for  the  prosecution  being 
concluded,  the  prisoner  entered  upon 
his  defense.  In  a  long  and  ingen- 
ious speech,  which  lie  addressed  to 
the  jury,  he  strove  hard  to  prove 
that  he  was  the  victim  of  the  arti- 
fices of  jVIrs.  Rudd. 

He  said  that  she  was  constantly 
conversing  about  the  influence  she 
had  over  Mr.  W.  Adair ;  and  that 
Mr.  Adair  had,  by  his  interest  with 
the  king,  obtained  the  promise  of  a 
baronetage  for  Daniel  Perreau,  and 
was  about  procuring  him  a  seat  in 
parliament.  That  Mr.  Adair  hafl 
promised  to  open  a  bank,  and  take 
the  brothers  Perreau  into  partnership 
with  him.  That  the  prisoner  re- 
ceived many  letters  signed  "  William 
Adair,"  which  he  had  no  doubt 
came  from  that  gentleman,  in  which 
were  promises  of  giving  them  a  con- 
siderable part  of  his  fortune  during 
his  life ;  and  that  he  was  to  allow 
Daniel  Perreau  two  thousand  four 
hundred  pounds  a  year  for  his 
household  expenses,  and  six  hundred 
pounds  a  year  for  Mrs.  Rudd's 
pin  money.  That  Mr.  Daniel 
Perreau  purchased  a  house  in  Har- 
ley-street  for  four  thousand  pounds, 
which  money  Mr.  William  Adair 
was  to  give  them.  That  when  Daniel 
Perreau  was  pressed  by  the  person 
of  whom  he  bought  the  house  for  the 
money,  the  prisoner  understood  that 
they  applied  to  Mr.  William  Adair, 
and  that  his  answer  was,  that  he  had 
lent  the  king  seventy  thousand 
pounds,  and  had  purchased  a  house 
in  Pall  Mall  at  seven  thousand 
pounds,  in  which  to  carry  on  the 
banking  business,  and  therefore 
could  not  spare  the  four  thousand 
puunds  at  that  time.  He  declared 
that  all  attempts  at  personal  com- 
munication with  ]\Ir.  Adair  were 
strenuously  opposed  by  Mrs.  Rudd 
as  being  likely  to  destroy  the  ef- 
fects of  her  exertions  on  his  be- 
half, and  contended  that  his  conduct 
throughout  the  whole  transaction 
with  Mr.  Drummond,  showed  that 
he  was  innocent  of  any  guilty  in- 
tention, and  that  he  firmlv  believed 


■12 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  361. 


that  he  was  acting  honestly  and 
justly. 

He  then  proceeded  to  call  the 
following  witnesses,  whose  evidence 
we  shall  give  in  the  most  concise 
manner :  — 

George  Kinder  deposed  that  Mrs. 
Perreau  (the  only  name  by  which  he 
knew  Mrs.  Rudd)  told  him  "that 
she  was  a  near  relation  of  Mr. 
James  Adair;  that  he  looked  upon 
her  as  his  child,  had  promised  to 
make  her  fortune,  and  with  that 
\iew  had  recommended  her  to  Mr. 
William  Adair,  a  near  relation  and 
intimate  friend  of  his,  who  h^d  prom- 
ised to  set  her  husband  and  the 
prisoner  up  in  the  banking  business." 
He  also  deposed  that  she  said  that 
Mr.  Daniel  Perreau  was  to  be  made 
a  baronet,  and  described  how  she 
would  act  when  she  became  a  lady. 
The  witness  further  deposed  that 
Mrs.  Rudd  often  pretended  that 
Mr.  William  .Adair  had  called  to  see 
her,  but  that  he  ne\er  had  seen  that 
gentleman  on  any  visit. 

John  JSIoody,  a  livery  servant  of 
Daniel  Perreau,  deposed  that  his 
mistress  wrote  two  very  different 
hands ;  in  one  of  which  she  wrote 
letters  to  his  master,  as  from  Mr. 
William  Adair,  and  in  the  other  the 
ordinary  business  of  the  family. 
That  the  letters  written  in  the  name 
of  William  Adair  were  pretended 
to  have  been  left  in  his  master's 
absence ;  that  his  mistress  ordered 
him  to  give  them  to  his  master,  and 
pretend  that  Mr.  Adair  had  been 
with  his  mistress  for  a  longer  or 
shorter  time,  as  circumstances  re- 
quired. This  witness  likewise 
proved  that  the  hand  at  the  bottom 
of  the  bond  and  that  of  his  mistress's 
fictitious  writing  were  precisely  the 
same;  that  she  used  different  pens, 
ink,  and  paper,  in  writing  her  com- 
mon and  fictitious  letters ;  and 
that  she  sometimes  gave  the  wit- 
ness half  a  crown  when  he  had 
delivered  a  letter  to  her  satisfaction. 
He  said  he  had  seen  her  go  two  or 
three  times  to  Mr.  J.  Adair's,  but 
never  to  William's;    and  that  Mr. 


J.  Adair  once  visited  his  mistress 
on    her   lying-in. 

Susannah  Perreau  (the  prisoner's 
sister)  deposed  to  her  having  seen 
a  note  delivered  to  Daniel  Perreau, 
l)y  Mrs.  Rudd,  for  nineteen  thou- 
sand j)ounds,  drawn  as  by  William 
Adair,  on  Mr.  Croft,  the  banker,  in 
favor  of  Daniel  Perreau. 

Elizabeth  Perkins  swore  that  a 
week  before  the  forgery  was  dis- 
covered, her  mistress  gave  her  a 
letter  to  bring  Ixack  to  her  in  a 
cjuarter  of  an  hour,  and  say  it  was 
brought  by  Mr.  Coverley,  who  had 
been  servant  to  Daniel  Perreau ; 
that  she  gave  her  mistress  this 
letter,  and  her  master  instantly 
broke  the  seal. 

Daniel  Perreau  swore  that  the 
purport  of  this  letter  was  "  that  Mr. 
Adair  desired  her  to  apply  to  his 
brother,  the  prisoner,  to  procure 
him  five  thousand  pounds  upon  his 
(Adair's)  bond,  in  the  same  manner 
as  he  had  done  before ;  that  Mr. 
Adair  was  unwilling  to  have  it  ap- 
pear that  the  money  was  raised  for 
him,  and  therefore  desired  him  to 
have  the  bond  lodged  with  some 
confidential  friend,  who  would  not 
require  an  assignment  of  it ;  that 
his  brother,  on  being  made  ac- 
quainted with  his  request,  showed 
a  vast  deal  of  reluctancy,  and  said 
it  was  very  unpleasant  work ;  but 
undertook  it  with  a  view  of  obliging 
Mr.  William  Adair."  The  counsel 
for  the  prosecution  demanding  "  if 
he  did  not  disclaim  all  knowledge 
of  the  affair  before  Mr.  Adair,"  he 
said  he  denied  ever  having  seen  the 
bond  before,  nor  had  he  a  perfect 
knowledge  of  it  till  he  saw  it  in  the 
hands  of  Mr.   Adair. 

David  Cassady,  who  assisted  Mr. 
R.  Perreau  as  an  apothecary,  de- 
posed that  he  lived  much  within  the 
profits  of  his  profession,  and  that 
it  was  reported  he  was  going  into 
the  banking  business. 

John  Leigh,  clerk  to  Sir  John 
Fielding,  swore  to  the  prisoner's 
coming  voluntarily  to  the  office 
before  his  ai)prehension,  and  giving 


No.  361. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


713 


information  that  a  forgery  had  l^een 
committed.  Mr.  Leigh  was  asked 
if  Mrs.  Rudd  "ever  charged  the 
prisoner  with  any  knowledge  of 
the  transaction  till  the  justices  were 
hearing  evidence  to  prove  her  con- 
fession of  the  fact ; "  and  he  answered 
that  he  did  not  recollect  that  cir- 
cumstance, but  that  on  her  first 
examination  she  did  not  accuse  the 
prisoner. 

Mr.  Perreau  now  called  several 
persons  of  rank  to  his  character. 
Lady  Lyttleton  being  asked  if  she 
thought  him  capable  of  such  a  crime, 
supposed  she  could  have  done  it  as 
soon  herself.  Sir  John  Moore,  Sir 
John  Chapman,  General  Rebow, 
Captain  Ellis,  Captain  Burgoyne, 
and  other  gentlemen,  spoke  most 
highly  to  the  character  of  the  pris- 
oner ;  but  the  jury  found  him 
guilty. 

It  will  be  unnecessary  now  to  give 
anything  more  than  a  succinct  ac- 
count of  the  trial  of  Daniel  Perreau, 
which  immediately  followed  that  of 
his  brother.  He  was  indicted  for 
forging  and  counterfeiting  a  bond, 
in  the  name  of  William  Adair,  for 
three  thousand  three  hundred 
pounds,  to  defraud  the  said  Wil- 
liam Adair,  and  for  uttering  the 
same  knowing  it  to  be  forged,  to 
defraud  Thomas  Brooke,  doctor  of 
physic.  Mr.  Scroope  Ogilvie,  clerk 
to  Mr.  William  Adair,  proved  the 
forgery ;  and  Dr.  Brooke  swore  to 
the  uttering  of  the  bond.  The  de- 
fense set  up  by  the  prisoner  was, 
that  Mrs.  Rudd  had  given  the  bond 
to  him  as  a  true  one ;  and  he  as- 
serted, in  the  most  solemn  manner, 
that  he  had  had  no  intention  to 
defraud  any  man.  Like  his  brother, 
lie  called  several  witnesses  to  show 
the  artifices  of  which  Mrs.  Rudd 
had  been  guilty ;  and  many  persons 
proved  the  great  respectability  of 
his  character. 

The  jury,  however,  returned  a 
verdict  of  guilty,  and  both  prisoners 
were  sentenced  to  death ;  but  the 
execution  did  not  take  place  until 
January  1776,  in  consequence  of  the 


proceeflings      which      were     subse- 
quently taken  against  Mrs.   Rudd. 

After  conviction  the  behavior  of 
the  brothers  was,  in  every  respect, 
proper  for  their  unhappy  situation. 
Great  interest  was  made  to  obtain  a 
pardon  for  them,  particularly  for 
Robert,  in  whose  favor  seventy- 
eight  bankers  and  merchants  of 
London  signed  a  petition  to  the 
king :  the  newspapers  were  filled 
with  paragiaphs,  evidently  written 
by  disinterested  persons,  in  favor 
of  men  whom  they  thought  dupes 
to  the  designs  of  an  artful  woman  : 
but  all  was  of  no  avail. 

On  the  day  of  execution  the 
brothers  were  favored  with  a 
mourning  coach,  in  which  to  be  con- 
veyed to  the  scaffold ;  and  their 
conduct  throughout  was  of  the  most 
exemplary  description.  After  the 
customary  devotions  were  con- 
cluded, they  crossed  hands,  and 
joining  the  four  together,  in  that 
manner  were  launched  into  eternity. 
They  had  not  hanged  more  than 
half  a  minute  when  their  hands 
dropped  asunder,  and  they  appeared 
to  die  without  pain. 

Each  of  them  delivered  a  paper 
to  the  Ordinary  of  Newgate,  which 
stated  their  innocence,  and  ascribed 
the  blame  of  the  whole  transaction 
to  the  artifices  of  Mrs.  Rudd ;  and, 
indeed,  thousands  of  people  gave 
credit  to  their  assertions,  and  a  great 
majority  of  the  public  thought 
Robert    wholly    innocent. 

Daniel  Perreau  and  Robert  Per- 
reau were  executed  at  Tylmrn  on 
the  17th  of  January,   1776.   .  .  . 

On  the  16th  of  September,  1775, 
Mrs.  Rudd  was  put  to  the  bar  at  the 
Old  Bailey,  to  be  tried  for  forgery ; 
but  the  counsel  for  the  prisoner 
pleading  that,  as  she  had  been  al- 
ready admitted  an  evidence  for  the 
crown,  it  was  unprecedented  to  de- 
tain her  for  trial,  and  the  judges 
differing  in  opinion  on  the  point  of 
law,  she  was  remanded  to  prison 
till  the  opinion  of  the  judges  could 
be  taken  on  a  subject  of  so  much 
importance. 


714 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  362. 


On  the  Sth  of  December,  1775, 
she  was  arraigned  on  an  indictment 
for  felonion.sly  forging  a  bond,  pur- 
porting to  be  signed  by  Wilham 
Adair,  and  for  feloniously  uttering 
and   publishing   the   same.  .  .  . 

The  principal  evidences  were  the 
"wife  of  Robert  Perreau.  and  John 
Moody,  a  servant  to  Daniel.  The 
first  endeavored  to  prove  that  the 
bond  was  published,  the  latter  that 
it  was  forged.  Sir  Thomas  Frank- 
land  proved  that  he  had  lent  money 
on  the  bond.  It  was  objected  by 
the  counsel  for  the  prisoner,  that 
Mrs.  Perreau  was  an  incompetent 
witness,  as  she  would  be  interested 
in  the  event ;  but  the  Court  over- 
ruled this  objection. 

yirs.  Perreau  deposed  that,  on 
the  24th  December,  she  saw  Mrs. 
Rudd  deliver  a  bond  to  her  husband, 
which  he  laid  on  the  table  while  he 
brushed  his  coat ;  that  it  was  for  five 
thousand  three  hundred  pounds, 
payable  to  Robert  Perreau,  and 
signed  "William  Adair";  and  that 
it  was  witnessed  in  the  names  of 
Arthur  Jones  and  Thomas  Start, 
or  Hart.  Mrs.  Perreau,  being  asked 
when  she  again  saw  the  bond,  said 
that  it  was  brought  to  her  on  the 
Sth  of    March    (the    day  after    her 


husband  was  convicted),  when  she 
selected  it  from  other  bonds  deliv- 
ered to  him  on  the  24:th  of  Decem- 
ber. She  made  her  mark  on  it, 
and  deposed  that  when  it  was  de- 
livered to  Mr.  Perreau,  Mrs.  Rudd 
said,  "Mr.  Adair  Avould  be  very 
much  obliged  to  jMr.  Perreau  to 
try  to  raise  upon  that  bond  the  sum 
of  four  thousand  pounds  of  Sir 
Thomas  Frankland." 

Sergeant  Davy  cross-examined 
Mrs.  Perreau.  She  acknowledged 
that  till  the  24th  of  December  she 
had  never  seen  a  bond  in  her  life ; 
and  that  on  her  first  sight  of  that  in 
question  she  had  no  suspicion  that 
anything  was  wrong. 

Jolin  Moody,  the  servant  to 
Daniel  Perreau,  who  had  been  ex- 
amine I  on  the  former  trials,  was 
called,  and  repeated  the  testimony 
which  he  had  before  given.  The 
bond  which  in  this  case  was  alleged 
to  have  been  uttered  was  that  for 
4000/.,  on  which  Sir  Thomas  Frank- 
land  had  advanced  money. 

The  prisoner,  on  being  called  on 
for  her  defense,  in  a  short  speech 
declared  that  she  was  innocent,  and 
concluded  by  leaving  her  case  in  the 
hands  of  the  jury,  who  almost  im- 
mediately declared  her  not  guilty. 


362.    THOMAS    HOAG'S    CASE. 

Subjects  of  Inquiry   by   a   Jury.      1873. 


The  prisoner  was  indicted  for 
that  whereas  Thomas  Hoag,  late  of 
Haverstraw,  in  the  county  of  Rock- 
land, laborer,  otherwise  called 
Joseph  Parker,  now  of  the  city  of 
New  York,  cartman,  on  the  Sth  of 
May,  1797,  at  the  said  city  of  New 
York,  was  lawfully  married  to 
Susan  Faesch,  and  the  said  Susan 
then  and  there  had  for  a  wife,  and 
that  the  said  Thomas,  alias,  &c., 
afterwards,  to  wit,  on  the  2.')th  day 
of  December,  ISOO,  at  the  county  of 
Rockland,  his  said  wife  being  then 
in  full  life,  feloniously  did  marry, 
and  to  wife  did  take,  one  Catharine 
Secor,  &c.  To  this,  the  prisoner 
pleaded    Not    guilty. 


(James    Ram.      On   Facts   as 
3d  Amer.  ed.      p.  412.) 


Mr.  Richer,  district  attorney,  pros- 
ecuted on  the  part  of  the  people. 

Washingtou  Morton  and  Daniel  D. 
Tompkins  were  of  coun.sel  for  the 
prisoner.  The  testimony  in  the 
cause  was  as  ,  follows :  The  first 
marriage  was  admitted  by  the  coun- 
sel for  the  prisoner  to  be  as  stated 
in  the  indictment,  and  that  the  wife 
was  still  alive. 

On  the  part  of  the  prosecution, 
Benjamin  Coe  testified  :  That  he  was 
one  of  the  judges  of  the  court  of 
common  pleas  in  the  county  of 
Rockland  ;  that  he  well  knew  the 
prisoner  at  the  bar ;  that  he  came 
to  Rockland  in  the  beginning  of 
September,   in   the  year   1800,   and 


No.  362. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


715 


there  passed  by  the  name  of  Thomas 
Hoag ;  that  there  was  a  person  with 
him  who  passed  for  his  brother ; 
but  between  those  two  persons  there 
was  no  sort  of  resemblance ;  that 
the  prisoner  worked  for  witness 
about  a  month,  during  which  time 
he  ate  daily  at  witness'  table,  and 
he  of  course  saw  him  daily ;  that 
on  the  25th  day  of  December,  1800, 
witness  married  the  prisoner  to  one 
Catharine  Secor ;  that  witness  is 
confident  of  the  time,  because  he 
recollected  that  on  that  very  day 
one  of  his  own  children  was  chris- 
tened ;  that  during  all  the  time  the 
prisoner  remained  in  Rockland 
county  witness  saw  him  contin- 
ually ;  he  was  therefore  as  much 
satisfied  that  the  prisoner  was 
Thomas  Hoag  as  that  he  himself 
was    Benjamin    Coe. 

John  Knapp  testified,  that  he 
knew  the  prisoner  in  1800  and  1801 ; 
he  was  then  in  Rockland  county, 
and  passed  by  the  name  of  Thomas 
Hoag ;  that  he  saw  him  constantly 
for  five  months,  during  the  time  the 
prisoner  was  at  Rockland  ;  that  he 
was  at  the  prisoner's  wedding ;  that 
Hoag  had  a  scar  under  his  foot ;  the 
way  that  witness  knew  it,  was  that 
he  and  Hoag  were  leaping  together, 
and  witness  outleaped  Hoag,  upon 
which  the  latter  remarked  that  he 
could  not  leap  as  well  now  as  for- 
merly, in  consequence  of  a  wound 
in  his  foot  by  treading  on  a  drawing 
knife ;  that  Hoag  then  pulled  oflF 
his  shoe  and  showed  witness  the 
scar  under  his  foot,  occasioned  by 
that  wound ;  the  scar  was  very 
perceptible.  Witness  was  confident 
prisoner  at  the  bar  was  Thomas 
Hoag. 

Catharine  Conklin  (formerly  Cath- 
arine Secor)  testified,  that  she  be- 
came acquainted  with  prisoner  in 
the  beginning  of  September,  1800, 
when  he  came  to  Rockland ;  he 
then  passed  by  the  name  of  Thomas 
Hoag ;  that  witness  saw  him  con- 
stantly ;  that  prisoner,  shortly  after 
their  acquaintance,  paid  his  ad- 
dresses to  her,  and  finally,  on  the 


25th  of  December,  married  her; 
that  he  lived  with  her  till  the  latter 
end  of  March,  1801,  when  he  left 
her ;  that  she  did  not  see  him  again 
until  two  years  after;  that  on  the 
morning  of  his  leaving  her,  he  ap- 
peared desirous  of  communicating 
something  to  her  of  importance  but 
was  dissuaded  from  it  by  a  person 
who  was  with  him  and  who  passed 
for  his  brother;  that  Hoag,  until 
his  departure,  was  a  kind,  attentive 
and  affectionate  husband  ;  that  she 
was  as  well  convinced  as  she  could 
possibly  be  of  anything  in  this 
world,  that  the  prisoner  at  the  bar 
was  the  person  who  married  her  by 
the  name  of  Thomas  Hoag ;  that 
she  then  thought  him  and  still 
thinks  him  the  handsomest  man  she 
ever  saw. 

Here  the  prosecutor  rested  the 
cause,  and  the  counsel  for  the  de- 
fense called  as  a  A\itness  for  the 
prisoner, 

Joseph  Chadwick,  who  testified, 
that  he  had  been  acquainted  with 
the  prisoner,  Joseph  Parker,  a  num- 
ber of  years ;  that  witness  resides 
in  this  city,  is  a  rigger  by  trade ; 
that  prisoner  worked  in  the  employ 
of  the  witness  a  considerable  time 
as  a  rigger ;  that  prisoner  began  to 
work  for  witness  in  September,  1799, 
and  continued  to  work  for  him  till 
the  spring  of  1801  ;  that  during 
that  period  he  saw  him  constantly ; 
that  it  appeared  from  witness' 
books  that  Parker  received  money 
from  witness,  for.  work  which  he 
had  performed  on  the  following 
days,  viz.  :  on  the  6th  of  October, 
and  6th  and  ISth  December,  1800; 
on  the  9th,  16th,  and  28th  Febru- 
ary, and  11th  March,  1801 ;  that 
Parker  lived  from  May,  1800,  till 
sometime  in  April,  1801,  in  a  house 
in  the  city  of  New  York  belonging 
to  Capt.  Pelor ;  that  during  that 
period,  and  since,  witness  has  been 
well  acquainted  with  the  prisoner. 

Isaac  Ryckman  testified,  that  he 
was  an  inhabitant  of  the  city  of 
New  York :  that  he  was  well  ac- 
quainted  with  Joseph   Parker,    the 


716 


PART   II.      TESTIMONIAL   EVIDEXCE 


Xo.  .HiJ. 


prisoner  at  the  bar,  and  had  known 
him  a  number  of  years  ;  that  witness 
and  Parker  were  jointly  engaged, 
in  the  latter  part  of  the  year  ISOO, 
in  loading  a  vessel  for  Capt.  Tred- 
well,  of  New  York ;  that  they  began 
to  work  on  the  20th  day  of  Decem- 
ber, 1800,  and  were  employed  the 
greater  part  of  the  month  of  Jan- 
uary, 1801,  in  the  loading  of  the 
vessel ;  that  during  that  time  the 
witness  and  Parker  worked  together 
daily ;  the  witness  recollected  well 
that  they  worked  together  on  the 
25th  day  of  December,  1800;  he 
remembered  it,  because  he  never 
worked  on  Christmas  day,  before  or 
since ;  he  knew  it  was  in  the  year 
1800,  because  he  knew  that  Parker 
lived,  that  year,  in  a  house  belong- 
ing to  Capt.  Pelor,  and  he  remem- 
bered their  borrowing  a  screw  for 
the  purpose  of  packing  cotton  into 
the  hold  of  the  vessel  they  were  at 
work  at,  from  a  IVIrs.  IMitchell,  who 
lived  next  door  to  Parker ;  that 
w'itness  was  one  of  the  city  watch, 
and  that  Parker  was  also  at  that 
time  upon  the  watch  ;  and  that  wit- 
ness had  served  with  him  from  that 
time  to  the  present  day,  upon  the 
watch,  and  never  recollected  missing 
him  any  time  during  that  period 
from  the  city. 

Asphncall  Cornicall  testified,  that 
he  lived  in  llutger  street,  and  had 
lived  there  a  number  of  years  ;  that 
he  kept  a  grocery  store ;  that  he 
knew  Parker,  the  prisoner  at  the 
bar,  in  1800  and  1801  ;  that  Parker 
then  lived  in  Capt.  Pelor's  house ; 
that  he  lived  only  one  year  in  Pelor's 
house ;  that  Parker,  while  he  lived 
there,  traded  w  ith  w^itness ;  that 
witness  recollected  once  missing 
Parker  for  a  week,  and,  incpiiring, 
found  he  had  been  at  work  on  Staten 
Island,  on  l)oard  one  of  the  Cnited 
States  frigates  ;  that,  excepting  that 
time,  he  never  knew  him  to  be  ab- 
sent from  his  family,  but  saw^  him 
constantly. 

Elizabeth  Mitchell  testified,  that 
she  knew  Parker,  the  prisoner  at 
the    bar,    well ;     that    in    the    years 


1800  and  1801  Parker  lived  in  a 
house  adjoining  to  one  in  which  wit- 
ness lived ;  that  the  house  Parker 
lived  in  belonged  to  Capt.  Pelor; 
that  witness  was  in  habits  of  inti- 
macy with  Parker's  family,  and 
visited  them  constantly  ;  that  Par- 
ker being  one  of  the  city  watch,  she 
used  to  hear  him  rap  with  his  stick 
at  the  door,  to  awaken  his  family, 
upon  his  return  from  the  watch  in 
the  morning ;  that  she  also  remem- 
bered, perfectly  well,  Parker's  bor- 
rowing a  screw  from  her  on  Christ- 
mas day,  in  1800;  she  offered  him 
some  spirits  to  drink,  but  he  pre- 
ferred wine,  which  she  got  for  him  ; 
the  circumstance  of  her  lending  the 
screw  to  him  she  was  the  more  posi- 
tive of,  from  recollecting,  also,  that 
it  was  broken  by  Parker  in  using  it : 
that  Parker  never  lived  more  than 
one  year  in  Capt.  Pelor's  house,  and 
from  that  time  to  the  present  day, 
witness  had  been  on  the  same  terms 
of  intimacy  w'ith  Parker's  family ; 
she  therefore  considered  it  as  almost 
impossible  that  Parker  could  have 
been  absent  from  town,  any  time, 
without  her  knowing  it ;  and  she 
never  knew  him  to  be  absent  more 
than  one  week,  while  he  lived  at 
Pelor's  house. 

James  Redding  testified,  that  he 
had  lived  in  the  city  a  number  of 
years ;  that  he  had  known  Parker, 
the  prisoner  at  the  bar,  from  his  in- 
fancy ;  that  Parker  was  born  at 
Rye,  in  Westchester  county ;  that 
•Parker,  in  the  year  1800,  lived  in 
Capt.  Pelor's  house ;  that  witness 
saw  him  then  continually,  iind  never 
knew  him  during  that  time  to  be 
absent  from  town,  during  any  length 
of  time ;  that  witness  particularly 
remembered  that,  sometime  in  the 
beginning  of  the  month  of  January, 
1801,  while  Parker  lived  in  Capt. 
Pelor's  house,  witness  assisted  Par- 
ker in  killing  a  hog. 

Lewis  Osborne  testified,  that  he 
had  been  acquainted  with  Parker, 
the  prisoner  at  the  bar,  for  the  last 
four  years ;  that  witness  had  been 
one  of  the  city  watch :    that  from 


No.  3G2. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


717 


June,  1800,  to  May,  1801,  Parker 
served  upon  the  watcli  with  witness  ; 
that,  at  first,  Parker  served  as  a 
substitute ;  that  witness  remem- 
bered that  Parker,  a  few  dnys  after 
Christmas,  in  1800,  was  placed  upon 
the  roll  of  the  regular  watch,  in  the 
place  of  one  Ransom,  who  was 
taken  sick ;  witness  was  certain  it 
was  in  the  period  above  mentioned, 
because  that  was  the  only  time 
witness  ever  served  upon  the 
watch  ;  that  during  the  above  period, 
witness  and  Parker  were  stationed 
together,  while  on  the  watch,  at  the 
same  post ;  witness  was  certain  that 
Parker,  the  prisoner  at  the  bar,  was 
the  person  with  whom  he  had  served 
upon  the  watch,  and  was  confident 
that  during  that  time  Parker  was 
never  absent  from  the  watch,  more 
than  a  week,  at  any  one  time. 

The  prisoner's  counsel  here  rested 
his  defense,  and  testimonies  on  be- 
half of  the  prosecution  were  con- 
tinued. 

Moses  Anderson  testified,  that  he 
had  lived  at  Haverstraw,  Rockland 
county ;  that  he  had  lived  there 
since  the  year  1791 ;  that  he  knew 
prisoner  at  the  bar  well ;  that  he 
came  to  the  house  of  the  witness  in 
the  beginning  of  September,  1800 ; 
that  he  then  passed  by  the  name  of 
Thomas  Hoag ;  that  he  w^orked  for 
the  witness  eight  or  ten  days ;  that 
from  that  time  till  the  25th  of  De- 
cember, prisoner  passed  almost  every 
Sunday  at  witness's  house ;  that 
during  prisoner's  stay  in  Rockland 
county  witness  saw  him  constantly  ; 
and  if  prisoner  was  the  person  al- 
luded to,  he  had  a  ?v*ar  on  his  fore- 
head, which  he  told  witness  was 
occasioned  bj'  the  kick  of  a  horse ; 
he  had  also  a  small  mark  on  his  neck 
[those  marks  the  prisoner  had] ;  he 
had  also  a  scar  under  his  foot,  be- 
tween the  heel  and  ball  of  the  foot, 
occasioned,  as  he  told  witness,  by 
treading  on  a  drawing .  knife ;  that 
that  scar  ivas  easy  to  be  see7i ;  that 
his  speech  was  remarkable,  his  voice 
being  effeminate ;  that  he  spoke 
quick  and  lisped  a  little  [these  pecul- 


iarities were  observable  in  prison- 
er's speech] ;  that  prisoner  supped 
at  witness's  house  on  the  night 
of  his  marriage  in  December,  1800; 
that  witness  had  not  seen  prisoner 
until  this  day,  since  prisoner  left 
Rockland,  which  was  between  three 
and  four  years  ago ;  that  witness 
was  perfectly  satisfied  in  his  own 
mind  that  prisoner  was  Thomas 
Hoag. 

Lavina  Anderson  testified,  that 
she  knew  prisoner  at  the  bar ;  his 
name  was  Thomas  Hoag ;  that  in 
September,  1800,  he  came  to  wit- 
ness's house  in  Rockland  county,  and 
worked  for  her  husband  eight  or  ten 
days,  then  worked  for  Judge  Siiff rein  ; 
every  Saturday  night  until  the  pris- 
oner was  married,  he  and  a  person 
who  passed  for  his  brother,  came  to 
witness's  house  and  stayed  till  Mon- 
day morning  ;  that  witness  washed 
for  him  ;  there  was  no  mark  upon  his 
linen  ;  that  prisoner,  if  he  is  Thomas 
Hoag,  has  a  scar  upondiis  forehead, 
and  one  also  under  his  foot ;  was 
certain  of  the  mark  under  his  foot, 
because  she  recollected  that  the 
person  who  passed  as  his  brother, 
having  cut  himself  severely  with  a 
scythe,  and  complaining  very  much 
of  the  pain,  Thomas  Hoag  told  him 
he  had  been  much  worse  wounded, 
and  then  showed  the  scar  under  his 
foot.  Witness  also  testified,  that 
about  a  year  ago,  after  a  suit  had 
been  brought  in  the  justices'  court 
in  New  York,  wherein  the  identity 
of  the  prisoner's  person  came  in 
question,  witness  was  in  town,  and 
having  heard  a  great  deal  said  on  the 
subject,  she  was  determined  to  see 
him  and  judge  for  herself ;  that  ac- 
cordingly she  went  to  prisoner's 
house,  but  he  was  not  at  home ; 
she  then  went  to  the  place  where 
she  was  informed  he  stood  with  his 
cart ;  that  she  there  saw  him  lying 
on  his  cart  with  his  head  on  his 
hand  ;  that  in  that  situation  she  in- 
stantly knew  him  ;  that  she  spoke 
to  him  anfl  when  he  answered  she 
immediately  recognized  his  voice ; 
that    it    was    very    singular,    shrill. 


718 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  362. 


thick,  hurried,  and  something  of  a 
hsp  ;  that  Hoag  had  also  a  habit  of 
shrugging  up  his  shoulders  when  he 
spoke,  which  she  also  observed  in 
prisoner ;  that  prisoner  said  he  had 
been  told  she  was  coming  to  see  him, 
and  it  was  surprising  people  could 
be  so  deceived,  and  asked  witness  if 
she  thought  he  was  the  man,  to 
which  witness  replied  that  she 
thought  he  was,  Init  would  he  more 
certain  if  she  looked  at  his  forehead  ; 
that  she  accordingly  lifted  up  his  h;>t, 
and  saw  the  scar  upon  his  forehead, 
which  she  had  often  before  seen ; 
that  prisoner  then  told  her  it  was  oc- 
casioned by  the  kick  of  a  horse. 
A\  itness  added  that  it  was  impossible 
she  could  be  mistaken  —  prisoner 
was  Thomas  Hoag. 

Margaret  Secor  testified,  that 
about  four  years  ago  she  lived  at 
Rockland  with  her  father,  INIoses 
Anderson ;  that  prisoner  at  the  bar, 
Thomas  Hoag,  came  to  their  house 
in  September,  1800 ;  that  he  re- 
mained in  Rockland  five  or  six 
months  ;  that  he  had  a  scar  on  his 
forehead,  that  Hoag  used  to  come 
every  Saturday  night  to  her  father's 
to  pass  Sunday  with  them ;  that 
she  used  to  comb  and  tie  his  hair 
every  Sunday,  and  thus  saw  the 
scar ;  that  witness  married  about 
two  years  ago,  and  came  immedi- 
ately to  li\e  in  the  city  of  New  York  ; 
that  after  she  had  been  in  town  a 
fortnight,  she  was  one  day  standing 
at  her  door,  when  she  heard  a  cart- 
man  speaking  to  his  horse  ;  that  she 
immediately  recognized  the  voice 
to  be  that  of  Thomas  Hoag,  and 
upon  looking  at  him,  saw  the  pris- 
oner at  the  bar,  and  instantly  knew 
him  ;  that  as  he  passed  her  he  smiled 
and  said,  "How  d'ye  do,  cousin?" 
that  the  next  day  he  came  to  her 
house  and  asked  her  how  she  knew 
he  was  the  man  ;  witness  replied  she 
could  tell  lietter  if  he  would  let  li(>r 
look  at  his  head  ;  that  accordingly 
she  looked  and  saw  a  scar  upon  his 
forehead,  which  she  had  often  re- 
marked upon  the  head  of  Hoag. 
Witness  admitted  she  had  mentioned 


her  suspicions  to  her  husband,  and 
that  her  husband  had  told  pri.soner 
of  it,  and  had  brought  him  to  the 
house.  Witness  added  that  she  was 
confident  prisoner  was  the  person 
who  passed  at  Rockland  as  Thomas 
Hoag. 

James  Secor  testified,  that  he  had 
been  married  about  two  years  and  a 
half ;  that  he  brought  his  wife  to 
town  about  a  week  after  his  mar- 
riage ;  that  he  knew  Hoag  in  Rock- 
land, and  had  repeatedly  seen  him 
there ;  when  he  saAv  prisoner  at  his 
house  in  town,  thought  him  to  be 
the  same  person  ;  witness's  wife  had 
mentioned  to  him  that  Hoag  had  a 
remarkable  scar  on  his  forehead, 
and  when  prisoner  was  at  witne^ss's 
house,  he  saw  on  his  head  the  scar 
that  his  wife  had  described. 

Nicholas  IV.  Conklin  testified,  that 
he  lived  in  Rockland  county ;  that 
he  knew  the  prisoner  at  the  bar ; 
that  his  name  was  Thomas  Hoag; 
that  he  could  not  be  mistaken  ;  that 
Hoag  had  worked  a  considerable 
time  for  him  ;  that  during  that  time 
he  had  eaten  at  witness's  table  ;  that 
Hoag  being  a  stranger,  and  witness 
understanding  that  he  was  paying 
his  addresses  to  Catharine  Secor, 
witness  took  a  good  deal  of  notice  of 
him ;  thought  him  a  clever  fellow ; 
saw  a  great  deal  of  him ;  lived  in  a 
house  belonging  to  witness.  When 
witness  saw  prisoner  at  this  place, 
he  knew  him  instantly  ;  his  gait,  his 
smile,  which  is  a  very  peculiar  one, 
his  very  look  was  that  of  Thomas 
Hoag.  Witness  endeavored,  but  in 
vain,  to  find  some  difference  in  ap- 
pearance between  prisoner  and 
Hoag ;  he  was  satisfied  in  his  mind 
that  he  is  the  same  person.  Hoag, 
he  thought,  was  about  twenty-eight 
or  thirty  years  of  age ;  he  tliought 
Hoag  had  a  small  scar  on  his  neck. 

Michael  Burke  testified,  that  he 
lived  in  Catharine  street;  that  he 
formerly  lived  in  Haverstraw ;  he 
saw  prisoner  several  times  at  Haver- 
straw, before  and  after  his  marriage 
in  December,  1800 ;  that  he  was  as 
well  satisfied  as  he  could  be  of  anv- 


No.  362. 


III.     TESTIMONIAL   INTERPRETATION.       C.    FALLIBILITY 


719 


thing,  that  prisoner  was  the  same 
person  he  knew  in  Haverstraw,  that 
about  two  years  ago  he  met  the 
prisoner  in  the  Bowery,  at  the  time 
of  the  Harlem  races  ;  prisoner  spoke 
to  witness,  and  said,  "  Am  I  not  a 
relation  of  yours  ? "  Witness  re- 
plied, "I  don't  know."  Prisoner 
said,  "  I  am  ;  I  married  Katy  Secor." 
Upon  cross-examination  witness  ad- 
mitted that  he  and  prisoner  had  had 
a  quarrel  respecting  witness  calling 
prisoner  Thomas  Hoag ;  that  the 
above  conversation  was  after  the 
trial  in  the  justice's  court,  and  wit- 
ness when  asked  if  he  was  at  the 
trial,  said  he  was  not,  though  when 
interrogated  particularly  whether  he 
was  not  in  the  court  room  admitted 
that  he  was. 

Samuel  Smith  was  called,  merely 
as  to  the  character  of  one  of  the 
witnesses  on  the  part  of  the  prosecu- 
tion, a  Mr.  Knapp,  and  testified 
that  he  bore  an  unexceptionable 
character. 

Abraham  Wendell  testified,  that 
he  knew  one  Thomas  Hoag  in  the 
latter  end  of  the  year  1800 ;  he 
was  then  in  Haverstraw ;  that  he 
had  been  very  intimate  with  him, 
and  knew  him  as  w^ell  as  he  knew 
any  man  ;  that  he  had  worked  with 
him,  had  breakfasted,  dined,  and 
supped  with  him,  and  many  a  time 
had  been  at  frolics  with  him,  and 
that  the  prisoner  at  the  bar  was  the 
same  man ;  that  he  had  no  doubt 
whatever  about  it.  That  about  a 
year  ago,  witness  being  in  this  city, 
was  told  by  some  persons  that  Hoag 
had  beat  the  Haverstraw  folks  in  an 
action  wherein  his  identity  had 
come  in  ciuestion  ;  that  witness  told 
them  he  could  know  him  with  cer- 
tainty;  that  they  said  they  would 
send  him  down  to  him  that  day ; 
that  witness  was  aboard  his  sloop, 
saw  prisoner  at  a  distance  of  a  hun- 
dred yards,  coming  down  the  street, 
and  instantly  knew  him  ;  prisoner 
came  up  to  him  and  said  imme- 
diately, "Mr.  Wendell,  I  am  told 
you  will  say  you  know  me";  to 
which   witness   replied,    "So   I   do; 


you  are  Thomas  Hoag";  that  wit- 
ness was  as  confident  prisoner  is 
the  person,  as  he  was  of  his  own 
existence. 

Sarah  ConkVin  testified,  that  she 
lives  in  Haverstraw ;  that  in  Sep- 
tember, 1800,  a  person  calling  him- 
self Thomas  Hoag  was  at  witness's 
house,  was  very  intimate  there,  used 
to  call  her  aunt ;  is  sure  prisoner  is 
the  same  person  ;  never  can  believe 
two  persons  could  look  so  much 
alike ;  wovdd  know  Hoag  from 
among  a  hundred  people  by  his 
voice ;  prisoner  must  be  Thomas 
Hoag ;  had  not  seen  prisoner  since 
he  left  Haverstraw  till  the  present 
day. 

Gabriel  Conklin  testified,  that  he 
lived  in  Haverstraw;  that  he  knew 
Thomas  Hoag ;  that  he  was  at  wit- 
ness's house  in  September,  1800,  and 
often  afterwards ;  prisoner  is  the 
same  person,  unless  there  can  be 
two  persons  so  much  alike  as  not  to 
be  distinguished  from  each  other ; 
prisoner  must  be  Thomas  Hoag ; 
Thomas  Hoag  had  a  scar  on  his  fore- 
head and  a  small  scar  just  above  his 
lip,  and  prisoner  had  also  these 
marks. 

Further  testimony  was  now  pro- 
duced on  behalf  of  the  prisoner,  as 
follows  : 

James  Jiiquar  testified  that  he  had 
known  Joseph  Parker,  the  prisoner 
at  the  bar,  for  seven  years  past ; 
that  he  had  been  intimate  with  him 
all  that  time ;  that  they  had  both 
worked  together  as  riggers  until 
Parker  became  a  cartman ;  knew 
Parker  when  he  lived  in  Capt. 
Pelor's  house;  never  knew  him 
absent  from  the  city  during  that 
time,  for  a  day,  except  when  he  was 
working  on  board  one  of  the  United 
States  frigates,  about  a  week  at 
Staten  Island.  In  the  year  1799, 
prisoner  hurt  himself  on  board  the 
Adams  frigate,  and  then  went  to 
his  father's  in  Westchester  county, 
and  was  absent  near  a  month ;  he 
was  very  ill  when  he  left  town ; 
witness  went  with  him,  and  brought 
him  back  again,  before  he  was  quite 


720 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  363. 


recovered ;  recollect.s  Parker  and 
some  other  company  passing  Christ- 
mas eve  at  witness's  house  the  year 
that  Parker  Hved  in  Capt.  Pelor's 
house,  which  was  in  ISOO. 

Susa7inah  Wendell  testified,  that 
she  had  known  prisoner  for  six 
years  past ;  that  he  married  witness's 
daughter ;  knew  him  when  he  Uved 
in  Capt.  Peh:)r's  house.  Parker's 
wife  was  then  ill,  and  witness  had 
occasion  frequently  to  visit  her ; 
saw  prisoner  there  almost  daily. 
Prisoner,  excepting  the  time  when 
he  was  sick  and  went  to  his  father's 
in  Westchester,  has  never  been 
absent  from  the  city  more  than  one 
week  since  his  marriage  with  wit- 
ness's daughter. 

Here  it  was  agreed  between  the 
attorney-general  and  the  counsel  for 
prisoner,  that  the  prisoner  should 
exhibit  his  foot  to  the  jury,  in  order 
that  they  might  see  whether  there 
was  that  scar  which  had  been  spoken 
of  in  such  positive  terms  by  several 
of  the  witnesses  on  the  part  of  the 


people.  Upon  exhibiting  his  foot, 
not  the  least  mark  or  scar  could  be 
seen  on  either  of  them. 

In  further  confirmation  of  prison- 
er's innocence,  there  was  adduced 
on  his  behalf  one  more  witness : 

Magnus  Beekman,  who  testified, 
that  he  was  captain  of  the  city 
watch  of  the  second  district ;  that 
he  was  well  acquainted  with  the 
prisoner,  Joseph  Parker ;  that  he, 
Parker,  had  l)een  for  many  years  a 
watchman,  and  had  done  duty  con- 
stantly on  the  watch  ;  that  witness, 
on  recurring  to  his  books,  where  he 
keeps  a  register  of  the  watchmen 
and  of  their  times  of  service,  found 
that  prisoner,  Joseph  Parker,  was 
regularly  upon  duty  as  a  watchman 
during  the  months  of  October, 
November,  and  December,  ISOO, 
and  January  and  February,  1801, 
and  particularly  that  he  was  upon 
duty  the  26th  of  December,  1800. 

The  jury,  without  retiring  from 
the  bar,  found  a  verdict  of  not 
guilty. 


363.    Another    account    of    THOMAS    HOAG'S    CASE.       (Camden 


Pelham.  The  Chronicles  of  Crime. 
A  man  was  indicted  for  bigamy 
under  the  name  of  James  Hoag. 
He  was  met  in  a  distant  part  of  the 
country  by  some  friends  of  his  sup- 
posed first  wife,  and  apprehended. 
The  prisoner  denied  the  charge,  and 
said  his  name  was  Thomas  Parker. 
On  the  trial,  Mrs.  Hoag,  her  relations, 
and  many  other  credible  witnesses, 
swore  that  he  was  James  Hoag,  and 
the  former  swore  positively  that  he 
was  her  husband.  On  the  other 
side,  an  equal  number  of  witnesses, 
equally  resj)ectal)le,  swore  that  the 
prisoner  was  Thomas  Parker ;  and 
Mrs.  Parker  appeared,  and  claimed 
him  as  her  husband.  The  first 
witnesses  were  again  called  by  the 
Court,  and  they  not  only  again  de- 
posed to  him,  but  swore  that  by 
stature,  shape,  gesture,  complexion, 
looks,    voice,    and    speech,    he   was 


ed.  1891.  Vol.  I,  p.  238.)^ 
James  Hoag.  They  even  described 
a  particular  scar  on  his  forehead,  by 
which  he  could  be  known.  On 
turning  back  the  hair,  the  scar  ap- 
peared. The  others,  in  return, 
swore  that  he  had  lived  among  them, 
worked  with  them,  and  was  in  their 
company  on  the  very  day  of  his  al- 
leged marriage  with  Mrs.  Hoag. 
Here  the  scales  of  testimony  were 
balanced,  for  the  jury  knew  not  to 
which  party  to  give  credit.  Mrs. 
Hoag,  anxious  to  gain  back  her 
husband,  declared  he  had  a  certain 
more  particular  mark  on  the  .sole  of 
liis  foot.  ]\Irs.  Parker  avowed  that 
her  husband  had  no  such  mark  ;  and 
the  man  was  ordered  to  pull  oflp 
his  shoes  and  stockings.  His  feet 
were  examined,  and  no  mark  ap- 
peared. 

The  ladies  now  contended  for  the 


■  [This  acfiount   ilhistratos  how  untrvistwortliy  the  report  cf  a  case  may  become  when 
transmitted  from  one  chronicler  to  another.  —  Eo.) 


No.  364. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


721 


man,  and  Mrs.  Hoag  vowed  that 
she  had  lost  her  husband,  and  she 
would  have  him ;  but  during  this 
strife,  a  justice  of  the  peace  from 
the  place  w'here  the  prisoner  was 
apprehended  entered  the  Court, 
and  turned    the  scale  in   his  favor. 


His  worship  swore  him  to  be  Thomas 
Parker ;  that  he  had  known,  and 
occasionally  employed  him,  from  his 
infancy ;  whereupon  Mrs.  Parker 
embraced  and  carried  off  her  hus- 
band in  triumph,  by  the  verdict  of 
the  jury. 


364.    GEORGE  CANT'S  CASE. 
of  Crime,      ed.  1891.      Vol.  II,  p.  490 

At  the  Central  Criminal  Court  on 
Thursday  the  31st  of  October,  1839, 
George  Cant,  a  publican,  aged  forty 
years,  was  indicted  for  a  rape  upon 
Jane  BoUand ;  and  in  order  that 
the  course  which  the  case  took  may 
be  understood,  we  shall  repeat  the 
evidence  which  was  gi\en  by  the 
witnesses  at  the  trial,  in  preference 
to  a  general  narrative  of  the  pro- 
ceedings. 

Jane  BoUand  deposed  that  she 
resided  with  her  brother  in  Solomon- 
terrace,  St.  George's-in-the-East. 
On  the  30th  of  September  she  went 
to  live  as  barmaid  at  the  Windsor- 
castle,  public  house,  Holborn,  kept 
by  the  prisoner.  She  slept  in  one 
of  the  attics,  and  the  prisoner  and 
his  wife  slept  in  the  room  underneath. 
The  prisoner  culled  her  on  the  morn- 
ing of  Thursday,  the  3d  of  October  ; 
when  she  came  down  to  the  bar  the 
prisoner  patted  her  on  the  cheek  with 
something ;  he  laid  his  hand  upon 
her  breast,  and  insisted  upon  kissing 
her.  She  threatened  to  inform  Mrs. 
Cant  of  his  conduct,  and  he  said, 
*'  What  the  eye  did  not  see  the  heart 
would  not  believe."  He  then  wished 
her  to  leave  the  door  of  her  room 
open  that  he  might  come  in  when  he 
came  to  call  her  in  the  morning ;  but 
she  told  him  that  she  was  not  the 
sort  of  person  he  imagined  her  to  be, 
and  left  the  parlor.  In  the  course 
of  the  day  her  brother  and  a  person 
named  Balfour  called  upon  her,  and 
she  communicated  to  them  what  the 
prisoner  had  said  and  done  to  her. 
Mr.  Balfour  said,  that  after  what  had 
passed  he  did  not  think  the  prisoner 
would  again  attempt  to  use  indecent 
liberties  with  her,  and  her  brother, 


(Camden  Pelham.     The  Chronicles 

•) 

at  the  suggestion  of  Mr.  Balfour, 
advised  her  not  to  leave  her  situa- 
tion. Subsequently  on  that  day  she 
became  unwell,  and  about  eight 
o'clock  in  the  evening  she  was  con- 
veyed upstairs  to  bed,  but  she  was 
then  so  ill  that  she  could  not  recol- 
lect who  went  up  to  her  room  with 
her.  She  was  insensible  when  she 
reached  her  bed,  but  during  the 
night  she  partially  recovered,  and 
then  she  found  the  prisoner  at  the 
bedside.  He  placed  one  of  his 
hands  upon  her  mouth  to  prevent 
her  calling  out,  and  a  struggle  took 
place  and  she  fainted.  There  was 
a  candle  on  the  table  in  the  room. 
About  six  o'clock  in  the  morning  she 
recovered  her  senses,  anrl  found  her 
clothes,  which  had  not  been  taken 
off,  in  disorder,  and  the  bone  of  her 
stays  broken.  The  offense  charged 
in  the  indictment  had  been  com- 
mitted when  she  was  in  a  state  of 
insensibility.  The  prisoner  was  then 
standing  at  the  door  of  her  room, 
and  she  cried  out  to  him,  "  You 
villain,  you  shall  not  come  in." 
He  answered,  that  she  was  a  drunk- 
ard and  should  not  again  enter  his 
bar.  She  went  downstairs  to  in- 
form ]Mrs.  Cant  of  what  the  prisoner 
had  done;  but  when  she  told  that 
person  that  her  husband  had  used 
indecent  liberties  with  her,  Mrs. 
Cant  said,  "  I  will  not  hear  you,  you 
drunken  hussy."  She  immediately 
left  the  house,  and  went  to  her 
brother's,  where  she  told  what  had 
happened  to  her.  On  the  Saturday 
following  she  was  examined  by  a 
medical  gentleman. 

On  her  cross-examination  by  Mr. 
C.   Phillips,   who  appeared  for  the 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  364. 


prisoner,  she  stated  that  a  young 
man  named  Joseph  Edwards  had 
slept  at  her  master's  house  on  the 
night  of  the  3d  of  October,  and  that 
he  accompanied  her  home  on  the 
next  day.  He  was  a  friend  of  Mr. 
Cant's,  and  she  had  observed  him  in 
attenchmee  at  the  Court.  She  was 
subject  to  a  swimming  in  the  head, 
and  was  suffering  from  this  com- 
plaint when  she  went  to  bed  on  the 
evening  in  question.  She  was  not 
intoxicated,  r.nd  had  taken  nothing 
during  the  whole  day,  with  the  ex- 
ception of  one  glass  of  half-and-half. 

The  brother  of  the  prosecutrix  and 
Mr.  Balfour,  a  wine  merchant's 
clerk,  corroborated  that  part  of  the 
evidence  of  the  witness,  which  re- 
ferred to  her  conversation  with 
them;  and. Holland  further  deposed, 
that  his  sister  liad  some  years  pre- 
viously suffered  from  a  severe  attack 
of  erysipelas  in  her  head,  from  the 
effects  of  which  she  had  been  for 
some  time  insane.  She  was  still 
occasionally  subject  to  determina- 
tion of  blood  to  the  head. 

The  wife  of  Bolland,  and  the  medi- 
cal man  referred  to,  both  gave  evi- 
dence which  left  no  doubt  that  the 
offense  which  was  complained  of 
by  the  prosecutrix  had  been  com- 
mitted upon  her  person ;  and  Mrs. 
Bolland  declared  that  her  sister-in- 
law,  when  she  saw  her  on  the  Friday, 
exhibited  all  the  agitation  which 
might  be  supposed  to  be  incident  to 
such  an  occurrence. 

The  prisoner  was  proved  to  ha\'e 
been  taken  into  custody  by  a  con- 
stable named  Wells,  when  he  said 
that  he  had  "  only  kissed  the  girl "  ; 
and  this  closed  the  case  for  the 
prosecution. 

Mr.  Phillips  then  addressed  the 
jury  for  the  pri.soner,  and  disclosed 
a  most  extraf)rdinary  defense  on 
his  behalf.  He  di.sclainicfl  all  in- 
tention of  impeaching  the  young 
woman's  character,  and  was  happy 
that  he  had  no  reason  for  making 
even  an  insinuation  against  her  in 
regard  to  her  conduct  previous  to 
this  occasion.     That  she  was  deeply 


to  be  commiserated  he  owned  ;  and 
that  she  had  come  here  to  tell 
what  she  believed  to  be  the  truth, 
he  had  not  the  least  doubt.  .  .  . 
The  giddiness  in  the  head  had  in- 
duced those  who  had  only  been  ac- 
quainted with  the  girl  for  four  or 
five  days  to  believe  that  she  was  in- 
toxicated ;  and  it  was  most  natural, 
for  the  swimming  in  the  head  would 
produce  all  the  appearances  of  in- 
toxication. She  was  taken  upstairs 
by  a  servant  of  the  prisoner,  who 
would  describe  her  appearance  at  the 
time,  and  she  would  also  state,  that 
the  young  man  Edwards  came  to 
the  door  with  her.  That  she  had 
been  violated,  there  was  not  the 
least  doubt,  but  that  the  prisoner 
had  committed  the  offense  was  by  no 
means  clear ;  and  it  would  be  his 
duty  to  call  the  young  man,  Edwards 
who,  if  he  (Mr.  Phillips)  was  rightly 
informed,  would  state  that  he  was 
the  guilty  party.  .  .  .  After  Mr. 
Cant  had  been  committed,  Edwards 
had  called  at  the  office  of  Mr. 
Williams,  the  solicitor  for  the  pris- 
oner, and  made  a  disclosure  which 
left  no  doubt  of  the  innocence  of  the 
man  at  the  bar.  He  did  not  mean 
for  an  instant  to  justify  the  conduct 
of  Edwards,  and  it  was  a  pity  that  he 
did  not  make  all  the  amends  in  his 
power  to  the  young  woman.  He  was 
a  young  unmarried  man,  and  might 
have  done  so.  It  was  unlikely  the 
prisoner  committed  the  offense,  for, 
if  he  had  been  guilty,  it  was  not 
probable  that  he  would  have  con- 
ducted himself  towards  the  young 
woman  as  she  had  stated  he  had 
done  in  the  morning  after  she  had 
recovered  from  her  illness.  .  .  .  The 
liberty  he  had  used  in  the  morning 
had  induced  the  girl  to  suppose  that 
he  had  committed  the  capital  offense 
upon  her  during  the  night.  .   .   . 

Jane  HoIIier  was  then  called,  and 
on  being  sworn  stated,  that  she  was 
at  the  Windsor  Castle  public  house, 
when  this  transaction  was  stated 
to  have  occurred ;  and  at  about 
eight  o'clock  she  assisted  the  pros- 
ecutrix  to   bed.      Witness   thought 


No.  364. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


723 


she  was  in  a  state  of  intoxication  at 
the  time.  About  twelve  o'clock 
witness  again  went  up  to  the  bed- 
room of  the  prosecutrix,  accom- 
panied by  Joseph  Edwards.  Ivl- 
wards  remained  at  the  door  while 
she  went  in.  She  asked  him  to  come 
up  with  her,  as  there  was  only  one 
candle.  The  poor  girl  was  lying  on 
the  bed,  with  her  clothes  on,  asleep  ; 
witness  covered  her  with  blankets. 
Witness  was  in  the  room  about  five 
minutes,  and  the  door  was  closed 
during  that  time.  When  she  came 
out  she  found  Edwards  at  the  door, 
and  she  gave  him  the  light,  and  he 
went  towards  his  bedroom.  She 
neither  saw  the  prosecutrix  nor 
Edwards  again  that  night. 

Cross-examined  by  Mr.  Adolphus  : 
The  prosecutrix  was  not  able  to 
speak  on  her  way  upstairs.  She 
heard  the  prosecutrix  say  to  the 
prisoner,  "You  took  liberties  with 
me,  you  villain." 

Mr.  George  Williams,  the  attorney 
for  the  prisoner,  stated  that  he  knew 
Joseph  Edwards  ;  that  person  came 
to  his  office  after  Cant  was  com- 
mitted, and  made  a  communication  to 
him.  The  communication  was  made 
after  the  prisoner  had  been  admitted 
to  bail. 

Thomas  Shipton,  potboy  at  the 
Windsor  Castle,  stated  that  the 
prosecutrix  appeared  to  be  intoxi- 
cated on  the  day  in  question.  He 
saw  her  before  she  went  upstairs,  and 
she  then  presented  the  appearance 
of  a  person  who  had  taken  liquor. 

Mrs.  Sarah  Goodchild,  a  washer- 
woman, stated  that  she  was  em- 
ployed by  Mr.  Cant.  She  went  up 
to  the  bedroom  of  the  prosecutrix 
about  nine  o'clock  on  the  night  in 
question,  accompanied  by  the  pris- 
oner and  his  wife.  The  girl  was 
then  lying  across  the  bed,  and  wit- 
ness, assisted  by  Mr.  Cant,  placed 
her  straight  upon  the  bed.  They  all 
left  the  room  together.  No  light 
was  left  in  the  room. 

Joseph  Edwards  was  called  and 
examined  by  Mr.  Phillips  :  He  was 
a  bootmaker,  and  formerly  slept  at 


the  house  of  the  prisoner.  He  now 
resided  at  No.  2,  Fenton's-buildings. 
He  was  in  the  habit  of  visiting  the 
prisoner's  family  occasionally,  and 
he  slept  there  on  the  3d  of  October, 
when  the  girl  BoUand  was  there. 
She  went  upstairs,  he  believed, 
between  nine  and  ten  o'clock.  She 
appeared  then  to  be  intoxicated. 
He  saw  her  the  next  morning  about 
half  past  six  o'clock,  and  went  to  her 
brother's  house  with  her.  They 
Avent  down  Chancery-lane,  along 
Fleet-street,  and  over  Blackfriars 
Bridge.  He  told  her  that  was  the 
way  to  the  Commercial-road,  believ- 
ing she  lived  near  the  Commercial- 
road,  Lambeth  ;  but  it  appeared  that 
it  was  Commercial-road  East,  she 
wished  to  go  to.  After  the  prisoner 
was  committed,  he  called  at  the 
office  of  Mr.  Williams,  and  made  a 
communication  to  that  gentleman, 
which  was  true.  He  made  a  similar 
communication  to  a  friend  of  the 
name  of  INIurphy.  He  went  into 
prosecutor's  room  about  eleven 
o'clock  on  the  night  of,  the  3d  of 
October.  He  had  no  light  with  him. 
She  was  in  bed.  Edwards  pro- 
ceeded to  state  that  he  had  criminal 
intercourse  with  the  girl,  and  he  felt 
it  his  duty,  when  the  prisoner  was 
committed,  to  inform  Mr.  Williams 
of  what  he  had  done. 

Cross-examined  by  Mr.  Adolphus  : 
Witness  was  out  of  employment  at 
the  time  of  this  transaction.  He 
knew  Mr.  Cant,  and  the  first  time 
he  slept  at  the  Windsor  Castle  was 
on  the  3d  of  October.  He  had 
known  Cant  for  four  or  five  years. 
He  had  lodgings  at  Bartholomew- 
close  on  the  3d  of  October.  When 
he  staid  at  the  Windsor  Castle  late, 
he  was  asked  to  sleep  there.  The 
girl  did  not  appear  at  all  unwilling 
to  submit  to  the  intercourse ;  but  on 
the  contrary,  appeared  quite  willing. 
He  had  not  gone  to  bed  before.  She 
was  not  covered  with  blankets.  He 
heard  all  that  had  been  stated  that 
day,  when  the  prisoner  was  examined 
before  the  justices,  but  he  did  not 
then  mention  a  word  of  what  he  had 


724 


PART    II.       TESTIMONIAL    EVIDENCE 


No.  365. 


now  said.  On  the  way  home  on 
Friday,  the  prosecutrix  said  that 
Mr.  Cant  had  called  her  a  drunkard, 
and  she  would  fix  him  for  it.  She 
then  seemed  happy  enough. 

Murphy  corroborated  this  state- 
ment by  declaring  that  the  witness 
had  told  him  of  what  he  had  done, 
after  the  time  at  which  the  com- 
numication  had  been  made  to  Mr. 
Williams. 

A  number  of  witnesses  were  then 
called,  who  gave  the  prisoner  an  ex- 
cellent character,  and 

Mr.  Adolphus  proceeded  to  reply. 
He  rejoiced  that  Mr.  Phillips  had 
not  attempted  to  cast  any  aspersion 
upon  the  character  of  the  prosecutrix, 
and  declared  his  belief  that  no  at- 
tempt could  be  successfully  made  to 
show  that  she  was  unworthy  of  be- 
lief. The  case  depended  entirely 
now  upon  the  testimony  of  Edwards, 
and  the  simple  question  was,  whether 
the  jury  would  credit  his  statement 
in  preference  to  that  of  the  girl 
Bolland.  No  attempt  was  made  to 
deny  the  ad^■ances  which  Cant  had 
made  to  the  girl  on  the  morning 
of  the  3d  of  October ;  and  he 
asked  the  jury  first,  whether  having 
made  those  advances,  it  was  im- 
probable that  he  should  have  fol- 
lowed them  up ;  and  secondly, 
whether  they  could  believe  a  person 
who  came  forward  and  told  such  an 
improbable  tale  as  Edwards.  The 
testimony  of  the  prosecutrix  v/as 
materially  sustained  in  many  partic- 
ulars —  that  of  Edwards  received 
no  important  confirmation.  True, 
he  had  gone  to  two  persons  to  relate 
his  story  before  he  told  it  here, 
but  at  that  time  the  prisoner  was 
at  large  on  bail ;  and  it  was  to  be 
observed  that  he  might  have  done  so 
for  the  express  pm-pose  of  propping 
up  an  imi)r()l)al)le  story.  He  iiad 
said  nothing  al)Out  it  at  the  police 


office,  although  he  had  heard  the 
prosecutrix  examined  there ;  and 
the  whole  relation  bore  so  much  of 
the  impress  of  fiction,  that  the  jury, 
he  was  sure,  would  attach  no  credit 
to  his  declaration. 

The  learned  judge  (]\Ir.  Baron 
GiMiNEv)  in  summing  up  con- 
trasted the  statements  of  the  pros- 
ecutrix and  Edwards  with  great 
force,  and  having  instructed  the 
jury  upon  the  law  affecting  the  case, 
informing  them  that  the  offense  of 
rape  might  have  been  committed 
upon  the  prosecutrix  while  she  was 
in  a  state  of  insensibility,  although 
no  resistance  had  been  made  by  her, 
left  the  whole  case  to  them  for 
decision. 

After  about  two  hours'  considera- 
tion, a  verdict  of  "Guilty"  was  re- 
turned. The  prisoner  appeared  some- 
what astonished  at  this  conclusion  of 
the  case,  and  loudly  declared  his  in- 
nocence. Judgment  of  death  was, 
however,  recorded  against  him,  and 
he  was  removed  from  the  bar. 

The  very  peculiar  circumstances 
of  this  case  attracted  a  large  share 
of  public  attention  ;  and  a  feeling 
was  commonly  entertained  that  the 
verdict  was  founded  upon  an  erro- 
neous view  of  the  facts  of  the  case. 
The  persons  who  adopted  this  im- 
pression lost  no  time  in  conveying 
their  opinion  to  the  Secretary  of 
State  for  the  Home  Department ; 
but  in  spite  of  their  most  strenuous 
exertions  in  favor  of  Mr.  Cant,  the 
Government  declined  to  give  a 
decision  in  opposition  to  that  which 
had  been  arrived  at  by  the  jury, 
although  it  was  resolved  that  the 
sentence  of  death  should  be  changed 
for  a  punishment  of  transportation 
for  life. 

In  obedience  to  this  determination 
Mr.  Cant  was  subsequently  sent  out 
of  the  country. 


365.  CHICAGO  &  ALTON  R.  CO.  v.  GIBBONS.  (1895.  Appel- 
late CouuT  OF  Illinois.      0.3  111.  App.  550.)   .   .   . 

Mr.  Justice  Harker  delivered  the  action  on  the  case  to  recover  for  the 
Opinion  of  the  Court.  — This  is  an      use  of  the  widow  and  next  of  kin  of 


No.  366. 


III.     TESTIMONIAL    INTERPRETATION.       C.    FALLIBILITY 


725 


Thomas  Comeford,  killed  on  a  cro.ss- 
ingof  appellant's  railroad  at  Dwight, 
while  driving  in  front  of  freight 
cars  being  switched  on  a  side  track. 
There  was  a  recovery  for  $2500.  .  .  . 
The  main  ground  upon  which  a 
reversal  is  asked  is  that  the  e\idence 
fails  to  show  any  cause  of  action. 
The  facts  as  disclosed  by  the  record 
are  as  follows  : 

Thomas  Comeford  was  a  farmer, 
living  near  Dwight  and  engaged  in 
the  milk  business.  It  was  his  habit 
to  serve  his  customers  from  a  covered 
milk  wagon  drawn  by  two  horses 
from  house  to  house.  While  making 
his  rounds  on  the  evening  of  October 
18th,  1894,  he  had  occasion  to  cross 
appellant's  railroad  at  its  inter- 
section with  Chippewa  street  and 
Prairie  avenue.  Chippewa  street 
runs  east  and  west,  Prairie  avenue 
north  and  south,  and  they  intersect 
at  right  angles  where  the  railroad 
crosses  them  diagonally  from  south- 
west to  northeast.  It  was  near 
seven  o'clock  and  quite  dark.  Come- 
ford approached  the  railroad  from 
the  east  on  Chippewa  street.  Before 
reaching  the  track  he  discovered 
that  a  freight  engine  was  switching 
cars,  and  stopped.  The  engine  with 
several  cars  had  just  gone  north  over 
the  crossing  when  the  conductor, 
who  was  upon  the  ground  assisting 
in  the  switching,  signaled  the  engine 
to  back  south  over  the  crossing. 
Just  after  the  signal  was  given  Come- 
ford started  his  team  over  in  a  sharp 
trot.  Before  he  could  clear  the  side 
track  on  which  the  cars  were  moving, 
his  wagon  was  caught  and  crushed 
and  he  was  killed. 

A  witness  for  appellee  named 
George  Webster,  testified  that  just 
before  the  signal  to  back  was  given 
he  heard  some  one  say,  "Come  on, 
get  a  move  on  you."  Two  other 
witnesses  testified  that  they  heard 
some  one  say,  "Come  on,"  just 
before  the  accident.  Neither  one  of 
these  witnesses  testify  that  the  words 
were  addressed  to  Comeford,  or  were 
spoken  by  anyone  connected  with 
the  train.     A  boy  named  John  W. 


IMaiden  testified  that  he  stood  talk- 
ing with  Comeford  while  the  latter 
was  waiting  at  the  crossing  ;  that  he 
heard  Comeford  ask  one  of  the  rail- 
road men  if  he  could  go  across  ;  that 
the  man  said,  "Yes,  get  a  hustle  on 
yourself,"  and  that  Comeford  then 
started  on  a  trot,  when  he  was  struck. 
Several  persons  testified  that  the 
reputation  of  this  witness  for  truth- 
fulness was  bad.  No  testimony  was 
introduced  to  contradict  the  im- 
peaching evidence,  and  no  one  seems 
to  have  seen  IMaiden  on  the  ground. 
The  main  point  in  dispute  is  whether 
Comeford  was  invited  to  cross  by 
some  one  of  appellant's  servants. 
It  is  insisted  that  he  was,  by  the 
words,  "Come  on,  get  a  move  on 
you,"  and  that  Waugh,  the  con- 
ductor uttered  them.  If  Waugh 
did  thus  invite  him,  then  clearly 
appellant  is  liable.  Under  the 
evidence  heard  it  is  the  only 
ground  upon  which  a  recovery  can 
be  based ;  for  if  Comeford,  without 
such  invitation,  attempted  to  cross, 
his  recklessness  in  so  doing  must 
debar  a  recovery. 

Charles  Montague,  a  brakeman, 
assisting  in  the  switching,  testified 
that  just  before  the  accident,  after 
the  train  had  pulled  north  and  was 
about  to  back  south,  he  saw  a  man 
passing  around  the  end  of  the  train 
and  he  called  out  to  him,  "  Hurry  up, 
get  a  move  on  you,"  but  there  is 
no  pretense  that  such  remark  was 
made  to  Comeford.  Waugh  and  INIon- 
tague,  the  conductor  and  brakeman 
who  were  controlling  by  signals  the 
movements  of  the  train  ^t  this  cross- 
ing, both  deny  that  any  invitation 
v^•as  given  Comeford  to  cross.  They 
both  testify  that  when  he  attempted 
to  cross  they  called  out  loudly  for 
him  to  stop  and  by  waving  their 
lanterns  before  the  team  tried  to 
stop  him.  Two  other  witnesses, 
Daniel  IVIorris  and  James  Williams, 
testify  to  hearing  the  calls  of  Waugh 
and  Montague  for  Comeford  to  stop 
and  their  efforts  to  keep  him  from 
crossing.  Williams  himself  called 
out  .several  times  for  him  to  stop.     It 


726                                          PART    II.       TESTIMONIAL    EVIDENCE  No.  SCo. 

is  uncertain  whether  Comeford  heard  The    witnesses    who    testified    to 

the  calls  to  stop  or  saw  the  signals.  hearing  the  call  of  "Come  on,  get 

He  was  almost  lifeless  when  picked  a  move  on  you,"  do  not  pretend  to 

up  and  died  within  a  few  minutes  say  that  it  was  made  by  Waugh  or 

after.  made    to    Comeford.     We    think    it 

He  was  sitting  well   back  in  his  was  the  one  made  by  Montague  to 

covered  wagon    and    in    the    rapid  the  man  he  saw  passing  around  the 

mo\ement  of  the  team  and  wagon  end  of  the  train.     In  view  of  the 

much  noise  was  made.  uncertainty    in    the    testimony    of 

The  clear  preponderance  of  the  Webber,  Patterson,  and  Boyer,  anfl 
testimony  shows  that  the  deceased  the  positive  denial  of  Waugh  and 
was  not  invited  to  cross.  Maiden  Montague,  and  the  testimony  show- 
was  so  thoroughly  impeached  and  ing  the  efforts  of  Waugh  and  Mon- 
his  testimony  is  so  in  conflict  with  tague  to  stop  Comeford  from  cro.ss- 
the  other  testimony  that  we  can-  ing,  we  do  not  see  how  the  verdict 
not  believe  him.  can  stand. 


366.  Hans  Gross.  Criminal  Invi'stigation.  (transl.  J.  and  J.  C.  Adam, 
1907.  Introd.,  p.  XXV.)  .  .  .  It  must  be  admitted  that  at  the  present  day 
the  value  of  the  testimony  of  even  a  truthful  witness  is  much  overrated. 
The  numberless  errors  in  perceptions  derived  from  the  senses,  the  faults  of 
memory,  the  far-reaching  differences  in  human  beings  as  regards  sex,  nature, 
culture,  mood  of  the  moment,  health,  passionate  excitement,  environment, 
all  these  things  have  so  great  an  effect  that  we  scarcely  ever  receive  two 
quite  similar  accounts  of  one  thing ;  and  between  what  people  really  expe- 
rience and  what  they  confidently  assert,  we  find  only  error  heaped  iipon 
error.  Out  of  the  mouths  of  two  witnesses  we  may  arrive  at  the  real  truth, 
we  may  form  for  ourselves  an  idea  of  the  circumstances  of  an  occurrence 
and  satisfy  ourselves  concerning  it,  but  the  evidence  will  seldom  be  true  and 
material ;  and  whoever  goes  more  closely  into  the  matter  will  not  silence 
his  conscience,  even  after  listening  to  ten  witnesses.  Evil  design  and  artful 
deception,  mistakes,  and  errors,  most  of  all  the  closing  of  the  eyes  and  the 
belief  that  what  is  stated  in  evidence  has  really  been  seen,  are  characteristics 
of  so  very  many  witnesses,  that  absolutely  unbiased  testimony  can  hardly 
be  imagined.  If  Criminal  Psychology  teaches  us  this  much,  so  the  other 
parts  of  the  subject  show  us  the  value  of  facts,  where  they  can  be  obtained, 
how  they  can  be  held  fast  and  appraised  —  these  things  are  just  as  important 
as  to  show  what  can  be  done  with  the  facts  when  obtained.  The  trace  of  a 
crime  discovered  and  turned  to  good  account,  a  correct  sketch  be  it  ever  so 
simple,  a  niicroscopic  .slide,  a  deciphered  correspondence,  a  photograph  of  a 
person,  or  object,  a  tattooing,  a  restored  piece  of  burnt  paper,  a  careful  sur- 
vey, a  thousand  more  material  things  are  all  examples  of  incorruptible,  di.s- 
interested,  and  enduring  testimony  from  which  mistaken,  inaccurate,  and 
biased  perceptions,  as  well  as  evil  intention,  perjury,  and  unlawful  co- 
operation, are  excluded.  As  the  science  of  Criminal  Investigation  proceeds, 
oral  testimony  falls  behinfl  and  the  importance  of  realistic  proof  advances ; 
"circumstances  cannot  lie,"  witnesses  can  and  do.  The  upshot  is  that 
when  the  case  comes  for  trial,  we  may  call  as  many  witnesses  as  we  like,  but 
the  realistic  or,  as  lawyers  call  them,  circumstantial  proofs,  must  be  col- 
lected, compared,  and  arranged  l)ef'orehand,  .so  that  the  chief  importance 
will  attach  not  so  much  to  the  trial  itself  as  to  the  Preliminary  Inquiry. 


TITLE  III  (continued):   TESTIMONIAL  INTERPRETATION 

SUBTITLE   D:    CLASSIFICATION    OF    "IMPEACHING"    OR 
DISCREDITING   FACTS 

367.  John  H.  WiGMORE.  Principles  of  Judicial  Proof .  (1913.)  A  testi- 
monial assertion  comes,  as  evidence,  in  the  same  logical  form  as  a  circum- 
stantial evidential  fact  {cmte,  No.  2) ;  i.e.,  the  form  of  proposed  inference  is  : 
A  asserts  the  existence  of  fact  X ;  therefore,  fact  X  exists.  Hence,  the 
problem  of  the  cogency  of  this  inference  involves  (as  all  other  judicial  in- 
ferences do)  the  question  how  many  and  what  other  hypotheses  there  are 
which  explain  away  the  evidential  fact  of  A's  assertion  as  due  to  some  other 
cause  than  the  existence  of  fact  X  {ante,  No.  2).  The  evidential  fact  is 
simply  that  A  makes  the  assertion ;  the  problem  is,  Can  it  be  explained 
away,  so  that  we  need  not  accept  fact  X  as  the  conclusion  ?  In  short,  the 
whole  process  of  Impeachment  or  Discrediting  of  a  witness,  as  known  to 
practitioners,  is  nothing  but  the  general  logical  process  of  Explanation 
{ante,  No.  2,  §  5).  So,  too,  the  process  of  corroboration  or  support  of  a  wit- 
ness is  the  logical  process  of  closing  up  the  possible  avenues  of  Explanation, 
and  thus  making  the  proposed  inference  more  and  more  necessary  and 
unavoidable. 

What,  then,  is  the  distinction,  if  any,  between  Explanation  for  circum- 
stantial evidence  and  Explanation  for  testimonial  evidence  ?  Practically 
the  distinction  is  a  real  one,  —  is  in  fact  the  chief  basis  for  the  time-honored 
division  of  all  evidence  into  these  two  classes.  Circumstantial  e\idence  is 
heterogeneous  and  multifarious  in  its  varieties ;  testimonial  evidence  is 
homogeneous.  Circumstantial  evidence  has  no  single  common  feature,  and 
few  features  partly  in  common ;  testimonial  evidence  has  one  great  feature 
in  common,  and  numerous  large  classes  having  common  features.  E.g.  the 
finding  of  an  old  coat  in  an  empty  baker's  wagon  on  a  back  lot  in  Halsted 
street,  Cook  county,  —  the  presence  of  a  broken  oil  can  in  a  grain  car  on  a 
sidetrack  near  Onondaga,  New  York,  —  the  lack  of  one  ten-dollar  bill  in 
a  roll  of  ten-dollar  bills  in  a  Louisville  bank  on  Monday,  January  4,  —  these 
are  unique,  isolated  facts  which  have  never  happened  before  in  precisely 
the  same  way ;  hence  there  are  no  generic  truths  or  laws  involved  in  our 
inference  from  them  ;  it  is  purely  empiric.  But  A's  assertion  that  a  street 
lamp  was  lighted  at  a  given  time  or  place  is  generically  of  a  piece  with  hun- 
dreds of  thousands  of  former  evidential  data,  viz.  it  is  a  human  assertion, 
resting  for  credit  on  human  qualities.  The  human  element  in  this  testimony 
is  an  element  in  common,  running  through  the  vast  mass  of  prior  human 
testimonies.  And  even  though  human  beings  differ,  yet  their  differences 
also  are  generic,  each  on  a  vast  scale.  Moral  character,  bias,  experience, 
powers  of  perception  in  light  and  dark,  powers  of  memory  after  a  lapse  of 

727 


728  PART    II.       TESTIMONIAL    EVIDENCE  No.  3C7. 

time,  susceptibility  to  falsify  under  torture,  —  these  and  other  qualities 
have  been  under  observation  in  so  many  thousands  of  instances  under 
varying  conditions  that  we  have  Iniilt  up  generalizations  (more  or  less  correct 
or  uniform),  which  pass  for  general  truths  (or  at  least,  as  working  guides) 
on  those  subjects.  In  short,  we  possess  a  fund  of  general  principles,  applica- 
ble to  specific  instances  of  this  class  of  evidence,  and  almost  totally  lacking 
for  specific  circumstantial  evidence.  It  does  not  here  matter  Mhether  those 
general  principles  are  all  sound  or  not ;  the  point  is  that  we  believe  them  to 
be,  and  that  we  are  always  disposed  to  use  them  in  our  reasoning  upon  the 
probative  value  of  specific  human  assertions. 

How  does  this  bear  upon  the  process  of  Impeachment  or  Explanation  ? 
In  tliis  way  :  Through  this  more  or  less  explicit  appeal  to  such  general  prin- 
ciples, most  of  our  reasoning  upon  the  credit  of  witnesses  is  put  into  the  Deduc- 
tive form  ;  in  w'hich  form  these  general  principles  or  truths  come  out  into 
the  open  as  the  avowed  basis  of  our  inference.^  Thus  they  can  and  must  be 
tested  for  their  validity ;  and  thus,  if  well  founded,  they  may  serve  as  aids 
to  the  valuing  of  other  testimony.  These  aids  are  generally  lacking  for 
circumstantial  evidence ;  their  possession  is  a  great  advantage  in  valuing 
testimonial  evidence,  and  is  its  prime  feature  for  practical  purposes. 

1.  Classification  of  Impeaching  Evidence.  Since,  then,  the  process  of 
Impeachment  or  Explanation  {i.e.  the  valuation  of  the  discount  to  be  made 
from  the  credit  of  a  testimonial  assertion)  rests  usually  on  a  more  or  less 
explicit  deduction  from  some  generalized  truth,  and  since  the  force  of  the 
Explanation  will  depend  much  on  the  number,  nature,  and  correctness  of 

1  This  distinction  between  the  Deductive  and  the  Empiric  processes  of  inference  is  here 
BO  important  that  the  following  exposition  of  it  will  be  useful : 

Professor  Alfred  Sidgwick,  Fallacies;  A  View  of  Logic  from  the  Practical  Side  (1884, 
212  fT.) :  "The  real  foundation  of  Proof  is  always  the  recognition  of  resemblance  and  differ- 
ence between  things  or  events  known  and  observed,  and  those  which  are  on  their  trial, — 
whether  such  recognition  is  based  (l)  on  knowledge  already  reached  and  formulated  in 
names  or  propositions  or  (2)  on  direct  observation  and  experiment.  In  proportion  as  we 
openly  and  distinctly  refer  to  known  principles  (already  generalized  knowledge)  is  Proof 
deductive;  in  proportion  as  we  rapidly  and  somewhat  dimly  frame  new  principles  for  our- 
selves from  the  cases  observed  is  Proof  inductive,  empirical,  or  (in  its  loosest  form)  analog- 
ical. .  .  .  The  whole  history  of  the  rise  and  growth  of  knowledge  (it  has  been  also  already 
remarked)  is  a  record  of  fiuitful  rivalry  and  interaction  between  two  opposite  processes. 
Observation  of  facts  has  demanded  theory  —  statement  of  'laws'  or  uniformities — to  ex- 
plain, and  even  to  name,  the  things  and  events  observed;  theory  in  its  turn  has  always 
been  more  or  less  liable  to  purging  criticism  of  '  fact.'  .  .  .  Strictly  speaking,  all  Proof,  so 
far  as  really  proof,  is  deductive.  That  is  to  say,  unless  and  until  a  supposed  truth  can  be 
brought  under  the  shadow  of  some  more  certain  truth,  it  is  self-supporting  or  circular.  .  .  . 
But  there  is  yet  a  meaning  in  the  distinction  [between  inductive  and  deductive],  and,  with 
■certahi  limitations  and  apologies,  I  propose  to  make  some  use  of  it. 

"Although  the  depenflence  of  any  Thesis  on  its  Reason  must  be  rationalized  —  i.e. 
must  have  the  underlying  principle  made  clear  —  before  the  testing  operation  can  be  called 
complete,  yet  in  regard  to  special  dangers  it  makes  considerable  difference  whether  that 
principle  is  at  first  definitely  apprehended  or  not,  —  whether  (as  it  is  commonly  expr(>ssed) 
the  Proof  professes  to  rely  (1)  upon  laws  known  or  supposed  to  be  true,  or  (2)  upon  facts 
observed  or  suppos"d  to  be  observed.  We  must  distinguish,  then,  as  far  as  possible,  be- 
tween that  kind  of  Proof  which  rests  openly  and  distinctly  upon  already  generalized  knowl- 
edge —  Deductive  Proof  —  and  that  which  rests  upon  what  may  be  loosely  desoribed  as 
'isolated  facts'  or  'perception  of  resemblance  and  difference'  or  'observation  and  experiment' 
...  or  however  the  phrase  may  run,  — that  which  is  connnonly  known  in  its  highest  form 
as  Inductive  Proof,  and  in  its  lowest  furm  :is  the  Argunu^nt  from  Analogy.  .  .  .  However 
we  choo.se  to  name  the  two  different  kinds  of  arguments,  the;  distinction  h)etween  them  has 
a  certain  real  importance,  as  already  shown;  and  all  that  is  intended  to  be  done  with  it  is 
to  recognize  that  so  far  as  the  given  argument  may  be  seen  to  belong  to  one  or  the  other 
class,  so  far  wc  are  already  on  the  track  of  special  dangers." 


No.  367.         III.     TESTIMONIAL    INTERPRETATION.       D.    "  IMPEACHING  "  729 

the  general  principles  thus  involved,  it  would  seem  that  the  classification  of 
the  data  should  attempt  an  answer  to  these  questions :  What  data  are 
virtually  Deductive?  What  data  are  virtually  Empiric?  Under  the 
former  head,  we  should  further  classify  according  to  the  number  of  general 
principles  or  deductions  involved.  Under  the  latter  head,  we  should  en- 
deavor to  analyze  the  possible  general  principles  latent,  and  thus  to  learn 
the  force  of  the  explanations. 

a.  Deductive  Impeachment.  The  generic  human  qualities  affecting 
testimony,  and  the  state  of  knowledge  on  the  subject,  have  already  been 
considered  {ante,  Part  II,  Title  I).  The  tripartite  elements  of  the  testi- 
monial process  —  perception,  memory,  narration  —  have  also  been  examined 
(Part  II,  Title  II).  But  the  latter  do  not  form  separate  steps  in  the  in- 
ference ;  they  are  merely  modes  in  which  the  deduction  operates ;  hence 
they  do  not  need  to  figure  separately  in  the  inference.  E.g.  in  estimating 
the  witnesses'  credit  for  an  assertion  as  to  a  midnight  explosion,  the  facts 
are  offered  that  one  witness  has  no  special  experience  in  explosion  sounds, 
and  that  another  is  afflicted  with  insane  delusions ;  the  forms  of  the  infer- 
ences are  :  (1)  Persons  not  experienced  in  explosion  sounds  are  apt  to  obtain 
erroneous  impressions  of  direction  and  intensity ;  this  witness  lacks  such 
experience ;  therefore  he  is  possibly  in  error  as  to  the  fact  perceived  ;  (2) 
Persons  of  insane  delusions  are  apt  to  imagine  non-existent  facts ;  this 
witness  is  insane  on  a  certain  subject ;  therefore  he  is  likely  to  be  in  error 
either  by  his  original  perception  or  by  the  subsequent  operation  of  his  mem- 
ory. Now  the  former  discrediting  fact  affects  only  the  element  of  percep- 
tion, in  the  testimonial  process ;  the  latter  affects  either  or  both  perception 
and  recollection.  Whichever  of  such  elements  may  be  the  one  affected,  it 
enters  as  a  term  of  the  truth  used  deductively,  and  not  as  a  separate  step 
of  deduction.  Hence,  we  may  ignore  those  three  elements  in  classifying  the 
separate  steps. 

Proceeding  to  the  impeaching  facts,  then,  we  premise  further  that  they 
may  be  first  grouped  (merely  for  convenience)  as  comprising  external  and 
internal  conditions.  External  conditions  include  general  truths  as  to  the 
effect  of  light,  distance,  temperature,  position,  time,  etc.,  on  the  functions 
of  perception,  memory,  and  narration.  E.g.  that  an  object  in  a  strong 
light  may  give  misleading  impressions  as  to  color ;  that  events  observed  ten 
years  ago  cannot  be  as  well  remembered  as  more  recent  ones  ;  that  a  threat 
of  violence  usually  deters  from  telling  the  exact  truth,  —  these  (if  there  are 
such  truths)  may  roughly  be  grouped  as  external  conditions.  Internal 
conditions  include  general  truths  as  to  moral  disposition^  emotions,  sex, 
experience,  etc. ;  e.g.  that  a  strong  emotion  disturbs  the  powers  of  correct 
perception  and  correct  memory  ;  that  moral  unscrupulousness  makes  correct 
narration  less  likely,  and  so  on. 

All  the  foregoing  generalities  form  the  first  class  of  data,  i.e.  data  of 
Immediate  deduction.  There  is  a  single  step  of  inference  from  them  to  the 
supposed  discrediting  conclusion.  The  formal  statement  would  be  :  Persons 
affected  by  a  strong  emotion  of  revenge  are  apt  to  distort  the  facts ;  this 
witness  has  such  an  emotion ;  hence,  his  assertion  may  not  represent  the 
facts  as  they  are.  Notice  that  here  we  have  but  one  (supposed)  general 
truth  to  deal  with,  -^  the  major  premise ;  the  minor  premise  is  a  concrete 
fact,  viz.  this  man's  specific  emotion. 


730  PART    II.       TESTIMONIAL    EVIDENCE  No.  367, 

The  next  class  is  formed  by  the  data  of  Mediate  deduction.  Here  the 
above  minor  premise  comes  under  analysis.  Do  we  get  it  from  a  simple 
concrete  fact,  interpreted  empirically,  or  do  we  get  it  by  the  aid  of  another 
general  truth  coupled  with  another  concrete  fact  as  a  minor  premise  ?  If 
by  the  latter  way,  we  must  note  and  test  that  second  general  truth  also. 
In  this  particular  instance,  either  way  may  be  available.  E.g.  the  witness's 
language  of  hostility,  on  or  off  the  stand,  may  be  the  simple  concrete  fact 
from  which  the  emotion  may  be  inferred  ;  or,  the  witness  may  be  an  accom- 
plice or  a  policeman  (concrete  fact),  to  which  we  may  couple  some  supposed 
general  truth  about  accomplices  or  policemen  iiaving  generically  an  emotion 
of  hostility.  In  the  latter  case,  we  thus  have  a  second  general  truth,  upon 
whose  correctness  or  force  our  ultimate  conclusion  will  depend.  There  are 
scores  of  such  supposed  general  truths  current  in  the  books  and  in  tradition. 
They  are  drawn  from  the  more  or  less  extensive  experience  of  life,  accumu- 
lated and  compared  and  condensed.  Sometimes  these  partial  experiences 
are  puzzlingly  contradictory,  e.g.  the  views  as  to  the  bias  of  experts  and  of 
policemen.  Sometimes  they  are  relics  of  former  experience  now  practically 
discarded,  e.g.  the  rooted  distrust  of  a  convict's  testimony. 

It  is  at  this  point  that  we  meet  most  of  the  doubtful  general  truths  affect- 
ing testimonial  evidence.  The  data  of  immediate  deduction  are  seldom 
formulated ;  their  generality  is  obviously  so  broad  and  loose  (at  least,  for 
what  are  above  called  internal  conditions)  that  they  seldom  do  harm  by 
receiving  an  exact  phrasing ;  and  so  far  as  they  have  fallen  within  the  range 
of  the  scientific  psychologist  {e.g.  the  effect  of  light  on  color)  there  are  as 
yet  established  few  general  laws  having  any  exact  tenor.  But  the  supposed 
general  truths  falling  within  the  mediate  class,  which  have  mostly  grown 
up  empirically  in  judicial  practice,  are  apt  to  need  special  caution,  by  reason 
of  their  plausible  verities. 

By  insisting  on  the  foregoing  two  processes  —  those  of  stating  explicitly 
the  immediate  data  and  the  mediate  data,  with  one  or  both  of  their  general 
truths  —  we  shall  have  forced  out  into  the  open  the  real  basis  of  our  pro- 
posed inference.  We  may  verify  our  concrete  fact  or  facts  (i.e.  we  may 
settle  whether  this  man  is  a  policeman  or  an  accomplice  or  a  convict  or 
has  uttered  hostile  language,  by  asking  him  or  by  calling  another  witness) ; 
and  we  may  lay  aside  our  general  truth  or  truths  for  reflection  and  testing. 
This  process  we  could  seldom  use  for  circumstantial  evidence ;  but  we  can 
and  must  use  it  most  of  the  time  for  testimonial  evidence. 

Such  is  the  practical  application  of  the  logical  process  of  Explanation  in 
making  use  of  the  flata  set  forth  in  Titles  I  and  II  for  the  valuation  of  testi- 
monial evidence.  Thus,  when  the  process  of  analysis  has  been  completed 
for  a  given  witness,  we  shall  have  passed  in  review  all  the  possible  immediate 
data  affecting  the  topics  of  his  testimony,  noting  the  supposed  general 
truths,  if  any,  on  which  they  rest,  —  all  the  concrete  mediate  data  which 
complement  the  former  as  minor  premises,  —  all  the  further  general  truths 
therein  involved,  —  and  all  the  further  concrete  data  which  complete  the 
supposed  inference.  After  the  appropriate  rejections  and  acceptances,  we 
are  ready  to  estimate  the  probability  that  the  witness's  assertion  is  (hie  rather 
to  some  other  cause  than  to  the  actuality  of  the  fact  asserted  l)y  him. 

b.  Empiric  Impeachment.  The  common  varieties'  of  empiric  impeach- 
ment are  few.     Most  of  them  have  been  illustrated   in  Title  III,  Subtitle 


No.  367.  III.     TESTIMONIAL    INTERPRETATION.       D,    "  IMPEACHING  "  731 

B,  —  specific  circumstances  forming  a  defect  in  basis  of  perception,  specific 
instances  of  lack  of  recollection,  specific  errors  involved  in  contradiction 
and  self-contradiction,  usually  in  some  detail  "collateral"  to  the  main  issue. 
Now  the  ordinary  use  of  these  data  is  purely  empiric  or  inductive  in  form  ; 
e.g.  "  A  erroneously  asserted  that  the  defendant  wore  a  black  hat,  instead  of 
a  light  one ;  therefore  A's  main  assertion  that  the  defendant  struck  first  is 
erroneous."  Occasionally,  when  the  arguer  is  questioned  as  to  the  sound- 
ness of  the  inference  (for,  as  Professor  Sidgwick  says,  "the  whole  cogency 
of  inductive  proof  depends  upon  the  extent  to  which  the  principle,  hitherto 
out  of  sight,  is  rendered  definite"),  he  will  offer  some  general  truth  which 
fortifies  the  inference  by  giving  it  a  deductive  form,  e.g.  "falsus  in  uno,  fal- 
sus  in  omnibus."  But  such  general  truths,  when  then  examined,  usually 
are  found  to  be  either  inapplicable  or  too  loose  to  be  forceful.  Hence, 
until  we  arrive  at  a  more  accurate  knowledge  of  the  general  truths  appli- 
cable in  this  field,  we  must  class  these  inferences  as  essentially  empiric. 

This  is  not  saying  that  they  are  not  strong.  At  times,  none  can  be 
stronger.  Indeed,  in  the  ordinary  course  of  trials  none  are  more  sought 
after  or  more  relied  upon  than  this  class  of  data ;  which  at  least  shows  how 
highly  their  force  is  valued  by  practitioners.  All  we  are  concerned  for  here 
is  that  their  distinct  nature  shall  be  understood,  and  that  their  weaknesses 
shall  not  be  ignored. 

So  far  as  they  are  sometimes  intangible  and  sometimes  supportable  by 
various  general  truths,  these  proposed  inferences  are  sufficiently  analyzed 
in  prior  passages  (ante,  Nos.  306,  313,  322,  323,  332,  333,  352-355).  In 
charting  them  for  a  given  witness,  it  is  prudent  to  assume  some  undetermined 
general  truth  or  quality  as  the  immediate  datum,  add  the  specific  instance, 
etc.,  as  the  mediate  datum,  and  then,  after  reflection,  fill  in  tentatively  the 
description  of  the  immediate  datum. 

2.  Corroborating  Eindcnce.  Corroborating  evidence  has  several  as- 
pects. Some  data  usually  spoken  of  as  corroborating  are  not  such,  in  a 
strict  sense.  Corroboration,  applied  to  testimonial  evidence,  is  merely  the 
complement  of  Explanation  (Impeachment).  The  logical  process  of  ac- 
cepting an  inference  as  to  a  fact  in  issue  has  only  two  results,  —  belief  (in 
some  degree)  or  non-belief.  Non-belief  consists  in  regarding  some  other 
hypothesis  (than  the  fact  alleged)  as  equally  or  more  probable ;  the  process 
of  showing  those  other  hypotheses  and  their  probability,  and  thus  of  pre- 
venting belief,  is  that  of  Explanation  {ante,  No.  2).  This  the  opposing 
party  will  usually  undertake  to  do.  But  even  if  he  does  not,  the  tribunal 
may  see  for  itself  that  some  such  other  hypotheses  are  possible.  Hence  the 
first  party  (whether  or  not  the  opponent  suggests  these  explanatory  hypoth- 
eses) may  well  strengthen  his  case  by  certain  data  which  demonstrate 
those  hypotheses  to  be  not  available.  Thus  he  stops  up  possible  exits  for 
non-belief,  and  makes  it  more  unavoidable  to  believe  his  own  alleged  conclu- 
sion.    And  this  process  of  stopping  up  exits  is  Corroboration  {ante,  No.  2). 

As  applied  to  testimonial  evidence.  Corroboration  consists  in  establishing 
data  which  refute  possible  discrediting  circumstances.  And  (as  above  noted) 
this  may  properly  be  done  even  though  the  opponent  has  made  no  attempt 
to  establish  any  of  the  impeaching  hypotheses ;  for  the  mere  possibility  of 
them  may  cause  the  tribunal  to  hesitate,  and  the  Corroboration  will  remove 
these  grounds  of  hesitation.     The  mere  fact  of  the  witness's  making  an 


732  PART    II.       TESTIMONIAL    EVIDENCE  No.  ^07. 

assertion  does  not  require  us  to  believe  the  matter  asserted  ;  our  knowledj^'e 
of  human  nature  forbids  this.^  Hence  the  tribunal,  in  view  of  possible  dis- 
crediting liypotheses,  may  cautiously  be  disinclined  to  believe  until  thos3 
hypotheses  have  been  shown  groundless.  For  example,  a  witness  Smith, 
whose  name  and  face  signify  nothing  to  the  tribunal  and  whose  moral 
character  may  or  may  not  be  trustworthy,  may  receive  instantly  more  credit 
when  it  appears  that  he  is  the  well-known  citizen  Smith.  This  class  of  data 
may  appear  on  the  "voir  dire"  of  the  direct  examination,  quite  as  well  as 
on  the  case  in  rebuttal  after  an  attempted  impeachment,  and  on  the  witness's 
own  examination  as  well  as  from  the  testimony  of  others.  Thus  the  rule  of 
practice  which  forbids  most  sorts  of  so-called  corroboration  until  after  an 
attempted  impeachment  is  a  rule  of  orderly  convenience  only,  and  its  dis- 
tinction has  no  correspondence  to  any  logical  feature  of  Corroboration. 

Every  fact,  then,  which  closes  up  an  exit  of  possible  distrust  of  the  testi- 
mony, i.e.  which  prevents  or  refutes  a  possible  discrediting  hypothesis,  is  a 
corroborative  fact.  Hence  the  varieties  of  corroboration  are  as  numerous 
as  the  varieties  of  impeachment. 

There  is,  however,  little  occasion  for  the  use  of  new  or  different  general 
truths  by  way  of  deduction.  The  general  truths,  so  far  as  used,  would  be 
the  same  as  those  used  in  impeachment,  with  a  reverse  application.  E.g. 
in  a  street-car  collision,  the  testimony  of  a  bystander  waiting  on  the  corner 
is  strengthened  by  the  fact  that  he  was  a  cool  spectator;  i.e.  the  general 
truth  that  persons  excited  by  a  catastrophe  are  not  likely  to  observe  cor- 
rectly is  negatived  as  a  possible  impeachment  of  him,  and  thus  one  possible 
source  of  distrust  is  removed. 

As  to  empiric  data,  only  a  very  few  types  are  common.  The  prior  con- 
sistent narration  of  a  witness's  story  is  one  of  these.  For  such  data  the 
same  cautions  apply  as  for  empiric  impeaching  data. 

3.  Opposing  Assertiotis.  Suppose  that  on  a  specific  fact  in  issue,  three 
witnesses  on  one  side  assert  its  existence  and  one  witness  on  the  other  side 
denies  its  existence ;  what  belief  should  ensue  ?  We  assume  that  the  re- 
spective witnesses'  assertions  have  been  duly  valued,  after  noting  all  im- 
peaching and  corroborating  circumstances.  We  assume  also  that  we  value 
them  somewhat  differently,  for  one  reason  or  another.  Is  there  any  canon 
for  reaching  a  conclusion  as  to  the  due  total  effect  ? 

Negatively,  there  is  the  canon  that  numbers  in  themselves  count  for  noth- 
ing. The  medieval  conception  as  to  numerical  weight"  no  longer  finds  any 
acceptance  in  logic,  —  however  it  may  persist  in  crude  popular  judgment. 
Any  method  we  may  use  must  at  least  be  qualitative,  not  quantitative. 

Moreover,  numbers  may  in  themselves  signify  something  qualitatively, 
so  far  as  the  witnesses  on  the  same  side  are  concerned,  and  irrespective  of 
opposing  assertions.  E.g.  if  three  persons,  standing  in  the  same  i)lace  at 
the  same  time,  see  a  lamplight,  the  possible  chances  of  error  by  individual 
peculiarity  are  lessened  ;  they  corroborate  each  other.  But  that  is  not  the 
present  problem.  That  corroboration  would  be  just  as  strong  if  there  were 
no  opposing  witness. 

'  To  ho  sure,  judges  sometimes  caution  juries  that  they  need  not  Ixiliove  a  witness  simply 
because  he  is  uncontradicted;  but  this  is  merely  a  precaution  against  jurors'  lack  of  in- 
telligence. 

^  Wigmore,  Treatise  on  Evidence,  §  2032. 


No.  367.  III.     TESTIMONIAL    INTERPRETATION.       D,    "  IMPEACHING  "  733 

Assume,  then,  that  the  tliree  have  testified,  and  that  we  have  reflected 
upon  their  combined  testimony  and  given  it  a  combined  value ;  add  the 
fact  that  the  fourth  witness  makes  a  contrary  assertion,  and  value  that 
assertion  in  itself.  Now  contrast  the  two  opposing  assertions.  Is  there 
anything  in  the  mere  numerical  preponderance  which  should  control  our 
belief  ? 

Current  judicial  language  is  apt  to  answer  in  the  affirmative.'  There 
are  reasons  for  doubting  this,  and  for  saying  that  any  such  conclusion  can 
rightly  be  based  on  a  qualitative  superiority  only,  not  a  quantitative  one. 
But  this  problem  is  really  only  a  part  of  the  greater  and  general  problem 
of  the  ultimate  effect  to  be  given  to  a  mass  of  opposing  evidence.  Logically 
the  problem  is  the  same  for  opposing  circumstantial  evidence  and  for  mixed 
circumstantial  and  testimonial  evidence,  and  cannot  be  solved  for  either 
class  independently  of  the  other.  No  systematic  guidance  to  this  conclusion 
seems  yet  to  have  been  discovered.  What  little  can  be  offered  in  the  present 
work  is  set  forth  in  No.  376,  post. 

*  Moore,  Treatise  on  Facts,  §  62. 


TITLE  IV:    RELATIVE  PROBATIVE  VALUE  OF  CIRCUM- 
STANTIAL AND  TESTIMONIAL  EVIDENCE 


369.  Daniel  Defoe.  Robinson 
It  happened  one  day,  about  noon, 
going  towards  my. boat,  I  was  ex- 
ceedingly surprised  with  the  print 
of  a  man's  naked  foot  on  the  shore, 
which  was  very  plain  to  be  seen  in 
the  sand.  I  stood  like  one  thunder- 
struck, or  as  if  I  had  seen  an  appari- 
tion. I  listened,  I  looked  round 
me,  I  could  hear  nothing,  nor  see 
anything.  I  went  up  to  a  rising 
ground,  to  look  farther.  I  went  up 
on  the  shore,  anfl  down  the  shore. 
But  it  was  all  one ;  I  could  see  no 
other  impression  but  that  one.  I 
went  to  it  again  to  see  if  there  were 
any  more,  and  to  observe  if  it  might 
not  be  my  fancy ;  but  there  was 
no  room  for  that,  for  there  was 
exactly  the  very  print  of  a  foot  — 
toes,  heel,  and  every  part  of  a  foot. 
How  it  came  thither  I  knew  not, 
nor  could  in  the  least  imagine.  But 
after  innumerable  fiutteringthoughts, 
like  a  man  perfectly  confused,  and 
out  of  myself,  I  came  home  to  my 
fortification,  not  feeling,  as  we  say, 
the  ground  I  went  on,  but  terrified 
to  the  last  degree,  looking  behind 
me  at  every  two  or  three  steps,  mis- 
taking every  l)ush  and  tree,  and 
fancying  every  stump  at  a  distance 
to  be  a  man  ;  nor  is  it  possible  to 
describe  how  many  various  shapes 
affrighted  imagination  represented 
things  to  me  in,  how  many  wild 
ideas  were  found  every  moment  in 
my  fancy,  and  what  strange  un- 
accountable whimsies  came  into 
my  thoughts,  by  the  way.  When 
I  came  to  my  castle,  for  so  I  think  I 


Crusoe.  (1719.  Dent's  ed.  p.  108.) 
called  it  ever  after  this,  I  fled  into  it 
like  one  pursued.  Whether  I  went 
over  by  the  ladder,  as  first  contrived, 
or  went  in  at  the  hole  in  the  rock, 
which  I  called  a  door,  I  cannot  re- 
member ;  no,  nor  could  I  remember 
the  next  morning,  for  never  frighted 
hare  fled  to  cover,  or  fox  to  earth, 
with  more  terror  of  mind  than  I  to 
this  retreat.  I  slept  none  that  night. 
The  farther  I  was  from  the  occasion 
of  my  fright,  the  greater  my  ap- 
prehensions were ;  which  is  some- 
thing contrary  to  the  nature  of  such 
things,  and  especially  to  the  usual 
practice  of  all  creatures  in  fear. 
But  I  was  so  embarrassed  with  my 
own  frightful  ideas  of  the  thing,  that 
I  formcfl  nothing  but  dismal  imagi- 
nations to  myself,  even  though  now 
I  was  a  great  way  off  it. 

Sometimes  I  fancied  it  must  be  the 
devil,  and  reason  joined  with  me 
upon  this  supposition ;  for  how 
should  any  other  thing  in  human 
shape  come  into  the  place  ?  Where 
was  the  vessel  that  brought  them  ? 
What  mark  was  there  of  any  other 
footsteps  ?  And  how  was  it  possible 
a  man  should  come  there  ?  .  .  . 

I  presently  concluded  then,  that 
it  must  be  some  more  dangerous 
creature,  viz.  that  it  must  be  some 
of  the  savages  of  the  mainland  over 
against  me,  who  had  wandered  out 
to  sea  in  their  canoes,  and,  either 
driven  by  the  currents  or  by  con- 
trary winds,  had  nuule  the  island, 
and  had  been  on  shore,  but  were  gone 
away  again  to  sea,  being  as  loath, 

'34 


No.  370. 


IV.       CIRCUMSTANTIAL    EVIDEXCE  ;      REL.\TIVE    VALUE 


735 


perhaps,  to  have  stayed  in  this  de.so- 
late  island  as  I  would  have  been  to 
have  had  them.  .  .  .  Then  terrible 
thoughts  racked  my  imagination 
about  their  having  found  my  boat, 
and  that  there  were  people  here ; 
and  if  so,  I  should  certainly  have 
them  come  again  in  greater  numbers, 
and  devour  me ;  that  if  it  should 
happen  so  that  they  should  not 
find  me,  yet  they  would  find  my 
inclosure,  destroy  all  my  corn,  carry 
away  all  my  flock  of  tame  goats,  and 
I  should  perish  at  last  for  mere 
want.  .   .   . 

In  the  middle  of  these  cogitations, 
apprehensions,  and  reflections,  it 
came  into  my  thought  one  day,  that 
all  this  might  be  a  mere  chimera  of 
my  own  ;  and  that  this  foot  might 
be  the  print  of  my  own  foot,  when  I 
came  on  shore  from  my  boat.  This 
cheered  me  up  a  little  too,  and  I 
began  to  persuade  myself  it  was  all 
a  delusion,  that  it  was  nothing  else 
•but  my  own  foot;  and  why  might 
not  I  come  that  way  from  the  boat, 
as  well  as  I  was  going  that  way  to 
the  boat  ?  Again,  I  considered  also, 
that  I  could  by  no  means  tell, 
for  certain,  where  I  had  trod,  and 
where  I  had  not ;    and  that  if,  at 


last,  this  was  only  the  print  of  my 
own  foot,  I  had  played  the  part  of 
those  fools  who  strive  to  make  stories 
of  specters  and  apparitions,  and  then 
are  frightened  at  them  more  than 
anybody.  .  .  .  But  I  could  not 
persuade  myself  fully  of  this  till  I 
should  go  down  to  the  shore  again, 
and  see  this  print  of  a  foot,  and 
measure  it  by  my  own,  and  see  if 
there  was  any  similitude  or  fitness, 
that  I  might  be  assured  it  was  my 
own  foot.  But  W'hen  I  came  to  the 
place,  first,  it  appeared  evident 
to  me,  that  w^hen  I  laid  up  my  boat, 
I  could  not  possibly  be  on  shore  any- 
where thereal)OUt ;  secondly,  when 
I  came  to  measure  the  mark  with 
my  own  foot,  I  found  my  foot  not  so 
large  by  a  great  deal. 

Both  these  things  filled  my  head 
with  new  imaginations,  and  gave  me 
thevaporsagain  to  the  highest  degree; 
so  that  I  shook  with  cold,  like  one  in 
an  ague ;  and  I  went  home  again, 
filled  with  the  belief  that  some  man 
or  men  had  been  on  shore  there ;  or, 
in  short,  that  the  island  was  in- 
habited, and  I  might  be  surprised 
before  I  was  aw-are.  And  what 
course  to  take  for  my  security,  I 
knew  not. 


370.  Mr.  (later  Attorney-General)  H.  M.  Kxowlton,  arguing  for  the 
prosecution,  in  Commonwealth,  r  Borden.  (1893.  Massachusetts.  27  Amer. 
Law  Rev.  837)  :  What  is  sometimes  called  circumstantial  evidence  is  nothing 
in  the  world  but  a  presumption  of  circumstances.  It  may  be  one  or  fifty. 
There  is  no  chain  about  it.  The  word  "  chain  "  is  a  misnomer,  as  applied  to 
it.  Talk  about  a  chain  of  circumstances  !  When  that  solitary  man  had 
lived  on  this  island  for  twenty  years,  and  belie\-ed  that  he  was  the  only 
human  being  there,  and  that  the  cannibals  and  savages  that  lived  around 
him  had  not  found  him  and  had  not  come  to  his  island,  he  walked  out  one 
day  on  the  beach,  and  there  he  saw  the  fresh  print  of  a  naked  foot  on  the 
sand.  He  had  no  lawyer,  to  tell  him  that  was  nothing  but  a  circumstance  I 
He  had  no  distinguished  counsel,  to  urge  upon  his  fears  that  there  was  no 
chain  about  that  thing  which  led  him  to  a  conclusion  !  His  heart  beat 
fast ;  his  knees  shook  beneath  him  ;  he  fell  to  the  ground  in  fright,  —  be- 
cause Robinson  Crusoe  knew,  when  he  saw  that  circumstance,  that  a 
man  had  been  there  that  was  not  himself  1 

It  was  circumstantial  evidence  ! 

It  was  nothing  but  circumstantial  evidence  ! 

But  it  satisfied  him  ! 


736  PART    II.       TESTIMONIAL    EVIDENCE  No.  371. 

371.  Commonwealth  v.  Webster.  (1850.  5  Cush.  295,  311.)  Shaw, 
C.  J.  Each  of  these  modes  of  proof  has  its  advantages  and  disadvantages  ; 
it  is  not  easy  to  compare  their  relative  value.  The  advantage  of  positive 
evidence  is,  that  it  is  the  direct  testimony  of  a  witness  to  the  fact  to  be 
proved,  who,  if  he  speaks  the  truth,  saw  it  done  and  the  only  question  is, 
whether  he  is  entitled  to  belief.  The  disadvantage  is,  that  the  witness  may 
be  false  and  corrupt,  and  that  the  case  may  not  afford  the  means  of  detecting 
his  falsehood.  But,  in  a  case  of  circumstantial  evidence  where  no  witness 
can  testify  directly  to  the  fact  to  be  proved,  it  is  arrived  at  by  a  series  of 
other  facts,  which  by  experience  have  been  found  so  associated  with  the  fact 
in  cjuestion,  that  in  the  relation  of  cause  and  effect,  they  lead  to  a  satisfactory 
and  certain  conclusion  ;  as  when  footprints  are  discovered  after  a  recent 
snow,  it  is  certain  that  some  animated  being  has  passed  over  the  snow  since 
it  fell ;  and,  from  the  form  and  number  of  the  footprints,  it  can  be  determined 
with  equal  certainty,  whether  they  are  those  of  a  man,  a  bird,  or  a  quadruped. 
Circumstantial  evidence,  therefore,  is  founded  on  experience  and  observed 
facts  and  coincidences,  establishing  a  connection  between  the  known  and 
proved  facts  and  the  fact  sought  to  be  proved.  The  advantages  are,  that,  as 
the  evidence  commonly  comes  from  several  witnesses  and  different  sources, 
a  chain  of  circumstances  is  less  likely  to  be  falsely  prepared  and  arranged, 
and  falsehood  and  perjury  are  more  likely  to  be  detected  and  fail  of  their 
purpose.  The  disadvantages  are,  that  a  jury  has  not  only  to  weigh  the 
evidence  of  facts,  but  to  draw  just  conclusions  from  them ;  in  doing  which, 
they  may  be  led  by  prejudice  or  partiality,  or  by  want  of  due  deliberation 
and  sobriety  of  judgment,  to  make  hasty  and  false  deductions ;  a  source  of 
error  not  existing  in  the  consideration  of  positive  evidence. 

372.  W.  Wills.  A  Treatise  on  Circumstantial  Evidence.  (1838.  p.  26.) 
The  best  writers,  ancient  and  modern,  on  the  subject  of  evidence,  have  con- 
curred in  treating  circumstantial  as  inferior  in  cogency  and  effect  to  direct 
evidence ;  a  conclusion  which  seems  to  follow  necessarily  from  the  very 
nature  of  the  different  kind  of  evidence.^  But  language  of  a  directly  con- 
trary import  has  been  so  often  used  of  late,  by  authorities  of  no  mean  note, 
as  to  have  become  almost  proverbial. 

It  has  been  said  that  "circumstances  are  inflexible  proofs;  that  wit- 
nesses may  be  mistaken  or  corrupted,  but  things  can  be  neither."^  "Cir- 
cumstances," says  Paley,  "cannot  lie."^  It  is  astonishing  that  sophisms 
like  these  should  have  passed  current  without  animadversion.  The  "cir- 
cumstances" are  assumed  to  be  in  every  case  estal)lished,  beyond  the  possi- 
bility of  mistake ;  and  it  is  implied,  that  a  circumstance  established  to  be 
true,  possesses  some  mysterious  force  peculiar  to  facts  of  a  certain  class. 
Now,  a  circumstance  is  neither  more  nor  less  than  a  minor  fact,  and  it  may 
be  admitted  of  all  facts,  that  they  cannot  lie  ;  for  a  fact  cannot  at  the  same 
time  exist  anrl  not  exist :  so  that  in  truth  the  doctrine  is  merely  the  expres- 
sion of  a  truism,  that  a  fact  is  a  fact.     It  may  also  be  admitted  that  "  cir- 

•  Menonhiiis,  De  Prcefsumptionibiis,  lib.  I.  qiiost.  1.  G;  Masoardns,  Dc  Probationibus, 
vol.  I,  qufist.  S.  n.  8;  Burnett  on  the  C.  L.  of  Scotland,  p.  506;  Starkie's  Law  of  Evidence, 
vol.  I,  pp.  515,  521  (2d  ed.).  The  Theory  of  Presumptive  Proof ;  Benth.  Jud.  Ev.,  vol. 
III.  c.  XV.  s.  IV. 

2  Burnett  on  the  C.  L.  of  Scotland,  p.  52.'}. 

'  Principles  of  Moral  and  Political  Philosophy,  b.  VI,  c.  IX. 


I 


No.  372.  IV.       CIRCUMSTANTIAL   EVIDENCE ;      RELATIVE   VALUE  737 

cumstances  are  inflexible  proofs,"  but  assuredly  of  nothing  more  than  of 
their  own  existence:  so  that  this  assertion  is  only  a  repetition  of  the  same 
truism  in  different  terms.  It  seems  also  to  have  been  o\erlooked  that  cir- 
cumstances and  facts  of  every  kind  must  be  proved  by  human  testimony ; 
that  although  "  circum.stances  cannot  lie,"  the  narrators  of  them  may  ;  and 
that,  like  witnesses  of  all  other  facts,  they  may  be  biased  or  mistaken.  So 
far  then,  circumstantial  possesses  no  advantage  over  direct  evidence. 

A  distinguished  statesman  and  orator  has  advanced  in  un(iualified  terms 
the  proposition,  supported,  he  alleges,  by  the  learned,  that  "  when  circum- 
stantial proof  is  in  its  greatest  perfection,  that  is,  when  it  is  most  abundant 
in  circumstances,  it  is  much  superior  to  positive  proof."  ^  Paley  has  said, 
with  more  caution,  that  "  a  concurrence  of  well-authenticated  circumstances 
composes  a  stronger  ground  of  assurance  than  positive  testimony,  uncon- 
firmed by  circumstances,  usually  affords."-  Mr.  Baron  Legge,  upon  the 
trial  of  ]SIary  Blandy  for  the  murder  of  her  father  by  poison,^  told  the  jury  * 
that  where  "  a  violent  presumption  necessarily  arises  from  circumstances, 
they  are  more  convincing  and  satisfactory  than  any  other  kind  of  evidence, 
because  facts  cannot  lie."  Mr.  Justice  Buller,  in  his  charge  to  the  jury  in 
Captain  Donellan's  case,  declared,  "that  a  presumption  which  necessarily 
arises  from  circumstances  is  very  often  more  convincing  and  more  satisfactory 
than  any  other  kind  of  evidence,  because  it  is  not  within  the  reach  and  com- 
pass of  human  abilities  to  invent  a  train  of  circumstances  which  shall  be  so 
connected  together  as  to  amount  to  a  proof  of  guilt,  without  affording  op- 
portunities of  contradicting  a  great  part  if  not  all  of  those  circumstances." 

It  is  obvious  that  the  doctrine  laid  down  in  these  several  passages  is  pro- 
pounded in  language  which  not  only  does  not  accurately  state  the  question, 
but  implies  a  fallacy,  and  that  extreme  cases  —  the  strongest  ones  of  cir- 
cumstantial, and  the  weakest  of  positive  evidence  - —  have  been  selected  for 
the  illustration  and  support  of  a  general  position.  "  A  presumption  which 
necessarily  arises  from  circumstances,"  cannot  admit  of  dispute,  and  requires 
no  corroboration ;  but  then  it  cannot  in  fairness  be  contrasted  with  and  op- 
posed to  positive  testimony,  unless  of  a  nature  equally  cogent  and  infallible. 
If  evidence  be  so  strong  as  necessarily  to  produce  certainty  and  conviction 
it  matters  not  by  what  kind  of  evidence  the  effect  is  produced ;  and  the 
intensity  of  the  proof  must  be  precisely  the  same,  whether  the  evidence  be 
direct  or  circumstantial.  It  is  not  intended  to  deny  that  circumstantial 
evidence  affords  a  safe  and  satisfactory  ground  of  assurance  and  belief ;  nor 
that  in  many  individual  instances  it  may  be  superior  in  proving  power  to 
other  individual  cases  of  proof  by  direct  evidence.  But  a  judgment  based 
upon  circumstantial  evidence  cannot  in  any  case  be  more  satisfactory  than 
when  the  same  result  is  produced  by  direct  evidence,  free  from  suspicion  of 
bias  or  mistake.  Perhaps  no  single  circumstance  has  been  so  often  con- 
sidered as  certain  and  unequivocal  in  its  effect,  as  the  anno-domini  water- 
mark usually  contained  in  the  fabric  of  writing  paper,  and  in  many  instances 
it  has  led  to  the  exposure  of  fraud  in  the  propounding  of  forged  as  genuine 
instruments.     But  it  is  beyond  any  doubt  (and  several  instances  of  the  kind 

'  Burke's  Works,  ut  supra,  vol.  II,  p.  624. 

2  Principles  of  Moral  and  Political  Philosophy,  b.  VI,  c.  IX. 

3  State  Trials,  vol.  XVIII,  p.  1187. 

^  Gurney's  Report  of  the  Trial  of  John  Donellan,  Esq.,  for  the  willful  murder  of  Sir 
Theodosius  Edward  Allesley  Broughton,  Bart.,  at  the  Assize  at  Warwick,  March  30th,  1781. 


73S  PART    II.       TESTIMONIAL    EVIDENCE  No.  373. 

have  recently  occurred)  that  issues  of  paper  have  taken  place  bearing  the 
watermark  of  the  year  succeeding  that  of  its  distribution,  —  a  striking 
exeinpHfication  of  the  fallacy  of  some  of  the  arguments  which  have  been 
remarked  upon.  How  often  has  it  been  iterated  in  such  cases,  that  circum- 
stances are  inflexible  facts,  and  facts  cannot  lie  ! 

373.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(1868.  p.  207.)  Some  lamentable  mistakes  have,  in  times  past,  been  made 
in  the  application  of  circumstantial  evidence,  in  judicial  investigations  of 
crime ;  and  jurors,  acting  either  in  the  exclusive  exercise  of  their  own  dis- 
cretion, or  under  the  influence  of  narrow  or  erroneous  views  of  the  law  of 
e\idence,  as  expounded  by  the  courts,  have  drawn  conclusions  entirely  at 
variance  with  truth  and  justice ;  condemning  innocent  persons  to  suffer 
death  for  the  crimes  of  others.  This  has  led  to  the  opinion  that  a  species 
of  evidence  which  not  only  admits  but  actually  requires  a  certain  latitude 
and  discretion  of  reasoning  in  its  application,  is  a  dangerous  instrument  of 
investigation ;  and  that  its  use,  at  least  in  cases  where  human  life  is  put  in 
jeopardy,  should  be  discouraged  or  disallowed.  Jurors  are  constantly  ac- 
customed to  hear  from  eloquent  advocates  for  prisoners,  the  open  condem- 
nation, and  sometimes  the  unmeasured  denunciation  of  the  use  of  indirect 
evidence,  as  a  basis  and  means  of  conviction  in  capital  cases.  .  .  .  Jurors, 
instead  of  acting,  as  in  former  days,  with  an  undue  desire  to  enforce  the 
effect  of  circumstances,  as  evidence,  even  where  the  life  of  the  accused  was 
at  their  disposal ;  have  been  found  to  entertain,  and  openly  to  express  a 
determination  not  to  convict  upon  such  evidence,  however  strong  and  clear, 
in  any  case  where  life  should  be  placed  in  peril. 

It  may  tend  to  a  clearer  understanding  of  the  subject  of  this  chapter,  to 
consider  this  adverse  view  of  circumstantial  evidence,  with  a  more  particular 
reference  to  the  grounds  upon  which  it  has  been  formally  maintained.  These 
are,  first,  that  it  is  intrinsically  liable  to  mistake  and  abuse ;  and  secondly, 
that  it  has  actually  led  to  gross  injustice,  in  the  conviction  and  execution  of 
innocent  persons. 

The  liability  to  error  is  said  to  arise  from  the  very  process  of  reasoning 
and  inference  which  is  inseparable  from  its  application.  Men,  it  is  said, 
may  and  constantly  do  reason  inaccurately,  and  form  opinions,  in  the  way 
of  deduction  and  presumption,  without  any  sufficient  foundation ;  and 
human  life,  in  l)eing  made  to  depend  upon  the  correctness  of  such  conclusions, 
is  exposed  to  great  and  obvious  peril :  whereas,  by  the  exclusive  employment 
of  direct  or  positive  evidence,  which  admits  of  no  such  latitude  of  reasoning 
or  range  of  discretion,  this  source  of  error  and  consequent  danger  is  entirely 
cut  off.  But  it  may  well  be  doulited  whether  the  process  of  inference  can  be 
wholly  avoided,  in  the  application  of  judicial  evidence  of  any  kind.  .  .  . 
As  the  jury  must  always  observe  with  the  senses  of  the  witness,  putting 
themselves,  mentally,  in  his  place ;  and  thus  transferring  themselves  to  the 
scene  and  time  of  the  occurrence  related  ;  they  must  see  and  hear  as  the 
witness  saw  and  heard  ;  and,  if  thev  believe  him,  must  of  course  infer,  as  he 
did. 

The  other  reason  which  has  been  urged  against  the  propriety,  and,  indeed, 
the  justice  and  safety  of  circumstantial  evidence,  as  a  medium  of  proof  in 
capital  cases,  is  that  a  reliance  upon  it  has  repeatedly  led  to  the  execution 


No.  373.  IV.       CIRCUMSTANTIAL    EVIDENCE ;      RELATIVE    VALUE  739^ 

of  persons  whose  entire  innocence  of  the  crimes  for  which  the\'  suffered,  has 
afterwards  been  clearly  demonstrated.  In  support  of  this  position,  several 
actual  cases,  taken  chiefly  from  the  records  of  English  courts,  have  been 
referred  to,  and  some  of  them  so  repeatedly  and  uniformly  on  criminal  trials, 
as  to  justify  the  appellation  given  to  them  by  Mr.  Justice  Story,^  of  being 
"the  common-places  of  the  law"  on  such  occasions.  Among  the  earliest 
of  these  are  the  case  of  the  uncle  and  niece,  given  by  Lord  Coke  [atite,  No.  151], 
and  that  of  the  person  executed  for  stealing  a  horse,  mentioned  by  Sir 
Matthew  Hale."  But  the  most  elaborate  collection  of  cases,  considered 
applicable  to  the  point  in  question,  is  to  be  found  in  the  Appendix  to  the 
w^ork  published  in  England,  some  years  ago,  under  the  title  of  The  Theory 
of  Presumptive  Proof .^  The  composition  of  this  work  appears  to  have 
been  occasioned  by  the  result  of  the  trial  of  Captain  John  Donellan  [post, 
No.  379],  who  was  convicted  and  executed  in  1781,  for  the  murder  of  his 
brother-in-law.  Sir  Theodosius  Boughton,  by  poisoning  him  with  laurel- 
water  :  its  immediate  object  being  to  prove  that  the  accused  in  that 
case  was  convicted  on  insufficient  evidence.  The  drift  of  the  work  itself  is, 
on  the  whole,  unfavorable  to  the  employment  of  circumstantial  evidence, 
as  an  instrument  of  capital  conviction.  But  the  object  of  the  Appendix 
is  not  to  be  mistaken ;  the  cases  there  presented  going  to  show  (and  in 
fact  being  intended  to  show)  the  actual  and  extreme  danger  of  relying 
upon  such  evidence  as  proof  in  any  capital  case.  So  clearly  did  this  ap- 
pear on  their  publication  in  this  form,  that  great  and  confident  use  soon 
came  to  be  made  of  thera,  by  advocates  for  prisoners  ;  and  sometimes  to  such 
an  extent  as  to  draw  special  remark  from  the  courts. 

Considered  superficially,  these  cases  (of  which  there  are  eleven)  appear 
entirely  adequate  to  produce  the  impression  intended.  But,  upon  a  close 
analysis,  they  will  all,  with  a  single  exception,  be  found  to  be  possessed  of 
characteristics  which  deprive  them  of  their  appositeness  and  applicability 
to  the  object  in  question  :  the  convictions,  in  some  of  the  cases,  being  founded 
on  palpable  fraud,  perjury  and  conspiracy ;  in  others,  being  attributable 
to  professional  error,  the  prejudice  or  superstition  of  juries,  or  the  honest 
mistakes  of  witnesses ;  and  in  others,  to  the  admixture  of  direct  e^'idence 
itself.  The  only  case  in  the  collection,  of  purely  circumstantial  evidence, 
in  which  the  conviction,  had  it  taken  place,  could  not,  in  itself,  have  been 
censured,  is  the  sixth  (anonymous)  in  the  series,  which,  it  must  be  admitted, 
was  an  extraordinary  one.  But  even  had  the  whole  eleven  been  cases  of 
purely  legitimate  circumstantial  evidence,  rationally  applied,  and,  thus 
applied,  fatal  to  innocence,  it  might  have  been  said  of  them,  in  the  words  of 
an  American  judge,^  "  the  wonder  is  that  there  have  not  been  more."  They 
are  scattered  over  a  space  of  more  than  a  century,  and  are  taken  from  the 

1  The  United  States  v.  Gibert,  2  Sumner,  19,  27. 

^  A  man  was  convicted  and  executed  for  stealing  a  horse,  on  the  strength  of  the  presump- 
tion of  the  animal's  being  found  in  his  possession  on  the  same  day  on  which  it  was  stolen ; 
but  it  afterwards  appeared  that  the  real  thief,  being  closely  pursued  by  the  officers  of 
justice,  had  met  the  unfortunate  man.  to  whom  he  was  a  total  stranger,  and  requested  him 
to  walk  his  horse  for  him,  while  he  turned  aside  upon  a  necessary  occasion ;  and  so  es- 
caped.    Best  on  Pros.  §  210.     2  Hale's  P.  C.  289. 

^  This  work  was  published  anonymously,  but  has  always  been  considered  to  have  pro- 
ceeded from  the  pen  of  Mr.  Phillipps,  the  author  of  the  well-known  Treatise  oti  the  Law 
of  Evidence. 

*  Gibson,  C.  J.,  in  Commonwealth  v.  Harrnan,  6  Am.  Law  Journal,  321. 


740  PART    II.       TESTIMONIAL    EVIDENCE  No.  373. 

records  of  a  country  whose  criminal  code  then  made  a  great  variety  of 
offenses  capital.  It  would  probably  not  be  difficult  to  find,  on  an  investi- 
gation of  the  same  sources  of  information,  during  an  equal  period,  eleven 
cases  in  which  a  reliance  on  direct  evidence  itself  was  attended  with  results 
equally  disastrous  and  unjust.^ 

On  a  review  of  the  two  leading  grounds  just  considered,  upon  which  the 
unfavorable  view  of  circumstantial  evidence  is  sought  to  be  maintained,  \hi^ 
following  considerations  present  themselves. 

First.  Intrinsic  liability  to  error  is  no  sufficient  objection  against  the 
employment  of  any  species  of  otherwise  legitimate  evidence.  All  human 
evidence  is  imperfect  and  fallible,  simply  l)ecause  it  all  comes  and  must 
come  through  an  imperfect  and  fallible  medium.  The  only  species  of  in- 
fallible evidence  is  one  which,  it  has  been  well  said,  it  would  be  absurd  to 
re([uire  ;  namely,  that  which,  without  the  intervention  of  human  testimony, 
presents  itself  directly  to  the  senses  of  the  tribunal. 

Secondly.  If  the  fact  that  courts  and  juries  have  actually  been  misled  by 
a  species  of  evidence,  even  to  the  extent  of  convicting  innocent  persons  in 
capital  cases,  be  a  sufficient  ground  for  excluding  that  species  of  evidence 
from  use,  then  direct  evidence  itself  must  be  discarded  ;  for  it  is  known  that 
innocent  persons  have  sometimes  been  convicted  and  executed  on  what  is 
called  "positive"  proof;  the  witnesses  against  them  either  designedly 
swearing  to  what  they  knew  to  be  false,  or,  with  an  honest  intention,  having 
been  led  by  mistake  to  testify  to  facts  which  had  no  actual  existence. 

"  But  to  what  just  conclusion,"  we  may,  on  the  whole,  ask  in  the  language 
of  the  same  eminent  judge,  "does  this  tend?  Admitting  the  truth  of  such 
cases,  are  we  then  to  abandon  all  confidence  in  circumstantial  evidence, 
and  in  the  testimony  of  witnesses  ?  Are  we  to  declare  that  no  human  testi- 
mony to  circumstances  or  to  facts  is  worthy  of  belief,  or  can  furnish  a  just 
foundation  for  a  conviction  ?  That  would  be  to  subvert  the  whole  founda- 
tions of  the  administration  of  public  justice."  ^ 

From  the  consideration  of  the  opinion  that  circumstantial  evidence  is  a 
dangerous  and  imreliable  medium  of  proof,  on  account  of  its  liability  to 
mislead  the  judgment  of  human  tribunals,  especially  in  cases  where  the 
consecjuences  of  error  cannot  be  repaired,  we  turn  next  to  the  opposite  opin- 
ion which  has  sometimes  l)een  maintained,  —  that  such  evidence  is  worthy 
of  all  confidence,  because  it  cannot  mislead.  The  essence  of  this  opinion 
seems  to  be  summed  up  in  the  brief  expression,  which  has  been  used  even  in 
judicial  opinions,  —  that  "facts  or  circumstances  cannot  lie."  ^  Before 
uniting,  however,  in  the  condemnation  which  lias  been  bestowed  on  this 
proposition  by  some  able  writers  on  judicial  evidence,^  the  actual  meaning 
of  the  expression,  or  the  idea  intended  to  be  conveyed  by  it,  should  be  clearly 
ascertainefl. 

In  the  literal  sense  of  the  term  "lie,"  —  tiie  utterance  of  a  known  false- 
hood, —  the  proposition  is  undoul)tedly  true,  to  its  fullest  extent.  Facts 
cannot  lie,  and  never  lie.     They  are  not  moral  agents,  who  alone  are  capable 

'  Story,  .J.,  in  United  States ».  Gibert,  2  Sumner.  19,  27.  3  Phill.  Evid.  (Cowen  &  Hill's 
notes).  Note  .'J0.5,  p.  55R. 

2  United  States  v.  Gibert,  2  Siimncr,  28. 

'  Pal(\v'.s  Moral  and  Political  Philonophif,  l)ook  vi,  chap.  9. 

■*  Mr.  Wills  calls  it  "a  sophism."  C'irc.  Evid.  27.  Mr.  Best  speaks  of  it  as  a  "dictum" 
which  has  led  to  mischievous  results.      Best  on  Pres.  §  192. 


No.  373.  IV.       CIRCUMSTANTIAL   EVIDENCE  ;     RELATIVE    VALUE  741 

of  such  action,  nor  are  they  subjects  of  those  moral  influences  which  divert 
human  beings  from  the  path  of  truth.  They  are  inanimate  existences,  and 
thus,  in  their  nature,  inflexible  ;  —  in  the  common  phrase,  "  stubborn  things." 
Hence  they  have  sometimes  been  significantly  called  "mute"  or  "dumb 
witnesses."  ^  But,  giving  to  the  term  "lie"  a  sense  more  appropriate  to 
inanimate  subjects  (and  probably  the  one  intended),  that  of  deceiving  or 
misleading  the  senses  or  the  judgment,  let  us  see  whether  facts  or  circum- 
stances can  ever  be  said  to  possess  this  most  undesirable  quality. 

The  expression  that  "a  fact"  —  that  is,  a  reality  or  verity  —  "cannot  lie" 
—  that  is,  express  a  falsehood  —  may  very  properly  be  regarded  as  a  truism, 
or  another  form  of  saying  that  a  fact  is  a  fact.  But  this  is  not  the  only 
sense  in  which  the  term  "  fact  "  is  used  ;  for,  however  paradoxical  it  may 
appear,  there  may  be  such  things  as  false  facts.  In  order  to  be  available 
for  any  human  purpose,  facts  must  become  the  subjects  of  human  observa- 
tion. In  this  point  of  view,  a  fact,  as  observed,  is  often  the  real  fact  as  it 
exists ;  and  the  impression  made  through  the  senses,  upon  the  mind,  is,  so 
to  speak,  an  exact  copy  of  it.  But  frequently  this  is  otherwise;  an  ap- 
pearance resembling  the  fact,  or  a  "counterfeit  presentment  "of  it,  impresses 
the  sense  so  strongly,  that  it  is  allowed  to  take  its  place,  and  is  believed  and 
reported  as  such  ;  as  may  be  explained  by  a  few  familiar  examples. 

A  sees  an  act  done  by  B,  who,  to  his  view,  and  possibly  to  that  of  many 
others,  so  closely  resembles  .C  as  to  convey  the  impression  that  it  is  actually 
C  himself.  Here  the  real  and  absolute  fact  of  the  case  is,  that  the  person 
seen  is  B.  The  fact,  as  it  appears  to  A's  sense,  and  as  it  impresses  his  mind 
and  memory,  is,  that  it  is  C.  In  this  there  is  manifest  delusion  and  error. 
The  semblance  of  a  fact  has  deceived  the  observer  or  witness.  .  .  .  To 
honest  mistakes  of  this  kind,  direct  as  well  as  indirect  evidence  is  constantly 
liable. 

Again,  A  has  been  showing  to  B  a  valuable  coin  from  the  drawer  of  a 
cabinet.  B,  after  handling  and  closely  examining  it,  returns  it  to  the  drawer, 
and  soon  after  takes  his  leave.  Immediately  on  his  departure,  the  coin  is 
missed  ;  it  is  carefully  and  repeatedly  sought  for,  but  cannot  be  found.  No 
other  person  except  B  has  been  present.  The  fact,  as  it  appears  to  A  and 
as  he  would  no  doubt  he  willing  to  state  it  on  oath,  is  that  the  coin  is  not  in 
the  cabinet ;  the  inference  being  that  it  has  been  taken  by  B.  But  the 
real  fact  is  just  the  reverse.  It  is  actually  in  the  cabinet ;  but  having 
slipped  into  an  unknown  or  unperceived  crevice,  it  has  been  entiT-ely  over- 
looked in  the  search.  Here  again,  the  deception  or  error  is  in  the  observer 
himself,  and  it  arises  from  the  same  cause,  as  that  intimated  in  the  last 
example,  —  neglect  or  omission  to  carry  the  process  of  observation  far 
enough  to  reach  the  fact  as  it  exists.- 

But  there  is  a  class  of  facts,  of  which  it  has  been  confidently  said  that 
they  may  and  do  "lie"  ;  namely,  such  as  are  fabricated  or  forged  by  the  per- 
petrators of  crimes,  with  the  express  and  only  intent  of  deceiving  those  who 
may  observe  or  witness  them.  A  intending  to  commit  a  murder,  and  being 
desirous  to  avert  suspicion  from  himself,  by  fastening  it  on  another,  gets 
possession  of  the  shoes  of  B,  the  soles  of  which  have  certain  peculiar  marks, 
and  also  a  knife  belonging  to  B  ;    puts  on  the  former  ami   proceeds   unob- 

1  "Teraoins  muets,"  Mittermaiei,  Traite  de  la  Preuve,    ch.  .53. 

2  A  case  resembling  this  is  said  to  have  occurred  a  few  years  since,  at  the  Briti.sh  Museum. 


742  PART    II.       TESTIMONIAL   EVIDENCE  No.  373. 

served  to  the  scene  of  the  crime,  leaving  the  prints  of  his  feet  distinctly 
impressed  on  the  snow  or  ground  ;  perpetrates  the  crime  with  the  knife, 
which  he  places  near  the  dead  body  ;  and  then  returns  to  B's  house,  leaving 
the  knife  and  the  footprints  to  tell  the  story  of  the  transaction.  The  im- 
pressions are  seen  as  soon  as  the  crime  is  discovered,  traced  to  the  house  of 
B,  compared  with  the  shoes  found  upon  his  person,  and  ascertained  to 
correspond  with  all  the  peculiar  marks  upon  the  soles.  The  knife  is  also 
found,  bloody  and  proved  to  belong  to  B.  The  observer  of  these  facts 
concludes  that  B  was  the  murderer ;  and  hence  it  is  said  that  the  facts  or 
circumstances  "lied"  to  him.  He  states  them  to  a  jury,  on  the  trial  of  B 
for  the  crime.  If  they  take  his  view,  adopt  his  conclusion,  and  declare  B 
guilty,  the  facts  are  said  to  lie  to  them,  and  to  lie  "wickedly  and  cruelly." 
They  undoubtedly  do  "speak,"  in  the  figurative  language  of  Mr.  Bentham, 
to  the  inculpation  of  a  wholly  innocent  person,  because  they  have  been 
made  to  speak  so.  But  the  criminal  has  been  the  liar,  rather  than  the  facts 
or  appearances  which  he  has  fabricated ;  they  being  merely  passive,  sense- 
less instruments  in  his  hands.  The  facts  reported  and  acted  upon  in  such 
a  case  are  not,  as  in  the  preceding  examples,  false  facts ;  that  is,  facts  exist- 
ing only  in  statement.  .   .  . 

From  the  preceding  explanation,  it  may  be  seen  that,  in  a  judicial  point  of 
view,  and  as  materials  of  evidence,  facts  or  circumstances  are  of  several 
kinds  :  first,  the  genuine  facts  of  a  case,  properly  so  called,  that  is,  the  facts 
as  they  actually  occurred,  proceeding  in  a  natural  way  from  the  criminal, 
and  indicating  truly  and  consistently  their  connection  with  the  crime : 
secondly,  extraneous  facts,  having  in  themselves  a  real  existence,  but  inter- 
polated into  the  case,  either  by  some  natural  accident  or  by  the  fraudulent 
act  of  the  criminal  himself,  or  the  innocent  or  unconscious  act  of  some  other 
person  ;  and  thirdly,  facts  reported  by  witnesses  as  such,  but  having  no 
existence  whatever,  being  the  offspring  either  of  honest  mistake  or  corrupt 
design.  It  is  obviously  to  the  last  two  only,  that  the  mendacious  or  de- 
ceptive quality  under  consideration  can,  with  any  propriety,  be  attributed  ; 
and  the  (so-called)  facts  of  the  third  class  are  full  as  likely  to  be  encountered 
where  the  evidence  is  direct,  as  where  it  is  circumstantial.  And  even  in 
the  case  of  fabrication,  the  deception  has  been  shown  to  be  produced  as 
much  by  the  absence  of  facts  as  by  their  presence. 

The  proposition  that  "facts  or  circumstances  cannot  lie,"  that  is,  cannot 
indicate  a  wrong  conclusion,  is  strictly  true  in  the  case  of  circumstantial 
evidence  of  the  certain  kind,  as  has  already  been  explained. 

There  is  also  another  sense  in  which  it  may  be  said  of  facts  or  circumstances, 
that  they  cannot  lie ;  that  is,  where  they  are  presented  as  actual  verities, 
to  the  senses  of  the  tribunal  itself.  In  this  aspect,  they  have  been  well 
called  "inflexible  proofs"  'and  "dumb  witnesses"  ; '•^  speaking  to  the  sight 
only.  .  .  .  But  facts  of  this  kind,  dispensing  with  the  usual  channel  of  judi- 
cial communication,  are  of  extremely  rare  occurrence.  In  the  vast  majority 
of  cases,  facts  must  come  through  witnesses,  and  here  the  objection  to  the 
expression,  that  "facts  cannot  lie,"  occurs  in  another  form.  Granting  that 
facts  cannot  lie,  the  witnesses  who  report  them  to  the  jury  can  and  may. 
Unquestionably;    and   they  may  honestly  misrepresent  also,  with  results 

'  BuriK!t'.s  Criminal  Law  of  Scotland,  ch.  21,  p.  523. 
*  Mittermaier,  ch.  53,  cited  ante. 


No.  373.  IV..    CIRCUMSTANTIAL    EVIDENCE;     RELATIVE    VALUE  743 

equally  disastrous  and  unjust.  That  the  great  source  of  deception  and 
inlet  of  error  lie  in  the  medium  of  evidence  has  perhaps  been  seen  in  the 
analysis  of  facts  already  given.   .   .   . 

Both  the  opinions  respecting  circumstantial  evidence  which  have  just 
been  reviewed,  considered  in  their  broadest  expression,  are  extravagant 
propositions,  occupying  opposite  extremes  :  the  one  placing  circumstantial 
evidence  far  below  direct,  —  and,  in  some  cases,  wholly  excluding  its  use ; 
while  the  other  elevates  it  to  a  rank  far  above  direct  evidence.  They  thus 
present  the  two  species  of  evidence  in  an  adverse  relation  to  each  other,  as 
though  they  were  naturally  in  conflict  and  as  though  one  species  could  be 
employed  or  relied  on,  only  at  the  other's  expense.  But  this  is  obviously 
an  incorrect  view  of  the  subject,  —  the  two  species  being  parts  of  07ie  system 
of  means,  natural  as  well  as  judicial ;  intended,  where  they  are  faithfully 
used  in  the  cause  of  truth  to  aid,  and  not  to  thwart,  each  other ;  and,  when 
legitimately  employed,  having  constantly  such  effect.  As  distinct  species, 
however,  they  undoubtedly  possess  characteristic  peculiarities  ;  and,  in  this 
point  of  view,  they  have  often  been  made  the  subjects  of  comparison.  .  .  . 
But,  in  truth,  these  two  kinds  of  evidence'  ought  not,  in  a  general  view  of 
their  merits,  to  be  contrasted  or  set  in  opposition  to  each  other.  "  In  the 
abstract,"  observes  Mr.  Starkie,  "and  in  the  absence  of  all  conflict  and 
opposition  betw^een  them,  the  two  modes  of  evidence  do  not  in  strictness 
admit  of  comparison ;  for  the  force  and  efficacy  of  each  may,  according  to 
circumstances,  be  carried  to  an  indefinite  and  imlimited  extent,  and  be 
productive  of  the  highest  degree  of  probability,  amounting  to  the  highest 
degree  of  moral  certainty."  ^  If  the  object  of  comparison  were  to  determine 
the  question  which  of  the  two  should  be  exclusively  adopted,  as  a  medium 
of  proof,  there  would  be  greater  reason  in  insisting  upon  the  supposed 
superior  merits  of  the  one  or  the  other.  But  as  long  as  it  is  admitted  that 
both  must  continue  to  be  employed  as  instruments  of  judicial  investigation, 
the  only  legitimate  and  rational  object  of  comparison  is  to  bring  out  more 
prominently  the  respective  excellencies  and  imperfections,  or  advantages 
and  disadvantages  of  each,  with  the  view  of  more  effectually  and  safely 
regulating  their  application  in  practice. 

1  1  Stark.  E\ad.  526. 


PART  III:     PROBLEMS  OF  PROOF,  IN  MASSES 
OF  MIXED  EVIDENCE 


[Compiler's  Explanation.  The  ensuing  Problems  may  be  used  for 
thorough  analysis  and  study,  by  the  method  expounded  in  No.  376,  or 
merely  for  mental  entertainment  and  stimulus  as  curious  problems  of 
fact.  ' 

For  purposes  of  study  (by  whatever  method)  they  are  here  arranged 
in  a  sequence  graded  so  as  to  lead  on  from'  the  simplest  to  the  highest 
order  of  probative  task. 

First  come  eleven  cases  stated  in  narrative  form  ;  the  cases  increasing 
in  complexity.  The  narrator  (a  judge  or  a  commentator)  has  done  the 
main  work  of  perusing  the  original  evidence  and  arguments,  selecting  the 
salient  data,  and  arranging  them  in  groups  and  stating  their  connection. 
This  leaves  only  the  final  process  of  reflection  for  the  reader.  He  is  still 
far  short  of  the  task  which  falls  to  every  counsel  and  juryman.  The 
probative  process  is  in  no  sense  realistic. 

Next  comes  a  case  similarly  stated  (No.  388,  Franz'  Case),  but  in  three 
different  accounts,  each  variant  from  the  others.  Here  is  presented  a  new 
item  of  effort,  in  their  piecing  together.  The  defects  and  variances  of  the 
three  accounts  begin  to  suggest  the  difficulties,  in  reconstructing  the  data 
for  belief,  which  are  inherent  in  every  remove  from  the  original  sources, 
and  help  to  cultivate  a  proper  skepticism. 

Next  comes  another  narrative  (No.  389,  the  Hillmon  Case),  partly 
stating  the  testimony  also  and  the  counsel's  arguments;  the  case  being 
the  most  complex  of  the  series  to  that  point. 

Next  comes  a  trial  with  the  testimony  substantially  in  full,  but  reported 
by  a  journalist  (No.  390,  Throckmorton  v.  Holt).  This  furnishes  an 
element  lacking  in  the  verbatim  reports  (and  indeed  in  all  printed  reports), 
viz.  the  personal  impression  of  the  respective  witnesses'  probative  status 
and  importance.  The  lack  of  this  personal  impression  is  what  makes  for- 
ever impossible  a  realistic  conviction  of  certainty  for  one  studying  the 
mere  printed  trial.  To  supply  this  in  some  degree,  a  journalist's  report 
has  a  value. 

Next  come  three  trials  in  which  the  original  testimony,  as  reported 
"  ipsissimis  verbis,"  is  set  out  (No.  391,  Braddon's  Trial;  No.  392, 
Thanet's  Trial ;  No.  393,  Knapp's  Trial) .  In  each  of  these,  special  ele- 
ments of  testimonial  untrustworthiness  are  illustrated;  so  that  the  trials 
cover  different  fields. 

In  the  last  of  these  (Thanet's  Trial  and  Knapp's  Trial),  the  arguments 
of  counsel  also  are  given,  practically  in  full.      This  enables  the   reader  to 

744 


No.  375.  METHOD    OF    ANALYSIS  745 

construct  his  own  scheme  of  proof,  from  the  original  testimony,  and  to 
compare  it  with  the  probative  scheme  used  by  the  respective  counsel. 
The  arguments  of  Erskine,  Dexter,  and  Webster  are  masterpieces  worthy 
of  careful  study.  In  several  different  ways  such  a  trial  can  be  used  as 
an  exercise  in  the  study  of  individual  testimony,  masses  of  evidence,  and 
methods  of  presentation.  With  this  example  the  student  finally  arrives 
at  the  highest  form  of  the  probative  task  as  it  is  presented  in  actual 
controversy. 

In  the  Appendix  will  be  found  a  List  of  Trials  suitable  for  the  further 
study  of  probative  problems.] 

375.  Alexander  M.  Burrill.  A  Treatise  on  Circumstantial  Evidence. 
(1868.  p.  598.)  The  course  of  illustration,  thus  far  adopted,  exhibits  the 
process  of  constructing  a  body  of  evidence  out  of  elementary  facts.  It  is 
in  this  way,  too,  that  the  infirmati\'e  considerations  which  are  always  neces- 
sary to  be  taken  into  view  are  most  effectually  presented,  and,  at  the  same 
time,  most  readily  expunged  from  the  process. 

The  theory  of  judicial  investigation,  however,  requires  that  the  juror 
should  keep  his  mind  wholly  free  from  impression,  until  all  the  facts  are 
before  him  in  evidence ;  and  that  he  should  then  frame  his  conclusion  from 
all  these  facts,  taken  together.  The  difficulty  attending  this  mode  of  dealing 
with  the  elements  of  evidence  (especially  in  important  cases  requiring 
protracted  in\estigation)  is  that  the  facts  thus  sur\ eyed  in  a  mass  and  at 
one  view  are  apt  to  confuse,  distract,  and  oppress  the  mind  by  their  very 
number  and  variety,  especially  as  they  are  only  mentally  contemplated, 
with  little  or  no  aid  of  the  bodily  senses.  They  are,  moreover,  necessarily 
mixed  up  with  remembrances  of  the  mere  machinery  of  their  introduction, 
and  the  contests  (often  close  and  obstinate)  attending  their  proof ;  in  the 
course  of  which  attempts  are  sometimes  made  to  suppress  or  distort  the 
truth,  in  the  very  act  of  its  presentation.  And  the  reservation  of  the  use  of 
infirmative  hypotheses,  as  a  fijial  means  of  testing  a  presumption  or  conclu- 
sion provisionally  formed,  is  attended  with  more  or  less  of  danger  of  over- 
looking some  single  hypothesis,  which,  though  not  readily  suggested,  might 
be  at  the  same  time  not  unreasonable  in  itself,  and  might  eventually  prove 
to  be  the  absolute  truth  of  the  case. 

On  the  other  hand,  the  manner  in  which  the  facts  of  a  case  are  presented 
before  a  jury  on  a  trial  is  attended  with  advantages  peculiar  to  it.self.  In 
order  to  construct  the  required  body  of  evidence  out  of  the  materials  or 
elements  which  may  be  available  for  the  purpose,  with  the  nearest  approach 
to  truth,  or  to  the  actual  case  as  it  occurred,  it  is  requisite  not  only  that  all 
the  materials  should  be  got  together,  but  that  they  should  be  arranged,  as 
far  as  possible,  in  their  proper  places,  or  in  the  relative  positions  which  they 
occupied,  or  are  reasonably  supposed  to  have  occupied,  in  the  actual  case; 
it  being,  in  fact,  as  already  observed,  a  process  of  reconstructing  and  rep- 
resenting, with  more  or  less  of  completeness  and  truth,  the  original  case 
itself.  These  relative  positions  cannot  always  be  effectually  ascertained  un- 
til all  the  attainable  facts  have  been  brought  together,  examined,  and  com- 
pared, or  adjusted  temporarily  (as  it  were)  to  each  other,  so  as  to  develop 
the  traces  of  their  former  actual  connections ;  much  as  an  architect  would 
proceed  who  was  required  to  reconstruct  a  demolished  edifice,  out  of  the 


74G  PART  III.   PROBLEMS  OF  PROOF  No.  375. 

same  materials  which  originally  composed  it,  with  the  nearest  possible 
approach  to  identity  in  every  particular.  This  preliminary  process  is  es- 
sentially performed  by  the  public  prosecutor,  and  the  course  of  his  proceed- 
ings in  submitting  its  results  to  the  jury  may  be  briefly  described  as  follows  : 

His  investigations  having  resulted  in  connecting,  to  his  own  satisfaction 
(as  sanctioned  by  the  action  of  the  grand  jury),  the  two  fundamental  facts 
of  a  crime  and  a  criminal,  he  frames  out  of  them  the  compound  fact  or 
proposition  that  the  prisoner  at  the  bar  committed  the  crime  charged 
(which  is  the  essence  of  the  indictment  as  found)  and  presents  it  formally 
to  the  jury,  as  the  "factum  probandum  "  of  the  case.  Placing  this  in  a  cen- 
tral position,  in  connection  with  the  h5'pothesis  of  guilty  agency,  as  he  has 
extracted  it  from  the  facts,  he  proceeds  to  present  and  pro\e  in  detail  the 
particular  circumstances  or  indicatory  facts  themselves ;  giving  to  them 
their  necessary  relative  positions,  grouping  them  around  the  assumed  central 
point,  and  in  this  way  establishing  lines  or  links  of  connection  between  it 
and  them  ;  and  finally  compacting  and,  as  it  were,  crossing,  this  frame- 
work of  evidence,  by  lines  connecting  the  facts  with  each  other;  thus  realiz- 
ing the  conunon  but  significant  figure  of  a  ncficork  of  circumstances.    .    .    . 

The  defense  is  made  in  a  corresponding  course,  by  means  of  exculpatory 
facts  proved  and  supposed ;  it  being  insisted  that  the  criminative  facts 
presented  are  not  the  genuine  facts  of  the  case ;  that  the  positions  assigned 
them  are  not  the  true  ones ;  that  the  connections  claimed  to  have  been  es- 
tablished do  not  exist ;  that,  in  their  indications,  they  do  not  converge  upon 
the  point  or  fact  assumed,  or  upon  any  one  common  point  or  center,  or  that 
they  may  converge  upon  other  points  as  well  as  that  occupied  by  the  principal 
fact  in  issue  ;  in  other  words,  that  they  may  be  explained  and  accounted  for, 
on  one  or  more  hypotheses  consistently  with  the  innocence  of  the  accused, 
as  reasonably  as  upon  the  affirmative  hypothesis,  or  more  so.  And,  in  fine, 
these  adverse  hypotheses  are  specifically  placed  before  the  jury ;  thus  re- 
lieving them,  in  most  cases,  from  the  necessary  duty  of  seeking  for  them 
themselves.   .   .   . 

The  figure  which  has,  thus  far,  been  used  in  illustrating  the  process  of 
circumstantial  proof,  and  which  has  been  suggested  by  the  meaning  of  the 
word  "circumstance"  itself,  is  that  of  a,  framework  of  facts,  arranged  in 
certain  positions  of  relation  to  the  fact  sought,  and  connected  with  it  and 
with  eacii  other  by  lines  expressive,  at  once,  of  their  separate  and  united 
significance.  Another  figure  more  frequently  used  as  descriptive  of  the 
same  process,  or  rather  of  the  body  of  evidence  constructed  by  it,  is  that  of 
a  chain  connecting  the  two  great  and  fundamental  points  of  a  case,  —  the 
crime  committed,  and  the  individual  charged  with  its  commission,  —  the 
links  of  such  ciiain  answering  to  the  evidentiary  facts  provetl.  This  figure 
expresses,  with  great  force  and  aptness,  the  historical  order  of  the  facts, 
and  the  necessity  of  a  continuous  connection  between  them  throughout,  but 
it  does  not  represent  that  other  feature  of  the  process,  which  has  been  prom- 
inently presented  in  the  present  section ;  namely,  the  aggregation  of 
distinct  elements,  or  elements  drawn  from  distinct  sources  into  one  consist- 
ent   and   homogeneous    body.'     The  evidence  does  not  always  present  a 

'  Mr.  Rontham  has  taken  some  pains  to  oxpo.se  tho  inaccuracy  of  the  application  of  the 
metaphorical  term  "chain  "  to  a  body  of  circumstantial  evidence.  In  such  a  body,  the 
more  numcrou.s  the  constituent  facts,  if  relevant,  the  greater  its  strength  and  efficacy. 


No.  376.  METHOD    OF    ANALYSIS  747 

single  line  of  continuous  and  connected  circumstances,  but  often  exhibits 
lines  of  connection  from  different  points  in  collateral  positions.  Supposing, 
however,  a  chain  to  be  composed  of  a  number  of  minor  and  constituent 
chains,  the  figure  acquires  aptness  in  every  sense. 

The  evidentiary  facts,  with  their  inferred  and  assigned  meanings,  may  also 
in  many  cases  be  very  appropriately  compared  to  the  strands  of  a  rope  or 
cable,  forming  so  many  lines  of  connection  with  the  principal  fact,  each  con- 
tinuous in  itself,  though  weak  in  its  connecting  power;  but,  when  woven 
together  in  sufficient  numl)ers,  constituting  a  medium  of  connection  which 
cannot  be  broken. 

376.  John  H.  Wigmore.  Principles  of  Judicial  Proof.  (1913.)  The 
problem  of  collating  a  mass  of  evidence,  so  as  to  determine  the  net  effect 
which  it  should  have  on  one's  belief,  is  an  everyday  problem  in  courts  of 
justice.  Nevertheless,  no  one  hitherto  seems  to  have  published  any  logical 
scheme  on  a  scale  large  enough  to  aid  this  purpose.^  What  is  here  offered 
is  therefore  only  an  attempt  at  a  working  method,  which  may  suffice  for 
lack  of  any  other  yet  accessible. 

Three  questions  naturally  arise.  What  is  the  object  of  such  a  scheme  ? 
AVhat  ai-e  the  necessary  conditions  to  be  satisfied  ?  W'hat  is  the  apparatus 
therefor  ? 

1.  The  Object.  The  object,  of  course,  is  to  determine  rationally  the 
net  persuasive  effect  of  a  mixed  mass  of  evidence.  Many  data,  perhaps 
multifarious,  are  thrust  upon  us  as  tending  to  produce  belief  or  disbelief. 
Each  of  them  (by  hypothesis)  has  some  pi'obative  bearing.  Consequently, 
we  should  not  permit  ourselves  to  reach  a  conclusion  without  considering 
all  of  them  and  the  relative  value  of  each.  Negatively,  therefore,  our  object 
is  (in  part)  to  avoid  being  misled  (it  may  be)  through  attending  only  to  some 
fragment  of  the  mass  of  data.  W^e  must  assume  that  a  conclusion  reached 
upon  such  a  fragment  only  will  be  more  or  less  untrustworthy.  And  our 
moral  duty  (in  court)  is  to  reach  a  belief  corresponding  to  the  actual  facts ; 
hence  it  is  repugnant  to  us  to  contemplate  that  our  belief  is  not  as  trust- 
worthy as  it  could  be. 

W^hy  is  there  such  a  danger  of  untrustworthiness  ?  Because  belief  is 
purely   mental.     It  is  distinct  from  the  external  reality,   or  actual  fact.^ 

But  "take  an  iron  chain,"  he  observes,  "the  more  links  you  add  to  it,  the  weaker  you  will 
make  it,  not  the  stronger  ;  and,  by  adding  link  to  link,  you  will  at  last  make  it  break  by  its 
own  weight."     .3  Jud.  Evid.  22.3,  224,  225,  note. 

[Ex  parte  Hayes,  Oklahoma  Court  of  Criminal  Appeals  (1912;  118  Pac.  609).  "We 
think  that  the  application  of  the  chain  theory  to  circumstantial  evidence  is  improper.  No 
chain  is  stronger  than  its  weakest  link,  and  will  never  pull  or  bind  more  than  its  weakest 
link  will  stand.  With  its  weakest  link  broken,  the  power  of  the  chain  is  gone.  But  it  is 
altogether  different  with  a  cable.  Its  strength  does  not  depend  upon  one  strand,  but  is 
made  up  of  a  union  and  combination  of  the  strength  of  all  its  strands.  No  one  wire  in 
the  cable  that  supports  the  suspension  bridge  across  Niagara  Falls  could  stand  much 
weight,  but  when  these  different  strands  are  all  combined  together  they  support  a  stiuc- 
ture  which  is  capable  of  sustaining  the  weight  of  the  heaviest  engines  and  trains.  We 
therefore  think  that  it  is  erroneous  to  speak  of  circumstantial  evidence  as  depending  upon 
links,  for  the  truth  is  that  in  cases  of  circumstantial  evidence  each  fact  relied  upon  is  simply 
considered  as  one  of  the  strands,  and  all  of  the  facts  relied  upon  should  be  treated  as  a 
cable."] 

'  See  what  was  said  in  the  Introduction. 

2  W.  Stanley  .Jevons,  The  Principles  of  Science ;  a  Treatise  on  Logic  and  Scientific  Method, 
2d  ed.,  1877,  reprint  of  1907,  p.  198:  "Probability  belongs  wholly  to  the  mind.  This  is 
proved  by  the  fact  that  different  minds  may  regard  the  very  same  event  at  the  same  time 


748  PART  III.   PROBLEMS  OF  PROOF  No.  376. 

Hence  the  approximation  of  our  belief  to  a  correct  representation  of  the 
actual  fact  will  depend  upon  how  fully  the  data  for  that  fact  have  entered 
into  the  mental  formation  of  our  belief.  But  those  data  have  entered  into 
the  formation  of  our  belief  at  successive  times;  hence  a  danger  of  omission  or 
ofJ.nferioi:^tention.  "Knowledge  in  the  highest  perfection  would  consist 
in  the  simultaneous  possession  of  a  multitude  of  facts.  To  comprehend  a 
science  perfectly,  we  should  ha\e  e\ery  fact  present  with  every  other  fact. 
We  are  logically  weak  and  imperfect  in  respect  of  the  fact  that  we  are  obliged 
to  think  of  one  thing  after  another."  ^  And  in  the  court  room  or  the  office 
the  multitude  of  evidential  facts  are  originally  apprehended  one  after 
another.  Hence  the  finajjprobleitt  is-Jtp  coprcHnatejt^^  Logic  ignores 
time ;  but  the  mind  is  more  or  less  conditionedLijX-^it-  The  problem  is  to 
remove  the  handicap  as  far  as  possible. 

It  may  be  answered  that  psychologically  each  evidential  detail,  when 
originally  apprehended,  did  have  its  due  effect,  and  that  subconsciously 
the  total  impression  is  meanwhile  being  gradually  produced.  For  example, 
when  a  tliousand  bales  of  cotton  are  piled  one  by  one  in  a  warehouse,  the 
whole  original  thousand  will  finally  be  found  there,  available  for  sale,  even 
though  they  went  in  there  piecemeal  at  different  times.  To  rebut  this 
argument,  it  is  enough  to  say  that  we  do  not  yet  know  by  psychological 
science  that  this  analogy  is  true  of  the  mind  in  its  successive  apprehension 
of  sundry  facts ;  hence  we  cannot  afford  to  assume  it.  But  furthermore, 
even  if  it  were  true  under  certain  abstract  conditions,  it  is  not  the  fact  in 
the  ordinary  conduct  of  justice.  So  many  interruptions  and  distractions 
occur,  both  to  the  lawyer  in  preparation  and  to  the  jurors  in  the  trial,  that 
Jaxyts  cannot  be  properly  coordinated  on  their  first  apprehension.  Hence 
our  plain  duty  remains,  to  lift  once  more  and  finally  into  consciousness  all 
the  data,  to  attempt  to  coordinate  them  consciously,  and  to  determine  their 
net  effect  on  belief. 

Our  object  then,  specifically,  i^  in  essence :  To  perform  the  logical  {or 
.  psychulogirdl)  process  of  a  conscious  juxtaposition  of  detailed  ideas,  for  the 
purjjose  of  producing  rationally  a  single  final  idea.  Hence,  to  the  extent  that 
the  mind  is  unable  to  juxtapose  consciously  a  larger  number  of  ideas,  each 
coherent  group  of  detailed  constituent  ideas  must  he  reduced  in  consciousness 
to  a  single  idea;  until  the  mind  can  consciously  juxtapose  them  with  due  atten- 
tion to  each,  so  as  to  produce  its  single  final  idea. 

2.  The  Necessary  Conditions.  Any  scheme  which  will  aid  in  the  fore- 
going purpose  must  fulfill  certain  conditions,  at  least  to  a  substantial  degree. 

(a)  It  must  employ  types  of  evidence,  suitable  for  representing  all  kinds 
of  cases  presented.  And  these  types  must  be  based  on  some  logical  system, 
i.e.  a  system  which  includes  all  the  fundamental  logical  processes. 

(b)  It  must  be  able  with  these  types  to  include  all  the  evidential  data  in  a 
given  case.  This  requirement  is  mechanically  the  most  exacting.  The  types 
of  evidence  and  the  processes  of  logic  are  few  ;  but  the  number  of  instances 
of  each  one  of  tliciii  in  a  given  case  varies  infinitely.     E.g.  there  may  be  in 

with  \vi(l(?Iy  different  degrees  of  probability;   as  when  a  steam  vessel,  for  instance,  is  miss- 
iii«;    .   .   .  th«-  steam  vessel  either  has  sunk  or  has  not  sunk,  and  no  subsequent  discussion 
of  the  probable  nature  of  the  event  can  alter  the  fact.  .  .   .     Probability  thus  belongs  to 
our  mental  foiiflition." 
'  Jevons,  p.  -iX. 


No.  376.  METHOD   OF   ANALYSIS  749 

one  case  fifteen  witnesses  to  a  specific  circumstance  and  two  each  to  two 
others  ;  while  in  the  next  case  there  may  be  neither  circumstance  nor  witness 
of  that  sort,  but  thirty  separate  groups  of  other  sorts  ;  and  this  would  be  a 
simple  example.  Hence,  the  desired  scheme  must  be  capable  mechanically 
of  taking  care  of  all  possible  varieties  and  the  repeated  instances  of  each. 

(c)  It  must  be  able  to  show  the  relation  of  each  evidential  fact  to  each  and 
all  others.  The  process  leading  to  belief  is  one  of  successixe  subsumings  of 
single  instances  into  groups  of  data  and  of  the  reduction  of  these  groups  into 
new  single  instances,  and  so  on  ;  hence  the  relations  of  the  data  to  each  other 
must  be  made  apprehensible,  and  not  merely  the  data  per  se.  By  "rela- 
tions" of  data  is  here  meant  that  each  believed  fact  does  or  does  not  tend  to 
produce  in  the  mind  a  belief  or  disbelief  in  some  other  specific  alleged  fact. 

{(i)  It  must  be  able  to  show  the  distinction  between  a  "fact"  as  alleged 
and  a  fact  as  belieird  or  disbelie\ed ;  i.e.  between  the  evidential  data  as 
first  proffered  for  a  purpose,  and  the  effect  of  those  data  for  the  purpose  after 
the  mind  has  passed  on  them.  E.g.  the  party  offers  a  witness  as  proving 
that  the  defendant  was  on  a  near-by  street  corner  at  a  certain  hour;  yet 
when  the  tribunal  proceeds  to  reckon  that  alleged  fact  as  an  item  towards 
the  main  issue,  it  must  have  had  some  way  of  noting  for  later  use  whether 
it  does  or  does  not  believe  the  witness  and  accept  that  alleged  fact  as  an 
actual  fact.  Any  scheme  which  fails  to  provide  this  would  be  like  a  bridge 
with  the  bolts  left  out  of  the  truss  angles ;  there  would  be  nothing  to  show 
that  it  does  not  rest  merely  on  an  aggregation  of  hypotheses. 

{e)  It  must  be  able  to  represent  all  the  data  as  potentially  present  in  time 
to  the  consciousness.  The__veryaiiii^of  the  scheme  is  to  enable  all  the  data 
to  be  lifted  into  consciousness  atonce.  To  T)e  sure,  the  mind  itself  is  not 
completely  capable  of  this  task,  in  other  than  the  simplest  cases.  Numerous 
groups  of  subordinate  data  have  to  be  first  subsumed  into  other  single  data 
by  separate  acts,  until  the  number  of  these  is  small  enough  to  be  considered 
in  a  single  continuous  consciousness.  Hence,  the  scheme  in  question  may 
be  so  constructed  that  the  records  of  these  preliminary  mental  acts  are 
not  all  exhibited  at  once.  Nevertheless,  the  mind  will  have  to  be  sent  back 
over  these  preliminary  acts,  from  time  to  time,  to  verify,  amplify,  and  cor- 
rect them.  And  so  (as  first  stated  above)  all  of  them  must  be  at  least 
potentially  presentable  to  the  consciousness,  if  the  scheme  is  to  be  efficient. 

(/)  It  must,  finally,  be  compendious  in  bulk,  and  not  too  complicated  in 
variety  of  symbols.  These  limitations  are  set  by  the  practical  facts  of 
legal  work.  Nevertheless,  men's  aptitudes  for  the  use  of  such  schemes 
var3^  greatly.  Experience  alone  can  tell  us  whether  a  particular  scheme  is 
usable  by  the  generality  of  able  students  and  practitioners  who  need  or 
care  to  attack  the  problem. 

{g)  But,  negatively,  the  scheme  need  not  show  us  what  our  belief  ougJxt 
to  be.  It  can  hope  to  show  only  what  our  belief  actually  is,  and  how  we 
have  actually  reached  it. 

For  example,  assuming  that  the  mind  has  accepted  certain  subordinate 
facts  A,  B,  C,  D,  and  E ;  and  that  A,  B,  and  C  point  to  A",  the  defendant's 
doing  of  an  act,  while  D  and  E  point  to  Not-X,  i.e.  his  not  doing  it ;  there 
is  no  law  (yet  known)  of  logical  thought  which  tells  us  that  (A  +  B  +  C) 
-f-  (D  +  E)  mmt  equal  X,  or  must  equal  Not-X.  We  know  only  that  our 
mind,  reflecting  upon  the  five  evidential  data,  does  come  to  the  conclusion 


7oO  PART  III.   PROBLEMS  OF  PROOF  No.  376. 

X,  or  Xot-X,  as  the  case  may  be.  All  that  the  .scheme  can  do  for  u.s  i.s  to 
make  plain  the  entirety  and  details  of  our  actual  mental  process.  It  cannot 
reveal  laws  which  should  be  consciously  obeyed  in  that  process. 

Thi.s  is  becau.se  no  .system  of  logic  has  yet  discovered  and  established  such 
laws.'  There  are  no  known  rules  available  to  test  the  correctness  of  the 
infinite  variety  of  inferences  presentable  in  judicial  trials.  Much  inTIeed  has 
been  done  that  is  theoretically  applicable  to  circumstantial  evidence;  e.g. 
the  method  of  differences,  in  inductive  logic,  may  enable  us,  with  the  help 
of  a  chemist,  to  say  whether  a  stain  was  produced  by  a  specific  liquid.  But 
these  methods  must  be  pursued  by  a  comparison  of  observed  or  experimental 
instances,  newly  obtainerl  for  the  very  case  in  hand,  anfl  usually  numerous; 
hence  they  are  impracticable  for  the  vast  mass  of  judicial  data.  Moreover, 
even  .so  far  as  practicable  in  theory  (.so  to  speak),  the  required  consumption 
of  time  would  forbid  their  use  in  trials  for  any  large  masses  of  varied  evi- 
dence. Hence,  they  do  not  serve  our  purpose.  For  testimonial  evidence, 
also,  those  methods  would  be  to  some  extent  applicable  in  modern  p.sycholog- 
ical  experimentation.  Yet  merely  to  imagine  two  or  three  witnes.ses 
elaborately  tested  to  determine  their  degree  of  trustworthiness  as  to  memory 
or  observation  of  sundry  subject--^  of  testimony,  is  to  realize  that  such 
methods,  by  reason  of  the  consumption  of  time  alone,  are  not  yet  feasible  in 
judicial  trials.  Finally,  even  so  far  as  logic  and  psychology  have  gone  with 
methods  for  estimating  the  probative  force  of  individual  inferences,  they 
have  apparently  done  nothing  practical  towards  a  method  for  measuring  the 
net  effect  of  a  series  or  mass  of  mixed  data  V:)earing  on  a  single  alleged  fact. 

For  these  and  other  reasons,  then,  it  must  be  understood  that  the  desired 
scheme  is  not  expected  to  tell  us  what  ought  logically  to  Ije  our  belief,  — 
either  as  to  inflividual  subordinate  data  or  as  to  the  final  net  fact  in  issue. 

W  hat  it  docs  purport  to  achieve  is  to  show  us  explicitly  in  a  single  compass 
how  we  do  reason  and  believe  for  those  infli\idual  facts  and  from  them  to 
the  final  fact.  To  achieve  this  much  would  be  a  sul)stantial  gain,  in  the 
direction  of  correctness  of  belief.  Fach  separate  proffered  fact  is  tested  in 
our  consciousness,  and  the  result  is  recorded.  Perhaps  we  cannot  explain 
why  we  reach  that  result,  but  we  know  at  least  that  we  do  reach  it.  And 
thus  step  by  step  we  set  down  the  separate  units  of  actual  belief,  —  connect- 
ing, subsuming,  and  generalizing,  until  the  subfinal  grouping  is  reached  ; 
then  dwelling  in  consciousness  on  that ;  until  at  last  a  belief  (or  disbelief) 
on  the  final  fact  evolves  into  our  consciousne.ss. 

Hence,  though  we  may  not  be  able  to  demonstrate  that  we  ouf/hf  to  reach 
that  Ix'lief  or  disbelief,  we  have  at  least  the  satisfaction  of  having  taken  every 
precaution  to  reach  it  rationally.  Our  moral  duty  was  to  approximate,  so 
far  as  capable,  our  l)elief  to  the  fact.  We  have  performed  that  duty,  to  the 
limits  of  our  present  rational  capacity.  And  the  scheme  or  method,  if  it  has 
enlarged  that  capacity,  will  have  achieved  something  worth  while. 

'  Tlifty  will  porhapH  Honicj  day  ho  di.snovcrofl.  Hut  tho  mnthods  of  ob.servation  and  o.^- 
pcrifiiofit  in  all  inducrtivo  search  for  psycholoKifal  law.s  involvo  incvitaljly  a  lon(jthy  study 
of  larx<?  niaasfv'!  of  data.  Moroovor,  the  data  available;  from  ji'dirial  annal.s,  thf)UKh  perhaps 
numerouH  enough,  art;  almost  alway.s  defective,  in  that  the  objective  truth,  necessary  to 
test  the  corn-ctness  of  any  belief,  can  naUlnm  bo  indubitably  ascf!rtairied.  E.o.  if  wo  wore 
to  study  OIK!  hunilred  murdiir  trials,  so  as  to  ascertain  some  law  of  thouKht  Inrkint?  in  cer- 
tain combinations  <>(  (evidence,  tho  very  basis  of  the  study,  viz.  the  actuiil  nuilt  or  innocence 
of  tho  accuse'd,  cannot  usually  bo  known  to  us,  and  our  study  is  useless  without  that  fact. 


No-  376.  METHOD    OF   ANALYSIS  751 

We  now  proceed  to  the  third  and  final  topic :  an  Apparatus  suitable  as 
a  working  method  for  attaining  the  foregoing  purpose  while  fulfilling  the 
necessary  conditions  just  set  forth. 

3.   Explanation  of  Apparatus  for  Charting  and  Listing  the  De- 
tails OF  A  Mass  of  Evidence. 

The  apparatus  consists  of  a  Chart  for  symbols  and  a  List  for  their  trans- 
lation. The  types  of  evidence  and  logical  processes  have  already  been  set 
forth  in  Nos.  2  and  367. 

L  Symbols  for  Kinds  of  Evidence.  (Each  human  assertion,  offered  to 
be  credited,  is  conceived  of  as  a  testimonial  fact;  each  fact  of  any  other 
sort  is  a  circumstantial  fact). 

□  Testimonial  evidence  affirmatory  (M  testifies  that  defendant  had 

the  knife). 

Testimonial  evidence  negatory  (M  testifies  that  defendant  did 
not  have   the   knife). 

Circumstantial  evidence  affirmatory  (Knife  was  picked  up  neai 
where  defendant  was;  hence,  defendant  had  it). 
r^  Circumstantial  evidence  negatory  (Knife  was  found  in  deceased's 

hand;  hence,  defendant  did  not  have  it). 


n 
O 


n 

O 

n 


>] 


Same  four  kinds  of  evidence,  when  offered  by  the  defendant  in 
a  case.  (These  are  the  same  four  kinds  of  evidence ;  it  is  merely 
convenient  to  note  which  party  offers  them.) 


Any  fact  judicially  admitted,  or  noticed  as  a  matter  of  gen- 
eral knowledge  or  inference,  without  evidence  introduced. 

Any  fact  presented  to  the  trUmiud's  own  senses,  i.e.  a  coat  shown, 
or  a  witness'  assertion  made  in  court  on  the  stand.  Everything 
actually  evidenced  must  end  in  this,  except  when  judicially 
noticed  or  judicially  admitted. 

Explanatory  evidence ;  i.e.  for  circumstantial  evidence,  explain- 
ing away  its  effect  (Knife  might  have  been  dropped  by  a  third 
person)  ;  for  testimonial  evidence,  discrediting  its  trustworthiness 
(Witness  was  too  excited  to  see  who  picked  up  the  knife). 

Corroborative  evidence ;  i.e.  for  circumstantial  evidence, 
strengthening  the  inference,  closing  up  other  possible  explanations 
(No  third  person  was  near  the  parties  when  the  knife  was  found)  ; 
for  testimonial  evidence,  supporting  it  by  closing  up  possibilities 
of  testimonial  error  (Witness  stood  close  by,  was  not  excited,  was 
disinterested  spectator). 

Same  two  kinds  of  evidence,  when  offered  by  the  defendant  in 
a  case. 


752  PART  III.   PROBLEMS  OF  PROOF  No.  376. 

2.  Relation    of    Individual   Pieces    of    Evidence,    shown    by    Position    of 

Symbols 

A  supposed  fact  tending  to  prove  the  existence  of  another  fact 
is  placed  below  it. 

A  supposed  explanatory  or  corro))orative  fact,  tending  to  lessen 
or  to  strengthen  the  force  of  fact  thus  proved,  is  placed  to  left 
or  right  of  it,  respectively. 

A  single  straight  line  (continued  at  a  right  angle,  if  necessary) 
indicates  the  supposed  relation  of  one  fact  to  another. 

The  symbol  for  a  fact  observed  by  the  tribunal  or  judicially 
admitted  or  noticed  (^,  oo )  is  placed  directly  below  the  fact  so 
learned. 

3.  Probative  Effect  of  an  Evidential  Fact 

When  a  fact  is  offered  or  conceived  as  evidencing,  explaining,  or  corrob- 
orating, it  is  noted  by  the  appropriate  symbol  with  a  connecting  line.  But 
thus  far  it  is  merely  offered.  We  do  not  yet  know  whether  we  believe  it  to 
be  a  fact,  nor  what  probative  force  we  are  willing  to  gi\e  it,  if  a  fact.  As 
soon  as  our  mind  has  come  to  the  necessary  conclusion  on  the  subject,  we 
symbolize  as  follows  : 

(1)   Provisional  credit  given  to  affirmatory  evidence,  testi- 
monial or  circumstantial,  is  shown  by  adding  an  arrow-head. 
Provisional  credit  given  to  negatory  evidence,  testimonial 
or  circumstantial,  is  shown  by  adding  an  arrow-head  above 
a  small  cipher. 

Particularly  strong  credit  given  to  those  kinds  of  evidence 
respectively  is  shown  by  doubling  the  arrow-head  ;  this  is 
usually  applicable  where  several  testimonies  or  circumstances 
concur  upon  the  same  fact. 

I  (2)    A  small   interrogation    mark,    placed   alongside   the 

I?         connecting  line,  signifies  doubt  as   to  the  probative  effect  of 
the  evidence. 

\^   I         Similarly,  for  each  kind  of  symbol,  a  small  interrogation 
>    mark  within  it  signifies   a  mental   balance,  an  uncertainty  ; 
I  p  I    \    the  alleged  fact  may  or  may  not  be  a  fact. 

(V^i     I         (3)    A  dot  within  the  symbol  of  any  kind  of  alleged  fact 
(    signifies  that  we  now  believe  it  to  be  a  fact.      Particularly 

<<^     I    strong  belief  may  be  signified  by  two  dots  ;  thuo  (•  •) . 

A  small  cipher  within  the  symbol  of  any  kind  of  alleged 
fact  signifies  that  we  now  disbelieve  it  to  be  a  fact.      Partic- 
^     ,    ularly  strong  disbelief  may  be  signified  by  two  such  ciphers  ; 
^^     /    thus  (oo) . 

(4)  If  a  single  supposed  earp^anafor?/ fact  does,  in  our  estima- 
tion after  weighing  it,  detract  from  the  force  of  the  desired 
inference  (in  case  of  a  witness,  if  it  discredits  his  assertion), 
we  signify  this  by  an  arrow-head  pointing  to  the  left, 
placed  h  ilfway  across  the  horizontal  connecting  line. 


t 


□ 


0 


X) 


No.  376.  METHOD   OF   ANALYSIS  753 

If  a  single  corrohorative  fact  is  given  effect  in  our  estima- 
^^  tion,   we    signify  this    by  a  short    Roman   letter   X,   placed 

C  yH<^]        across  the  connecting  line. 

Doubling  the  mark  indicates  particular  strength   in  the 
effect,  i.e.  -  <^  ■ ,  or     ^- . 

Ultimately,  when  determining  the  total  effect,  in  our 
estimation,  of  all  explanatory  and  corroborative  facts  upon 
the  net  probative  value  of  the  specific  fact  explained  or 
corroborated,  we  place  a  short  horizontal  mark  or  a  small 
X,  respectively,  upon  the  upright  connecting  line  of  the 
latter  fact. 
Thus,  for  net  probative  value,  several  grades  of  probative  effect  may  be  sym- 
bolized :  T  signifies  that  the  inference  is  a  weak  one  ;    T  signifies  that  it  has 

no  force  at  all ;    ^^  signifies  that  it  is  a  strong  one  ;   ^  signifies  that  it  is  con- 
clusive.    When  the  supposed  inference  is  a  negatory  one,  the  same  symbols 

<> 
are  used,  with  the  addition  of    the  negatory  symbol,  i.e.  ^L^      (Witness 


asserts  that  defendant  had  not  a  knife  in  his  hand ;   witness's  credit  is  sup- 
ported by  the  fact  that  he  is  a  friend  of  the  deceased). 

4.  Numbering  the  Symbols 

Each  symbol  receives  a  number,  placed  at  the  upper  left  outside  margin. 
These  numbers  are  then  placed  in  the  Evidence  List ;  they  are  written  down 
consecutively,  and  opposite  each  one  in  the  list  is  written  a  brief  note  of  the 
evidential  fact  represented  by  it. 

The  List  is  thus  the  translation  of  the  Chart. 

The  separate  pieces  of  evidence  are  given  consecutive  numbers  in  the  List 
as  they  are  being  analyzed  and  noted  in  symbols,  till  all  the  evidence  is 
charted.  They  need  not  run  consecutively  on  the  Chart;  though  naturally 
the  numbers  in  any  one  chain  of  inferences  will  be  consecutive.  Should 
a  further  analysis  of  a  particular  piece  of  evidence  develop  new  appurtenant 
evidence,  the  additional  evidence  can  be  given  a  decimal  of  the  main  num- 
ber (so  that  on  the  Evidence  List  it  will  be  found  conveniently  near  to  the 
main  fact).  E.g.  if  ^  Q  is  found  later  to  have  two  new  explanatory  facts, 
one  of  them,  with  its  appurtenant  witnesses,  may  be  numbered  27.1,  27.2, 
27.3  ;  the  other  may  be  numbered  27.4,  27.5,  27.6.  N.  B.  that  on  the  Chart 
it  is  immaterial  whether  the  numbers  are  consecutive ;  the  numbers  serve 
merely  to  guide  the  eye  quickly  to  the  description  of  the  fact  on  the  Evidence 
List. 

5.  Analyzing  and  Classifying  th"  Evidence 

a.  Each  supposed  piece  of  evidence  must  be  analyzed,  so  far  as  practicable 
and  reasonably  necessary,  into  all  its  subordinate  inferences.  Only  in  this 
way  can  the  possibilities  of  explanation  and  corroborative  facts  be  dis- 
covered. E.g.  the  defendant's  threats  in  Com.  v.  Umilian;  the  inference 
really  is  :  threats  show  a  plan  to  kill,  and  plan  to  kill  .shows  actual  killing. 
This  enables  us  to  chart  separately  the  possible  explanations  weakening 
the  inference  from  threats,  and  the  testimony,  if  any,  asserting  those 
explanatory  facts. 


754 


PART    III.       PROBLEMS    OF   PROOF 


No.  376. 


b.  Where  a  Human  Act  is  the  issue,  the  classification  in  Part  I  of  this 
work  will  be  found  convenient,  i.e.  Moral  Character,  Motive,  Design,  etc. 
Under  Motive  (Emotion)  it  is  sounder  to  separate  at  the  outset  the  distinct 
alleged  motives,  if  any ;  e.g.  desire  for  money,  desire  for  revenge,  etc.,  be- 
cause they  are  in  effect  distinct  and  perhaps  inconsistent  probative  facts. 

c.  In  the  same  way,  the  discrcdititig  (explanatory)  facts  for  a  witness's 
assertion  should  be  separated  into  their  component  items.  Thus,  if  bias 
is  the  general  nature  of  the  impeachment,  let  e.g.  ^  be  the  supposed 
general  fact  of  actual  bias  and  let  'Vj  and  "  q  be  the  two  circumstances 
tending  to  evidence  it,  19  being  the  witness's  relation  to  the  defendant  as 
a  discharged  employee,  21  being  another  witness  who  testifies  to  this,  and 
20  being  the  impeached  witness's  strong  demeanor  of  bias  while  on  the 
stand. 

Thus  the  whole  representation  would  be : 

Here  the  added  symbols  of  belief  show 
that  the  prol)ative  effect  has  been  that  we 
refuse  belief  (if  we  do)  to  the  fact  asserted 
by  this  witness,  because  of  his  bias  as 
shown  by  those  facts. 

Note  that  19  is  here  supplemented  by 
19  a,  i.e.  the  supposed  general  truth  that 
discharged  employees  are  apt  to  have  an 
emotion  of  hostility ;  the  letter  a  added 
to  the  main  number  will  indicate  the  ap- 
purtenant relation  of  this  fact  to  19. 
In  accordance  with  the  analysis  of  im- 
peaching evidence  (as  set  forth  in  No.  3()7,  ante)  it  is  usually  desirable  to 
note  separately  on  the  Chart  any  supposed  general  truth  implicitly  or  ex- 
plicitly relied  upon.  This  is  more  commonly  the  case  where  a  mediate  or 
second  step  of  inference  is  involved,  as  in  the  above  example.  But  even 
there  a  general  truth  may  not  always  be  involved ;  e.g.  in  the  above  ex- 
ample 20  O  is  the  specific  language  or  demeanor  from  which  an  inference 
is  made,  without  aid  of  a  general  truth,  to  the  supposed  emotion.  Where 
an  immediate  inference  is  involved,  the  only  cases  where  the  supposed  general 
truths  need  to  be  explicitly  noted  will  usually  be  those  involving  external 
conditions,  —  light,  sound,  etc. ;   in  such  a  case  the  ^-^ 

first  symbol  can  be  doubled,  using  the  letter  a  with  \^ 

the  maiti  number  to  indicate  the  appurtenant  general 
truth.  For  example,  if  the  location  of  the  witness  is 
said  to  have  obstructed  his  vision  and  thus  to  dis- 
credit his  statement,  it  would  be  thus  indicated : 

Here :   7  is  the  witness  to  be  impeached ;  8  is  the 
facts  of  his  location   on    the   sidewalk,   and    9    is   a      oo      oo 
witness  to  those  facts ;    8  a  is  the  impossibility  of  correct  vision  from  such 
location,  and  10  is  a  witness  to  experiments  showing  such  impossibility. 

A  special  advantage  in  thus  plotting  separately  the  concrete  facts  and  the 
general  truths  is  that  the  witnesses  thereto  may  then  be  plotted  separately, 
and  thus  all  the  evidence  thereon  can  be  more  clearly  distinguished  and 
weighed. 


^8a    .8                   ^ 

'Vv     <'\                  oo 

10          9 

No.  376.  METHOD   OF   ANALYSIS  75.5 

6.  Plotting  the  Chart 

Use  an  oblong  sheet  of  unruled  paper. 

Allot  the  right-hand  half  to  the  plaintiff  or  prosecution,  the  left-hand 
half  to  the  defendant. 

Allot  the  right-hand  quarter  to  the  plaintiff's  testimonial  evidence  directly 
on  the  fact  in  issue  ;  the  next  quarter  (towards  the  left)  to  his  circumstantial 
evidence ;  and  so  on  for  the  defendant.  If  there  are  two  or  more  distinct 
facts  necessary  in  law  to  the  issue,  use  a  separate  chart  sheet  for  each  ;  unless 
the  mass  of  evidence  is  small  enough  for  a  single  sheet  (as  in  the  annexed 
examples  of  charts). 

Since  the  quantity  of  each  kind  of  evidence  varies  in  each  case,  the  above 
allotments  of  one  quarter  each  are  of  course  provisional  only.  In  practice, 
a  smaller  or  larger  fraction  will  usually  be  needed.  But  by  beginning  at 
the  right-hand  end  and  disposing  of  all  of  each  kind  of  evidence  before  pro- 
ceeding to  the  next,  the  spacing  will  adjust  itself.  If  desired,  a  line  can  be 
drawn  perpendicularly  to  mark  off  the  mass  of  one  kind  of  evidence  when 
charted. 

When  beginning  on  the  next  kind,  allow  a  little  extra  space  for  later  dis- 
coveries in  the  kind  of  evidence  just  finished. 

Use  right-angled  continued  lines  freely  in  connecting  the  symbols,  so  as 
to  economize  space  and  to  keep  together  the  same  kind  of  evidence. 

Use  a  sharpened  lead  pencil. 

If  new  inferences  are  later  discovererl  and  no  space  is  left,  erase  some 
former  symbols  and  rechart  them,  prolonging  the  lines  so  as  to  leave  the 
new  space  needed. 

Wherever  a  disbelief  or  doubt  symbol  is  found,  there  ought  to  be  some 
explanatory  fact  (>)  to  account  for  it.  Hence,  if  such  has  been  inadvert- 
ently omitted,  analyze  it  into  consciousness,  chart  it,  and  describe  it  in  the 
Evidence  List. 

Where  two  or  more  witnesses,  as  to  whose  credit  no  question  is  raised, 
testify  to  the  same  fact,  one  symbol  in  the  Chart  may  serve  for  all ;  but  as 
many  numbers  should  be  given  it  as  there  are  witnesses,  bracketing  these 
numbers  to  one  description  in  the  Evidence  List. 

A  fact  is  to  be  classed  as  negatory  or  affirmatory  in  itself,  and  not  according 
to  the  party  offering  it.  Thus,  as  in  Nos.  51,  52,  48,  49,  of  Hatchett  v.  Com. 
(see  Chart),  the  defendant  may  offer  an  affirmatory  fact  to  prove  another 
fact  which  is  negatory  of  his  guilt. 

7.  Sundries 

For  clearness  and  quickness  in  studying  the  total  effect  of  the  mass  of 
evidence  when  charted,  colored  pencils  may  be  used. 

L^se  a  bliw  pencil  for  important  facts  favoring  the  plaintiff's  or  prosecu- 
tion's contention,  and  a  green  one  for  those  favoring  the  defendant's.  Mark 
the  arrow  point  of  the  belief  symbol  (\),  or  the  cross  of  the  disbelief 
symbol  (f),  respectively  blue  or  green.  Thus  the  subfinal  facts  can  l)e 
conveniently  concentrated  in  the  mind,  for  the  purpose  of  the  net  total 
effect  on  the  mind.  Varieties  of  detail  in  the  use  of  the  colored  pencil  can 
be  invented  as  convenient;  e.g.  a  simple  arrow  point  (f),  blue  or  green, 
can  be  used  for  the  subordinate  facts  at  the  basis  of  a  long  line  of  inference, 
and  a  triangular  arrow  point  {^)  for  the  subfinal  facts  when  reached. 

When  ready  to  reach  a  final  verdict,  refresh  the  memory  from  the  List, 


75u  PART  III.   PROBLEMS  OF  PROOF  No.  376. 

SO  that  the  tenor  of  the  Chart  symbols  is  as  clear  as  possible  in  the  mind. 
Then  go  over  the  whole  Chart  in  the  mintl,  force  the  subfinal  facts  into 
juxtaposition,  and  determine  the  net  impression  as  to  the  ultimate  fact  in 
issue. 

8.    Finally,  remember  that 

The  logical  (or  psychological)  process  is  essentially  one  of  menfal  juxtaposition 
of  detailed  ideas  for  the  purpose  of  producing  rationally  a  sitigle  final  idea. 
Hence,  to  the  client  that  the  mind  is  unable  to  juxtapose  consciou.s-l y  a  larger 
number  of  ideas,  each  coherent  group  of  detailed  constituent  ideas  must  be 
reduced  successively  to  a  single  idea,  until  the  number  and  kind  is  such  that  the 
mind  can  consciously  juxtapose  them  with  due  attention  to  each.  And  the  use 
of  symbols  has  no  other  purpose  than  to  facilitate  this  process.  Hence, 
each  person  may  contrive  his  own  special  ways  of  using  these  or  other 
symbols. 

As  examples  of  the  use  of  the  Chart  and  List, the  cases  of  Coin.  v.  Umilian 
(No.  377)  and  Hatchett  v.  Com.  (No.  378)  are  charted  and  listed  in  the 
following  pages.  Note  that  these  Examples  might  have  been  charted 
with  more  economy  of  space,  but  in  their  present  shape  they  show  how  the 
Chart  develops  in  the  actual  making.  The  charter  cannot  know  before- 
hand how  many  data  will  be  found  under  each  inference;  hence  he  must 
allow  space,  which  may  not  afterwards  be  needed. 


m 


>« 


3 


No.  376.  METHOD    OF    ANALYSIS  757 

Example  A.     Commonwealth  v.  Umill\n  (No.  377). 

Evidence  Chart.      [See  Plate.] 

Evidence  List     {Com.  v.  Umilian,  No.  377). 

1  Design  to  kill  J. 

2  Threats  of  unstated  tenor,  made  on  discovery  of  J.'s  interference  in 

prevention  of  marriage. 

3  Anon,  witnesses  thereto. 

4  Threats  might  have  meant  merely  some  lesser  harm. 

5  Threats  of  revenge  at  later  time. 

6  Anon,  witnesses  thereto. 

7  Threats  might  have  meant  merely  some  lesser  harm, 

8  Revengeful  murderous  emotion  towards  J. 

9  J.  had  charged  him  with  intended  bigamy  Nov.  18.,  and  had  tried.there- 

by  to  prevent  his  marriage. 

10  Letter  received  by  priest,  stating  that  U.  already  had  family  in  old 

country. 

11  Anon,  witnesses  to  this. 

12  J.  was  author  of  letter,  though  it  was  in  fictitious  name. 

13  Anon,  witnesses  to  this. 

14  Letter  communicated  by  priest  toU.,  with  refusal  to  perform  marriage ; 

refusal  later  withdrawn. 

15  Anon,  witnesses  to  this. 

16  Letter's  statements  were  untrue. 

17  Anon,  witnesses  to  this. 

18  U.  being  innocent,  and  marriage  being  finally  performed,  U.  would  not 

have  had  a  strong  feeling  of  revenge. 

19  J.  remaining  in  daily  contact,  wound  must  have  rankled. 

20  Wife  remaining  there,  jealousy  between  U.  and  J.  probably  continued. 

21  U.  uttered  threats  and  other  hostile  expressions  between  Nov.  18  and 

Dec.  31. 

22  Anon,  witnesses  to  this. 

23  U.,  on  Dec.  31,  charged  J.  to  K.  with  stealing  K.'s  goods. 

24  Anon,  witnesses  to  this. 

25  Does  not  appear  that  these  charges  were  false,  hence  not  malicious. 

26  U.  's  opportunity  in  time  and  place  was  almost  exclusive. 

27  On  Dec.  31  U.  was  on  premises. 
27.1  Witnesses  to  this. 

28  U.  was  only  man  so  seen. 
28.1  Anon,  witnesses  to  this. 

29  U.'s  wife  and  a  woman  visitor  were  there. 

30  Anon,  witnesses  to  this. 

31  Passing  tramp-villain  might  have  been  there. 

32  In  time  between  Dec.  31  and  April  others  had  access  to  J.,  if  alive  stilL 

33  U.  had  uneasy  consciousness  of  guilt  about  J.'s  disappearance. 

34  U.  lied  about  J.'s  going  to  Granby. 

35  U.  said  J.  had  gone  there,  though  J.  was  then  dead. 

36  Anon,  witnesses  to  this. 

37  J.  might  really  have  gone  there,  not  being  killed  till  later. 


758  PART    III.       PROBLEMS    OF    PROOF  No.  370. 

38  U.  was  conscious  that  the  well  was  a  place  where  damaging  things 

would  be  discovered. 

39  He  watched  those  who  searched  there. 

40  Anon,  witnesses  to  this. 

41  That  might  have  been  due  to  natural  curiosity  of  a  farm  hand  at 

strange  doings. 

42  U.  lied  about  the  reason  for  Olds  and  K.  searching  the  well. 

43  Anon,  witnesses  to  this. 

44  U.  did  not  go  to  the  well  to  see  the  body  when  found. 

45  Anon,  witnesses  to  this. 

46  Several  other  reasons  would  explain  this. 

47  U.  knew  that  J.  was  dead,  though  others  did  not. 

48  He  gave  away  J.'s  boots  and  said  that  J.  would  not  come  back;   this 

was  about  the  middle  of  January. 

49  Anon,  witnesses  thereto. 

50  Like  others,  U.  may  merely  have  believed  that  J.  had  given  up  work  at 

the  farm. 

51  Data  of  slayer  on  J.'s  body  were  of  a  person  having  free  and  intimate 

access  to  horse  barn  of  K. 

52  Wound-marks  were  those  of  a  horse-cutter  from  barn. 

53  Anon,  witnesses  thereto. 

54  Precise   correspondence   not   stated ;     might   have   been   a   different 

weapon. 

55  No  other  person  but  U.  had  at  that  time  such  access. 
55.1  Anon,  witnesses  to  55 ;  and  see  26. 

56  Sacks  hokling  body  and  clothes  came  from  horse  barn. 

57  Anon,  witnesses  thereto. 

58  Stone  in  sack  fitted  wall  near  barn. 

59  Anon,  witnesses  thereto. 

60  Clothing  in  sack  had  marks  of  mud  from  barn  cellar. 

61  Anon,  witnesses  thereto. 

62  Mud  not  specifically  identified. 


^ 


ii 


r- 


-^ 


6 


^ 


^ 
^ 


i 


^^ 


.  ^rv^ 


no.  376.  method  of  analysis  759 

Example    B.     Hatchett  v.  Commonwealth  (No.  378). 

Evidence  Chart.     [See  Plate.] 

Evidence  List    {Hatchett  v.  Com.,  No.  378). 

1  Y.  himself,  just  before  dying,  declared  that  the  drink  of    whisky 

was  the  source  of  his  pains  and  illness. 

"  I        His  wife,  O.  N.,  and  C.  N.  testified  to  this  statement ;  but  see  17-24, 
.  I  as  discrediting  them. 

5  Y.  might  have  had  his  colic  cramps,  and  could  not  have  had  skill 

enough  to  know  that  the  drink  was  the  cause  of  the  pain. 

6  Same  possibility  for  ptomaine  or  other  poisoning  in  food  at  supper. 

7  Y.  died,  being  apparently  in  health,  within  three  hours  after  the 

drink  of  whisky. 

^1 

9  }        Same  witnesses  to  this  as  2,  3,  4. 

loj 

11  Y.  might  have  died  by  colic,  from  which  he  had  often  suffered. 

11.1  Colic  would  not  have  had  as  symptoms  the  leg  cramps  and  teeth 

clenching  ;   only  strychnine  could  produce  these. 

11.2  O.  N.,  and  C.  N.  and  wife,  witnesses  to  cramps,  etc. 

11.3  Expert  witnesses  to  significance  of  symptoms. 

11.4  No  testimony  as  to  strychnine  traces  in  body  by  post  mortem. 

12  Anon,  witnesses  to  his  former  attacks. 

13  Y.  might  have  died  from  the  former  injury  in  his  side. 

14  Anon,  witnesses  to  that  injury. 

15  Y.  himself  declared  when  dying  that  the  whisky  drink  was  killing 

him. 

16  Y.'s  wife  Sallie,  witness  to  this. 

17  Sallie's  bias  to  save  herself  at  H.'s  expense  discredits  her. 

18  I      Sallie  had  a  paramour,  and  might  herself  intend  the  death  of  Y., 
18a  J  hence  might  desire  to  fix  crime  on  H. 

18.1        Anon,  witnesses  to  18. 

19  O.  N.  witness  also  to  15. 

20  O.  N.'s  bias  to  save  Sallie  discredits  him. 

21  I      O.  N.  knew  of  Sallie's  paramour  and  of  her  probable  wish  to  get  rid 
21a  J  of  the  old  man  ;   hence  probably  biased  to  support  Sallie's  story. 
21.1        Anon,  witnesses  to  21. 

22  C.  N.  witness  also  to  15. 

23  C.  N.'s  bias  to  save  Sallie  discredits  him. 

24  I 

■24a  [     Same  as  21,  21a,  21.1. 
24.1] 

25  Y.  died  apparently  in  good  health,  within  three  hours  after  drinking 

deft.'s  whisky. 
26 1 

27  [        Sallie  Y.,  O.  N.  and  C.  N.  witnesses  to  time  of  death. 
28) 
28.1       H.  witness  to  time  of  drink. 


760  PART   III.       PROBLEMS   OF   PROOF  No.  370. 

29  Neither  H.  nor  his  father  are  shown  to  have  possessed  any  strych- 

nine to  put  in  the  drink. 

30  Y.  might  have  died  by  cohc,  from  which  he  had  often  suffered. 

31  Y.  might  ha\'e  died  from  the  former  injury  in  his  side. 

32  Y.  might  have  died  of  ptomaine  poisoning  in  supper-food. 

33  Y.  might  have  died  from  poison  put  in  his  supper-food  by  third 

person ;   the  onl\'  third  person  having  access  being  SaUie  his  wife. 

34  SaUie  had  desire  for  Y.'s  death. 

35  Her  ilhcit  relation  with  Henry  Carroll  points  to  34. 

36  Anon,  witnesses  to  this  relation  with  H.  C. 

37  SaUie  possessed  means  of  strychnine  poisoning ;   see  38. 

38  SaUie  had  a  plan  to  kill  Y. 

39  SaUie  had  received  strychnine  from  H.  C.  three  weeks  before,  with 

instructions  to  put  it  in  Y.'s  coffee  or  food. 
39.1       Witnesses  to  39. 

40  Sallie's  failure  to  use  it  during  those  three  weeks'  opportunity  indi- 

cates abandonment  of  her  design. 

41  Secrecy  of  H.'s  mode  of  giving  drink  indicated  consciousness  of 

something  wrong. 

42  Same  witnesses  as  26-29. 

43  This  perhaps  due  to  desire  not  to  waste  whisky  on  SaUie. 

43.1        Transaction  was  not   really  secret,  for  he  knew  SaUie  and  others 
were  there  when  he  summoned  the  old  man. 

44  His  confession  that  his  father  had  told  him  the  whisky  would  fix 

Y.  shows  that  he  knew  something  was  wrong. 

45  Anon,  witnesses  to  this  confession. 

46  H.'s  second  statement,  retracting  on  that  point,  makes  it  doubtful 

whether  he  knew. 

47  Anon,  witnesses  to  this  second  statement. 

48  Lack  of  any  desire  in  H.  to  kill  Y. 

49  H.  was  even  unacquainted  with  Y.  up  to  this  time. 

50  Anon,  witnesses  to  49. 

51  H.  himself  drank  of  whisky ;  hence  did  not  know  of  strychnine  in  it. 

52  This  is  shown  by  bottle  being  only  one-third  full  on  return. 

53  Anon,  witnesses  to  52. 

54  Y.  might  have  drunk  two  thirds  of  the  bottle. 

55  H.  might  have  been  deterred,  by  father's  directions,  from  drinking 

any. 


No.  377. 


COM.    V.    UMILIAN 


761 


377.    COMMONWEALTH   v.  UMILIAN.      (1901.     Supreme  Judi- 
ciAL  Court  of  Massachusetts.      177  Mass.  582.) 

Indictment  for  murder,   returned      there.     The     clothin}? 


June  12,  1900.  At  tlie  trial  in  the 
Superior  Court,  before  Sherman 
and  Stevens,  JJ.,  the  defendant  at 
the  close  of  the  e^■idence  asked  the 
judges  to  rule  and  instruct  the 
jury :  first,  that  there  was  not 
sufficient  evidence  to  warrant  the 
jury  in  finding  a  venHct  of  guilty  ; 
and,  second,  that  there  was  not 
sufficient  evidence  to  warrant  the 
jury  in  finding  a  verdict  of  guilty 
in  the  first  degree.  The  judges  de- 
clined to  give  either  of  these  rulings. 
The  jury  found  a  verdict  of  guilty 
of  murder  in  the  first  degree ;  and 
the  defendant  alleged  exceptions. 

J.  B.  O'DouncU,  for  the  defendant. 
J.  C.  Hammond,  District  Attorney, 
for  the  Commonwealth. 

Knowlton,  J.  —  The  defendant 
was  found  guilty  of  murder  in  the 
first  degree,  and  the  only  question 
before  us  is  whether  there  was  any 
evidence  to  warrant  the  verdict. 
He  and  Casimir  Jedrusik  were 
working  together  as  farm  laborers 
for  one  Keith  in  Granby.  On 
Sunday,  December  31,  1899,  Jedru- 
sik disappeared,  and  was  never  after- 
wards seen  alive.  On  April  10, 
1900,  his  headless,  mutilated  body 
was  found  inclosed  in  a  bran  sack 
in  an  unused  well  between  four 
hundred  and  five  hundred  feet  from 
Keith's  horse  barn.  His  clothing 
was  found  inclosed  in  another  sack 
in  the  same  well.  His  skull  was 
afterwards  found  buried  in  the 
cellar  of  the  horse  barn.  The  sacks 
were  similar  to  those  which  Keith 
had  in  the  horse  barn.  The  stone, 
which  was  inclosed  in  the  sack  of 
clothing,  exactly  fitted  a  vacant 
place  in  a  stone  wall  about  in  line 
between  the  old  well  and  the  north 
door  of  the  horse  barn.  On  the  day 
of  the  disappearance  there  was  no 
snow  on  the  ground,  and  the  surface 
of  the  ground  was  entirely  frozen. 
In  the  cellar  of  the  horse  barn  pigs 
were  kept,  and  there  was  soft  mud 


which  was 
exhibited  to  the  jury  hail  mud  upon 
it  which  the  Commonwealth  con- 
tended on  the  evidence  was  like 
that  in  the  cellar.  Mr.  and  Mrs. 
Keith  drove  away  to  church  on 
December  31st,  leaving  the  de- 
fendant and  Jedrusik  about  the 
barn.  The  defendant's  wife  was  in 
the  house,  where  she  was  employed 
as  a  housemaid,  and  there  was  evi- 
dence tending  to  show  that  the  only 
other  person  who  came  there  during 
that  day  was  a  young  woman  who 
came  to  visit  her.  The  defendant 
was  outside  of  the  house,  about  the 
premises,  for  some  hours  after  Mr. 
and  Mrs.  Keith  went  to  church, 
and  when  he  came  in  he  said  that 
Jedrusik  had  gone  to  Granby. 
There  were  wounds  on  the  head  of 
Jedrusik,  which  the  Commonwealth 
contended  were  made  by  a  corn 
cutter  that  was  in  the  horse  barn, 
and  was  exhibited  to  the  jury. 
The  evidence  tended  to  show  that 
the  defendant  had  ample  opportu- 
nity to  commit  the  murder,  and  that 
no  other  person  had  an  opportunity" 
to  do  it  without  discovery. 

On  November  18th  the  defendant 
went  to  Chicopee  to  the  house  of 
a  Polish  priest,  to  have  the  ceremony 
of  marriage  performed  between  him 
and  a  young  woman  who  had  been 
living  as  a  maid  at  Keith's  house, 
and  he  found  that  the  priest  had 
received  a  letter  in  a  name  which 
proved  to  be  fictitious,  charging  him 
with  having  a  wife  and  children  in 
the  old  country,  and  with  receivings 
letters  from  his  wife  asking  for 
money  for  the  support  of  herself  and 
her  children.  The  priest  refused  to 
marry  him,  and  sent  a  trusted  per- 
son with  him  to  investigate.  It 
turned  out  that  Jedrusik  wrote  the 
letter,  anfl  that  its  contents  did 
not  appear  to  be  true.  The  defend- 
ant was  then  married  by  the  priest, 
and  the  evidence  tended  to  show 
that  he  was  very  angry  with  Jedrusik, 


r62 


PART   III.       PROBLEMS    OF    PROOF 


No.  377. 


and  that  he  made  strong  threats  of 
vengeance  against  him.  There  was 
evidence  from  several  witnesses  that 
at  different  times  between  the  de- 
fendant's marriage  and  Jechnisik's 
disappearance,  the  defenihint  mani- 
fested deeply  hostile  feelings  to- 
wards him,  and  made  threats 
against  him.  On  the  morning  of 
December  31st  there  was  a  new 
manifestation  of  this  feeling  in 
charges  made  to  Mr.  Keith  that 
Jedrusik  had  stolen  a  plane  and  had 
stolen  butter.  There  was  evidence 
that,  between  the  time  of  the 
disappearance  and  the  discovery  of 
the  body,  the  defendant  was  seen  to 
take  up  one  of  the  planks  covering 
the  unused  well,  and  also  that  when 
he  was  told  in  the  daytime  that 
Keith  and  one  Olds  had  gone  out 
of  the  house  with  a  lantern,  he  said 
he  "knew  what  they  were  going  to 
do.  Mr.  Olds  wants  to  buy  the 
pump  in  the  old  well."  There  was 
evidence  that  nothing  had  ever  been 
said  by  Olds  about  buying  the  pump. 


Immediately  after  being  told  this 
the  defendant  went  into  the  hor.se 
barn,  and  was  seen  looking  out  of  a 
window  from  which  the  well  could  l)e 
seen.  When  others  went  to  tlic  well 
after  the  body  was  found,  he  did  not 
go.  There  was  also  evidence  that 
about  the  middle  of  January  he 
gave  away  Jedrusik's  rubber  boots, 
and  said  that  he  did  not  think 
Jedrusik  would  come  back.  There 
were  many  other  things  in  his  lan- 
guage and  conduct  after  Jedrusik's 
disappearance  which  the  Common- 
wealth relied  or  as  tending  to  show 
guilty  knowledge,  and  much  of  his 
testimony  in  explanation  of  facts 
was  in  direct  contradiction  of  other 
witnesses. 

Without  going  more  at  length 
into  the  evidence,  which  was  vo- 
luminous, we  are  of  opinion  that  it 
would  have  been  error  to  take  the 
case  from  the  jury.  So  far  as  we 
can  judge  from  the  bill  of  exceptions 
the  evidence  well  warranted  the 
verdict.     Exceptions  overruled. 


No.  378. 


HATCHETT   V.    COM. 


763 


378.    HATCHETT     v.    COMMONWEALTH.      (1882.     Court    of 
Appeals  of  Virginia.     76  Va.  1026.)  .  .  . 

tricked  him    in  a  drink   of  whisky. 
He  then  got  up,  but  fell  immediately 


Lewis,  J.,  delivered  the  opinion 
of    the     Court.     The    plaintiff    in 
error   was    indicted    in    the   county 
court  of  Brunswick  county  for  the 
murder    of    Moses    Young,    by    ad- 
ministering to  the  said  Young  strych- 
nine   poison  in    whisky.   .   .   .     The 
facts    proved,    as    certified    in    the 
record,     are     substantially     these : 
That  on  the  night  of  the  17th  day 
of  December,    1880,   Moses   Young 
died    at    his    house    in    Brunswick 
county,    and    under    such    circum- 
stances  as   created   suspicions   that 
he  had  been  poisoned.     He  was  an 
old  man,  65  years  of  age,  and  was 
subject   to   the   colic,   and   a   short 
time  previous  to  his  death  had  been 
hurt  in  his  side  by  a  cart.     Li  the 
afternoon  of  that  day  the  father  of 
Oliver  Hatchett,  the  prisoner,  gave 
him  a  small  bottle  of  whisky,  with 
instructions    to    take    it    to    Moses 
Young;    at  the   same   time  telling 
him  not  to  drink  it  himself.     The 
deceased    lived    about    three    miles 
from  the  prisoner's  father,  to  whose 
house  the  prisoner  at  once  proceeded. 
It  seems  that  he  was  not  acquainted 
with  the  deceased ;    or,  if  so,  very 
slightly,  and  that  he  succeeded  in 
finding  the  house  only  by  inquiry 
of  one  of  the  neighbors.     Soon  after 
his  arrival  at  the  house  of  the  de- 
ceased, he  took  supper  with  him,  and 
a  few  minutes  thereafter  requested 
the  deceased    to  go   with  him  into 
the  yard,  and  point  out  the  path  to 
him  —  it    then    being    dark.     After 
getting  into  the  yard,  the  prisoner 
produced    the    bottle    and    invited 
the  deceased  to  drink  —  telling  him 
that  it  was  a  little  whisky  his  father 
had  sent  him.     The  deceased  drank 
and  returned  the  bottle  to  the  pris- 
oner,  who  at    once  started   on  his 
return    home.     The   deceased    then 
returned     into     the    house.     In     a 
short  while  thereafter  he  complained 
of  a  pain  in  his  side,  began  to  grow 
worse,   and   told  his  wife  that  the 
man    (meaning    the    prisoner)    had 


to  the  floor.  Osborne  and  Charlotte 
Northington,  two  near  neighbors, 
were  then  called  in  by  his  wife ;  and 
these  three,  whom  the  record  de- 
scribes as  ignorant  negroes,  were  the 
only  persons  present  with  the  de- 
ceasccl  until  his  death,  which  oc- 
curred about  three  hours  after  he 
drank  of  the  whisky  from  the 
bottle  handed  him  by  the  prisoner. 
They  described  his  symptoms  as 
follows :  The  old  man  had  the 
jerks,  complained  of  great  pain,  and 
every  now  and  then  would  draw  up 
his  arms  and  legs  and  complained 
of  being  cramped ;  that  he  put  his 
finger  in  his  mouth  to  make  him 
vomit,  and  his  teeth  clinched  on  it  so 
that  one  of  his  teeth  was  pulled  out 
in  getting  out  his  finger.  They 
also  testified  that  his  dying  declara- 
tion was  that  the  man  had  killed 
him  in  a  drink  of  whisky.  From 
the  symptoms  as  thus  described,  two 
physicians,  who  were  examined  as 
witnesses  in  the  case,  testified  that 
as  far  as  they  could  judge  from  the 
statements  of  the  ignorant  witnesses, 
they  would  suppose  that  Moses 
Young  died  from  strychnine  poison. 
No  post-mortem  examination  of  the 
deceased's  body  was  made  or  at- 
tempted ;  nor  was  any  analysis 
made  of  the  contents  of  the  bottle, 
which  was  returned  about  one-third 
full  by  the  prisoner  to  his  father, 
and  was  afterwards  found. 

After  the  arrest  of  the  prisoner, 
and  while  under  guai'd,  he  stated 
to  the  guard  in  charge  of  him  that  he 
would  not  be  punished  about  the 
matter ;  that  he  intended  to  tell  all 
about  it ;  that  his  father,  Littleton 
Hatchett,  gave  him  that  mess  and 
told  him  he  would  give  him  some- 
thing, to  carry  it  and  give  it  to 
Moses  Young,  and  that  it  would 
fix  him.  He  further  stated  that  he 
went  to  Moses  Young's  house, 
called  him  out  and  gave  him  a  drink. 


764 


PART    III.       PROBLEMS   OF    PROOF 


No.  378. 


and  returnecl  the  bottle  and  put  it 
where  his  father  had  directed  him  to 
put  it.  The  next  day  he  made  a 
statement  on  oath  before  the  coro- 
ner's jury,  and  when  asked  by  the 
foreman  whether  he  was  prepared, 
upon  reflection,  to  say  that  what  he 
had  stated  on  the  previous  day  was 
not  true,  he  answered :  "  I  am 
prepared  to  say  that  a  part  of  what 
I  said  yesterday  was  true."  He 
then  made  a  statement  in  which 
he  said  that  he  carried  the  whisky 
to  the  deceased  by  direction  of  his 
father,  who  tokl  him  not  to  drink  of 
it ;  that  he  went  to  the  house  of  the 
deceased  and  gave  him  a  drink,  and 
returned  the  bottle  as  directed  by 
his  father.  But  he  did  not  state 
that  his  father  told  him  that  the 
whisky  would  "fix"  the  deceased, 
or  that  he  (the  prisoner)  knew  that 
it  contained  poison  or  other  dan- 
gerous thing. 

It  was  also  proved  that  Henry 
Carroll,  who  was  jointly  indicted 
with  the  prisoner,  gave  to  Sallie 
Young,  wife  of  the  deceased,  about 
three  weeks  before  his  death,  some- 
thing in  a  bottle  which  he  said  was 
strychnine,  and  which  he  told  her  to 
put  in  the  coffee  or  food  of  the  de- 
ceased ;  and  that  Osborne  and 
Charlotte  Northington  knew  of  the 
fact,  but  did  not  communicate  it  to 
the  deceased.  It  was  also  proved 
that  Henry  Carroll  was  the  para- 
mour of  Sallie  Young,  which  fact 
was  also  known  to  Osborne  and 
Charlotte  Northington. 

Such  are  the  facts  up(ni  which  the 
plaintiff  in  error  was  convicted  and 
sentenced  to  death.  Now,  under 
the  allegations  in  the  indictment, 
it  was  incumbent  upon  the  pro.s- 
ecution,  to  entitle  the  Common- 
wealth to  a  verdict,  to  estal)lish 
•clearly  and  beyond  a  reasonal)le 
doubt  these  three  essential  prop- 
ositions: (1)  That  the  deceased 
came  to  his  death  by  poison.  (2) 
That  the  poison  was  administered 
by  the  prisoner.  (3)  That  he  ad- 
ministered it  knowingly  and  felo- 
niously.      These     propositions,    we 


think,  are  not  established  by  the 
evidence  in  this  case. 

In  the  first  place,  there  is  no 
sufficient  proof  that  the  deceased 
died  from  the  effects  of  poison  at  all. 
From  the  symptoms,  as  described 
by  ignorant  witnesses,  one  of  whom 
at  least  was  a  party  to  the  con- 
spiracy to  poison  the  deceased,  and 
who  had  been  supplied  with  the 
means  to  do  so  (a  fact  known  to  the 
others),  the  most  that  the  medical 
men  who  were  examined  in  the  case 
could  say  was  that  they  supposed 
he  died  from  strychnine  poison. 
Strange  to  say,  there  was  no  post- 
mortem examination  of  the  body  of 
the  deceased,  nor  was  there  any 
analysis  made  of  the  contents  of  the 
bottle  from  which  he  drank  at  the 
invitation  of  the  prisoner,  and  which 
was  returned  by  the  latter  to  his 
father  and  afterwards  found  —  all 
of  which,  presumably,  might  easily 
have  been  done,  and  in  a  case  of  so 
serious  and  striking  a  character  as 
this  ought  to  have  been  done.  .  .  . 
Great  strictness  should  be  observed, 
and  the  clearest  proof  of  the  crime 
required,  to  safely  warrant  the  con- 
viction of  the  accused  and  the  in- 
fliction of  capital  punishment. 
Such  proof  is  wanting  in  this  case  to 
establish  the  death  of  the  deceased 
by  the  means  alleged  in  the  indict- 
ment. 

Equally  insufficient  are  the  facts 
proved  to  satisfactorily  show  that 
if  in  fact  the  deceased  died  from  the 
effects  of  poison,  it  was  administered 
by  the  prisoner;  and  if  adminis- 
tered by  him,  that  it  was  done  know- 
ingly and  feloniously.  It  is  not 
shown  that  if  the  whisky  he  con- 
veyed to  the  deceased  contained 
poison,  he  knew  or  had  reason  to 
know  the  fact.  It  is  almost  in- 
credible that  a  rational  being,  in  the 
absence  of  provocation  of  any  sort, 
or  the  influence  of  some  strong  and 
controlling  motive,  would  delit)er- 
ately  take  the  life  of  an  unoffend- 
ing fellow  man.  Yet  in  this  case  no 
provocation  or  motive  whatever 
on  the  part  of  (M'ther  the  prisoner  or 


No.  378. 


HATCHETT   V.    COM. 


765 


his  father,  from  whom  he  received 
the  whisky  of  which  the  deceased 
drank,  to  murder  the.  deceased,  is 
shown  by  the  evidence.  It  is  true 
that  the  facts  proved  are  sufficient 
to  raise  gra\'e  suspicions  against  the 
prisoner ;  but  they  fall  far  short  of 
establishing  his  guilt  clearly  and 
satisfactorily,  as  required  by  the 
humane  rules  of  the  law,  to  war- 
rant his  conviction  of  the  crime 
charged  against  him.  On  the  other 
hand,  the  facts  proved  show  that 
the  wife  of  the  deceased,  three 
weeks  before  his  death,  had  been 
supplied  by  her  paramour  with 
strychnine  to  administer  to  her 
husband ;  and  there  is  nothing  in 
the  case  to  exclude  the  hypothesis 
that  the  death  of  the  deceased  may 


not  have  been  occasioned  by  the 
felonious  act  of  his  own  unfaithful 
wife.  It  was  not  proven  that  the 
prisoner  at  any  time  procured,  or 
had  in  his  possession,  poison  of  any 
kind ;  nor  was  the  attempt  made 
to  connect  him  with,  or  to  show 
knowledge  on  his  part  of,  the  poison 
which  was  deli\ered  by  Henry 
Carroll  to  Sallie  Young,  to  be  ad- 
ministered to  her  husband. 

In  short,  the  facts  proved  are 
wholly  insufficient  to  warrant  the 
conviction  of  the  plaintiff  in  error 
for  the  crime  for  which  he  has  been 
sentenced  to  be  hanged :  and  the 
judgment  of  the  circuit  court  must, 
therefore,  be  reversed,  the  verdict 
of  the  jury  set  aside,  and  a  new 
trial  awarded  him. 


766 


PART   III.      PROBLEMS    OF   PROOF 


No.  379. 


379.    JOHN  DONELLAN'S  CASE.      (Camden  Pelham.     The  Chron- 
icles of  Crime.      Ed.  1891.     Vol.  I,  302.) 


The  case  of  Mr.  Donellan  is  one  of 
a  very  remarkable  nature,  and  from 
the  character  of  the  testimony  pro- 
duced has  been  the  subject  of  much 
conversation  and  remark  amongst 
persons  connected  with  the  pro- 
fessions of  medicine  and  chemistry. 

The  accused,  Mr.  Donellan,  had 
been  a  captain  in  the  army,  and  was 
the  son  of  Colonel  Donellan.  At  the 
age  of  twelve  years  he  entered  into 
the  Royal  Regiment  of  Artillery, 
with  part  of  which  he  went  to  the 
East  Indies  in  1754.  On  his  arrival 
there  he  changed  his  service  into 
the  39th  foot ;  but  on  that  regiment 
being  ordered  home,  he,  with  many 
other  of  his  officers,  had  his  majesty's 
leave  to  remain  in  the  service  of  the 
East  India  Company,  without  preju- 
dice to  their  rank  in  the  army.  He 
then  obtained  a  company,  and  cer- 
tainly distinguished  himself  as  a  good 
soldier,  not  only  having  been  much 
wounded  in  the  service,  but,  if  his 
own  account  may  be  credited,  being 
singularly  instrumental  to  the  taking 
of  Mazulapatam.  Being  appointed, 
however,  one  of  the  four  agents  for 
prize-money,  he  condescended  to 
receive  presents  from  some  black 
merchants,  to  whom  part  of  their 
effects  had  been  ordered  to  be  re- 
stored, for  which  he  was  tried  by  a 
court-martial,  and  cashiered.  He 
subsequently  purchased  a  share  in 
the  Pantheon,  where  he  figured  for 
some  time  as  master  of  the  cere- 
monies ;  and  after  a  variety  of 
applications  he  at  length  obtained 
a  certificate  from  the  War-office,  that 
he  had  behaved  in  the  East  Indies 
"like  a  gallant  officer";  in  conse- 
quence of  which  he  was  put  upon 
half-pay  in  the  39th  regiment.  But 
notwithstanding  the  most  strenuous 
memorials  and  petitions  represent- 
ing his  great  services,  and  insisting 
that  the  offense  for  which  he  was 
broke  was  of  a  civil  nature  only, 
and  not  cognizable  by  a  court- 
martial,    he   never   could    obtain    a 


restoration  into  the  Company's  ser- 
vice. In  June,  1777,  he  married 
Miss  Boughton ;  and  on  Friday, 
March  30th,  1781,  he  was  tried  at 
the  assizes  at  Warwick  for  the 
willful  murder  of  Sir  Theodosius 
Edward  Allesley  Boughton,  Bart.,  his 
brother-in-law.  The  evidence  was 
of  such  a  nature  that  the  fairest 
mode  of  stating  it  will  be  by  re- 
peating it  as  it  appeared  on  the  trial. 

Mr.  Powell,  apothecary  of  Rugby, 
deposed  that  he  had  attended  Sir 
Theodosius  Boughton  for  two  months 
before  his  death,  on  account  of  a 
slight  complaint  of  a  certain  de- 
scription. 

On  Wednesday  morning,  the  27th 
of  February,  he  was  sent  for  to 
Lawton  Hall,  and  on  his  arrival 
there  at  a  little  before  nine  o'clock. 
Captain  Donellan  conducted  him 
to  the  apartment  of  Sir  Theodosius. 
On  his  entering,  he  perceived  that 
the  baronet  was  dead,  and  on  his 
examining  the  body  he  concluded 
that  it  was  about  an  hour  since  life 
had  fled.  He  had  some  conversa- 
tion with  Captain  Donellan  with 
regard  to  the  deceased,  and  he  was 
told  by  him  that  he  had  "died  in 
convulsions."  He  could  not  re- 
collect the  precise  nature  of  the  con- 
versation, but  the  general  effect  of 
what  Captain  Donellan  said  was, 
that  the  deceased  gentleman  had 
taken  cold. 

Lady  Boughton,  the  mother  of  the 
deceased,  deposed  that  Sir  Theodo- 
sius was  twenty  years  old  on  the  3d 
of  August  last.  On  his  coming  of 
age,  he  would  have  been  entitled  to 
above  2000/.  a  year ;  and  in  the 
event  of  his  dying  a  minor,  the 
greater  part  of  his  fortune  was  to 
descend  to  his  sister,  the  wife  of  Mr. 
Donellan.  It  was  known  in  the 
family  on  the  evening  of  Tuesday, 
the  26th,  that  Sir  Theodosius  was 
to  take  his  physic  the  next  morning. 
He  used  to  put  his  physic  in  the 
dressing-room.     He  happened  once 


No.  379. 


donellan's  case 


7(37 


to  omit  to  tiike  it ;  upon  which  Mr. 
Donellan  said,  "Why  don't  you  set 
it  in  your  outer  room  ?  then  you 
would  not  so  soon  forget  it."  After 
this  he  several  times  put  the  medi- 
cines upon  his  shelf  over  the  chinmey- 
piece  in  his  outer  room.  On  the 
evening  of  Tuesday,  the  20th,  about 
six  o'clock,  Sir  Theodosius  went  out 
fishing,  attended  only  by  one  ser- 
vant, Samuel  P>ost.  Witness  and 
Mrs.  Donellan  took  a  walk  in  the 
garden,  and  were  there  above  an 
hour.  To  the  best  of  her  recollection 
she  had  seen  nothing  of  Mr.  Donel- 
lan after  dinner  till  about  seven 
o'clock,  when  he  came  out  of  the 
house-door  in  the  garden,  and  told 
them  that  "  he  had  been  to  see  them 
fishing,  and  that  he  would  have  per- 
suaded Sir  Theodosius  to  come  in, 
lest  he  should  take  cold,  but  he  could 
not."  Sir  Theodosius  came  home 
a  little  after  nine,  apparently  very 
well ;  and  he  went  up  into  his  own 
room  soon  after,  and  went  to  bed. 
He  requested  her  to  call  him  the  next 
morning  and  give  him  his  physic. 

She  accordingly  went  into  his 
room  about  seven  in  the  morning, 
when  he  appeared  to  be  very  well. 
She  asked  him  "Where  the  bottle 
was?"  and  he  said  "It  stands  there 
upon  the  shelf."  He  desired  her  to 
read  the  label,  which  she  accordingly 
did,  and  found  there  was  written 
upon  it  "Purging  draught  for  Sir 
Theodosius  Boughton."  As  he  was 
taking  it,  he  observed,  "it  smelled 
and  tasted  very  nauseous;"  upon 
which  she  said  "I  think  it  smells 
very  strongly  like  bitter  almonds." 
He  then  remarked  that  "  he  thought 
he  should  not  be  able  to  keep  the 
medicine  upon  his  stomach." 

Here  a  bottle  was  delivered  to 
Lady  Boughton,  containing  the 
genuine  draught,  which  she  was 
desired  to  smell  at  and  inform  the 
Court  whether  it  smelt  like  the 
medicine  Sir  Theodosius  took.  She 
answered  in  the  negative.  She  was 
then  desired  to  smell  at  another, 
containing  the  draught  with  the 
addition  of  laurel-water,  which  she 


said  had  a  smell  very  much  like  that 
of    the    medicine    she    gave    to    Sir 
Theodosius.     Lady  Boughton   then 
proceeded    with    her    evidence.     In 
two    minutes  after    Sir   Theodosius 
had  taken  the  draught,  he  struggled 
very  much.     It  appeared  to  her  as 
if  it  was  to  keep  the  draught  down. 
He  made  a  prodigious  rattling  in  his 
stomach,  and  guggling ;    and  these 
symptoms  continued  about  ten  min- 
utes.    He  then  seemed  as  if  he  was 
going  to  sleep,  or  inclined  to  doze ; 
and   perceiving   him    a   little    com- 
posed,  she  went  out  of  the   room. 
She  returned  in  about  five  minutes 
after,  and  to  her  great  surprise  found 
him  with  his  eyes  fixed  upwards,  his 
teeth    clenched,  and  foam    running 
out   of   his   mouth.     She    instantly 
desired  a  servant  to  take  the  first 
horse  he  could  get  and  go  for  Mr. 
Powell.     She  saw  Mr.  Donellan  in 
less  than    five    minutes  after.      He 
came  into  the  room  where  Sir  Theo- 
dosius lay,  and  said  to  her,  "  What 
do  you  want  ?  "     She  answered  that 
she  wanted  to  inform  him  what  a 
terrible  thing  had  happened ;   that 
it  was  an  unaccountable  thing  in  the 
doctor  to  send  such  a  medicine,  for 
if  it  had  been  taken  by  a  dog  it  would 
have  killed  him ;    and  she  did  not 
think  her  son  would  live.     He  in- 
quired in  what  way  Sir  Theodosius 
then  was ;    and  on   being  told,   he 
asked  her  where  the  physic  l)ottle 
was ;    on  which  she  showed  him  the 
two  draughts ;  when  he  took  up  one 
of  the  bottles,  and  said,  "  Is  this  it  ?  " 
She    answered     "Yes."     He    then, 
after  rinsing  it,  emptied  it  in  some 
dirty  water  that  was  in  a  wash-hand 
basin ;   and  on  his  doing  so  she  said, 
■'  What  are  you  at  ?  you  should  not 
meddle    with    the    bottles."     Upon 
that  he  snatched  up  the  other  bottle 
and  rinsed  it,  and  then  he  put  his 
finger  to  it  and  tasted  it.     She  re- 
peated that  he  ought  not  to  meddle 
with   the   bottles ;    upon   which   he 
replied,  that  "he  did  it  to  taste  it." 
Two  servants,  named  Sarah  Blundell 
and     Catherine    Amos,    afterwards 
came  into  the  room,  and  he  desired 


768 


PART   III.      PROBLEMS   OF   PROOF 


No.  379. 


the  former  to  take  away  the  basin 
and  the  bottles,  and  he  put  the 
bottles  into  her  hands.  The  wit- 
ness, however,  took  the  bottles  from 
her,  and  set  them  down,  bidding  her 
not  to  touch  them  ;  and  the  prisoner 
then  desired  that  the  room  might  be 
cleaned,  and  the  dirty  bottles  thrown 
into  the  inner  room.  This  being 
done,  the  Avitness  turned  her  back 
for  a  moment,  on  which  the  prisoner 
again  handed  the  servant  the  bottles, 
and  bid  her  take  them  away,  and  she 
accordingly  removed  them.  Wit- 
ness soon  afterwards  went  into 
the  parlor,  where  she  found  Mr.  and 
Mrs.  Donellan  ;  and  the  former  told 
his  wife  "  that  her  mother  had  been 
pleased  to  take  notice  of  his  washing 
the  bottles,  and  that  he  did  not 
know  what  he  should  have  done,  if 
he  had  not  thought  of  saying  that  he 
put  the  water  into  them  to  put  his 
finger  to  it  to  taste."  The  witness 
made  an  ansAver  to  this  observation, 
and  the  prisoner  directed  his  wife  to 
ring  the  bell  in  order  to  call  up  the 
servant.  When  the  serAant  came, 
he  ordered  him  to  send  in  the  coach- 
man ;  and  when  he  came,  the  pris- 
oner said,  "Will,  don't  you  remem- 
ber that  I  set  out  of  these  iron  gates 
at  seven  o'clock  this  morning?" 
"Yes,  sir,"  said  he.  "And  that  was 
the  first  time  of  my  going  out ;  I 
have  never  been  on  the  other  side 
of  the  house  this  morning :  you 
remember  that  I  set  out  there  this 
morning  at  seven  o'clock,  and  asked 
for  a  horse  to  go  to  the  wells?" 
"Yes,  sir."  Mr.  Donellan  said,  "then 
you  are  my  evidence."  The  servant 
answered,  "Yes,  sir."  She  did  not 
recollect  that  the  prisoner  made  any 
observation.  Tlie  witness  further 
said  that  Mr.  Donellan  received  a 
letter  from  Sir  William  Wheeler, 
desiring  the  bofly  might  l)e  opened, 
and  that  he  showed  her  his  answer 
to  this  letter.  She  tokl  him  he  had 
better  let  it  alone,  and  not  to  send 
such  a  letter  as  that ;  but  she  did 
not  tell  him  the  reason  of  her  dis- 
liking it.  He  replied,  that  "it  was 
necessary   to  send   an   answer,   and 


he  would  send  that."  She  after- 
wards attended  before  the  coroner 
and  the  jury  in  order  to  be  examined, 
when  Mr.  Donellan  also  was  present ; 
and  she  mentioned  to  the  jury  the 
circumstance  of  the  prisoner's  rins- 
ing the  })ottles.  Being  returned  to 
Lawford  Hall,  the  prisoner  said  to 
his  wife  before  the  witness,  that  she 
had  no  occasion  to  have  told  the  cir- 
cumstance of  his  w\ashing  the  bottles  : 
she  was  only  to  answer  such  ques- 
tions as  were  put  to  her;  and  that 
question  had  not  been  asked  her. 
Being  a.sked  whether  Mr.  Donellan 
did  not  endeavor  to  account  to  her 
for  her  son's  death,  she  answered, 
that  when  the  things  were  removed, 
in  order  to  l)e  put  in  the  inner  room, 
he  said  to  the  maid,  "  Here,  take 
his  stockings  ;  they  have  been  wet ; 
he  has  catched  cold,  to  be  sure: 
and  that  might  occasion  his  death. '^ 
On  that  she  examined  the  stockings, 
and  there  was  no  mark  or  appearance 
of  their  having  been  wet.  In  an- 
swer to  some  further  questions,  she 
denied  that  she  or  any  of  the  family 
had  ever  declined  eating  of  the  same 
dishes  that  Sir  Theodosius  did.  Mr. 
Donellan,  indeed,  had  recommended 
to  her  not  to  drink  out  of  the  same 
cup,  because  he  was  affected  with 
a  certain  disorder ;  nor  to  touch  the 
bread  he  did,  because  there  might  be 
arsenic  about  his  fingers,  as  he  used 
that  poison  when  he  was  fishing. 

Catherine  Amos  corroliorated  the 
testimony  of  her  mistress,  and  said, 
that  she  was  called  upstairs  to  the 
room  where  Sir  Theodosius  lay,  at 
the  time  when  the  surgeons  were 
engaged  in  opening  the  body,  and  she 
heard  Mr.  Donellan  say  "  that  there 
was  nothing  the  matter ;  and  that 
it  was  a  blood-vessel  which  broke, 
which  had  occasioned  the  death  of 
his  brother-in-law."  About  a  fort- 
night afterwards  Mr.  Donellan 
brought  her  a  still,  which  had  been 
recently  washed,  and  he  desired  her 
to  put  it  into  the  oven  to  dry,  in 
order  that  it  might  not  rust. 

Mr.  Kerr,  surgeon  of  Northampton 
deposed,  that  he  attended  Sir  Theo- 


No.  379. 


DONELLAN  S    CASE 


769 


dosius  when  he  was  at  Mr.  Jones's. 
His  disorder  was  so  sHght  that  he 
did  not  think  it  a  subject  of  medicine 
at  all.  He  ordered  him  some  lotion 
to  wash  with,  and  dissuaded  him 
from  the  use  of  medicine. 

Two  days  afterwards,  Sir  William 
in  consequence  of  the  rumors  which 
had  reached  him  of  the  manner  of 
his  ward's  death,  and  that  suspicions 
were  entertained  that  he  had  died 
from  the  effect  of  poison,  wrote  a 
letter  to  the  prisoner,  requesting 
that  an  examination  might  take 
place,  and  mentioning  the  gentlemen 
by  whom  he  wished  it  to  be  con- 
ducted. He  accordingly  sent  for 
them,  but  did  not  exhil)it  Sir  William 
Wheeler's  letter  alluding  to  the 
suspicion  that  the  deceased  had  been 
poisoned,  nor  did  he  mention  to 
them  that  thej^  were  sent  for  at  his 
request.  Having  been  induced  by 
the  prisoner  to  suppose  the  case  to 
be  one  of  ordinary  sudden  death, 
and  finding  the  body  in  an  advanced 
state  of  putrefaction,  the  medical 
gentlemen  declined  to  make  the 
examination,  on  the  ground  that  it 
might  be  attended  with  personal 
danger.  On  the  following  day,  a 
medical  man,  who  had  heard  of  their 
refusal  to  examine  the  body,  offered 
to  do  so ;  but  the  prisoner  declined 
his  offer,  on  the  ground  that  he  had 
not  been  directed  to  send  for  him. 
On  the  same  day  the  prisoner  wrote 
to  Sir  William  a  letter,  in  which  he 
stated  that  the  medical  men  had 
fully  satisfied  the  family,  and  en- 
deavored to  account  for  the  event 
by  the  ailment  under  which  the 
deceased  had  been  suffering ;  but  he 
did  not  state  that  they  had  not  made 
the  examination.  Three  or  four 
days  afterwards,  Sir  William,  having 
})een  informed  that  the  body  had 
not  been  examined,  wrote  to  the 
prisoner  insisting  that  it  should  be 
done  ;  Avhich,  however,  he  prevented 
by  various  disingenuous  contriv- 
ances, and  the  bndy  was  interred 
without  examination. 

Dr.  Rattray,  of  Co  v  entry,  deposed, 
that   in   consequence   of   a   request 


from  the  coroner,  who  desiretl  him 
to  bring  Mr.  Wilmer  with  him,  in 
order  to  open  the  body  of  Sir  Theo- 
dosius  Boughton,  they  went  together 
and  met  Mr.  Bucknell,  Mr.  Powell, 
and  Mr.  Snow,  in  Newbold  church- 
yard on  the  eleventh  day  after 
death.  Mr.  Bucknell  opened  the 
body.  The  witness  then  proceeded 
to  describe  the  external  appearances 
of  the  body,  and  its  appearances 
in  the  dissecting.  He  was  asked 
whether,  as  he  had  heard  the  evi- 
dence of  Mr.  Powell  and  Lady 
Boughton,  he  could,  from  that  evi- 
dence, totally  independent  of  the 
appearances  he  had  described,  form 
a  judgment  as  to  the  cause  of  the 
death  of  Sir  Theodosius.  He  an- 
swered, that,  exclusive  of  these 
appearances,  he  was  of  opinion, 
from  the  symptoms  that  followed 
the  taking  of  the  draught,  that  it  was 
poison,  and  the  certain  cause  of  his 
death.  Being  desired  to  smell  at 
the  bottle,  and  asked  what  was  the 
noxious  medicine  in  it,  he  said  it  was 
a  distillation  of  laurel-leaves,  called 
laurel-water.  Here  he  entered  into 
a  detail  of  several  experiments  on 
animals,  tending  to  show  the  in- 
stantaneous and  mortal  effects  of 
the  laurel-water.  He  knew  nothing 
in  medicine  that  corresponded  in 
smell  with  that  mixture,  which  was 
like  that  of  bitter  almonds.  He 
further  said  that  the  quantity  of 
laurel-water  contained  in  the  bottle 
shown  to  him  was  sufficient  to  be 
the  death  of  any  human  creature ; 
and  that  the  appearances  of  the  body 
confirmed  him  in  his  opinion  that 
the  deceased  was  poisoned,  so  far  as, 
upon  the  viewing  a  body  so  long  after 
the  death  of  the  subject,  one  could 
be  allowed  to  form  a  judgment  upon 
such  appearances. 

]\Ir.  Wilmer  and  Dr.  Parsons,  pro- 
fessor of  anatomy  at  Oxford,  con- 
firmed the  evidence  of  Dr.  Rattray. 

Dr.  Ashe,  of  Birmingham,  was  of 
opinion,  from  the  symptoms  de- 
scribed, that  the  deceased  died  by 
poison.  If  the  laurel -water  were 
distilled    strong    enough    to    collect 


770 


PART    III.       PROBLEMS   OF    PROOF 


No.  379. 


the  essential  oil,  a  teaspoonful  of  it 
would  destroy  animal  life  in  a  few 
seconds ;  and  he  believed  as  strong 
a  poison  might  be  made  from  bitter 
almonds. 

Dr.  Hunter  gave  his  opinion  to 
the  contrary. 

]\Iary  Lymnes  deposed,  that  she 
had  been  servant  to  Lady  Boughton. 
Mr.  Donellan  was  in  the  hal)it  of 
distilling  roses  occasionally,  and  he 
kept  his  still  in  an  apartment  which 
was  called  his  room,  and  in  which  he 
slept  when  Mrs.  Donellan  lay  in. 

Francis  Amos,  gardener  to  Lady 
Boughton,  deposed,  that  he  was 
with  Sir  Theodosius  the  whole  lime 
he  was  fishing,  the  night  before  he 
died.  Mr.  Donellan  was  not  there. 
Two  or  three  days  after  Sir  Theo- 
dosius died,  he  brought  him  a  still 
to  clean ;  it  was  full  of  wet  lime. 
He  said  he  used  the  lime  to  kill  fleas. 
The  witness  used  to  gather  lavender 
for  him  to  distill.  In  the  garden 
there  were  laurels,  bays,  and  laurusti- 
nus. 

William  Crofts,  one  of  the  coro- 
ner's jury,  deposed,  that  on  the  ex- 
amination of  Lady  Boughton,  when 
she  said  that  "Captain  Donellan 
rinsed  the  bottle,"  he  saw  the  cap- 
tain catch  her  by  the  gown,  and  give 
her  a  twitch. 

John  Darbyshire  deposed,  that 
he  had  been  a  prisoner  in  Warwick 
jail  for  debt ;  that  Mr.  Donellan 
and  he  had  a  bed  in  the  same  room 
for  a  month  or  five  weeks.  He  re- 
membered to  have  had  a  conversa- 
tion with  him  about  Sir  Theodosius 
being  poisoned.  On  his  asking  him 
whether  the  body  was  poisoned  or 
not,  he  said,  "There  was  no  doubt 
of  it."  The  witness  said,  "  For 
God's  sake,  captain,  who  could  do 
it?"  He  answered,  "It  was 
amongst  themselves ;  he  had  no 
hand  in  it."  The  witness  asked, 
"Whom  he  meant  by  themselves?" 
He  said,  "  Sir  Theodosius  himself, 
Lady  Boughton,  the  footman,  and 
the  apothecary."     The  witness  re- 


I)lied,  "Sure,  Sir  Theodosius  could 
not  do  it  h'mself!"  He  said  he 
did  not  think  he  did  —  he  could 
not  believe  he  would.  The  witness 
answered,  "the  apothecary  could 
hardly  do  it  —  he  would  lose  a  good 
patient ;  the  footman  could  ha\e 
no  interest  in  it ;  and  it  was  un- 
natural to  suppose  that  Lady  Bough- 
ton would  (io  it."  He  then  said, 
"  how  covetous  Lady  Boughton  was  ! 
she  had  received  an  anonymous  let- 
ter the  day  after  Sir  Theodosius's 
death,  charging  her  plump  with 
poisoning  him ;  that  she  called  him 
and  read  it  to  him,  and  she  trembled  ; 
she  desired  he  would  not  let  his 
wife  know  of  that  letter,  and  asked 
him  if  he  would  give  up  his  right  to 
the  personal  estate,  and  to  some 
estates  of  about  two  hundred  pounds 
a  year,  belonging  to  the  family." 
The  conversation  was  about  a  month 
after  the  captain  came  into  the  jail. 
At  other  times  he  said,  "  that  it  was 
impossible  he  could  do  a  thing  that 
never  was  in  his  power." 

This  being  the  chief  evidence,  the 
prisoner  in  his  defense  pleaded  a 
total  ignorance  of  the  fact,  and 
several  respectable  characters  bore 
testimony  to  his  integrity.  The  jury, 
however,  found  him  guilty,  and  he 
received  sentence  of  death. 

At  seven  o'clock  on  the  next  day, 
the  2d  of  April,  1781,  he  was  .  .  . 
launched  into  eternity.  When  the 
body  had  hung  the  usual  time  it  was 
put  into  a  black  coffin,  and  conveyed 
to  the  Town  Hall  to  be  dissected. 

It  is  almost  needless  to  inform 
our  readers,  that  the  poison  with 
which  the  unfortunate  Sir  Theo- 
dosius was  murdered  was  prussic 
acid,  at  that  tiine  only  recently  in- 
troduced and  little  known. 

^  The  leading  point  in  every  case  of 
this  sort,  is  —  did  the  deceased  die 
of  poison  ?  For,  if  he  did  not,  there 
is  an  end  of  the  whole.  Where 
there  was  no  poison,  there  was  no 
poisoner.  But  this  was  altogether 
a   question    to   be   decided    by    the 


*  [From  S.  M.  Phillipps,  Famous  Cases  of  Circumstantial  Evidence,  Preface.] 


No.  379. 


donellan's  case 


771 


opinion  of  medical  men.  Four  phy- 
sicians inspected  the  body,  on  dis- 
section, the  eleventh  day  after  the 
death.  They  gave  their  opinion  to 
the  jury,  and  described  the  circum- 
stances on  which  that  opinion  was 
founded  ;  those  four  said,  they  be- 
lieved him  to  have  died  of  poison. 
The  circumstances  on  which  they 
had  given  their  opinion,  were  stated, 
at  the  trial,  to  Doctor  John  Hunter, 
the  most  eminent  physician  of  the 
age.  He  declared  he  could  not  dis- 
cover, in  any  of  those  circumstances, 
nor  in  all  of  them  united,  any  sign 
of  the  deceased  having  died  from 
poison,  nor  any  symptoms  beyond 
those  incident  to  a  man  dying  sud- 
denly. 

Q.  From  the  court  to  Mr.  Hunter. 
Then,  in  your  judgment,  upon  the 
appearance  the  gentlemen  have  de- 
scribed, no  inference  can  be  drawn 
from  thence  that  Sir  Theodosius 
Bough  ton  died  of  poison  ?  A.  Cer- 
tainly not :  it  does  not  give  the  least 
suspicion. 

In  questions  of  science,  and  above 
all,  in  those  of  medical  science, 
the  faith  to  be  reposed  in  any  opin- 
ion, will  be  regulated  by  the  pro- 
fessional eminence  of  the  person 
giving     it.     Doctor    John     Hunter 


stood,  at  that  time,  at  the  very  head 
of  his  profession ;  his  opinion  gave 
the  law  to  that  profession,  both  in 
England  and  in  every  country  in 
Europe.  Had  the  profession  been 
to  estimate  his  opinion,  and  not  the 
jury,  a  very  different  verdict  would 
have  been  given.  The  case  re- 
ferred peculiarly  to  Doctor  Hunter's 
line  of  study, — that  of  dissection, 
and  the  appearances  incident  to  a 
body  on  sudden  and  convulsive 
death.  He  pronounced,  that  the 
dissection  had  been  irregularly  made, 
and  in  a  way  not  to  afford  the  true 
criterion  to  judge  by.  And,  where 
the  process  is  irregular,  when  the 
experiment  is  defective,  the  con- 
clusion must  always  be  vague  and 
doubtful. 

The  gentlemen  composing  the  jury 
did  not  perhaps  know  the  eminence 
of  Mr.  Hunter's  character ;  nor, 
consequently,  the  weight  due  to  his 
opinion.  But  the  judge,  on  the 
bench,  no  doubt  knew  this  ;  and  in 
balancing  the  evidence,  and  in  sum- 
ming up,  it  was  clearly  his  duty  to 
have  stated  the  great  weight  to  be 
attached  to  Mr.  Hunter's  observa- 
tions. He  stated  nothing  of  all  this ; 
but  took  them  numerically,  "four 
medical  men  to  one." 


772 


PART    III.       PROBLEMS    OF    PROOF 


No.  380. 


380.  LORD  SACKVILLE'S  CASE 
Military  Trials.      18GG,  p.  93.) 

In  the  reign  of  George  II  it  be- 
came quite  a  fashion  for  both  king 
and  people  to  run  down  to  degrada- 
tion, and  even  to  death,  any  com- 
mander who  should  be  un.successful 
through  even  a  mere  fault  of  judg- 
ment or  misapprehension  of  the 
circumstances  under  which  he  might 
be  acting.  Admiral  I3yng  was  a 
sad  and  shameful  instance  of  this 
kind  of  treatment  towards  men  who 
were  honorably  doing  their  best 
in  the  public  service.  Another  ex- 
ample is  afforded  in  General  Lord 
George  Sackville.  .  .  .  He  became 
a  Lieut.  General  of  the  Ordnance  in 
1757,  and  so  high  had  his  reputation 
risen,  that  in  1758  he  was  appointed 
to  succeed  Charles,  second  Duke  of 
Marlborough,  a  distinguished  mili- 
tary leader,  as  commander  in  chief 
of  the  British  forces  in  Germany, 
then  acting  under  Prince  Ferdinand 
of  Brunswick. 

This  brings  us  to  the  Battle  of 
Minden.  England,  and,  indeed,  al- 
most all  Europe,  were  at  the  time 
fiercely  engaged  throughout  the 
globe  in  that  memorable  war.  .  .  . 
And  latterly  England  confined  her- 
self, in  the  European  part  of  the 
contest,  to  sending  British  troops 
as  au.xiliaries  to  her  allies.  The.se 
troops  were  commanded  in  chief,  in 
1758  and  1759  as  stated,  by  Lord 
George  Sackville,  but,  somehow 
or  other,  he  could  not  approve  of 
or  agree  with  his  generalissimo, 
Prince  Ferdinand  of  Brunswick, 
George  II's  relative,  and  Prince 
Ferdinand  in  consequence  owed  him 
a  spite.  With  the  famous  Lieuten- 
ant General  the  Maniuis  of  Granby, 
who  acted  under  liim.  Lord  George 
was  also  not  on  the  best  of  terms. 
Amid  such  a  state  of  feeling  among 
the  commanders  of  the  allies,  the 
Battle  of  Minden  was  fought  and 
won  by  them  against  the  P^rench, 
under  Marshal  de  Contades,  on  the 
1st  August,  1759. 

The    action,    which    was    a    tre- 


(P.  BuKKE.     Celebrated  Naval  and 

mendous  struggle,  commenced  at 
five  in  the  morning  and  raged  with 
varied  success  during  the  day,  but 
it  is  to  the  latter  portion  of  the 
contest  that  the  reader's  attention 
should,  as  far  as  Lord  George  Sack- 
ville was  concerned,  be  directed. 
After  much  firing  on  both  sides, 
the  allied  army,  advancing  in  eight 
columns,  occupied  the  ground  be- 
tween Halen  and  Hemman,  and  the 
space  between  the  last  village  and 
Dodenhausen  was  filled  with  Vangen- 
heim's  corps.  Against  this  force 
the  enemy  directed  their  principal 
effort  on  the  left ;  but  the  Duke  de 
Broglie  experienced  a  severe  check 
from  a  battery  of  thirty  cannon  pre- 
pared by  the  Count  de  Buckeburg, 
Grand  Master  of  the  Artillery',  which, 
under  his  directions,  were  fired  with 
admirable  effect.  Towards  the 
right  of  the  allies,  six  regiments  of 
English  infantry  and  two  battalions 
of  Hanoverian  guards  had  to  sus- 
tain the  charge  of  the  French  car- 
abineers and  gendarmerie.  Such, 
however,  were  their  firmness  and 
courage,  that  every  corps  of  cavalry, 
as  well  as  infantry,  that  assailed 
them  on  the  left  and  in  the  center 
not  only  failed  of  piercing  their 
ranks,  but  was  itself  absolutely 
broken. 

The  cavalr\'  on  the  right  had  no 
opportunity  of  engaging.  They 
were  destined  to  support  the  in- 
fantry of  the  third  line,  and  con- 
sisted of  the  British  and  Hanoverian 
horse,  commanded  by  Lord  George 
Sackville,  who.se  second  was  the 
Marquis  of  Granby.  They  had 
been  posed  at  a  considerable  dis- 
tance from  the  first  line  of  infantry, 
divided  from  it  by  a  scanty  wood 
that  bordered  on  a  heath.  During 
the  action  they  were  ordered  up, 
but  through  some  error,  and  this 
was  the  offense  charged  on  Lord 
George  Sackville,  did  not  arrive  in 
time  to  take  part  in  the  struggle. 
Originally  it  was  not  intended  that 


No.  380. 


LORD    SACKVILLE  S   CASE 


773 


they  should  be  enjijaged,  and  there 
was  no  occasion  for  their  services. 
About  noon  the  French  ga\e  way, 
and  withdrew  from  the  field  of 
battle.  They  were  pursued  to  the 
ramparts  of  Minden,  having  lost 
a  great  number  of  men,  with  forty- 
three  large  cannon  and  many  colors 
and  standards.  The  loss  of  the 
allies  was  much  less  severe.  On  the 
following  day  the  garrison  of  Minden 
surrendered  at  discretion,  when 
many  French  officers  who  had  been 
wounded  in  the  engagement  fell 
into  the  hands  of  the  victors. 
Immediately  after  the  victory, 
Prince  Ferdinand  published  orders 
relative  to  the  troops  under  him, 
and  by  confining  himself  to  compli- 
menting the  Marquis  of  Granby, 
clearly  implied  a  severe  reflection 
on  that  nobleman's  superior  in 
command,  Lord  George  Sackville ; 
and  the  rumor  flew  to  England  at 
once  that  the  complete  rout  of  the 
French  was  prevented  by  Lord 
George,  through  cowardice  or  dis- 
obedience, not  charging  at  the  op- 
portune moment  with  the  cavalry 
under  his  command.  Lord  George 
was  furious  at  the  imputation. 
He  flung  up  his  appointments  and 
demanded  a  court-martial.  .  .  . 

The  court-martial  thus  earnestly 
demanded  by  Lord  George  was  held 
at  the  Horse  Guards  at  the  end  of 
March  and  beginning  of  April, 
1760.  .  .  .  The  charge  against 
Lord  George  was :  "  That  he,  be- 
ing a  lieutenant  general  in  His 
Majesty's  army  in  Germany,  under 
the  command  of  Prince  Ferdinand 
of  Brunswick,  and  being  by  his 
instructions  (which  were  read  in 
court)  directed  to  obey  the  orders  of 
the  said  Prince  Ferdinand,  did,  not- 
withstanding all  this,  on  August  1, 
1759,  disobey  the  orders  that  were 
sent  to  him  by  his  Serene  Highness." 
The  deputy  judge-advocate,  Mr. 
Gould,  in  a  short  speech,  explained 
the  nature  of  the  charge,  and  ob- 
served that  by  his  lordship's  not 
advancing  with  the  cavalry,  agree- 
ably  to   repeated   orders   sent   him 


by  three  aides-de-camp,  a  signal 
opportunity  was  left  of  ruining  the 
French  army,  and  the  ca\alry  was 
thereby  prevented  from  gathering 
the  laurels  which  the  infantry  had 
prepared. 

The  evidence  which  bore  most 
upon  the  charge  was  as  follows : 
(^aptain  Winchenrode,  Prince 
Ferdinand's  Prussian  aide-de-camp, 
deposed  that  he  was  sent  early  in 
the  morning  with  orders  from"  the 
Prince  to  Lord  George  Sackville  to 
march  to  the  left  with  the  cavalry, 
in  order  to  sustain  the  infantry. 
At  the  end  of  the  second  line  he  saw 
Lord  Granby,  of  whom  he  in- 
quired where  Lord  George  was, 
saying  that  he  M'as  going  with  orders 
to  him.  His  lordship  answered, 
"At  the  head  of  the  first  line," 
where,  accordingly,  the  deponent 
found  him.  He  delivered  to  him 
the  Prince's  orders  in  French  and 
afterwards  repeated  them  in  French  ; 
upon  which  his  lordship  said  he  did 
not  understand  them,  and  asked 
him  twice  how  it  was  to  be  done. 
The  deponent  then  told  him,  in 
English,  that  he  was  to  march  to 
the  left  through  a  little  wood  (to 
which  he  pointed)  after  which  he 
would  come  on  a  heath,  where  he 
was  to  form,  and  from  thence  he 
might  see  our  infantry.  After  this, 
the  deponent  left  him.  Being  asked, 
at  the  desire  of  Lord  George, 
whether  it  did  not  seem,  by  our 
dispositions,  that  the  enemy's 
cavalry  were  expected  to  have  been 
on  their  flanks,  and  their  infantry 
in  their  center,  he  replied  that  he 
knew  nothing  of  that,  nor  could 
pretend  to  form  a  judgment  either 
of  their  dispositions  or  ours ;  all  he 
knew  was,  that  he  was  sent  with 
orders   to  his  lordship. 

Lieutenant  Colonel  Ligonier 
(brother  of  the  famous  General 
John  Earl  Ligonier)  deposed  that  he 
carried  orders  from  the  Prince  to 
liOrd  George,  to  march  to  the  left 
with  the  cavalry,  in  order  to  sustain 
the  infantry  and  to  form  a  third  line 
behind    them    on    the    plain.      He 


774 


PART    III.       PROBLEMS   OF    PROOF 


No.  380. 


livered  them  accordingly  to  his 
lordship,  and  told  him  that  he  was  to 
march  to  the  left  through  the  wood. 
Lord  George  asked  him  who  was  to 
be  their  guide,  and  if  he  would 
undertake  to  lead  the  line.  He 
answered  that  he  could  not  promise, 
but  would  endeavor  to  do  his  best. 
His  lordship  then  ordered  swords 
to  be  drawn,  and  bid  them  march ; 
and  soon  after  came  up  Colonel 
Fitzroy,  with  orders  from  the  Prince 
to  march  up  immediately  with  the 
British  ca\alry.  On  which  Lord 
George,  turning  to  the  deponent, 
said,  "Only  in  numbers,  my  lord, 
but  their  destination  is  the  same ; 
that  is  to  the  left."  Soon  after  his 
lordship  and  Colonel  Fitzroy  rode 
away  together.  Being  asked,  at 
Lord  George's  desire,  if  he  did  not 
insist  on  his  orders  being  obeyed, 
he  ans\vered,  "Yes,"  peremptorily. 
Lieutenant  Colonel  Fitzroy  de- 
posed that  the  reason  of  his  being 
sent  to  Lord  George  was,  that  the 
Duke  of  Richmond  had  been  recon- 
noitering,  and  having  observed  to 
the  Prince  that  the  enemy's  cavalry 
were  in  disorder,  he  said,  "Voici 
le  beau  moment  pour  la  ca valeric," 
and  hid  the  deponent  go  with  orders 
to  Lord  George  Sackville,  to  march 
up  as  fast  as  possible  with  the 
British  cavalry.  He  delivered  them 
accordingly,  when  his  lordship  bid 
him  repeat  them,  and  speak  slowly 
and  distinctly.  He  did  so,  when  his 
lordship  told  him  that  his  orders 
disagreed  with  those  just  brought 
him  by  Colonel  Ligonier,  and  added, 
that  the  Prince  could  never  intend 
to  break  the  line.  He  insisted  on 
his  having  been  exact  in  delivering  the 
orders  just  as  he  received  them. 
On  which  Lord  George  said  he  would 
go  to  the  Prince  himself,  and  away 
they  went  together.  Being  asked 
"What  pace?"  answered,  "A  half 
gallop";  but  that  soon  after  they 
set  out,  Lord  George,  stopping  to 
speak  to  Captain  Smith,  his  aide-de- 
camp, the  deponent  then  pushed 
on  full  gallop,  and  got  to  the  Prince 
time   enough    to    make    his   report 


before  his  lordship  came  up.  When 
he  told  his  highness  that  Lord 
George  was  coming  himself,  he  ex- 
pressed his  surprise  strongly,  not 
by  words,  but  actions.  What 
passed  between  the  Prince  and 
Lord  George,  he  did  not  hear. 
Being  asked  if  he  carried  after- 
wards an  order  to  Lord  George 
Granby,  he  answered,  yes,  and  the 
occasion  of  it  was  this  :  he  was  with 
the  Prince  at  Captain  Philips's 
battery,  when  his  highness  seeing 
the  enemy's  cavalry  in  great  dis- 
order, said  that  he  thought  our 
cavalry  might,  even  then,  be  of 
service.  On  which  the  deponent 
asked  if  he  should  go  and  fetch  them. 
His  highness  replied,  "Yes,  make 
haste,  and  deliver  the  order  to  Lord 
Granby,  for  I  know  he  will  obey 
me."  He  went  accordingly,  and 
delivered  the  order,  as  directed,  to 
Lord  Granby,  whose  wing,  he  ob- 
served, was  farther  advanced  than 
the  other,  which  his  lordship  also 
mentioned  to  him.  He  asked  the 
deponent  why  he  did  not  deliver 
his  orders  to  Lord  George  Sackville. 
He  replied  that  as  Lord  George  had 
disobeyed  a  former  order  which  he 
carried,  he  had  now  the  Prince's 
direction  to  deliver  this  order  to 
him  (Lord  Granby)  —  upon  which 
his  lordship  immediately  put  the 
second  line  in  motion.  Being  asked, 
by  Lord  George,  whether  he  had 
ever  reconnoitered  the  wood,  and 
whether  it  was  close  or  open,  he  re- 
plied, that  he  looked  at  it  as  he 
passed  through,  and  the  part 
through  which  he  went  was  very 
open  ;  and,  as  to  the  breadth,  two 
squad  might  march  in  front.  Being 
asked  whether,  if  our  infantry  had 
been  broken  by  the  enemy,  the  con- 
sequence would  not  have  been  very 
fatal,  he  replied,  "  Undoubtedly,  as 
the  action  was  on  a  plain,  and  there 
was  no  cavalry  to  cover  them  while 
they  rallied." 

Lieut.  Colonel  Sloper  (of  Bland's 
Dragoons)  deposed  that  on  August 
1,  about  four  in  the  morning. 
Captain    Pentz   came   to   his    tent, 


No.  380. 


LORD    SACKVILLE  S    C.\SE 


775 


with  orders  from  the  Prince  for  the 
men  to  mount ;  he  added,  "  In  order 
for  action."     The  deponent  himself 
went    around     the    regiment,    and 
found  the  men  lying-  down  in  their 
tents,   booted,  and   the  horses  sad- 
dled, as  they  had  been  ever  since 
one  o'clock,  by  an  order  issued  the 
night    before.     In    about    half    an 
hour    after    they    were    drawn    out 
Lord  George  Sackville  came  to  the 
head  of  Bland's,  where  the  deponent 
was,   and   bid   them   march.     They 
had  not  gone    far  before    Captain 
Winchenrode,     Prince     Ferdinand's 
aide-de-camp,  came  up  and  told  his 
lordship,  in  French,  that  it  was  the 
Prince's  orders  that  he  should  march 
to  the  left  and  sustain  the  infantry 
on    the   plain.     He   repeated    it    in 
French.       Lord      George      replied, 
"Mais  comment,  mais  comment?" 
The  captain  then  said  in    English, 
waving  his   hand,   that   he  was   to 
march    through    those   trees    (that 
was   his    expression),    on    the   left, 
and  then  he  would  come  on  a  heath, 
where   he   would    see   our   infantry 
and  the  enemy.     Winchenrode  then 
went  away,  and  Lord  George,  saying 
that  he  could  not  understand  the 
orders,    the   deponent   said   that   it 
was  clear  to  him  that  this  was  to  be 
done  by  the  left  of  the  right  wing 
of   cavalry.     For   about   a   quarter 
of  an  hour  after  this  he  did  not  see 
his  lordship,  and  they  still  remained 
where  they  were ;    till  at  last  Lord 
George  came  up,  and  said  to  him, 
"Colonel,     move    3^our    regiment." 
He  replied,  "To  the  left,  my  lord  ?" 
His  lordship  answered, "  No,  straight 
forward."       Soon      after      Colonel 
Ligonier  came  to  Lord  George,  with 
orders   from   the   Prince   to   march 
immediately    with    the    caxalry    to 
sustain   the   infantry   on   the   plain. 
(The  deponent  then  desired  to  know 
if  he  must  inform  the  court  what 
he   said    to    Colonel    Ligonier,    and 
being    told,    if   it    related    to    Lord 
George,  he  must,  he  then  proceeded.) 
The  deponent  then  said  to  Colonel 
Ligonier,     "For    God's    sake,     sir, 
repeat  your  orders,  that  that  man 


(meaning  Lord  George  Sackville) 
may  not  pretend  he  does  not  under- 
stand them,  for  it  is  now  near  half 
an  hour  since  we  received  orders  to 
march,  and  yet  we  are  still  here. 
[He  was  sorry  (he  said)  that  his 
oath  obliged  him  to  mention  what 
he  also  added.]  For  you  see,  sir, 
the  condition  he  is  in."  Colonel 
Fitzroy  then  came  up,  but  what  he 
said  to  Lord  George  he  did  not  hear, 
only  his  lordship  then  turning  to 
Colonel  Ligonier,  said,  "  Sir,  your  or- 
ders are  contradictory."  He  replied, 
"In  numbers  only;  not  in  destina- 
tion." Soon  after  his  lordship  and 
Colonel  Fitzroy  rode  away  together, 
and  in  about  a  quarter  of  an  hour 
more  the  cavalry  moved.  Being 
asked  to  explain  what  he  meant  by 
those  words,  "  You  see,  sir,  the  con- 
dition he  is  in,"  he  replied,  that  his 
lordship  seemed  to  him  to  be  greatly 
alarmed  ;  that  when  he  gave  him  the 
orders  to  march  the  regiment,  he 
was  in  the  utmost  confusion,  as 
appeared  by  his  ordering  them  to 
march  straight  forward,  when  the 
original  orders  were  to  go  to  the 
left ;  Colonel  Ligonier's  orders  were 
to  go  to  the  left ;  and  when  the 
cavalry  did  move,  it  moved  to  the 
left. 

Prince  Ferdinand's  Prussian  aide- 
de-camp  deposed  that  on  Lord 
George's  not  bringing  up  the  cavalry 
on  Colonel  Fitzroy 's  order,  the 
Prince,  being  very  impatient,  directed 
him  to  go  and  hasten  Lord  George. 
That  on  his  way,  Colonel  Fitzroy 
passed  him  at  a  distance,  and  soon 
after  he  saw  his  lordship  coming 
himself.  On  which  he  hastened 
back  to  inform  his  highness  that 
Lord  George  was  coming  to  take  his 
orders  from  his  own  mouth,  rather 
than  from  him  ;  but  that  before  he 
could  speak,  the  Prince  cried  out, 
"What,  will  he  not  obey  me?" 

The  Marquis  of  Granby  (a  cele- 
brated connnander,  son  of  John, 
third  Duke  of  Portland,  and  ancestor 
of  the  present  duke)  deposed  to 
the  same  effect  as  Captain  Winchen- 
rode   in  regard    to   his   seeing  him 


776 


PART  III.   PROBLEMS  OF  PROOF 


No.  380 


both   in   going  and   returning  from 
Lord  George  Sackville. 

Lord  George  Sackville  made  an 
eloquent  speech  in  his  own  behalf 
on  the  nature  of  the  evidence  that 
had  been  brought  against  him. 
The  substance  of  the  defense  was  as 
follows :  Orders  were  given  the 
night  before  the  battle  for  the 
troops  to  be  in  readiness  at  one 
the  next  morning ;  the  horses  of 
the  cavalry  to  be  then  saddled, 
but  not  to  strike  tents  or  march 
till  further  orders.  These  orders 
having  been  frequently  given  for  a 
fortnight  before,  were  not  alone  suf- 
ficient to  apprise  Lord  George  of  an 
engagement  next  morning.  The 
first  notice  that  Lord  George,  Lord 
Granby,  and  other  general  officers 
had  of  an  attack  was  from  the  firing 
of  cannon  between  five  and  six. 
Lord  George  immediately  arose, 
being  waked  by  the  sound,  and  rode 
from  the  village  where  he  was  quar- 
tered to  the  head  of  the  cavalry, 
which  was  then  mounted,  and  he 
was  there  before  any  other  general 
officer  of  the  division;  that  he 
marched  them,  although  no  orders 
to  march  had  yet  reached  them,  to- 
ward a  windmill  in  front.  When 
he  had  advanced  a  considerable 
distance,  he  received  an  order  to 
halt  and  wait  until  he  should  re- 
ceive further  orders.  While  he  re- 
mained on  or  near  the  ground,  the 
artillery  had  also  marched  from  its 
ground,  though  neither  had  re- 
ceived any  orders  ;  and  Lord  George 
imagining  that  orders  to  the  artillery 
had  been  forgotten  in  the  hurry 
usual  upon  a  surprise,  he  ordered  it 
to  advance  in  front,  where  it  was  of 
signal  service.  Captain  Wlnchen- 
rode  soon  after  brought  him  an 
order  to  form  a  line  as  a  third  line 
to  support  the  infantry,  and  ad- 
vance. He  said  nothing  about  going 
to  the  left,  between  trees,  or  coming 
out  upon  a  heath,  nor  told  him 
where  the  infantry  to  be  sustained 
were  to  be  found,  but  only  repeated 
his  orders  twice  in  French  which 
Lorfl  George  requested  him  to  do. 


not  from  any  difficulty  he  found 
in  comprehending  the  general  in- 
tention of  them,  but  because  they 
were  at  first  expressed  indistinctly 
through  hurry.  Lord  George  sup- 
posing that  to  advance  was  to  go 
forward,  immediately  began  to  exe- 
cute these  orders,  by  sending  an 
officer  to  a  Saxe-Gotha  regiment  of 
foot  that  obstructed  his  way  in 
front,  to  cause  it  to  remove  out  of 
his  way,  thinking  it  better  so  to  do 
than  to  cause  our  artillery,  which 
obstructed  the  only  other  way  he 
could  have  advanced,  to  halt,  dis- 
patching at  the  same  time  a  second 
officer  where  the  infantry  he  was  to 
sustain  was  posted,  and  a  third  to 
reconnoiter  the  situation  of  the 
enemy.  While  this  was  doing.  Colo- 
nel Ligonier  came  up  with  an  order 
to  advance  with  the  cavalry  in 
order  to  profit  of  a  disorder  which 
appeared  in  the  cavalry  of  the 
enemy ;  and  that  neither  did  he 
mention,  or  at  least,  was  not  heard 
to  mention,  any  movement  to  the 
left.  The  Saxe-Gotha  regiment 
being  by  this  time  removed  from 
the  front,  Lord  George,  in  obedience 
to  the  concurrent  orders  of  Captain 
W^inchenrode  and  Colonel  Ligonier, 
as  he  understood  them,  and  as 
they  were  understood  by  his  wit- 
nesses, ordered  the  troops  to  ad- 
vance straight  forward.  This  could 
not  be  more  than  eight  minutes 
after  he  received  the  order  that  had 
been  brought  by  Captain  W'inchen- 
rode,  because  Captain  Winchenrode, 
as  he  was  riding  back  from  Lord 
George,  met  Colonel  Fitzroy  riding 
to  him  very  fast ;  and  when  Colonel 
Fitzroy  arrived,  the  troops  were  in 
motion.  It  appears  from  all  the 
witnesses  that  they  could  not  be 
put  in  motion  in  much  less  than 
eight  minutes,  as  five  minutes  were 
given  even  by  the  witnesses  for  the 
prosecution  of  the  Saxe-Gotha  reg- 
iment to  remove  out  of  the  way. 
Almost  immediately  after  the  troops 
were  in  motion.  Colonel  Fitzroy 
came  up  and  brought  the  first  orders 
he  heard  for  moving  to  the  left,  at 


No.  380. 


LORD   SACKVILLE's   CASE 


777 


the  same  time  limiting  the  move- 
ment to  the  British  cavalry.  Then, 
being  in  doubt  what  to  do,  he  halted  ; 
the  order  that  arrived  last,  by  Colo- 
nel Fitzroy,  not  supersefling  the 
former  by  Colonel  Ligonier ;  as 
Lord  George  and  those  al)out  him 
understood,  both  from  Fitzroy  and 
Ligonier,  that  they  brought  the 
same  order,  having  received  it  at 
the  same  time,  and  brought  it  at 
different  times  by  having  taken 
different  routes.  Not  being  able 
to  agree,  each  earnestly  pressing  the 
execution  of  his  own  orders.  Lord 
George  took  the  resolution  to  go 
to  the  prince,  who  was  not  far  dis- 
tant. Colonel  Ligonier  went  for- 
ward, and  that  as  Lord  George  was 
riding  on  with  Colonel  Fitzroy,  he 
perceived  the  wood  on  the  left 
more  open  than  he  had  thought  it, 
which  inclined  him  to  think  it  possi- 
ble the  Prince  might  have  ordered 
him  to  the  left ;  and  Colonel  Fitzroy 
still  vehemently  pressing  the  execu- 
tion of  the  order  he  brought,  he 
sent  Captain  Smith  with  orders 
for  the  British  cavalry  to  move  to 
the  left ;  the  motion  to  the  left  and 
the  limitation  of  the  movement 
to  the  British  being  connected  in 
the  same  order,  and  both  peculiar 
to  that  brought  by  Colonel  Fitzroy. 
By  this  means  scarcely  any  delay 
was  made,  even  by  the  differences  of 
the  orders  brought  by  the  two  aides- 
de-camp,  Captain  Smith  not  having 
advanced  above  two  hundred  yards 
beyond  the  left  of  the  British  cavalry ; 
the  time,  therefore,  could  only  be 
what  he  took  up  in  galloping  twice 
that  space.  This  period  included 
all  the  time  in  which  Lord  George 
is  supposed  to  have  disobeyed  orders 
by  an  unnecessary  delay. 

Numerous  witnesses  were  called 
in  support  of  this  statement  —  viz. 
Lieut.  Colonel  Hotham,  Captain 
Smith,  and  Captain  Lloyd,  Lord 
George's  aides-de-camp,  Lieut.  Colo- 
nel Preston  of  the  Greys,  Captain 
William,  R.A.,  Captain  McBean 
of  the  train,  Captain  Hugo,  Lord 
George's      German      aide-de-camp, 


Captain  Brome,  R.A.,  and  the 
Rev.  Mr.  Hotham,  chaplain  to  the 
staff.  Their  evidence  bore  out  the 
defense,  and  among  their  testimony 
the  most  important  was  that  of 
Lieut.  Colonel  Hotham  and  Captain 
Smith. 

Lieut.  Colonel  Hotham  deposed 
that  the  orders  which  he  received 
on  July  29,  for  generals  to  recon- 
noiter  the  overtures  leading  from 
the  camps  to  the  plains  of  Minden, 
and  on  the  31st,  for  the  horses  to  be 
saddled,  etc.,  at  one  the  next  morn- 
ing, were  communicated  to,  and 
obeyed  by,  his  lordship,  and  that 
such  orders  as  the  last  had  been  fre- 
quently issued  during  the  fortnight 
before.  Being  asked  (as  were  all 
the  following  witnesses)  if  he  per- 
ceived any  difference  in  Lord  George's 
looks  or  behavior  that  day  from 
what  was  usual,  he  answered  (as  did 
the  rest),  "None  in  the  least." 

Captain  Smith  deposed  that  he 
and  Colonel  Watson  reconnoitered 
the  overtures  by  his  lordship's 
orders,  on  the  30th ;  and  then  Lord 
George  himself  went  as  far  as  he 
could,  consistent  with  his  picket- 
duty,  being  lieutenant  general  of 
the  day.  By  orders  from  the  Prince, 
the  cavalry  was  first  formed  into 
squadrons,  and  then  into  line. 
That  while  they  were  forming  he 
was  on  a  rising  ground,  from  whence 
he  observed,  that  by  the  time  four 
or  five  squadrons  were  formed.  Lord 
George  marched  them,  which  oc- 
casioned disorder  in  the  rear,  they 
not  being  able  to  keep  up,  which  he 
went  and  informed  his  lordship  of, 
who  upon  that  made  them  halt ; 
and  he  (the  deponent)  returned  to 
his  post.  Soon  after  they  moved 
again,  when  a  Hanoverian  officer, 
whom  he  knew,  came  up  to  him 
and  said  that  they  marched  so  fast 
in  front  that  they  could  not  keep  up, 
and  that  their  horses  would  be 
blown,  etc.,  which  the  deponent 
went  again  and  told  Lord  George  of, 
who  then  said  that  he  would  halt 
no  more,  but  that  he  would  march 
slow,  and  that  then  the  rear,  when 


778 


PART    III.       PROBLEMS    OF    PROOF 


No.  380. 


it  was  formed,  might  soon  overtake 
him,  but  desired  them  not  to  hurry. 
The  place  where  they  were  forminf;; 
the  hne,  he  observed,  was  not  wide 
enough,  but  ricUng  forward,  he  ob- 
served that  there  was  room  enough 
a  httle  farther,  which  he  mentioned 
to  his  lordship,  who  then  ordered 
them  to  move  on,  and  the  line  was 
soon  well  formed. 

As  to  alteration  in  his  lordship's 
looks  or  behavior  that  day,  he 
was  sure  there  was  none ;  and  that 
he  would  have  gone  to  death  if  it 
had  been  needful. 

The  court-martial  pronounced  the 
following  sentence:  "This  court, 
upon  due  consideration  of  the  whole 
matter  before  them,  is  of  opinion 
that  Lord  George  Sackville  is  guilty 
of  having  disobeyed  the  orders  of 
Prince  Ferdinand  of  Brunswick, 
whom   he   was    by  his   commission 


and  instruction  directed  to  obey,  as 
commander  in  chief,  according  to 
the  rules  of  war  ;  and  it  is  the  farther 
opinion  of  the  court,  that  the  said 
Lord  George  Sackville  is,  and  he  is 
hereby  adjudged,  unfit  to  serve  His 
^Majesty  in  any  military  capacity 
whatever."  .  .  . 

Lord  George  outlived  his  dis- 
grace, and  rose  to  high  position  and 
power  again.  ...  In  a  few  years 
after  that  George  III  restored  him 
to  favor  and  to  his  seat  in  the 
Privy  Council,  and  he  was,  in  Lord 
North's  Administration,  appointed 
American  Secretary  of  State,  and 
as  such,  strongly  evinced  his  hostil- 
ity to  American  independence.  He 
held  office  from  1755  to  1782,  when, 
on  retiring,  he  was  created  in  the 
latter  year  Baron  Bolebrooke  and 
Viscount  Sackville. 


No.  381 


MOUDY    V.    SNIDER 


779 


381.   MOUDY  u.  SNIDER.     (1S9 
111.  App.  65.)  .  .  . 

.  .  .  Mr.  Presiding  Justice  Pleas- 
ants delivered  the  opinion  of  the 
Court.  —  This  action,  connnenced  by 
appellee  on  March  14,  lS94,\vas  tried 
on  the  5th  of  the  following  Decem- 
ber, and  resulted  in  a  verdict  and 
judgment  for  plaintiff  for  $111.70. 
Defendant  appealed.  The  declara- 
tion was  in  assumpsit  on  indebitatus 
counts  for  money  had  and  received, 
money  loaned,  work  and  labor,  and 
interest,  and  the  pleas  were  non- 
assumpsit,  payment,  set-off,  and 
accord  and  satisfaction.  The  claim 
was  for  money  due  plaintiff"  on  a 
note  he  left  with  the  defendant  in 
January,  1893,  which  he  collected 
on  March  7,  1894,  and  refused  to 
pay  over  the  proceeds  on  plaintiff's 
demand.  It  is  conceded  that  the 
judgment  is  correct,  unless  the 
defendant  by  a  preponderance  of 
the  evidence  proved  the  set-off 
claimed,  which  was  SlOO  and  interest 
from  August  2,   1892. 

Appellant  was  a  farmer  living  in 
Champaign  county.  Appellee  was 
a  farm  lal)orer  and  well  borer,  and 
worked  for  appellant  at  different 
times  for  different  periods  ranging 
from  days  to  months.  They  were 
on  very  friendly  terms.  On  August 
1,  1892,  appellee  came  to  appellant's 
house  to  assist  him  in  haying.  He 
finished  his  job  and  left  in  the  even- 
ing of  the  next  day.  Appellant 
testified  that  on  July  30th  he  drew 
from  Ford  Countv  Bank  at  Paxton 
$125  in  three  bills  of  $100,  $20,  and 
$5 ;  spent  the  smaller  l)ills,  except- 
ing some  change,  in  Paxton,  on  that 
day,  and  took  home  the  residue  in 
his  pocket  book  —  the  $100  bill  on 
one  side  and  the  change  on  the  other  ; 
that  in  the  afternoon  of  August  2d, 
while  appellee  and  he  were  working 
alone  in  the  haymow,  he  wrapped 
his  knife,  watch,  and  pocket  book, 
closed,  in  his  handkerchief,  and  so 
placed  them  under  one  of  the  braces 
in  the  mow.  At  quitting  time  in 
the  evening  he  went  to  get  them, 


5.     Illinois  Appellate  Court.    64 

found  the  pocketbook  unclasped 
on  the  side  containing  the  change  — 
which  seemed  to  be  all  there  —  and 
put  it  in  his  pocket.  While  at  the 
supper  table,  but  after  appellee  had 
eaten  and  gone,  the  question  how 
it  came  to  be  .so  unclasped  suddenly 
arose  in  his  mind,  and  on  taking  it 
out  of  his  pocket  and  looking  on 
the  other  side  found  it  empty.  He 
went  to  the  l)arn  to  look  for  the 
money,  but  did  not  find  it. 

He  at  once  suspected  appellee, 
because  he  was  the  only  other  per- 
son in  the  mow  that  afternoon 
(except  a  young  girl  who  worked 
there  and  came  up  for  fifteen  or 
twenty  minutes  "  to  talk  a  little 
and  gas").  But  he  said  nothing 
about  it  to  anybody,  thinking  he 
would  hear  of  appellee's  using  it. 
He  hired  him  for  two  months  of  the 
following  winter  for  the  purpose  of 
watching  him,  and  treated  him  as 
before,  but  discovered  nothing  to 
confirm  his  suspicion.  Appellee  ap- 
peared to  be  friendly  as  he  had  ever 
been.  It  was  during  that  period 
of  his  employment  that  the  appellee 
left  with  him  S^v'>  in  money,  one 
note  for  SI  10  and  another  for  $90, 
and  had  a  balance  due  him  on  a  horse 
trade  of  $5.  In  February,  1894, 
appellant  first  heard  that  soon  after 
the  money  was  missed,  appellee  was 
seen  by  several  persons  at  different 
times  to  have  in  his  possession  a 
$100  bill,  and  thereupon  charged 
him  with  having  taken  it  from  his 
(appellant's)  pocketbook ;  which 
appellee  defiantly  denied.  After 
several  talks  between  them  appel- 
lant returned  the  money  and  uncol- 
lected note,  and  paid  him  the  bal- 
ance due  on  the  horse  trade  and  a 
part  of  the  proceeds  of  the  note  he 
had  collected,  but  retained  the 
amount  of  the  missing  bill  and  in- 
terest thereon  from  the  day  it  was 
missed ;  and  refusing  to  pay  that, 
this  suit  was  brought.  The  only 
ultimate  question  of  fact  in  the  case 


780 


PART    III.       PROBLEMS    OF    PROOF 


No. 


was  whether  appellee  got  the  SlOO 
bill  as  charged ;  upon  which  the 
burden  of  proof  to  establish  the 
affirmative  was  upon  appellant. 

Not  one  of  the  circumstances 
relied  on,  except  that  of  his  being 
with  appellant  in  the  haymow,  so 
far  as  they  were  claimed  to  be  sig- 
nificant, was  certainly  shown,  even 
by  the  witnesses  for  appellant,  and 
were  all  (except  the  one  stated) 
positively  denied  by  appellee,  whose 
denial  was  more  or  less  supported 
by  reasonable  probabilities  and 
natural  inference  from  their  testi- 
mony. 

Three  witnesses  testified  to  as 
many  occasions  on  which  he  ex- 
hibited a  paper  that  looked  like  a 
SlOO  bill.  —  The  first  was  on  August 
17th,  1892,  a  fortnight  after  the  one 
in  question  was  missed.  It  was  on  a 
farm  only  three  or  four  miles  from 
that  of  appellant,  where  they  were 
assisting  in  threshing.  He  and  Sni- 
der were  pitching  in  the  field.  He 
says  Snider  had  some  paper  money 
there,  among  which  was  a  $100  bill ; 
that  it  was  not  an  advertisement,  but 
genuine  money ;  that  he  looked  at 
it  and  had  it  in  his  hands ;  just 
looked  over  it  as  Snider  showed  it  to 
him,  as  he  would  any  other  money, 
and  that  it  was  genuine  money,  at 
least  he  would  take  it  for  that.  He 
did  not  say  he  looked  at  the  back  of 
it.  He  couldn't  tell  what  bank  it 
was  on,  nor  whether  it  was  a  bank 
bill,  a  greenback,  or  a  gold  or  silver 
certificate.  He  told  Snider  at  the 
time  that  he  was  a  fool  for  carrying 
his  money  around  in  that  way.  — 
The  next  was  about  the  same  time, 
between  the  10th  and  21st  of  the 
month,  at  a  camp  meeting  in  Sugar 
Grove,  nine  and  a  half  miles  south- 
east of  Paxton.  The  witness  was 
running,  a  huckster's  stand  there. 
He  says  that  Snider,  whom  he  had 
knf)wn  very  well  for  seven  or  eight 
years,  came  up  to  his  stand  and  pull- 
ing out  what  he  took  to  be  a  .SlOO 
bill  said  he  wanted  to  smoke  and 
wanted  witness  to  change  the  bill. 
Snider  laid  it  out  flat.     Witness  did 


not  have  it  in  his  hands  nor  see  its 
back;  couldn't  tell  "what  issue  or 
what  sort  of  an  issue  it  was,"  but 
from  what  he  saw  he  took  it  to  be  a 
good  bill.  —  The  third  occasion  was 
on  Monday,  the  27th  of  the  same 
month.  The  witness  (Martin)  was 
in  a  buggy,  going  northwest  to 
Paxton,  and  when  within  a  mile  and 
a  half  or  two  miles  of  it,  met  Snider 
going  in  the  opposite  direction  in  a 
wagon  with  well  tools  on  it.  He  had 
l)een  to  town.  When  they  met  they 
stopped  and  had  some  talk  about 
how  they  were  getting  along  and 
how  much  money  they  were  making. 
They  had  been  well  accjuainted  for 
eight  or  nine  years,  worked  and  been 
much  together.  Witness  had  been 
interested  in  the  huckster  stand 
above  referred  to  and  was  telling 
how  much  they  had  made  on  it. 
Snider  doubted  it  and  said,  "  I  will 
bet  you  a  SlOO',  you  didn't  make 
near  that  much."  Witness  replied 
in  a  joking  way,  "Oh,  well,  you 
haven't  got  a  $100";  to  which 
Snider  answered,  "I  will  just  show 
you  that  I  have,"  and  pulled  out 
and  showed  witness  what  to  him 
appeared,  and  he  believed  to  be,  a 
$100  bill.  It  was  folded  up  when  he 
took  it  out  of  his  pocket,  but  he  un- 
folded it  and  showed  both  sides  of  it. 
The  witness  said,  "Of  course  I 
thought  it  strange  that  Snider  had 
a  $100  bill  loose  in  his  pocket,  but 
didn't  think  very  much  about  it." 

Mr.  Shaw,  cashier  of  the  First 
National  Bank  at  Paxton,  testified 
that  he  knew  appellee  by  sight ; 
that  on  the  27th  day  of  August, 
1892,  he  received  from  him  at  the 
bank  a  deposit  of  $115;  that  he 
"presumed"  it  was  in  bills  of  differ- 
ent denominations,  and  was  "of 
the  impression"  that  he  had  one 
large  bill,  a  $100  bill,  but  "would 
not  be  positive  about  that."  He 
said,  "  to  the  best  of  my  recollection 
he  had  some  two  or  three  or  four 
bills,  and  I  think  one  was  for  $100. 
...  I  don't  know  that  I  was 
particularly  impressed  at  the  time. 
It  was  a  common  thing  to  happen. 


No.  381. 


MOUDY    V.    SXIDER 


781 


.  .  .  We  have  a  large  number  of 
depositors,  five  or  six  hundred.  .  .  . 
I  can  only  say  that  part  of  this 
deposit  was  a  $100  hill,  as  my  best 
impression."  He  could  not  say 
how  many  people  made  deposits 
that  day  ;  supposed  the  usual  num- 
ber; nor  tell  who  deposited  on  that 
day,  or  within  a  week  of  it,  but  by 
the  books,  nor  testify  as  to  the 
denomination  of  the  bills  deposited 
unless  it  was  specified  in  the  deposit 
slip,  or  was  an  unusual  amount,  or 
there  was  some  special  circumstance 
to  make  him  remember  it.  His 
attention  was  first  called  to  it  by 
appellant,  and  only  about  a  week 
before  the  trial,  which  was  con- 
siderably more  than  two  years  after 
the  transaction. 

It  is  worthy  of  notice  that  the 
deposit  was  made  on  the  same  day 
that  appellee,  going  away  from  Pax- 
ton  with  tools  for  well  boring,  met 
his  friend,  the  witness  Martin,  and 
showed  him  wdiat  he  took  to  be  a 
$100  bill.  Martin  said  their  talk 
was  brief ;  that  appellee  was  work- 
ing for  some  one  and  seemed  to  be 
in  a  hurry  to  go  on.  The  time  of 
day  at  which  the  deposit  was  made 
or  the  meeting  took  place  was  not 
shown,  but  the  strong  probability 
from  the  circumstances  is  that  the 
deposit  was  made  before  appellee 
left  Paxton.  Banks  usually  closed 
long  before  the  day's  work  of  a  farm 
laborer  or  a  well  borer  ended.  He 
would  hardly  have  gone  on  to  the 
place  of  his  job,  quit  work  during 
working  hours  and  returned  to  Pax- 
ton  before  the  bank  closed.  It  is  not 
pretended  that  there  were  more  than 
one  SlOO  bill,  or  one  likeness  of  it 
in  evidence.  If  he  had  previously 
deposited  such  bill,  he  couldn't 
have  show^n  it  to  Martin,  and  if  he 
had  such,  it  was  altogether  probable 
he  would  have  deposited  it  with  the 
others,  rather  than  carry  it  about 
loose  in  his  pocket.  Hence  the  al- 
most irresistible  conclusions  are  that 
he  did  not  deposit  it,  and  also  that 
what  he  did  show  to  Martin  was 
not   such;    and   if  not,    then   it   is 


equally  probable  that  what  he 
sho.wed  to  the  other  witnesses  was 
not  a  genuine  bill.  Appellee,  who 
alone  certainly  knew  the  facts, 
positively  testified,  that  although 
he  saw  the  handkerchief  placed  as 
stated,  he  did  not  touch  it;  did 
not  deposit  nor  show  to  anybody  a 
genuine  SlOO  bill,  and  never  had 
one ;  that  what  he  had  and  showed 
was  not  a  bank  bill,  nor  paper 
really  representing  money  of  any 
kind,  nor  a  counterfeit  of  any,  but 
an  advertisement,  such  as  is  often 
seen,  in  the  likeness  of  such,  and  so 
clear  an  imitation  as  might  deceive 
anybody  who  only  looked  at  it, 
without  handling  or  examining  it ; 
that  he  had  carried  it  in  his  pocket 
a  long  time,  forgotten  of  whom  or 
how  he  obtained  it,  paid  no  particu- 
lar attention  to  it  and  couldn't  de- 
scribe it  at  all  minutely  ;  had  shown 
it  occasionally  to  the  young  men  in 
the  neighborhood,  for  their  astonish- 
ment and  his  own  amusement,  so 
handling  and  exhibiting  it  as  to  pre- 
vent their  "catching  on,"  and 
finally  gave  it  to  Eddie  Henry,  a 
grandson  of  Mr.  and  Mrs.  Strayner, 
with  whom  he  (appellee)  made  his 
home  during  much  of  the  time. 
They  testified  that  they  saw  it  — 
she  in  his  possession  at  several 
times  in  the  summer  of  1S92,  and 
both  in  that  of  the  little  boy,  who 
also  testified  that  appellee  gave  it 
to  him  and  that  after  keeping  it  a 
week  or  so  he  lost  it. 

The  actual  possession  by  appellee 
of  a  genuine  $100  bill,  after  ap- 
pellant's was  missed,  was  the  vital 
question  in  the  case.  Is  it  at  all 
strange  that  the  jury  found  the 
fact  not  proved  by  this  evidence  ? 
It  did  not  appear  that  appellant 
ever  saw  it  after  he  put  it  in  his 
pocketbook,  nor  to  what  extent, 
if  any,  it  was  exposed  to  less  before 
he  missed  it.  If  appellee  took  it 
he  must  have  done  so  almost  under 
the  eyes  of  its  owner,  with  whom  he 
was  working,  in  a  little  space,  all 
the  afternoon.  His  opportunity 
was  hardly  as  good  as  that  of  the 


'82 


PART    III.       PROBLEMS    OF    PROOF 


No.  381. 


gassing  girl  in  his  employ,  who  was 
free  to  roam  all  about  the  mow.  un- 
noticed, while  appellee  could  not 
well  be  out  of  his  sight  long  enough 
to  disturb  the  handkerchief,  take 
out  the  money,  wrap  and  replace 
the  pocketbook,  knife,  and  watch 
just  as  he  found  them,  without  dis- 
covery. If  he  had  any  reason  to 
suppose  there  was  money  there,  he 
knew  the  owner  would  very  soon 
miss  what  was  taken,  and  might 
before  they  left  the  mow.  They 
worked  on  together  until  appellant 
got  his  handkerchief  and  they  went 
to  supper.  Appellant  says  there 
was  nothing  strange  in  appellee's 
leaving  as  he  did,  nor  had  he  any 
recollection  afterward  of  anything  in 
his  conduct  or  manner  during  the 
afternoon  to  excite  suspicion.  He 
knew  that  appellee  was  going  that 
evening  to  George  Thompson's  to 
work.  He  had  been  working  for 
the  farmers  in  the  neighborhood 
many  years.  He  continued  to  do 
so  up  to  the  time  of  the  trial.  Yet 
it  is  claimed  that  within  a  few  days 
after  the  theft,  so  peculiar  in  its 
circumstances,  and  that  exposed 
him  to  imprisonment  for  ten  years, 
he  was  showing  the  stolen  property, 
of  such  unusual  character  as  to 
attract  notice  and  cause  remark,  to 
the  young  men  about  there,  carrying 
it  loose  in  his  pocket,  offering  it  at 
a  camp  meeting  in  payment  for  a 
cigar,  anfl  finally  depositing  it  in 
its  original  form  in  a  bank  where 
the  owner  was  likely  to  do  business. 
Such  circumstances  were  highly 
improbable  in  themselves,  even  upon 
the  supposition  of  his  guilt.  The 
alleged  fact  of  his  taking  the  money 
was  positively  denied,  and  the  cir- 
cumstances tending  to  prove  it 
were   not   unreasonalily   explained. 

When  first  charged  with  it,  and 
the  name  of  a  person  was  given  as 
one  who  had  seen  such  a  bill  in  his 
possession  —  the  only  one  given 
before  the  trial  —  he  promptly  pro- 
posed to  go  with  appellant  to  see  him. 
After  some  delay  on  appellant's  part, 
they  did  go,  and  appellant  was  al- 


lowed to  see  him  alone  while  appellee 
remained  outside.  Their  accounts 
of  the  interview,  as  reported  by  ap- 
pellant when  he  came  out,  differ,  but 
the  fact  is,  that  he  did  not  produce 
the  party  as  a  witness  on  the  trial, 
although  he  resided  in  Paxton. 

Two  other  circumstances  were 
brought  into  the  case  on  the  part  of 
appellant  which  may  deserve  a  brief 
notice.  One  was  that  appellee  had 
once  taken  some  money  of  George 
Thompson,  without  his  special 
authority  or  knowledge.  This  was 
admitted,  and,  in  our  opinion,  fairly 
explained  ;  and  if  it  had  not  been, 
was  incompetent  as  evidence. 

The  other  was  that  a  week  before 
the  trial,  in  the  course  of  a  conversa- 
tion with  a  witness  who  lived  a  half 
mile  from  him  and  knew  him  well, 
in  the  presence  of  Miss  Strayner, 
in  which,  among  other  things,  they 
talked  about  counterfeit  money, 
appellee  expressed  a  wish  that  he 
had  a  counterfeit  SI 00,  and  asked 
the  witness  if  he  could  get  one  for 
him,  but  did  not  state  what  for, 
particularly,  but  for  a  purpose. 
They  both  knew  this  suit  was  pend- 
ing and  ,what  it  was  about.  The 
inference  drawn  is,  that  he  wanted 
it  to  produce  on  the  trial  and  claim 
it  was  what  appellant's  witnesses 
saw.  But  for  that  purpose  it  would 
serve  no  better  than  his  advertise- 
ment. He  was,  doubtless,  already 
committed  to  the  advertisement 
theory.  How  could  he  want  to 
produce  a  counterfeit  bill,  if  he  got 
one,  for  any  such  purpose,  with  these 
witnesses  ready  to  prove  how  lately 
he  got  it  ?  But  his  advertisement 
had  been  lost  and  he  couldn't  pro- 
cure another.  He  might  properly 
want  a  counterfeit  to  test  the  ability 
of  appellant's  witnesses  to  distin- 
guish a  counterfeit  from  a  genuine 
bill,  with  no  better  opportunity  for 
examination  than  they  had,  and  to 
show,  if  he  could,  that  his  advertise- 
ment was  as  good  an  imitation  of  a 
genuine  bill.  We  think  the  in- 
ference sought  to  be  drawn  far- 
fetched and  unreasonable. 


No.  381. 


MOUDY    V.    SNIDER 


783 


Appellee  was  asked  where  he  got 
the  money  he  deposited  in  the  bank, 
and  answered  that  after  so  long  a 
time  —  over  two  years  —  he  could  not 
state  positively.  But  he  had  been 
at  work  most  of  his  time,  econom- 
ical and  saving  in  his  habits,  and 
received  it  from  a  number  of  persons 
who  had  owed  him  for  work  or  for 
loans.  He  named  eight  or  nine, 
from  three  or  four  of  whom  he  got 
money  that  he  believed  went  to 
make  up  the  SI  15  deposited.  In 
support  of  the  motion  the  affidavits 
of  four  or  five  of  these  named  were 
submitted,  showing  how  much  the 
affiants,  respectively,  had  paid  him, 
and  when ;  two  of  whom  fixed  the 
time  of  their  payments  at  a  date 
shortly  after  that  of  the  deposit, 
and  two  others  at  a  considerable 
time  before  —  one,  of  an  amount 
not  exceeding  ten  dollars,  as  early 
as    the    year    1889.     But    he    was 


shown  to  have  been  industrious  and 
saving  of  his  money  —  having  little 
occasion  to  spend  it  except  for  his 
clothes.  He  did  not  use  tobacco 
nor  drink  liquor  These  affidavits 
do  not  tend  to  impeach  his  veracity^ 
but  rather  to  show  it ;  nor  even  his 
memory.  Who  could  say  positively, 
two  years  and  four  months  after  a 
deposit  of  $11.5  in  several  bills  of  no 
uncommon  denomination,  just  when, 
where,  of  whom,  and  for  what  he 
obtained  them  ?  Appellee  fully 
admitted  that  he  couldn't.  .  .  . 
This  statement  of  the  evidence 
shows  that  the  question  involved 
was  eminently  one  to  be  finally 
determined  by  a  jury,  and  that  there 
was  quite  enough  to  support  their 
finding.  .  .  .  We  find  no  material 
error  in  the  record  to  the  prejudice 
of  appellant,  and  the  judgment  will 
be  affirmed. 


r84 


PART    III.       PROBLEMS    OF    PROOF 


No.  382. 


382.    O'BANNON  v.  VIGUS. 
48  111.  App.  84.)  .  .  . 

Appellant's  Stofcmentofthe  Case. — 
Eliza  Vigus,  the  mother  of  appellee, 
D.  L.  Vigus,  on  the  23r(l  day  of  May, 
1872,  took  out  a  policy  in  the  Pro- 
tection Life  Insurance  Company, 
of  Chicago,  for  $5000,  payable  to 
appellee.  She  died  on  the  12th  of 
October,  1874.  Proofs  of  loss  were 
duly  made  to  the  company.  At  the 
request  of  appellee,  R.  W.  O'Ban- 
non  (now  deceased)  went  to  Chicago 
early  in  January,  1875,  to  collect 
the  amount  of  the  policy.  In  two 
or  three  days  he  returned,  and 
brought  with  him  a  note  and  check 
for  $1000  each,  dated  January  5, 
1875.  They  were  accepted  by  ap- 
pellee, and  on  the  same  date  he 
gave  a  rece'pt  to  the  company  in 
full  payment  of  the  policy.  O'Ban- 
non  died  on  the  13th  of  November, 

1883,  and  appellant  was  appointed 
his  executrix.     On  the  19th  of  June, 

1884,  appellee  filed  his  claim  against 
the  estate  as  follows  :  "  Estate  of  R. 
W.  O'Bannon,  deceased.  —  To 
Darius  L.  Vigus,  Dr. — To  the  sum 
of  $3000,  collected  and  received  by 
said  O'Bannon,  to  the  use  of  said 
Vigus,  of  the  Protection  Life  In- 
surance Company,  of  Chicago,  on 
policy  No.  4266,  on  the  life  of  Eliza 
Vigus,  now  deceased,  on,  to  wit, 
the  4th  day  of  March,  a.d.  1875, 
with  interest  thereon  at  the  rate 
of  6  per  cent  per  annum.  Said 
money  having  been  collected  by  said 
O'Bannon  while  acting  as  claim- 
ant's agent ;  the  collection  of  which 
sum  was  by  said  O'Bannon  fraud- 
ulently concealed  from  the  claim- 
ant during  the  lifetime  of  said 
O'Bannon." 

The  policy  was  for  $5000.  Two 
thousand  dollars  were  collected  by 
O'Bannon  and  paid  to  Vigus.  As 
to  this  there  is  no  dispute.  The 
contention  is  as  to  the  $.3000.  The 
evidence  ofl'ered  to  show  the  liabil- 
ity of  the  estate  was  the  following 
receipt  on  the  l)ack  of  the  policy  : 
"Received    of   the    Protection    Life 


1S9L      Illinois  Appellate  Court. 

Insurance  Company  five  thousand 
dollars,  being  amount  in  full  of  the 
within  policv.  (Signed)  D.  L.  Vi- 
gus. By  R.'  W.  O'Bannon."  This 
receipt  was  without  date.  It  was 
written  by  Terpenny,  the  book- 
keeper of  the  company,  except 
the  words,  "five  thousand,"  and 
the  signature.  He  said:  "O'Ban- 
non was  in  the  office  of  the  com- 
pany when  he  wrote  the  receipt." 
It  is  claimed  that  the  receipt  was 
false,  the  words  five  thousand  dol- 
lars having  been  filled  in  after  it 
was  signed  by  O'Bannon.  .  . 

Opinion  of  the  Court.  —  On  the 
night  of  Sunday,  January  5,  1873, 
R.  W.  O'Bannon  went  from  Ray- 
mond, in  Montgomery  County,  to 
Chicago,  as  the  agent  of  appellee, 
to  collect  what  he  could  on  a  policy 
of  the  Protection  Life  Insurance 
Company  for  $5000  upon  his 
mother's  life  for  his  benefit.  On 
the  night  of  Tuesday,  the  5th,  he 
returned,  reported  to  him  a  com- 
promise and  settlement,  subject  to 
his  approval,  with  A.  W.  Edwards, 
secretary  and  manager  of  the  com- 
pany, for  $2000,  as  the  best  he  was 
able  to  make,  and  advised  him  to 
accept  it.  At  the  same  time  he 
tendered  the  company's  check  of 
January  5,  for  $1000,  and  its  note, 
at  sixty  days,  of  the  same  date,  for 
a  like  sum,  both  payable  to  his 
order.  After  hesitation  and  dis- 
cussion, appellee  accepted  them, 
and  signed  a  receipt  of  the  same 
date,  which  had  been  prepared  by 
Edwards,  in  full  of  the  policy,  but 
without  stating  the  amount ;  which 
was  returned  to  the  company  on 
Friday,  the  8th.  Appellee  never 
received  anything  more  on  the 
policy,  but  the  further  sum  of  $3000 
was  afterward  assessed  and  col- 
lected by  the  company  on  account 
of  this  loss,  and  paid  to  somel)ody, 
on  its  check  of  March  4th  made 
payable  to  his  order.  This  check 
was  drawn  by  Mr.  Terpenny,  the 


No.  382. 


O  BANNON    V.    VIGUS 


785 


bookkeeper,  by  direction  of  Ed- 
wards, and  delivered  to  him  ;  was 
paid  some  time  in  June,  and  on  its 
return  by  the  bank  was  placed  by 
Terpenny  with  the  other  papers  in 
the  case  in  the  company's  vault, 
to  which  Edwards  had  access.  No 
further  trace  of  it  appears. 

In  1877  the  company  failed.  Ed- 
wards removed  to  Dakota  in  1879. 
His  deposition  was  taken,  and  he 
strangely  denied  all  recollection  of 
the  check  settlement  or  claim.  Ter- 
penny, who  continued  in  the  service 
of  the  receiver  or  assignee  after  the 
failure,  looked  for  it  carefully,  and 
found  all  the  other  papers  relating 
to  the  case  together  in  their  proper 
place,  but  this  check  was  gone  and 
has  never  been  traced.  The  check 
for  $1000  given  to  Vigus,  and  the 
check  given  the  bank  cashier  to 
pay  the  note,  were  signed  by  Hillard, 
as  president,  and  Edwards  as  secre- 
tary, according  to  the  custom.  The 
one  for  $3000  was  signed  by  Ed- 
wards, as  secretary,  but  by  whom 
else  or  how  it  was  indorsed  Ter- 
penny did  not  recollect,  nor  was  it 
otherwise  shown.  In  his  search  for 
it  in  July,  1883,  he  found  among  the 
papers  the  policy  in  question,  with 
a  receipt  indorsed  thereon,  purport- 
ing to  be  for  "  five  thousand  dollars, 
being  amount  in  full  of  the  within 
policy,"  without  date,  and  all  in 
his  own  handwriting  except  the 
words  "five  thousand,"  which  were 
in  that  of  Edwards,  and  the  signa- 
ture, which  was  "D.  Vigus,  by  R. 
W.  O'Bannon,"  and  in  the  hand- 
writing of  the  latter.  In  October 
following  he  casually  informed  ap- 
pellee of  this  receipt,  and  thereupon 
an  action  on  the  case  was  instituted 
against  Edwards. 

O'Bannon  was  then  on  his 
deathbed,  and  died  on  the  loth 
of  the  next  month.  Appellee  after- 
ward dismissed  his  suit  against 
Edwards,  and  on  the  30th  of 
June,  1SS4,  filed  this  cla'm  in  the 
County  Court  against  the  estate 
of  O'Bannon  for  the  amount  of  the 
missing  check  and  interest  from  its 


date  —  alleging  that  O'Bannon  had 
collected  it  as  his  agent  and  fraud- 
ulently concealed  the  fact.  There 
the  claim  was  disallowed.  The  case 
has  been  three  times  tried  in  the 
Circuit  Court  and  brought  here  on 
appeal  from  its  judgments.  The 
first  was  for  the  defendant,  which 
was  affirmed  on  the  merits  (19 
App.  241),  but  the  Supreme  Court 
reversed  it  and  ours.  (118  111. 
334.) 

On  the  second  trial  some  changes 
of  more  or  less  importance  were 
made  by  some  of  the  witnesses  in 
their  statements  on  the  first,  and 
some  new  evidence  introduced  on 
each  side ;  and  the  judgment  was 
for  plaintiff,  Vigus.  We  thought 
these  changes  and  additions  weak- 
ened his  case  and  positively  strength- 
ened the  defense.  His  case  rested, 
as  before,  on  O'Bannon's  receipt 
as  it  then  appeared  on  the  policy, 
his  alleged  admission  to  Miller  in 
the  spring  of  1875,  and  statement 
made  on  his  return  from  Chicago 
about  the  cancer  letters.  We  dis- 
credited all  this  evidence;  the  re- 
ceipt, because  the  words  "five 
thousand"  were  inserted  without 
his  authority  where  it  was  blank 
when  he  signed  it ;  and  the  admis- 
sion and  statements,  because  the 
testimony  tending  to  prove  them 
was  unreliable  and  improbable  in 
itself,  inconsistent  with  better  at- 
tested facts,  supported  only  by  as- 
sumptions which  were  themselves 
unsupported  and  more  rationally 
explained  by  the  supposition  that 
they  were  misunderstood.  Thus,  if 
the  admission  to  Miller,  as  stated 
by  him,  was  embodied  in  a  request 
that  was  in  the  highest  degree  in- 
sulting to  a  man  of  honor  and  yet 
was  not  resented  nor  disclosed  until 
O'Bannon  was  dead  and  this  claim 
had  been  disallowed  by  the  County 
Court,  was  not  true  in  fact,  and 
would  expose  his  own  estate  to  loss 
and  his  reputation  to  ruin,  reason 
and  charity  would  force  the  belief 
that  it  was  not  so  intended  by 
O'Bannon,  and  never  so  understood 


rsG 


PART  III.     probli:ms  of  proof 


No.  382. 


In'  ]\Iiller  until  he  heard  of  the  sur- 
prising receipt  on  the  poHcy,  but 
always  before  as  having  l)een  in 
substance  the  same  that  had  been 
made  to  \'igus  and  others  before  and 
about  that  time,  namely,  that  he 
had  settled  the  claim  of  \'igus  upon 
a  five-thousand-dollar  policy,  and 
not  that  he  had  collected  S5000 
upon  the  policy.  So  also,  of  the 
alleged  statement  about  the  cancer 
letters  or  letter ;  if  it  was  improb- 
able on  its  face,  untrue  in  fact, 
needless  or  rather  hurtful  and  hin- 
dering to  the  purpose  supposed  to 
be  in  view,  likely  to  lead  to  injury, 
easy  to  be  disproved,  with  conse- 
quences certainly  ruinous  to  himself 
and  disgraceful  to  his  family,  every 
fair  mind  would  naturally  look  for 
some  explanation  which  should  make 
it  more  probable  that  the  witnesses 
were  mistaken  than  that  he  made 
or  intended  to  make  such  a  state- 
ment. All  of  this  was  true  and 
proved  of  the  statement  alleged, 
and  an  explanation  was  suggested, 
which  has  not  been  shown  nor  at- 
tempted to  be  shown  to  be  inad- 
missible. 

On  the  other  hand,  the  clear 
weight  of  the  evidence  seemed  to 
show  that  on  January  5,  1875, 
O'Bannon  in  good  faith  finally 
settled  the  claim  in  question  for 
the  check  and  note  of  SI  000  each, 
that  he  delivered  to  appellee,  and 
no  more,  subject  to  his  ratification. 
For  it  established  the  following 
facts :  Proof  of  death  of  the  in- 
sured was  submitted  to  the  company 
November  28,  1874.  By  the  terms 
of  the  policy  it  had  ninety  days  from 
that  date  within  which  to  pay  the 
loss.  Appellee  wanted  money,  for 
a  special  purpose,  as  soon  as  he  couJLd 
get  it.  He  began  at  once  to  impor- 
tune the  company  for  it.  Edwards 
paid  no  attention  to  his  letters. 
For  some  reason  he  soon  came  to 
expect  he  would  have  to  submit  to 
a  compromise,  if  he  got  anything. 
His  mother  had  been  treated  for 
cancer  existing  before  the  policy, 
which  had  lapsed,   was  reinstated, 


though  it  does  not  appear  that 
O'Bannon  knew  or  had  any  inti- 
mation of  it  before  he  went  to 
Chicago  on  this  business.  He  went 
on  short  notice,  in  place  of  his  son 
who  had  been  first  engaged,  because 
of  his  long  and  friendly  acquaintance 
with  Edwards.  He  went  expecting 
to  compromise,  and  authorized  to 
do  so  on  the  best  terms  he  could  get. 
At  what  time  on  the  morning  of  the 
4th  he  arrived  at  Chicago,  or  how 
soon  afterward  he  saw  Edwards 
was  not  shown.  Doubtless  he  saw 
him  on  that  day,  but  not  at  his 
office.  They  discussed  the  claim, 
probably  at  considerable  length. 
Edwards  told  him  the  company 
had  information  that  when  the 
])olicy  Avas  reinstated  Mrs.  Vigus 
was  not  a  fit  subject  for  insurance, 
and  particularly,  at  least,  that  she 
had  })een  injured  by  a  fall  on  the 
street  at  Litchfield  for  which  she  had 
recoverefl  damages  against  the  city. 
It  did  not  appear  that  in  that  inter- 
view anything  was  said  about  can- 
cer, unless  from  statements  of 
O'Bannon  on  his  return.  Finally, 
however,  Edwards  made  him  as  low 
an  offer  as  $2000,  and  no  more. 
O'Bannon  hesitated  to  accept  'it, 
and  they  separated  without  a  settle- 
ment on  that  day.  Up  to  this 
time,  surely,  it  cannot  be  pretended 
that  their  action  was  not  natural, 
businesslike,  in  good  faith,  and  at 
arm's  length.  On  the  next  day 
O'Bannon  appeared  at  the  office  of 
Edwards,  which  was  occupied  by 
Terpenny  also,  whose  desk  was  only 
about  ten  feet  from  that  of  the 
secretary,  and  while  there  Ter- 
penny, by  direction  of  Edwards, 
drew  or  filled  up  and  delivered  to 
him  the  note  and  check  for  $1000 
each  and  the  receipt  on  the  policy 
with  a  blank  space  for  the  amount, 
and  Edwards  prepared  the  receipt 
in  full  for  appellee  to  sign  if  he 
would.  Whether  the  note  and  check 
were  printed  and  already  or  ever 
afterward  signed  by  the  president 
or  vice  president,  does  not  appear; 
but    they    were    duly    paid.     The 


No.  382. 


O  BANNON   V.    VIGUS 


787 


policy  was  left  with  Edwards,  and 
O'Bannon,  with  the  note,  check,  and 
receipt  to  be  signed  l)y  appellee, 
took  the  evening  train  for  Ray- 
mond. Terpenny  made  an  entry 
on  the  books  of  the  company,  of 
the  same  date,  showing  that  the  note 
was  given  for  the  "balance  due," 
all  that  remained  to  be  paid  on  the 
policy.  There  was  no  evidence 
tending  to  prove  that  O'Bannon 
ever  afterward  had  any  communi- 
cation with  any  agent  of  the  in- 
surance company  or  of  the  l^ank, 
or  knew  of  the  filling  of  the  blank 
in  his  receipt  or  of  the  existence  of 
the  $3000  check,  except  his  alleged 
admission  to  Miller,  and  the  fact 
(if  it  was  a  fact,  of  which  there  was 
some  evidence)  that  he  went  again 
to  Chicago  at  some  time  in  the 
following  spring,  which  in  our  judg- 
ment was  fairly  overcome  by  the 
two  receipts  in  full,  the  book  entry 
and  the  other  facts  stated.  If  a 
final  settlement  could  be  proved  by 
circumstances,  these,  not  otherwise 
explained,  would  prove  it.  All  of 
them  having  so  appeared  on  the 
first  trial,  we  found  it  was  then  and 
thus  made ;  and  that  fact  alone, 
if  such  was  the  fact,  would  of  itself 
effectually  dispose  of  the  alleged 
admission,  and  make  wholly  im- 
material in  this  action,  whatever 
lies  O'Bannon  might  have  told  to 
justify  his  settlement  or  induce  its 
ratification. 

Feeling  the  force  of  these  circum- 
stances, appellee  introduced  as  a 
new  witness  on  the  second  trial, 
Martin  Ryan,  the  actuary  of  the 
company,  who  testified,  that  about 
the  1st  of  January,  1875,  Edwards, 
at  his  office,  introduced  him  to 
O'Bannon;  that  they  proceeded  to 
talk  about  this  claim  ;  that  O'Ban- 
non urged  its  "settlement,"  and 
Edwards  "  seemed  disposed  to  favor 
him,  but  said  it  had  not  been  as- 
sessed for  yet ;  O'Bannon  desired 
some  money  immediately,  on  that 
occasion  ;  Edwards  agreed  to  give 
SIOOO  down  or  a  check  for  $1000, 
and  a  draft  or  note  at  sixty  days  — 


I  think  it  was  for  another  $1000  — 
and  the  hnlance  when  the  claim  was 
assessed  for  and  collected;"  that 
Edwards  then  handed  to  witness 
the  proofs  of  loss  and  told  him  to 
see  that  it  got  into  the  next  asses.s- 
ment  (without  stating  the  amount), 
to  be  sent  out  early  in  February, 
and  then  directed  the  bookkeeper 
to  draw  up  the  check  and  note  for 
$1000  each,  which  the  bookkeeper 
apparently  proceeded  to  do.  The 
case  of  plaintiff  and  the  reputation 
of  Edwards  were  in  urgent  need  of 
some  such  evidence  as  this  state- 
ment that  he  then  agreed  to  pay 
on  this  policy  $3000,  in  addition 
to  the  note  and  check  then  given, 
when  the  claim  was  assessed  for 
and  collected.  But  it  could  not 
be  made  to  fit  the  facts.  It  was 
conceded  upon  the  uncontradicted 
testimony  of  Charles  A.  Walker, 
the  attorney  of  the  company,  who 
was  also  a  new  witness  on  the  part 
of  the  defense,  that  no  longer  than 
the  day  before,  after  some  discus- 
sion in  his  office,  which  was  in  the 
same  building,  and  just  over  that  of 
Edwards,  O'Bannon  and  Edwards, 
in  his  presence,  absolutely  agreed 
on  a  compromise  and  settlement  of 
the  claim  for  $2000,  which  Edwards 
had  first  offered ;  that  O'Bannon 
seemed  well  pleased  with  that  agree- 
ment, having  been  satisfied  by 
Walker  that  the  claim  would  be 
resisted  if  pushed,  and  that  $2000 
paid  would  probably  be  better  for 
appellee  than  a  judgment  for  the 
full  amount ;  and  that  upon  coming 
to  the  agreement  O'Bannon  and 
Edwards  went  downstairs  together. 
We  believed  then,  and  think  we 
can  now  show  more  clearly,  that  the 
meeting  spoken  of  by  Ryan  took 
place  immediately  upon  the  agree- 
ment to  compromise  spoken  of  by 
Walker ;  that  they  went  directly 
from  his  office  to  that  of  Edwards, 
and  that  the  conversation  between 
them  there  had  no  reference  what- 
ever to  the  amount,  because  that 
had  just  been  agreed  on,  but  solely 
to  the  time  and  manner  of  its  pay- 


fSS 


PART    III.       PROBLEMS    OF    PROOF 


No.  382. 


nient,  which  had  not  been  settled 
upstairs.  Even  according  to  Ryan, 
O'Hannon  wanted  some  money  im- 
mediately, and  the  disposition  of 
Eilwards  to  iavor  him  was  shown  by 
his  consent  to  give  SIOOO  in  cash, 
and  a  note,  on  which  money  could 
be  immediately  raised,  for  the 
residue. 

But  upon  the  contention  of  coun- 
sel as  to  the  fimc  of  the  agreement 
on  the  amount,  we  said  in  the  former 
opinion  :  "  We  are  asked  to  believe 
that  this  secretary,  who,  notwith- 
standing his  friendship  for  O'Ban- 
non,  on  Monday,  for  the  substantial 
reasons  stated,  in  the  presence  and 
with  the  concurrence  of  the  com- 
pany's attorney,  committed  himself 
to  a  peremptory  refusal  to  pay 
more  than  $2000,  and  actually  got 
an  agreement  to  settle  for  that 
amount,  with  which  O'Bannon 
seemed  well  pleased,  on  Tuesday, 
without  any  new  light  on  the  subject, 
and  without  the  knowledge  of  the 
attorney,  was  entertaining  a  prop- 
osition from  O'Bannon  to  settle, 
and  was  so  '  disposed  to  favor  him ' 
that  he  would  have  paid  the  full 
amount  right  down  except  that  it 
had  not  been  assessed  and  collected, 
and  actually  paid  SI 000  down,  gave 
the  company's  note  at  sixty  days 
for  another  thousand,  and  a  verbal 
promise  to  pay  SSOOO  more,  to  which 
all  claim  had  been  abandoned,  as 
soon  as  it  should  be  assessed  and 
collected,  and  gave  directions  to 
have  it  assessed  and  collected  as  soon 
as  possible.  Considering,  further, 
that  nothing  was  yet  due,  that  the 
financial  condition  of  the  company 
was  not  such  as  to  justify  any  need- 
less liberality  in  the  settlement  of 
claims  against  it,  and  that  the  book- 
keeper at  the  adjoining  desk,  who 
was  probably  within  hearing  of  the 
whole  arrangement,  when  he  did 
'  proceed  to  draw  up  the  papers,' 
proceeded  further  to  enter  the  trans- 
action on  liis  l)f)oks  as  a  .settlement 
for  82000  and  no  more,  the  statement 
that  the  secretary  then  agreed  to 
pay  the  furtiier  large  sum  of  $3000 


seems  but  little  less  than  mon- 
strous." This  agreement  to  settle 
for  $2000,  pro\'ed  by  the  circum- 
stances and  by  the  direct  testimony 
of  Walker,  and  now  conceded,  was 
made  in  good  faith  ;  for  if  the  parties 
had  then  conspired  to  get  from  the 
company  SoOOO,  it  is  morally  certain 
that  they  would  not  have  made 
Walker  a  witness  to  their  agreement 
on  82000.  And  unless  that  agree- 
ment was  abandoned  and  a  new  one 
made  before  the  note  and  check 
were  delivered,  then  it  was  also 
executed  in  good  faith.  The  evi- 
dence proved  to  our  satisfaction 
that  there  was  no  such  change  in 
the  agreement. 

To  the  reasons  suggested  in  the 
above  cjuotation,  no  answer  has 
been  attempted.  The  papers  ex- 
ecuted were  in  accordance  with  the 
agreement.  There  was  no  time  after 
it  was  made  and  before  the  delivery 
of  the  papers,  sufficient  for  the  con- 
coction of  such  a  conspiracy  as  is 
charged,  or  any  material  change  in 
the  terms  of  settlement  so  agreed 
on,  nor  any  afterward,  and  before 
O'Bannon  returned  to  Raymond ; 
for,  upon  receipt  of  the  papers,  he 
left  the  office,  and  there  is  no  evi- 
dence or  reason  for  the  belief  that 
in  the  meantime  he  had  any  meeting 
or  communication  with  Edwards; 
and  if  he  did,  it  would  seem  to  be 
the  height  of  assumption  and  pre- 
sumption to  suppose  that  he  would 
ha\e  broached  or  Edwards  dared  to 
suggest  to  him  the  idea  of  such  a 
conspiracy.  Nothing  in  his  con- 
duct or  reputation  or  relations  to 
Edwards  or  to  appellee  appears  to 
warrant,  but  everything  to  forbid 
it.  His  life  for  nearly  nine  years 
afterward,  at  Raymond  and  Litch- 
field, was  a  continuous  and  emphatic 
denial  of  it. 

The  fact  of  a  bona  fide,  executed 
.settlement  for  .82000  being  thus 
established,  it  follows  that  he  could 
not  ha\e  intended  to  admit  to  Miller 
or  anybody,  at  any  time,  that  he 
collected  or  received  S^'iOOO ;  and 
that  the  question  of  false  representa- 


No.  382. 


O  BANNON    V.    VIGUS 


789 


tion  as  to  the  cancer  letter  —  if  any 
such  was  made,  which  we  do  not 
beheve  —  is  immaterial.  For  the 
reasons  thus  indicated,  and  others 
more  fullv  set  forth  in  the  opinion 
filed  (32  App.  483-487),  this  second 
judgment  was  reversed  and  the 
cause  remanded.  Ha\infj;  seen  no 
reason  to  retract  or  modify  the  ex- 
pression of  our  views  of  the  law  or 
the  evidence  as  to  any  material  point 
presented  by  the  record  then  before 
us,  we  might  here  have  simply  re- 
ferred to  it,  for  those  we  still  enter- 
tain, so  far  as  applicable.  But  out 
of  respect  to  counsel  and  their  elab- 
orate argument,  if  not  also  in 
justice  to  ourselves,  we  have  re- 
peated them,  condensed,  and  some- 
what rearranged  in  their  order,  as 
a  better  introduction  to  what  is  now 
to  l)e  said  on  the  bearing  of  the 
new  evidence. 

The  points  now  urged  as  against 
the  conclusion  of  the  court  on  the 
former  record  are,  (1)  that  there  is 
not  nor  ever  was,  any  evidence  that 
the  receipt  on  the  policy  was  drawn 
or  signed  on  January  5,  1875 ;  (2) 
that  the  agreement  in  Walker's 
office  to  settle  for  $2000,  was  made 
on  the  morning  of  the  4th,  and  a  new 
one  for  $5000  on  the  5th,  when  the 
note  and  check  were  given  ;  and  (3) 
that  the  new  testimony  of  Mr.  and 
Mrs.  Hill  fully  proved  O'Bannon's 
admission  that  he  collected  $5000. 
It  is  said  the  legal  presumption  is, 
that  he  signed  the  receipt  as  it  now 
appears,  and  the  inevitable  conclu- 
sion from  that  fact  and  the  testi- 
mony respecting  his  admission,  is 
that  he  did  collect  that  sum. 

(1)  It  is  true  of  the  receipt  that 
Terpenny  did  not  and  would  not 
give  the  date  of  its  preparation, 
doubtless  for  the  reason,  and  only 
for  the  reason,  that  it  bore  none  on 
its  face;  for  the  occasion  fixed  the 
time  just  as  certainly,  and  he  had 
testified  before,  and  not  less  than 
five  times  on  the  last  trial,  that  he 
wrote  it  while  O'Bannon  was  in  the 
office,  and  further,  that  he  never 
saw  him  there,  but  the  one  time.    To 


this  there  was  no  contradiction,  and, 
in  connection  with  other  facts,  it 
is  conclusive.  .  .  .  Having  then 
received  the  check  and  note,  then 
was  the  proper  time  to  receipt  for 
them.  There  was  e\ery  reason  why 
he  should  and  none  why  he  should 
not.  Edwards  was  an  experienced 
man,  acting  for  the  company.  Such 
men  do  not  make  such  payments 
without  taking  receipts.  It  was 
especially  proper  in  this  case,  be- 
cause O'Bannon  was  but  an  agent 
and  his  principal  might  not  ratify 
the  arrangement.  His  right  to  re- 
fuse was  expressly  reserved.  No 
other  receipt  than  the  one  so  in- 
dorsed is  claimed  to  have  been 
given  by  him  at  any  time.  We 
think  it  has  already  been  sufficiently 
shown  why  the  statement  of  Ryan 
on  the  second  trial,  that  Edwards 
agreed  to  pay  the  further  sum  of 
$3000  when  assessed  and  collected, 
ought  not  to  have  been  believed ; 
but  his  statement  on  the  last,  and 
the  new  evidence  for  appellant,  call 
for  some  further  observations  in 
regard  to  it.  On  the  second  trial 
the  testimony  of  Walker  preceded 
his.  He  now  says  he  thinks  he  did 
not  read  it  before  he  testified,  but 
that  he  had  some  conversation  with 
appellee  and  Mr.  Truitt,  his  attorney, 
and  they  told  him,  in  a  general  way, 
about  it.  Walker  had  said  he  had 
been  under  the  "impression"  that 
the  meeting  in  his  office,  when  the 
agreement  to  settle  for  82000  was 
made,  was  on  a  Man  day  morning, 
in  the  latter  part  of  December,  1874, 
or  first  part  of  January,  1875.  A 
good  many  years  had  since  passed. 
He  said :  "  Of  course  it  is  simply  an 
impression  that  has  got  on  my  mind. 
I  don't  know  why  I  have  got  the  im- 
pression." It  appearing  that  the 
4th  of  January,  1875,  was  on  a  Mon- 
day, and  that  the  note  and  check 
and  receipt  for  \'igus  to  sign,  and 
the  entry  on  the  book  that  the  note 
was  given  for  the  "  balance  due  on 
policy  4266,"  were  all  under  date 
of  January  5th,  and  that  O'Bannon 
had  said  he  made  the  settlement  on 


790 


PART    III.       PROBLEMS    OF    PROOF 


No.  .3S-\ 


the  second  day  he  was  in  Chicago, 
it  was  seen  that  appellee's  claim  was 
to  be  upheld  only  by  the  slender 
thread  of  Walker's  unaccountable 
"impressions,"  upon  the  basis  of 
some  proof  that  when  the  settlement 
was  actually  made,  there  was  an 
equally  unaccountable  rcrhal  agree- 
ment to  pay  S3000,  supplementing 
two  written  obligations  for  $1000 
each.  And  Ryan,  whose  devotion 
to  Edwards  was  shown,  furnished 
the  proof  of  such  a  sudden,  great,  and 
unaccountable  change  in  the  agree- 
ment. For  the  reasons  indicated 
in  the  quotation  above  made,  we 
thought  and  said  it  was  more  prob- 
able that  Walker's  impression  as  to 
the  day  was  wrong  than  that  any 
such  change  was  made.  But  Ryan, 
since  he  furnished  that  proof,  has 
read  the  preceding  testimony  of 
Walker.  At  first  he  denied  it,  but 
being  confronted  with  his  own  letter 
to  Walker  stating  that  he  had,  he 
admitted  it.  Whether  he  had  also 
read  the  opinion  of  this  court  does 
not  appear.  But  for  some  reason, 
his  clear  and  positive  statement 
turns  out  on  this  trial  to  be  also  at 
best  only  an  "impression,"  quite 
as  vague  and  shallow  as  that  of 
Walker.  He  says:  "The  settle- 
ment of  the  Vigus  claim  Avas  talked 
between  Edwards  and  O'Bannon. 
I  did  not  pay  special  attention  to 
the  details.  .  .  .  My  best  recol- 
lection is,  it  was  agreed  to  pay 
SI 000  cash,  and  note  payable  about 
the  time  the  money  would  come  in. 
.  .  .  He  stated,  I  think,  it  was  a 
great  favor  they  were  extending 
O'Bannon  in  making  advance  pay- 
ment, as  the  company  was  entitled 
to  the  date  fixed.  .  .  .  Nothing 
was  said  about  the  result  of  the 
money  due  on  ,the  policy,  in  my 
presence.  As  I  stated,  I  am  not 
very  clear  as  to  what  was  said  about 
the  balance  being  paid  when  the 
claim  was  assesserl  and  collected. 
My  best  recollection  is,  he  was  im- 
pressing on  him  that  he  was  doing 
a  favor ;  that  the  balance  would 
be  paid  inside  of  ninety  days,  after 


the  assessment.  My  best  recol- 
lection is,  this  was  stated  —  be  paid 
when  the  assessment  was  collected." 
On  cross-examination  he  says : 
"  Edwards  ordered  a  check  for  SIOOO 
and  a  note  for  SIOOO  on  the  Vigus 
claim,  to  be  drawn  up.  I  am  not 
positive  as  to  what  was  said  about 
a  balance.  Have  only  a  vague 
impression.  Would  not  swear  any- 
thing in  relation  to  it,  so  void  is  my 
mind  as  to  what  was  said."  We 
regard  this  as  a  substantial  recanta- 
tion —  an  admission  that  according 
to  the  statement  of  Edwards  on  that 
occasion  the  settlement  was  for 
a  check  (cash)  and  note  at  sixty 
days  each  for  SIOOO ;  that  the  favor 
shown  was  by  the  payment  in  ad- 
vance of  the  time  mentioned  in  the 
policy ;  that  the  balance  to  be  paid 
when  assessed  and  collected,  if 
anything  of  the  kind  was  said,  was 
the  balance  for  which  the  note  was 
given,  as  entered  on  the  books,  and 
not  the  further  sum  of  S3000,  of 
which  nothing  was  said  in  his  pres- 
ence. The  whole  of  the  talk  w^as  , 
confined  to  the  time  of  payment  of 
the  amount  agreed  on  —  O'Bannon 
wanting  cash,  and  Edwards  insisting 
on  the  time  for  a  part.  Thus  the 
testimony  of  Ryan  is  additional  evi- 
dence of  an  actual  settlement  for 
S2000,  and  that  it  was  made  in 
good  faith. 

(2)  The  other  contention  of  coun- 
sel is  also  shown  to  be  groundless. 
Walker's  impression  as  to  the  time 
of  the  meeting  and  agreement  in  his 
office,  was  wrong ;  it  took  place  on 
Tuesday,  January  5th,  and  immedi- 
ately prt^ceding  the  execution  of  the 
papers,  in  the  office  of  Edwards,  as 
is  more  fully  proved  by  the  new  evi- 
dence. Walker  testified  before,  and 
now  also,  that  the  meeting  was  in  the 
morning.  Counsel's  position  was 
that  it  was  Mondaij  morning,  and 
that  the  parties  had  all  the  afternoon 
and  evening  after  the  agreement,  in 
which  to  conspire,  before  the  papers 
were  executed.  We  thought  it  was 
Tuesday,  because  they  would  nat- 
urally proceed  to  execute  the  agree- 


No.  382. 


O  BANNON    V.    VIGUS 


roi 


ment  immediately,  since  it  would 
require  only  a  few  minutes'  work, 
and  the  office  of  the  .secretary  and 
bookkeeper  was  just  "downstairs," 
whither  they  went  to<i;ether ;  and 
further,  because  of  the  improI)ability 
that  the  preceding  meetings  and  dis- 
cussions and  the  intervals  of  time 
between  them,  together  with  the 
meeting  in  Walker's  office,  could 
have  all  occurred  on  the  same  morn- 
ing, as  they  must  if  the  latter,  which 
was  the  last,  was  on  Monday.  First, 
O'Bannon,  after  a  night  ride  in  the 
cars,  met  Edwards  —  where  or  at 
what  time  was  not  shown  —  and 
they  had  a  talk,  doubtless  somewhat 
lengthy,  as  it  involved  the  justice 
of  the  claim  and  the  question  of  a 
compromise ;  afterward,  how  long 
is  not  shown,  Edwards  saw  Walker, 
told  him  O'Bannon  was  in  town 
about  the  Vigus  claim,  that  he  had 
talked  with  him  about  a  compromise, 
offered  him  $2000,  which  O'Bannon 
had  not  accepted,  and  that  he  prob- 
ably would  if  ad^•ised  by  Walker 
to  do  so ;  and  then,  after  another 
interview,  how  long  did  not  appear. 
Walker  says  he  took  O'Bannon  up 
to  his  office,  went  over  the  case,  and 
advised  him  to  accept  the  offer  made. 
All  this  took  place  before  Edwards 
was  called  up  and  the  agreement 
made.  We  still  think  it  highly  im- 
probable that  all  of  this  took  place 
on  one  morning.  The  question, 
however,  is  onlj^  as  to  the  last,  when 
the  three  parties  were  together  and 
the  agreement  was  made. 

We  regard  the  point  of  the  time 
when  it  was  made,  within  the  period 
from  O'Bannon's  arrival  in  Chicago 
to  his  receipt  of  the  note  and  check, 
as  of  no  importance  whatever  to 
the  defense  of  appellant,  because, 
in  our  judgment,  the  idea  of  such 
a  change  in  the  agreement  as  is 
claimed,  within  any  time  that  can  be 
pretended  for  it,  is  on  its  face  not 
to  be  entertained.  Why,  Ryan 
himself  says  that  in  the  very  con- 
versation between  them  when  the 
papers  were  drawn  up,  Edwards  told 
0'13annon   that   "there  was  a  dis- 


pute about  the  claim,  and  an  investi- 
gation, owing  to  letters  from  his 
locality  in  regard  to  Mrs.  Vigus's 
condition,"  though  he  could  not 
say  what  was  said,  particularly,  as 
to  their  contents.  And  yet  it  is 
seriously  claimed  that  he  promised 
to  pay  $3000  more  than  had  so 
recently  been  agreed  on ;  Ryan 
added  that,  when  Edwards  told  him 
about  the  letters,  O'Bannon,  in  sub- 
stance, stated  that  "some  enemies 
or  unfriendly  parties  had  been  in- 
terfering with  other  people's  busi- 
ness," which  may  help  to  explain 
the  cancer  testimony,  and  to  show 
that  the  parties  were  still  dealing 
at  arm's  length  and  O'Bannon  was 
still  faithful. 

Counsel  for  appellee  seem  to 
see  that  unless  by  way  of  this 
idea  of  a  change  in  agreement,  his 
every  approach  to  a  recovery  from 
this  estate  is  solidly  excluded  by 
the  evidence ;  and  therefore,  whether 
a  sufficient  reason  can  or  cannot,  at 
least  a  sufficient  time  and  opportunity 
to  make  it,  must  be  shown.  Though 
proof  of  these  might  not  materially 
aid  his  case,  the  want  of  it  would 
be  fatal.  Important  as  it  is  to  him, 
the  whole  argument  for  the  time 
claimed  is  as  follows :  "  On  Sunday 
night,  January  3,  1875,  O'Bannon 
started  to  Chicago,  where  he  arrived 
the  next  morning  .  .  .  and  it  seems 
called  ai  once  on  Edwards.  After 
seeing  Edwards,  O'Bannon  seems 
to  have  left  the  place  of  meeting,  for 
when  Edwards  saw  Walker,  that 
morning,  so  Walker  sai/s,  the  former 
told  the  latter  that  O'Bannon  had 
come  to  Chicago  on  the  Vigus  matter, 
and  that  he,  Edwards,  had  offered 
$2000  to  settle  the  claim,  and  that 
he  thought  O'Bannon  would  accept 
it  if  Walker  saw  him  and  talked  to 
him.  We  call  particular  attention 
to  what  Walker  says.  In  response 
to  the  question,  what  Edwards  said, 
he  answered:  'Said  Dick  O'Baimon 
was  in  town.'  For  what  purpose 
did  he  say  he  was  in  town  ?  '  Said 
to  me.  Uncle  Dick  O'Bannon  is  in 
town  ;  was  up  to  see  about  the  Vigus 


792 


PART    III.       PROBLEMS    OF    PROOF 


No.  382. 


matter,  etc.*  This  languajje  clcarly 
shows  that  O'Hannon's  coining  niusf 
have  been  of  \ery  recent  occurrence  ; 
that  he  had  just  had  his  first  inter- 
view with  Edwards ;  that  it  must 
have  been  the  first  morning  he  was 
there ;  otherwise  his  old  friend 
Walker  would  have  sooner  heard  of 
it.  Now,  as  O'Bannon  left  Ray- 
mond Sunday  night,  and  would 
naturally  arrive  in  Chicago  the  fol- 
lowing morning,  the  conclusion  must 
irrr.sistlhli/  be  that  it  was  on  Monday 
morning,  January  J^,  lS7o,  thatO'Ban- 
non  was  in  Walker  s  office.  AYalker 
then  says  that  he  watched  for  O'Ban- 
non at  the  foot  of  the  stairs,  from 
which  they  went  to  Walker's  office." 
We  find  in  the  e\idence  no  warrant 
for  such  positixe  use  of  any  of  the 
terms  we  have  italicized ;  nothing 
to  show  with  any  definiteness  at 
what  time  of  the  day  or  even  on 
which  of  the  two  days  O'Bannon 
first  saw  Edwards,  how  long  he 
remained  with  him,  how  soon  after 
they  separated  Edwards  saw  Walker, 
or  how  long  he  remained  w^ith  him. 
All  of  these  are  matters  of  mere 
conjectiM'e,  or  at  most  of  very  un- 
certain probability.  It  may  have 
been  as  counsel  assert  —  but  it  may 
not.  For  all  the  purposes  of  this 
case  these  assumptions  may  be  con- 
ceded. We  call  attention  to  them 
only  to  show  the  looseness  of  the 
argument.  But  it  would  still  be 
very  easy  to  resist  the  conclusion  last 
stated  from  the  given  premises  or 
any  other  reasonal)ly  supported  by 
the  evidence,  even  as  it  appeared  on 
the  former  trial.  Now,  consider 
the  testimony  of  Walker  on  the 
last  one.  After  stating  the  offer 
of  $2000,  and  its  acceptance,  he 
proceeds  :  "  They  then  went  down- 
stairs together.  I  saw  Edwards  at 
twelve  o'clock,  as  I  went  to  lunch. 
I  went  into  his  office  and  said,  "  You 
and  Uncle  Dick  settled  the  matter," 
and  he  said  "Yes."  I  saw  Uncle 
Dick  that  afternoon  and  said  to 
him,  "  You  are  lucky ;  you  and 
Edwards  have  settled  the  matter;" 
and  he   said,    "Yes,  have  settled." 


The  conclusion  from  this  language 
that  it  was  not  on  Monday  morning, 
January  4,  1875,  that  O'Bannon 
was  in  Walker's  office,  is  so  natural, 
reasonable,  and  plain  that  we  draw 
it  without  hesitation.  The  twelve 
o'clock  mentioned  was  the  twelve 
o'clock  of  the  same  day  they  were  in 
that  office ;  they  settled  before  that 
hour ;  and  the  settlement  was  made, 
as  the  papers  show,  on  Tuesday, 
January  5,  1875.  It  was  immedi- 
ately on  going  downstairs  together 
that  they  arranged  the  mode  of 
payment  and  executed  these  papers. 
This  was  manifestly  done  in  good 
faith.  There  was  no  time  or  reason 
for  the  asserted  change  in  the  agree- 
ment, and  none  whatever  was  made. 
Further,  when  Edwards  was  seen 
at  twelve  o'clock,  O'Bannon  was  not 
with  him,  and  when  O'Bannon  was 
seen  in  the  afternoon,  Edwards  was 
not  with  him ;  and,  as  before  said, 
there  is  not  a  particle  of  evidence 
tending  to  show  that  they  were  again 
together  at  any  time  before  O'Ban- 
non returned  that  night  to  Raymond. 
His  report  to  appellee  the  next  day 
that  he  had  settled  the  claim  for 
$2000,  and  could  get  no  more,  was 
therefore  substantially  and  literally 
true.  That  he  had  then  conspired 
with  Edwards  to  get  more,  or  he  had 
thought  of  getting  it  in  any  way,  is 
a  proposition  without  the  least  sup- 
port in  the  evidence,  so  far  as  we 
can  see. 

It  does  not  appear  that  Edwards 
himself  had  any  such  design  until 
just  before  the  SIOOO  check  was 
drawn.  The  new  proof  shows  that 
in  December  he  wrote  to  Walker, 
the  company's  attorney,  that  this 
claim  should  be  compromised.  On 
the  former  trial,  as  on  this,  it  was 
shown  that  the  assessment  for  this 
claim,  as  presented  to  and  approved 
by  the  executive  board,  was  for 
S2500  (as  it  would  be  according  to  the 
custom,  as  proved,  if  it  was  com- 
promised at  $2000),  and  it  was  so 
stated  in  the  notices  to  members 
sent  out  in  February ;  though  the 
amount  required  to  be  paid  by  each 


No.  382. 


O  BANNON    V.    VIGUS 


793 


would  raise  $5000.  Ryan  said  the 
$2500  got  in  by  mistake  or  misprint, 
whieh  may  now  be  doubted.  Hut 
howe\'er  that  may  be,  Walker  testified 
on  this  trial  that  early  in  February, 
Edwards  and  Ryan  came  into  his 
office  with  these  notices  and  asked 
his  opinion  as  to  the  propriety  of 
sending  them  out.  He  told  them 
that  this  claim  was  compromised  at 
$2000  and  assessed  for  at  $2500; 
that  these  notices  were  wrong  and 
ought  not  to  be  sent  out,  to  which 
Edwards  replied  that  "  there  was  no 
time  to  reprint  them  now,  and  if 
anybody  kicked  he  would  send  the 
money  back";  that  he  represented 
$25,000  of  the  company's  stock,  and 
that  in  consequence  of  this  state- 
ment of  Edwards  he  then  determined 
to  get  out ;  and  that  though  he  made 
no  further  complaint  about  the  mat- 
ter, he  did  leave  the  company  in  the 
following  May  or  June.  Counsel 
indulge  in  an  insinuation  against 
Walker,  because  he  did  not  call 
attention  to  this  over-assessment, 
which  we  think  gratuitous,  since, 
according  to  his  understanding  and 
the  statement,  it  was  simply  a  pre- 
mature collection  and  the  excess 
would  still  inure  to  the  benefit  of 
the  members,  according  to  the  reg- 
ular course  of  business,  as  shown, 
because  it  would  be  turned  to 
the  contingent  assessment  account. 
Walker  therefore  discharged  his  duty 
when  he  advised  as  strongly  as  he 
did  against  the  sending  out  of  those 
notices.  The  point  we  are  making, 
however,  is  that  Edwards  was  then 
fully  aware  that  Walker  knew  the 
claim  had  been  settled  for  $2000. 
It  had  been  so  declared  and  admitted 
in  the  presence  of  Ryan.  (It  is  true 
that  Ryan  testified  he  had  been  in- 
structed by  Edwards  to  make  the 
assessment  for  $5000,  and  did  so ; 
that  he  had  no  recollection  of  the 
conversation  related  by  Edwards ; 
and  at  first  positively  denied  that  he 
was  ever  in  his  office  while  he  was 
connected  with  the  company,  but 
on  having  his  attention  called  more 
particularly  to  it  admitted  his  mis- 


take.) It  is  hard  to  believe  that 
Edwards,  in  the  face  of  this  knowl- 
edge of  Walker,  then  intenfled  to 
rob  the  company  of  this  excess  of 
$3000.  Yet  it  may  be  that  a  month 
later  —  Walker  in  the  meantime 
making  no  further  complaint  about 
the  assessment  notices  and  prepar- 
ing to  leave  the  company  —  he  may 
have  formed  that  purpose.  The 
excess  would  be  collected  early  in 
March.  A  check  for  it  could  then 
be  drawn  to  balance  the  books  and 
look  regular,  but  need  not  be  paid 
until  Walker  was  out.  Ryan  was 
his  friend,  whose  conduct  in  this 
connection  is  questionable.  Ed- 
wards had  the  receipt  of  Vigus  in 
full  and  could  fill  up  the  blank  in  that 
of  O'Bannon  with  "fi\"e  thousand." 
These  woulrl  satisfy  the  company 
that  he  had  paid  to  the  beneficiary 
the  full  amount  of  the  policy  and 
explain  the  mistake  in  the  repre- 
sentation of  the  assessment  as  for 
$2500.  He  could  easily  find  some- 
body who,  for  a  consideration,  would 
imitate  the  signature  of  Vigus,  in 
his  possession,  and  if  he  recognized 
the  indorsement,  the  bank  would 
not  question  it,  and  he  could  abstract 
the  check  when  returned.  For  such 
reasons  as  these  he  may  have  con- 
cluded to  take  the  risk.  We  do  not 
say  this  is  the  true  explanation  of 
the  facts  proved,  but  we  see  no  other. 
Counsel  for  appellee  are  compelled 
to  charge,  and  do  charge,  Edwards 
with  complicity.  We,  too,  are  fully 
satisfied  that  if  O'Bannon  is  guilty, 
Edwards  also  must  be;  for  O'Ban- 
non, without  his  aid,  could  not  have 
obtained  the  check.  But  it  is  clear 
that  after  Edwards  got  the  receipts 
of  O'Bannon  and  Vigus,  he  had  no 
need  of  O'Bannon's  aid ;  and  we 
fully  believe,  as  we  have  endeavored 
to  show  from  the  evidence,  that 
O'Bannon  gave  his  and  procured 
that  of  Vigus  without  a  thought  of 
wrong. 

(3)  Of  the  testimony  of  Mr.  and 
Mrs.  Hill  but  little  need  be  saitl. 
We  regard  it  as  wholly  unreliable 
in    itself,    and    abundantly    contra- 


'9i 


PART    III.       PROBLEMS    OF    PROOF 


No.  382. 


dieted  by  the  faets  and  probabilities 
of  the  case.  They  do  not  them- 
sehes  agree.  They  were  not  wit- 
nesses of  a  kind  to  be  relied  upon  as 
to  the  precise  language  used  in  a 
casual  conversation  fifteen  years 
before  and  never  thought  of  in  the 
meantime  —  not  for  lack  of  honesty, 
but  of  intelligence,  discrimination, 
and  nice  observation.  They  first 
talked  it  over  with  a  zealous  attorney 
for  appellee,  —  to  whom  we  impute 
no  improper  purpose  or  method,  but 
e\ery  experienced  lawyer  knows  the 
tendency.  ^Ir.  Hill  was  a  farm 
tenant ;  he  testified  that  in  April  or 
May,  1875,  he  and  his  wife  were  in 
the  store  of  O'Bannon  (J.  D.)  & 
Vigus,  where  they  generally  did 
their  trading :  that  she  then  had  an 
interest  in  a  policy  of  this  company 
on  her  father's  life;  that  crops  were 
poor,  it  was  hard  to  keep  up  pay- 
ments, and  they  had  talked  of  let- 
ting it  lapse ;  that  as  he  came  into 
the  store  after  her,  R.  W.  O'Bannon 
said  to  him  that  his  wife  had  been 
telling  him  this,  and  advised  them 
not  to  do  so ;  that  he  said  it  was  a 
good,  reliable  company,  and  that  he 
had  just  collccfrd  S5000  on  this  Vigus 
policy.  On  further  examination  he 
testified  that  O'Bannon  might  have 
said  he  settled  the  Vigus  policy  for 
$5000,  though  he  thought  it  was  the 
other  way;  then,  that  he  said.  "I 
received  S5000  on  the  policy " ; 
then,  again,  that  the  word  was 
collected,  of  which  he  was  pretty 
certain;  then,  that  he  could  not 
give  the  identical  language,  and 
finally,  "  my  best  recollection  is  that 
he  said  settled y  It  appears  that  from 
O'Bannon's  language,  whatever  it 
was,  this  witness  got  the  impression 
that  he  had  received  the  insurance, 
as  he  easily  might  from  the  state- 
ment that  he  had  "settled"  the 
claim  on  a  $5000  policy,  and  there- 
fore, naturally  enough,  he  so  testi- 
fied at  first ;  but  he  made  it  just  as 
clear  afterward  that  he  couldn't 
pretend  to  be  confident  as  to  the 
language.  His  testimony  on  the 
whole  shows  it  more  probable  that 


O'Bannon  said  he  had  settled  a 
S500()  policy,  or  a  claim  on  such 
a  policy,  than  that  he  said  he  had 
collected  or  recei\ed  $5000  on  it. 

Mrs.  Hill,  who  was  excluded  dur- 
ing his  examination,  with  a  like  im- 
pression received  in  the  same  way, 
testified  that  the  conversation  oc- 
curred in  May,  1875,  which  she 
thought  was  only  eight  years  ago, 
and  that  O'Bannon  said  he  collected 
the  full  amount,  $5000,  and  that 
she  could  give  his  exact  wortis. 
She  stood  immovably  by  her  first 
statement.  Giving  her  full  credit 
for  honesty,  it  may  yet  be  obser\ed 
that  a  woman,  as  ignorant  as  she, 
and  unused  to  courts,  might  natu- 
rally be  inclined  to  resent  a  cross- 
examination,  however  proper,  and 
show  herself  quite  unreasonably  per- 
sistent and  positive.  And  conced- 
ing that  the  jury,  with  better  means 
than  ours,  discovered  in  her  manner 
no  sign  of  such  a  weakness,  we  still 
think  her  statement  unreliable  in  its 
nature  and  untrue  in  fact.  There 
was  plenty  of  room  for  a  misunder- 
standing, and  of  time  for  a  failure 
of  memory. 

Her  husband's  "best  recollection" 
of  it  is  different.  It  is  refuted  by 
the  accumulated  evidence  of  an 
actual  and  honest  settlement  for 
$2000,  to  which  we  have  referred. 
Its  strange  inconsistency  with  the 
whole  current  of  his  statements  on 
that  point,  from  January  6,  1875, 
when  he  reported  that  settlement 
to  appellee,  doul)tless  to  and  be- 
yond the  time  of  the  conversation 
with  the  Hills,  cannot  be  explained 
or  rationally  accounted  for.  The 
amount  of  the  policy,  his  mission  to 
Chicago,  its  somewhat  disappointing 
result,  and  its  reluctant  acceptance 
by  appellee,  were  generally  known 
and  talked  of  in  that  little  com- 
munity. O'Bannon  made  no  secret 
of  it.  He  enjoined  secrecy  upon 
nobody  to  whom  he  told  it,  and  he 
told  it  to  many  persons  and  on  many 
occasions.  Nor  was  tiiere  anything 
more  secret  or  confidential  in  his 
talk  with  the  Hills.     J.  D.  O'Ban- 


No.  382. 


O  BANNON    V.    VIGUS 


795 


non  was  in  the  store  waiting  on 
customers.  Vigus  himself  had  gone 
out,  but  for  aught  that  appears  was 
liable  to  return  while  that  talk  was 
going  on.  To  all  these  persons  on 
all  these  occasions  he  stated  that 
he  settled  for  $2000,  and  could  get 
no  more.  On  what  principle  or 
course  of  human  conduct,  common 
or  exceptional,  can  it  be  believed 
upon  such  testimony  as  Mrs.  Hill's, 
that  he  told  her  he  collected  the 
full  amount,  85000  ? 

The  theory  of  appellee's  case  is 
itself  strongly  against  it.  That  is, 
that  on  the  4th  or  5th  day  of  January, 
1875,  O'Bannon  entered  into  a  con- 
spiracy with  Edwards  to  defraud 
appellee  of  $3000,  by  making  it  to 
be  believed  that  his  claim  was  com- 
promised for  only  $2000.  Accord- 
ing to  this  theory,  the  most  im- 
portant thing  of  all  he  was  to  do  and 
to  keep  carefully  and  constantly 
in  his  mind  to  do,  was  to  conceal  the 
fact  that  he  had  collected  or  received 
$5000  on  that  policy.  It  was  the 
very  gist  of  the  supposed  conspiracy. 
If  he  was  in  it,  he  was  bound  by 
every  motive  of  interest,  hope,  and 
fear  to  guard  against  every  word  or 
act  that  might  lead  to  a  suspicion 
of  that  fact.  And  yet  it  is  claimed 
to  be  overwhelmingly  proved  that 
in  the  open  store  of  his  victim,  where 
he  had  so  often  and  to  so  many 
asserted  the  contrary  without  the 
slightest  reason  or  occasion,  and  ap- 
parently with  the  utmost  coolness 
and  unconcern,  he  was  blabbing  the 
secret  he  was  so  vitally  interested 
to  keep.  And  then  he  went  right 
on  for  nearly  nine  years,  to  the  day 
of  his  death,  living  and  acting  as 
though  he  had  never  either  blabbed 
it  or  possessed  it.   .   .   . 

Each  of  the  new  trials  has  deepened 
and  strengthened  our  convictions 
as  to  the  facts  which  should  dictate 
the  finding.  Upon  the  question 
whether  R.  W.  O'Bannon  ever  re- 
ceived upon  the  policy  anything 
whatever  other  or  more  than  the 
note  and  check  he  reporterl  and  de- 
livered to  appellee,  or  by  conspiracy 


with  Edwards  enabled  him  to  get  it, 
we  regard  the  case  as  not  a  close  one. 
In  our  judgment,  after  three  trials, 
carefully  reviewed,  the  negative  is 
established  by  a  clear  and  satis- 
factory preponderance  of  the  evi- 
dence —  proving  not  only  that  the 
deceased  did  not  commit  the  wrong 
shown,  but  that  another,  without 
his  concurrence  or  knowledge,  did. 
Whate\er  may  be  claimed  for  the 
prima  facie  case  for  plaintiff,  it  was 
overcome  and  overwhelmed  by  the 
defense.  Of  the  receipt,  its  integrity 
as  well  as  its  truth  was  impeached. 
.  .  .  That  it  was  forged  or  altered 
after  its  execution,  may.  be  proved 
by  a  bare  preponderance.  This 
was  so  altered,  and  by  the  insertion 
of  a  falsehood,  as  shown  by  far  more 
than  a  bare  preponderance.  The 
alleged  verbal  admissions  are  not 
truly  reported.  They  were  never 
made.  The  testimony  in  relation 
to  them  is  otherwise  easily  explained. 
The  more  it  is  considered,  in  the 
light  of  the  theories  of  the  case  on 
both  sides,  of  O'Bannon's  life  and 
conduct  before  and  afterward,  and 
of  the  other  independent  evidence 
that  the  fact  was  not  as  claimed  to 
have  been  admitted,  the  more  clearly 
it  is  seen  to  be  unworthy  of  con- 
sideration. 

This  verdict,  then,  is  unsupported. 
On  the  other  hand,  it  is  shown  by 
direct  and  positive  evidence,  and  not 
left  to  inference,  that  O'Bannon  was 
authorized  and  expected  to  compro- 
mise the  claim  ;  he  was  met  with 
a  denial  of  its  justice,  an  argument 
against  its  allowance  and  an  offer 
of  $2000 ;  resisted  the  argument  and 
declined  the  offer,  or  left  it  unac- 
cepted ;  the  next  day,  upon  further 
argument  by  Walker  reinforcing 
that  of  Pxlwards,  agreed  to  accept 
it ;  immediately  afterward  received 
the  note  and  check  and  signed  the 
receipt  on  the  policy  left  with 
Edwards  ;  returned  home  that  night 
and  the  next  day  reported  to  appellee. 
On  maintaining  and  forwarding  his 
receipt,  his  agency  ceased.  The 
assessment    and    collection    for    the 


796 


PART    III.       PROBLEMS    OF    PROOF 


No.  3S2. 


loss,  the  alteration  of  his  receipt,  the 
drawing  of  the  83000  check,  its 
presentation,  payment,  retnrn,  and 
abstraction,  all  took  place  afterward, 
at  Chicago,  more  than  two  hnndred 
miles  from  Raymond.  We  tiiink 
we  know  who  were  concerned  in  each 
and  all  of  them.  There  is  not  one 
particle  of  evidence  tending  to  prove 
that  O'Bannon  had  any  connection 
with  either,  except  the  alleged  ad- 
missions. The  fact  that  he  visited 
Chicago  in  the  spring,  if  a  fact, 
at  most  proves  only  a  hare  possi- 
bility, most  remote.  Any  and  every 
inference  of  his  guilt  must  presup- 
pose a  conspiracy  on  the  4th  or  oth 
of  January,   1875,  which  could  not 


then  have  been  formed.  The 
conspiracy  cannot  be  legitimately 
argued  from  assumed  facts  whose 
existence  must  in  turn  be  argued 
from  the  assumption  of  the  conspir- 
acy. Excepting  the  admission, 
such  is,  in  our  opinion,  the  character 
of  the  argument  here  made,  and  the 
claim  of  such  admission  seems  to  us 
well-nigh  absurdity.  The  verdict, 
then,  was  not  only  unsupported  by 
the  evidence,  but  against  the  great 
weight  and  body  of  it,  and  there- 
fore should  have  been  set  aside.  .  .  . 
The  judgment  of  the  Circuit  Court 
will  be  reversed  and  the  cause  re- 
manded. 


383.    TOURTELOTTE   v.  BROWN.      (1894.     Colorado  Court  of 


Appeals.     4  Colo.  App.  378.)    .    .    . 

This  case  was  formerly  before  this 
court.  All  the  questions  and  issues 
involved  were  settled  except  one. 
It  was  alleged  in  the  answer  that 
the  note  in  controversy  was  a  for- 
gery, was  not  executed  by  Francina 
Hawkins.  Issue  was  taken  and 
the  defense  relied  upon.  A  large 
amount  of  evidence  was  introduced 
in  an  attempt  to  establish  the  for- 
gery. No  finding  as  to  the  c^uestion 
of  forgery  was  made  by  the  jury. 
The  Court  submitted  to  the  jury 
the  following  question  for  a  special 
finding  :  "  Was  the  name  of  Francina 
Hawkins  at  the  end  of  the  note 
forged  ?"  To  which  was  answered  : 
"Jury  cannot  agree."  A  gen- 
eral verdict  was  rendered  for 
the  defendant  (defendant  in  error 
in  this  case).  The  case  was  brought 
by  writ  of  error  to  this  court.  .    .   . 

Reed,  J.,  delivered  the  opinion 
of  the  Court. 

A  brief  statement  in  regard  to  the 
subject  matter  of  the  controversy 
and  relation  of  the  interested  parties 
will  suffice  to  explain  this  case.  In 
July,  1887,  Mrs.  Francina  Hawkins 
was  an  aged  widow  of  o\er  70  years, 
possessed  of  considerable  property, 
—  the  amount  is  not  shown.     Her 


heirs  were  her  daughters  Maggie  A., 
wife  of  Nathan  S.  Hurd,  and  Nancy, 
the  wife  of  H.  A.  E.  Pickard,  both 
of  mature  age.  There  was  also  one 
A.  E.  Mansfield,  who,  though  he 
does  not  appear  to  have  been  legally 
adopted,  was  raised  by  the  Hawkinses 
from  an  infant,  and  was  recognized 
as,  or  claimed  to  be,  one  of  the 
family.  Some  time  prior  to  the  date 
given,  Pickard  and  family  removed 
to  Denver.  The  old  lady  conveyed 
to  her  daughter,  the  wife  of  Pickard, 
a  residence  in  West  Denver  of  the 
admitted  xalue  of  some  $7000,  and 
also  furnished  the  family  money, 
more  or  less,  as  the  exigencies  of  the 
occasion  required.  Mrs.  Hurd  and 
her  husband,  who  had  received 
nothing  from  the  mother,  felt  ag- 
grieved at  the  apparent  partiality 
of  the  mother,  and,  fearing  an  in- 
equitable division  of  the  estate  in  the 
interest  of  the  Pickards,  attempted 
to  counteract  it.  As  claimed  by 
Hurd,  the  old  lady  was  by  him 
invited  to  his  house,  the  error  of  her 
ways  pointed  out,  and  the  necessity 
of  doing  equal  justice  impressed  upon 
her  ;  and  she,  recognizing  the  justice 
of  the  claim  and  not  wishing  to 
offend   the   Pickards,   executed   the 


TOURTELOTTE    V.    BROWN 


797 


note  in  question  to  equalize  affairs 
between  her  daughters.  The  execu- 
tion and  existence  of  the  note  re- 
mained a  secret  until  after  Mrs. 
Hawkins's  death,  when  it  was  pre- 
sented for  allowance  against  the 
estate,  out  of  which  has  grown 
the  present  litigation.  The  Pickard 
family  and  Mansfield  resisted  the 
claim,  as  it  would  materially  affect 
their  interests  in  the  distribution  of 
the  estate,  and  asserted  the  note  to 
he  a  forgery.  Like  all  other  con- 
troversies of  this  kind,  where  quite 
an  amount  of  money  is  involved,  the 
contest  degenerated  into  a  personal 
one,  developing  great  intensity  and 
acrimony.  That  this  should  be  the 
case  with  Hurd  is  naturally  to  be 
expected,  for  although  the  crime  of 
forgery  is  not,  by  the  proceedings, 
directly  charged  upon  him,  and  no 
criminal  conviction  could  follow, 
all  the  testimony  tends  to  show  that, 
if  forgery,  it  was  perpetrated  by  him, 
and  he  is  morally,  if  not  legally,  con- 
victed of  the  crime.  .  .  . 

It  becomes  the  duty,  or  at  least 
the  privilege,  of  the  Court  to  examine 
the  entire  evidence  introduced  to 
determine  whether  the  jury  was 
warranted  in  its  findings. 

First.  Taking  up  the  evidence 
of  the  plaintiff  to  establish  the 
genuineness  of  the  note,  we  find 
it  conceded  that  Mrs.  Pickard  and 
Mrs.  Hurd  were  the  only  children 
and  legal  heirs  of  Mrs.  Hawkins, 
that  she  had  by  deed  of  conveyance 
of  real  property  and  supplies  of 
money  made  advances  to  the  Pick- 
ards  of  somewhere  from  -STOOO  to 
$10,000,  while  the  Hurd  family  had 
received  nothing.  It  was  ^•ery  nat- 
ural that  the  circumstances  should 
prompt  the  Hurd  family  to  seek  to 
equalize  matters  and  secure  a  proper 
share  of  the  estate,  by  calling  the 
attention  of  the  mother  to  the  ap- 
parent injustice,  anfl  her  duty  to 
correct  it.  It  is  apparent  that  at  that 
time  ill  feeling  existed  l)etweeii  the 
two  families  in  regard  to  the  estate 
of  the  mother.  Such  being  the  fact 
and    the    mother    recognizing    the 


justice  of  the  Hurd  claim  and  not 
wishing  to  intensify  existing  family 
feuds,  she  and  Hurd  might  very 
readily  have  adopted  the  plan  of  the 
note,  for  a  sum  sufficient  to  equalize 
advances  to  the  Pickards,  on  long 
time  presumably,  as  really  happened, 
payable  after  her  death.  These  un- 
contradicted facts,  while  not  con- 
clusive, become  very  potent  in  ex- 
plaining what  otherwise  might  be 
considered  questionable  and  (loul)t- 
ful,  by  showing  the  justice  of  the 
demand  and  the  mother's  recogni- 
tion of  it.  These  explanatory  cir- 
cumstances afford  strong  presump- 
tions in  favor  of  the  integrity  of  the 
note,  and  cannot  be  rejected  in  an 
examination  of  the  case. 

Second.  We  have  the  evidence 
of  Mr.  Hurd  detailing  all  the  facts 
leading  up  to  the  execution  of  the 
note,  the  blanks  left  by  him  in  draw- 
ing it,  the  consultation  and  agree- 
ment as  to  filling  the  blanks,  the 
filling  of  them,  the  signature  in  his 
presence,  and  delivery  of  the  note. 
Mr.  Hurd  was  not  impeached  nor  was 
any  effort  made  to  do  so ;  he  is  not 
contradicted  in  any  important  partic- 
ular, except  by  circumstances  sup- 
posed to  be  inconsistent.  A  careful 
examination  of  his  entire  testi- 
mony, not  only  that  properly,  but 
improperly  admitted,  fails  to  show 
anything  contradictory,  or  detract- 
ing from  the  truth  of  his  direct  evi- 
dence. Lea\ing  out  of  considera- 
tion the  evidence  of  his  daughter  in 
regard  to  seeing  her  grandmother 
on  some  occasion  sign  a  paper  at 
her  home,  as  too  indefinite  to  iden- 
tify the  note  in  controxersy,  conse- 
quently of  little  value,  also  the  evi- 
dence of  the  son  in  regard  to  the 
genuineness  of  the  signature  in  his 
opinion,  we  come  to  the  e\idence  of 
the  experts  who  testified  in  the  case. 

Mr.  Denman,  Mr.  Rose,  Mr.  Fra- 
shier,  I\Ir.  McCrimmon,  and  Mr. 
Young,  all  men  whose  business  it 
has  been  for  years,  as  bankers,  to 
examine  and  pass  upon  signatures, 
and  who  showed  themselves  fully 
qualified    as    experts,    upon    careful 


798 


PART    III.       PROBLEMS    OF    PROOF 


No.  383. 


comparison  of  the  signature  in 
question  with  numerous  others  ad- 
mitted to  he  genuine,  they  each  and 
all  unhesitatingly  declared  in  favor 
of  the  genuineness  of  the  signature. 
Eighteen  signatures  of  Mrs.  Haw- 
kins, including  the  one  in  question, 
seventeen  of  which  were  proved  and 
conceded  to  be  genuine,  were  sub- 
mitted to  the  experts  for  comparison, 
and  all  are  photographed  and  sub- 
mitted to  the  court.  .  .  . 

No  experts  were  called  upon  the 
part  of  the  defendant ;  those  attack- 
ing the  genuineness  of  the  signature, 
on  comparison  and  examination, 
and  their  knowledge  of  Mrs.  Haw- 
kins's signature  from  having  fre- 
quently seen  her  write  it,  were  Mr. 
Pickard,  his  \\dfe,  young  son,  and 
Mr.  Mansfield,  all  interested  in  the 
result.  We  shall  not  attempt  to 
analyze  and  discuss  the  testimony  of 
these  witnesses.  We  can  only  give 
our  conclusions,  after  a  very  careful 
examination.  Mr.  Pickard  said 
"  He  did  not  believe  it  was  her 
signature,"  and  proceeds  to  give 
his  reasons  for  his  belief  in  a  very 
lengthy  and  elaborate  explanation, 
which  is  vague,  speculative,  and 
confused,  which,  in  our  opinion, 
weakens  instead  of  strengthens  his 
position.  Much,  if  not  all,  of  it 
would  apply  with  equal  or  greater 
force  to  each  of  the  signatures  shown 
to  be  genuine.  Mrs.  Pickard  upon  the 
former  trial  (Steel  &  Malone)  testified 
that  she  could  not  tell  whether  it 
was  or  was  not  the  signature  of  her 
mother  ;  upon  the  trial  of  this  cause, 
with  no  greater  means  of  knowledge 
than  she  formerly  had,  she  testified 
that  it  was  not  her  mother's  signa- 
ture. On  direct  examination  she 
was  asked,  "  Have  you  examined  the 
signature  purporting  to  be  hers  on 
this  note?  A.  Not  very  closely. 
No,  Sir."  Upon  cross-e.xamination 
(speaking  of  the  former  trial).  "Q. 
And  you  stated  you  could  not  tell 
whether  it  was  or  not?  A.  I  was 
undecided,  I  said  so.  Q.  Now  * 
you  .say  it  is  not  her  signature  ?  A. 
Yes,    Sir.     Q.  What    has    led    you 


to  change  your  mind?  A.  I  have 
had  closer  (•.vamination,  and  cir- 
cumstances connected  ivith  it."  No 
matter  how  honest  the  witness  was 
in  her  conviction,  nor  how  satis- 
factory to  herself  her  reasons  were, 
her  evidence  could  be  of  very  little 
value.  The  youth,  son  of  Mrs. 
Pickard,  showed  himself,  by  reason 
of  inexperience  and  want  of  op- 
portunities, unqualified  to  judge,  and 
what  he  thought  about  it  was  un- 
important. 

The  other  witness,  Mr.  Mansfield, 
arrives  at  the  same  conclusion  as 
Mr.  Pickard  for  the  same  reasons, 
viz.  the  signature  is  too  regular, 
lacks  the  nervousness  that  character- 
izes the  signature  known  to  be  gen- 
uine, and  the  language  of  himself 
and  Pickard  is  so  identical  in  one 
respect  that  it  is  worthy  of  notice. 
Mr.  Pickard:  "It  might  do  for 
twenty  or  thirty  years  ago,  but  for 
the  last  five  years  she  could  not 
sign  her  name  with  the  steady  hand 
that  it  seems  that  was  written  by." 
Mr.  Mansfield  said,  "It  is  written 
there  like  she  might  have  written 
twenty-five  or  thirty  years  ago,  a 
steady  hand."  This  being  the  basis 
of  the  judgment  of  each,  and  exami- 
nation and  comparison  of  the  signa- 
tures by  any  one,  whether  expert 
or  not,  shows  that  the  conclusion 
could  hardly  have  been  reached 
without  the  aid  of  interest  or  im- 
agination or  both. 

This  brings  us  to  the  main  de- 
fense relied  upon,  an  alibi  on  the 
part  of  Mrs.  Hawkins  on  the  day 
the  note  bears  date  and  the  day  Mr. 
Hurd  testified  she  executed  it  at  his 
home  in  the  afternoon,  by  attempt- 
int  to  show  that  she  was  at  the  house 
of  Mr.  Mansfield,  seven  or  eight 
miles  in  the  country,  from  the  day 
preceding  until  two  days  afterwards. 
But  a  very  brief  review  of  the  testi- 
mony upon  the  point  can  be  liad,  or 
is  deemed  necessary.  Mrs.  Haw- 
kins Was  the  foster  motlier  of  Mans- 
field. His  testimony  and  that  of  his 
wife  was  that  Mrs.  Hawkins  visited 
them   frequently   during   the   sum- 


TOURTELOTTE    V.    BROWN 


799 


mer  of  1887.  Two  years  and  a  half 
afterwards  this  case  came  on  for 
trial ;  then  the  note  in  question  was 
examined  and  the  attempt  made  to 
establish  the  fact  of  Mrs.  Hawkins 
having  been  at  their  house  on  the 
day  the  note  bore  date,  and  thus,  in- 
ferentially,  discredit  it,  not  by  show- 
ing that  Mrs.  Hawkins  did  not  ex- 
ecute the  note,  but  by  showing  that 
she  did  not  do  it  on  the  day  testified 
to  by  Hurd,  thus,  by  establishindj  a 
collateral  fact  in  connection  with  the 
date,  attempting  to  establish  the 
forgery.  Human  memory  is  so  de- 
fective that  it  was  apparently  real- 
ized that  unless  fortified  strongly  by 
circumstances  and  other  facts  cor- 
roborative, that  particular  date  could 
not  be  fixed  out  of  the  nu- 
merous dates  she  visited ;  so  the 
purchase  of  a  harvester,  the  making 
of  a  note  in  payment,  of  the  same 
date  as  the  note  in  controversy, 
and  the  taking  the  machine  home 
are  involved  to  fix  the  date.  It 
appears  that  upon  the  Steel  & 
Malone  trial  the  note  given  for 
the  machine  was  exhibited,  after- 
wards lost  or  misplaced,  and  never 
put  in  evidence  in  the  trial  of  this 
cause ;  consequently  its  existence, 
the  date  and  everything  pertaining 
to  it,  was  the  oral  evidence  of  those 
that  had  seen  it.  Admitting  its 
existence  and  its  date  to  have  been 
as  stated,  still  the  whole  fabric  rests 
upon  the  testimony  of  Mansfield 
that  he  made  it  on  the  day  it  bore 
date. 

Mrs.  Mansfield's  evidence  is  of 
very  little  value,  for  she  admits 
that  her  knowledge  of  the  date  and 
even  the  existence  of  the  note  was 
derived  from  her  husband.     Allow- 


ing all  these  collateral  facts  to  have 
been  properly  established,  which 
they  were  not,  they  could  have  no 
bearing  upon  the  question  of  the 
genuineness  of  the  signature,  would 
only  show  that  it  was  not  executed 
on  the  day  of  its  date,  and  would 
only  show  that  Hurd  had  either  been 
mistaken  as  to  the  date  or  Mansfield 
mistaken  in  his  dates,  but  could  not 
establish  the  forgery.  Forgery  can- 
not be  established  by  inference  from 
some  other  facts,  and  these  facts 
dependent  upon  memory  for  that 
interval  of  time.  .  .  . 

In  a  case  of  the  magnitude  of  this, 
and  where  the  result  is  so  serious 
as  to  morally  convict  a  party  of 
crime,  the  evidence  establishing  the 
forgery  must  be  competent  and  all 
that  is  legally  required.  It  must 
be  satisfactory  in  every  respect ; 
nothing  less  than  clearly  satisfactory 
evidence  should  be  permitted  to 
defeat  the  note  and  place  upon  the 
witness  Hurd  the  obloquy  of  crime. 
In  this  case  there  is  no  such  evidence. 
Examined  and  analyzed,  it  is  found 
utterly  insufficient  to  overthrow  the 
evidence  of  the  plaintifl".  It,  at 
most,  only  raises  a  presumption  or 
suspicion  of  fraud  by  setting  up 
an  illy  founded  and  poorly  authenti- 
cated set  of  facts,  from  which  fraud 
and  crime  might  be  inferred.  Under 
such  circumstances  the  verdict 
should  not  be  permitted  to  stand. 
It  was  evidently  the  result  of  mis- 
take or  of  willful  bias  and  in  direct 
disregard  of  the  instructions  of  the 
Court.  For  reasons  given,  the  judg- 
ment will  be  reversed  and  the  cause 
remanded  for  a  trial  de  novo. 

Rnrrst'd.  —  Bissell,  P.  J.,  con- 
curs.    Thomson,  J.,  dissents. 


soo 


PART    III.       PROBLEMS    OF    PROOF 


No.  384. 


384.    VANCIL   v.  HUTCHINSON.      (1895.     Appellate  Court  of 


Illinois.     Go  111.  App.  G32.J   .   .   . 

ConJding  &  Grout,  attorneys  for 
appellant.  Paftou,  Hamilton  &  Pat- 
ton,   attorneys  for  appellee. 

Mr.  Ju.stice  Pleasants  delivered 
the  opinion  of  the  Court. 

This  action  was  commenced  Octo- 
ber 2,  1893,  by  appellee,  upon  the 
common  counts  in  assumpsit,  to 
which  appellant  pleaded  the  general 
issue.  The  trial  resulted  in  a  verdict 
for  plaintiff'  for  S1997,  which  the 
court  sustained  against  a  motion 
for  a  new  trial  and  rendered  judg- 
ment thereon.  As  disclosed  by  the 
evidence,  ])laintiff's  claim  was  for 
the  unpaid  residue  of  S1997  of 
the  sum  of  83000,  alleged  to  have 
been  left  for  her  in  defendant's 
hands  by  Edmund  C.  Vancil,  who 
was  his  father  and  her  father-in-law. 
Defendant  claimed  that  he  received 
only  S1003,  which  amount,  it  is 
admitted,  he  paid  to  her ;  and  the 
recorfl  presents  but  little  else  than 
the  (juestion  of  fact. 

Appellee's  first  husband,  a  brother 
of  appellant,  died  in  1861,  leaving  a 
daughter.  After  twelve  or  fifteen 
years  of  widowhood  she  married 
Mr.  Hutchinson,  her  present  hus- 
band, and  has  since  resided  with 
him  in  the  State  of  Texas.  Some 
time  in  the  early  part  of  1890, 
Edmund  lost  his  wife,  and  about  a 
month  afterward  went  to  live  with 
appellant,  with  whom  he  remained 
until  the  31st  day  of  December, 
1891,  when,  as  the  result  of  a  fall, 
he  died  at  the  great  age  of  ninety- 
two  years,  leaving  several  children 
anfl  grandchildren,  and  a  very  con- 
siderable amount  of  property  in 
money  and  notes.  He  harl  made  a 
will,  which  had  been  destroyed  — 
when,  how,  or  by  whom  does  not 
api^ear,  but  i)n)l)ably  before  the 
death  of  liis  wife.  No  copy  of  it 
was  produced  nor  its  contents  other- 
wise shown.  He  had  also  given  to 
several,  if  not  each  of  his  children, 
considerable  suins  of  money,  among 
them  to  appellee,  at  different  times 


during  her  widowhood  and  after- 
ward, the  aggregate  amount  of 
which  she  would  not  attempt  to 
state,  even  approximately,  having 
kept  no  accoimt  of  them,  and  which 
no  one  else  appears  to  have  known 
unless  it  was  the  old  man  himself, 
who  deducted  such  advances  in  the 
cases  of  others  in  the  final  distribu- 
tion which  he  made  in  his  lifetime. 
Her  statement,  upon  strong  pressure 
from  her  counsel,  that  she  did  not 
receive  S1997  in  all,  after  such 
admissions  of  her  ignorance  of  the 
amount  she  and  her  daughter  had 
received,  must  be  considered  of  little 
weight,  since  it  would  be  true  if  she 
had  received  $1796.99.  It  was  ad- 
mitted that  by  the  will  he  had  ex- 
pressed his  intention  that  appellee 
should  have  $3000,  but  whether  it 
was  declared  to  be  subject  to  such 
deduction  was  made  a  question 
pertinent  to  the  main  issue,  which 
was.  How  much  had  he  intrusted 
to  appellant  to  be  delivered  to  her  ? 
In  the  latter  part  of  April,  1890, 
shortly  before  the  death  of  his  wife, 
he  and  his  sons,  William  A.  and  ap- 
pellant, were  together  at  his  house, 
selecting  from  his  notes  the  amount? 
he  intended  then  to  appropriate 
to  several  members  of  his  family, 
respectively,  and  some  other  objects 
of  his  bounty.  On  that  occasion 
William  did  the  figuring.  Appel- 
lant claims  that  they  selected  for 
appellee  three  notes,  amounting  to 
$1003,  and  placed  them  together 
in  an  envelope,  which,  with  others 
so  placed  for  other  parties,  the  old 
gentleman  kept  for  a  time  in  his 
own  possession  to  receive  payments 
of  interest  thereon  that  should  be 
made  before  deli\ery  for  their  in- 
tended use.  He  distributed  some 
notes  to  appellant  and  William, 
and  perhaps  to  some  others,  within 
a  few  days  —  mostly  notes  given 
by  them  to  him  —  for  which  he 
took  their  receipts ;  and  in  June 
following,  assisted  by  appellant  and 


No.  384. 


VANCIL    V.    HUTCHINSON 


801 


in  the  absence  of  William,  made  a 
further  distribution  and  prepared  re- 
ceipts to  be  signed  therefor  by  the 
distributees  respectively,  as  before, 
but  of  which  also  he  retained  pos- 
session. On  the  11th  of  November, 
1891,  having  been  seriously  hurt 
by  a  fall,  and  thinking  the  end  was 
not  far,  he  delivered  to  appellant 
for  the  beneficiaries  the  notes  for 
the  several  amounts  intended  for 
them,  together  with  the  receipts 
therefor  so  prepared.  We  under- 
stand it  was  mostly,  if  not  entirely, 
in  notes,  from  the  proceeds  of  which 
appellant  was  to  pay  them,  though 
some  of  it  ma}'  have  been  in  notes 
of  the  parties,  to  be  surrendered. 
Among  them  were  the  three  abo^'e- 
mentioned  for  appellee,  and  which 
appellant  says  were  all  that  he  ever 
received  from  his  father  for  her. 

Her  claim  for  $1997,  to  make  up 
the  S3000  bequeathed  to,  and 
alleged  to  have  been  intrusted  to 
him  for  her,  and  which  the  jury 
allowed,  rests  upon  the  testimony 
of  her  brother-in-law,  William  A. 
Vancil,  and  her  nephew,  A.  C.  Moffet, 
and  a  statement  in  a  written  com- 
munication in  the  name  of  appel- 
lant, to  William,  and  designated 
in  the  record  as  "Exhibit  A." 
Neither  of  these  witnesses,  when  he 
testified.  May,  1894,  was  on  friendly 
terms  with  appellant.  Their  testi- 
mony related  almost  entirely  to 
verbal  admissions  and  statements, 
said  to  have  been  made  by  him  from 
two  to  four  years  before,  only  one 
of  which  was  stated  to  have  been 
made  in  the  presence  of  a  third 
person,  then  living,  and  that  person 
was  not  produced.  Not  one,  there- 
fore, was  directly  corroborated. 
Appellant  positively  denied  them, 
in  the  sense  in  which  they  were  in- 
tended for  the  jury.  They  were, 
nearly  all  in  the  same  language, 
viz.  "that  Mary  (appellee)  was  to 
have  S3000,"  without  explanation; 
which  of  itself  would  be  no  evidence 
that  appellant  ever  received  from 
his  father,  for  her,  more  than  SI 003, 
the  receipt  of  which  he  admitted. 


and  which  appellee  admitted  he  paid 
to  her  in  full.  He  never  denied, 
but  freely  admitted  and  may  have 
repeatedly  said,  that  hi/  the  will  she 
was  to  have  $3000,  but  he  claimed 
that  either  by  it,  or  his  father's 
determination  after  it  was  destroyed, 
or  by  both,  that  amount  was  ex- 
pressed to  include  what  she  had 
already  received. 

Moffet,  however,  also  testified 
that  about  a  month  before  the  old 
man  died,  in  reply  to  his  question 
whether  he  had  sent  to  Mary  the 
82000,  appellant  said  he  had.  And 
this  is  supposed  to  be  made  intelli- 
gible and  consistent  by  the  state- 
ment of  William,  on  cross-examina- 
tion, that  at  the  meeting  to  make 
some  division,  in  April,  1890,  wliere 
he  was  told  that  by  the  will  Mary 
was  to  have  $3000,  and  when  they 
"were  dividing  up  the  notes,"  his 
mother  and  his  father  both  "said 
to  send  Mary  her  money ;  we  could 
keep  the  notes  and  send  her  the 
money ;  that  there  was  plenty  of 
money  on  hand  to  send  her";  and 
that  appellant  then  said,  "  by  God, 
he  would  send  her  but  a  thousand"  ; 
a  remarkable  declaration,  certainly, 
when  we  consider  in  whose  presence 
and  of  whose  money  it  was  said  to 
have  been  made.  The  suggestion 
is  that  his  father  asked  him  if  he 
had  sent  to  appellee  the  two  thou- 
sand, as  stated  by  Moffet,  in  view 
of  this  declaration  more  than  six 
months  before,  as  stated  by  William, 
that  he  would  send  her  but  one 
thousand,  showing  his  understanding 
that  she  was  to  receive  $3000,  and 
that  appellant's  answer  showed  he 
had  recei\"ed  it  for  her.  Appellant 
denied  Moffet 's  statement,  both  as 
to  the  ciuestion  and  the  answer, 
and  that  of  William  as  well.  He 
testified  that  all  he  received  from 
his  father  for  appellee  was  the 
package  of  notes  for  $1003.13, 
out  of  which  he  was  to  get  the 
money  ;  that  he  received  them  on 
November  11,  1S91,  about  two 
weeks  before  the  alleged  conversa- 
tion   mentioned     by    Moffet,     and 


S02 


PART    III.       PROBLEMS    OF    PROOF 


No.  3S4. 


about  six  before  the  death  of  his 
father;  that  he  was  not  expected 
to  send  her  the  money  before  that 
event,  and  did  not  until  long  after. 
Her  receipts  for  the  amount  he  sent, 
being  8.500  and  S.")03,  bear  date  re- 
spectively of  October  10,  1892,  and 
March    24,    1893. 

On  his  cross-examination  William 
A.  Vancil  stated  that  the  last  time 
he  was  at  his  father's  to  divide  the 
notes  was  in  April,  and  might  have 
been  the  24th,  1890,  and  testified, 
"  We  did  not  set  off  any  notes  to 
Mrs.  Hutchinson  (appellee)  that 
day.  I  did  not  make  a  memoran- 
dum in  my  own  handwriting  there 
of  the  amount  to  be  set  off  to  her, 
that  I  remember  of."  He  was  then 
shown  a  memorandum  as  follows  — 
"April  24,  1890.  Three  (3)  notes 
to  Mrs.  Mary  M.  Hutchinson 
amount  to  81003.13,"  and  admitted 
it  was  all  in  his  handwriting.  We 
refrain  from  comment  on  the  ex- 
planation he  attempted  to  make  of 
it,  further  than  to  say  that  in  our 
judgment,  as  respects  his  own  credit, 
it  was  worse  than  a  failure.  Again, 
he  testified  that  two  or  three  months 
after  his  father's  death,  he  wrote 
to  appellant  incjuiring  about  the 
amounts  his  father  had  appropriated 
to  different  persons  and  purposes, 
as  shown  by  receipts  prepared  for 
their  respective  signatures,  and  re- 
ceived an  answer  giving  the  several 
amounts,  among  which  was  one 
showing  that  appellant  had  received 
for  appellee  83000.  That  is  the 
paper  already  referred  to  as  one  of 
the  supports  of  appellee's  claim. 
It  can  be  more  intelligibly  explained 
after  the  introduction  of  some  other 
documentary  evidence  and  will  lie 
noticed  again  in  that  connection. 
It  is  "Exhibit  A."  He  further 
testified  that  after  his  father's 
death,  having  learned  that  appel- 
lant hafl  not  paid  appellee  all  that 
was  due  to  her,  he  advised  her  of  it, 
and  shortly  before  this  suit  was 
brought  she  came  to  visit  him.  He 
liverl  at  Waverly,  in  Sangamon 
county,  and  appellant  near  Modesto, 


in  Macoupin.  He  took  her  to  ap- 
pellant's place  and  demanded  of 
him,  for  her,  the  82000,  claimed  to 
be  still  due.  Appellant  denied  it  — 
said  that  what  she  had  received 
was  all  that  was  coming  to  her,  and 
asked  them  both  to  come  into  the 
house  and  look  o\"er  the  books  and 
papers,  but  they  did  not  go ;  Wil- 
liam says  he  had  some  business  in 
town  and  was  in  a  hurry  to  get  back. 
Appellant  says  that  William  flew 
into  a  passion  and  threatened  to  sue 
him  —  was  going  to  get  out  of  the 
buggy  and  whip  him,  and  said  he 
would  whip  him  the  first  chance  he 
got;  that  he  tried  to  pacify  him, 
and  did  everything  he  could  to 
get  him  to  come  in  and  examine  the 
books  and  papers  —  told  him  they 
would  satisfy  him  that  he  (appellant) 
was  all  right,  and  that  if  sued  he 
thought  he  could  beat  him  without 
a  witness.  William  and  appellee 
were  both  afterward  called  in  re- 
buttal, but  neither  denied  the  fact 
nor  the  urgency  of  appellant's  in- 
vitation nor  the  threats  he  said  were 
made  and  passion  displayed  l\v 
William. 

The  foregoing  is  substantially  all 
of  the  oral  testimony'  on  behalf  of 
appellee.  As  already  observed,  it 
comes  from  two  witnesses,  both 
being  biased  by  personal  animosity 
against  appellant,  and  relates  to 
alleged  verbal  statements  which 
were  separated  in  time  and  place, 
neither  of  which  was  directly  cor- 
roborated and  each  of  which  was 
denied  by  him.  That  on  behalf 
of  appellant,  excepting  what  was 
introduced  in  connection  with  or 
relation  to  the  writings,  came  from 
himself  alone,  and  is  also  in  sub- 
stance above  set  forth.  We  now 
turn  to  the  documents. 

The  memorandum  of  William  A. 
Vancil,  offered  as  contradicting  his 
oral  statement  and  confirming  that 
of  appellant  as  to  the  setting  apart 
for  appellee  of  81003.13  at  the 
division  of  April  24,  1890,  has  been 
adverted  to.  It  was  pickcfl  up  by 
appellant's  wife  from   the  table  or 


No.  384. 


VANCIL    V.    HUTCHINSON 


803 


floor,  on  that  day,  after  the  business 
was  done  and  the  parties  had 
separated. 

Next  is  a  receipt  taken  by  his 
father  from  appellant,  of  No\eniber 
11,  1891,  upon  delivering  to  him  the 
several  packages  of  notes,  the  pro- 
ceeds of  which  were  by  the  latter 
to  be  paid  over  to  the  persons  respec- 
tivelv  named  ;  which  is  as  follows  : 
"Received  of  E.  C.  Vancil,  $10,000 
for  Mordecai  Vancil;  also  $3000 
for  Mary  M.  Hutchinson,  less 
$1997  that  she  has  already  received 
on  the  aforesaid  $3000;  'also  $500 
for  Portia  Gilkerson ;  also  $2500 
for  Effie  Vancil;  also  $2500  for 
Ida  Vancil;  also  $2500  for  OlHe 
Vancil ;  also  $100  for  gravevard, 
and  $20  for  'the  church.'  All  of 
which  I  agree  to  pay  over  according 
to  instructions.  I.  B.  Vancil.  Effie 
Vancil,  witness.  November  11, 
1891."  This  paper,  excerpting  the 
signature  of  appellant,  is  in  the 
handwriting  of  his  oldest  daughter, 
Effie,  now  JVIrs.  Jordan.  She  testi- 
fied that  she  wrote  and  witnessed 
it  at  her  grandfather's  request,  and 
at  his  like  request  read  and  showed 
it  to  him.  He  then  gave  it  to  her 
father  to  sign,  and  it  was  put  with 
her  grandfather's  papers.  It  was 
written  in  his  room,  on  the  day  of  its 
date,  in  the  presence  of  her  father 
and  grandfather. 

An  attempt  was  made  on  her 
cross-examination  to  show  that  it 
was  dictated  by  her  father.  We 
think  nothing  was  elicited  to  impair 
the  force  of  the  paper  or  of  her 
statements  in  chief  respecting  it. 
Her  answers  seem  to  be  natural  and 
candid.  She  thought  she  used  in 
part  a  receipt  which  her  granshVitlier 
had  written,  but  had  no  very  dis- 
tinct recollection  as  to  that  nor  as 
to  any  dictation ;  her  father  may 
have  dictated  it  in  part.  The 
material  part  is  the  deduction  of 
previous  gifts  from  the  $3000  for 
appellee.  It  is  not  probable  that 
appellant  knew  the  amount  of  those 
advancements  except  by  informa- 
tion from  his  father  or  the  fact  that 


notes  for  only  $1003  had  been  set 
apart  for  her.  If  he  mentioned  the 
matter  and  amount  (which  does  not 
appear)  he  nuist  have  done  it  in 
the  presence  and  liearing  of  his 
father,  to  whom  the  paper  was  read, 
shown,  and  delivered  as  it  is,  by  the 
witness. 

That  he  knew  it  and  intended  to 
have  it  so  is  further  shown  by  the 
receipt  prepared  by  him  and  in  his 
own  handwriting,  to  be  signed  by 
her  when  she  should  get  the  $1003, 
which  is  as  follows  :  "  April  30,  1890, 
received  of  E.  C.  Vancil  one  thou- 
sand and  three  dollars  ($1003),  part 
of  my  stepfather's  estate,  and  I 
agr(>c  that  this  shall  be  a  final  re- 
ceipt of  all  claims  against  my  step- 
father up  to  date.  This  amount  is 
the  same  as  specified  in  his  will, 
and  if  I  try  to  break  his  will,  aid 
or  persuade  others  to  do  so,  I  agree 
to  pay  back  all  this  money  and 
relinquish  all  claims  to  his  estate." 
Under  this  appears  the  following, 
in  the  handwriting  of  ap])ellant's 
daughter,  Ida  :  "  Be  sure  and  return 
this.  It  is  all  my  written  au- 
thority" ;  which  appellant  explained 
by  the  statement  that  when  he  sent 
to  her  the  draft  for  $503,  in  ]\Iarch, 
1893,  he  directed  his  daughter  to 
write  the  letter  and  inclose  a  receipt 
for  the  amount  to  be  signed  by 
appellee,  and  also  this  receipt  pre- 
pared by  his  father  for  the  full 
amount,  $1003,  not  to  be  signed  by 
her  because  she  had  already  re- 
ceipted for  the  $500  sent  in  October, 
1892,  and  was  to  sign  the  inclosed 
for  the  residue,  but  to  show  her  it 
was  all  his  father  left  him  or  intentled 
for  her,  and  to  be  returned  to  him. 
He  says  he  put  it  in  the  letter  of  Ida, 
and  mailed  it  himself,  and  that  it 
was  returned  to  him  with  the  re- 
ceipt, also  produced,  for  the  $503. 
Appellee  denied  that  she  received 
it  with  the  draft,  or  ever  saw  it 
before  the  trial,  and  her  letter 
acknowledging  the  receipt  of  the 
$.503  was  not  produced.  We  think 
the  fact,  however  it  may  have  been, 
was  immaterial.     He  may  have  in- 


S3i 


PART    III.       P.IOBLE.MS    OF    PROOF 


No.  384. 


advertently  omitted  it  though  in- 
teiKhng  to  inclose  it.  No  motive 
for  withholding  it  is  apparent.  Its 
genuineness  is  fully  proved  and  not 
questioned.  That  he  actually  gave 
it  to  Ida  to  be  so  sent,  as  she  under- 
stootl,  is  manifest  from  her  request 
underwritten.  And  the  appellee 
may  ha\e  received  it  and  forgotten 
the  fact.  She  never  had  a  suspi- 
cion that  any  more  money  was  left 
with  him  for  licr  until  so  informed, 
afterward,  hy  William  A.Vancil,  and 
therefore  the  paper  was  not  likely 
to  be  regarded  by  her  as  important 
to  be  remembered.  It  appears  that 
some  if  not  all  the  packages  set 
apart  at  the  first  division,  April 
24,  1890,  w^ere  delivered  to  the 
parties  for  whom  they  were  intended 
on  or  before  the  30th.  William  A. 
recei\ed  his  at  that  time  and  the 
receipt  prepared  for  him  to  sign 
was  dated  on  that  day,  as  was 
appellee's.  A  further  division  was 
made  in  June,  at  which  William 
was  not  present.  Receipts  for  these 
were  prepared  in  like  manner,  but 
were  all  retained  by  the  old  man, 
with  the  notes,  to  receive  and 
credit  payments  of  interest  thereon, 
until  November  11,  1891,  after  he 
was  disabled,  and  about  six  weeks 
before  his  death,  when  he  delivered 
them  to  appellant  and  took  his 
receipt  of  that  date,  above  set  forth. 
Some  two  or  three  months  after  his 
death  William  A.  wrote  to  appellant 
for  copies  of  the  receipts  his  father 
had  held,  and  received  in  reply  the 
following,  which  is  the  "  Exhibit 
A,"  introduced  by  appellee:  "I 
do  not  think  it  w'ill  be  necessary  to 
copy  all  these  receipts,  as  they  are 
nearly  identical  in  language,  but 
will  give  a  list  of  the  amounts. 
I.  B.  Vancil  .  .  .  $24,500.00 
A.  E.  Moft'ett  .     .     .  .3,002.41 

I.      B.      Vancil,      for 

Mary  .     .     .         3,000.00 

I.  B.  Vancil,  for  Mort. 
(Mordecai,  a  broth- 
er of  appellant  in 
California  10,000.00 " 

The   list   proceeds   in   like  manner, 


giving  the  other  amounts  men- 
tioned in  his  receipt  to  E.  C.  Vancil, 
of  November  11,  1891,  hereinbe- 
fore copied,  and  others,  amounting 
in  all  to  a  little  over  $100,000  and 
then  continues  :  —  "  He  gave  Burke 
S2500  in  cash,  for  which  there  is 
no  receipt.  ...  I  have  the  notes 
all  just  as  I  received  them,  and  as 
they  have  been  for  the  last  year.  I 
have  his  books  in  which  all  the  notes 
are  listed.  Come  down  some  day 
and  I  will  show\vou  all  about  it.  .  .  . 
I  hope  you  will  not  be  foolish  enough 
to  take  this  into  court,  as  there  wall 
be  nothing  in  it.  Now  I  believe 
this  is  all  I  think  of.  I.  B.  Vancil." 
The  material  item  in  this  state- 
ment is  that  of  "  I.  B.  Vancil,  for 
Mary,  $3000."  It  is  conceded  that 
Mary,  there  named,  is  the  appellee. 
W'illiam  testified  that  the  body  of 
the  paper  was  not  in  the  handwriting 
of  appellant,  but  he  believed  the 
signature  was.  Appellant  positively 
denied  it,  and  was  corroborated 
by  his  daughter  Effie  and  his  son 
Burke,  each  of  whom  also  testified 
that  it  was  in  the  handwriting  of 
his  daughter  Ida,  and  not  of  appel- 
lant. The  latter  stated  that  wdien 
he  received  the  request  he  was  very 
busy ;  that  his  older  daughter,  who 
usually  wrote  for  him  if  she  was  at 
home,  w'as  then  away ;  that  he 
placed  all  the  papers  in  the  hands  of 
Ida,  and  directed  her  to  copy  the 
two  receipts  from  William,  and  give 
him  a  list  of  the  amounts  of  the 
others ;  that  she  had  his  receipt  to 
his  father  of  November  11,  1891, 
and  must  have  taken  from  it  the 
items  with  wliich  her  statement 
charges  him  ;  that,  after  giving  her 
all  the  receipts  and  papers,  and  the 
general  direction  stated,  he  went 
about  his  business,  and  never  saw 
or  knew  of  her  statement  until  it 
was  produced  on  the  trial ;  that  he 
did  not  direct  her  to  put  down  in 
that  letter  "  I.  B.  Vancil,  for  Mary, 
$3000";  and  closed  by  saying  "the 
amount  of  it  is  she  just  struck  the 
first  amount  and  never  said  anything 
about    the    conditions."     Ida    was 


No.  3S4. 


VANCIL   V.    HUTCHINSON 


805 


too  ill  at  the  time  of  the  trial  to  be 
present.  We  perceive  nothing  in 
this  explanation,  of  itself  or  in  the 
light  of  any  circumstances  shown, 
which  would  justify  a  reasonable 
doubt   of   its   truth. 

The  foregoing  comprises  substan- 
tially all  the  evidence,  and  is  per- 
haps set  out  at  unnecessary  hnigth. 
Had  the  verdict  been  found  upon 
the  oral  testimony  alone,  we  should 
have  had  no  inclination  to  interfere 
with  the  finding.  It  would  have 
been  for  the  jury  to  reconcile,  accept 
and  reject,  as  they  in  their  judgment, 
with  their  superior  advantages,  saw 
fit.  But  that  which  seems  to  us  to 
be  the  most  convincing  by  far,  is 
shown  by  what  is  more  to  be  trusted 
than  the  recollection  by  witnesses 
of  oral  declarations,  after  the  lapse 
of  so  long  a  time,  however  disinter- 
ested and  honest  they  may  be. 
With  the  correction  made,  as  it 
fairly  should  be,  of  Ida's  statement 
in  the  letter  written  in  her  father's 
name  to  William  A.  Vancil,  the 
documentary  evidence  is  all  one 
way.  So  far  as  we  see,  it  clearly 
preponderates  against  the  evidence 
of  appellant's  admissions  that  he 
received  $3000  from  his  father  for 
appellee,  and  corroborates  his  denials 
of  them,  and  his  statement  of  the 
material  facts  generally.  The 
charge  of  a  disposition  on  his  part 
to  withhold  his  father's  books  and 
papers  from  examination  by  or  for 
appellee,  is  refuted  by  the  letter  of 
Ida  and  the  testimony  of  William, 
assented  to  by  appellee.  He  had 
no  reason  to  anticipate  a  need  of 
these  books  on  the  trial.  Whether 
they  showed  the  advancements  to 
appellee,  which  is  all  it  is  said  they 


might  have  done,  was  not  material 
to  the  issue ;  which  was,  how  much 
had  appellant  receixed  for  her.  He 
did  not  state,  nor  pretend  to  know, 
how  much  she  had  previously  re- 
ceived. If  his  father,  upon  his 
understanding  or  misunderstanding, 
stated  what  it  was  and  therefore 
left  for  her  only  the  difTerence  be- 
tween that  amount  and  $3000, 
then  whatever  the  books  might 
show  was  the  amount  charged  to 
her,  it  could  not  affect  appellant's 
liability  in  this  case,  and  that  he 
did  so  state  is  conclusively  shown 
by  his  own  writing.  There  is  noth- 
ing in  the  record  upon  which  to 
found  a  charge  of  forgery,  fraud  or 
mistake,  in  connection  with  that 
statement.  That  he  acted  upon  it 
is  further  shown,  as  we  think,  l)y  the 
memorandum  made  by  William  on 
April  24,  1890.  E.xcepting  his  al- 
leged verbal  admissions,  there  is 
not  a  particle  of  evidence  that  ap- 
pellant received  for  appellee  a  dollar 
in  cash  or  otherwise  besides  th? 
notes  for  $1003.13.  He  must  hav? 
imderstood  that  William  knew  th.it 
was  the  amount  set  apart  for  her, 
and  have  presumed  that  Ida  had 
given  him  the  amount  as  stated  in 
the  receipt  of  November  11th;  and 
therefore  he  could  hardly  have  ad- 
mitted to  William  or  stated  to  his 
father  in  the  presence  of  ^loffet  that 
he  had  receiVed  $2000  more  for  that 
purpose.  It  is  unnecessary,  and 
might  be  harmful,  to  comment 
further  upon  the  oral  testimony. 

Being  of  opinion  that  the  verdict 
was  clearly  against  the  weight  of  the 
evidence,  the  judgment  will  be  re- 
versed and  the  cause  remanded. 


806 


PART    III.       PROBLEMS    OF    PROOF 


No.  385. 


385.    THE  BORDEN  CASE.     (John  H.    Wigmore.     American   Law 
lii'N-iew.     1893,  Vol.  XXXVII,  p.  819.)  ' 


On  the  4th  of  August,  1892,  was 
committed  in  the  city  of  Fall  River, 
Massachusetts,  the  double  murder 
for  which  Lizzie  Andrew  Borden  was 
tried  in  the  month  of  June,  1893,  at 
New  Bedford.  Not  since  the  trial 
of  Professor  Webster  for  the  murder 
of  Dr.  Parkman  has  such  wifle- 
spread  popular  interest  been 
aroused  ;  but  on  this  occasion  the 
notoriety  far  exceeded  that  of  the 
Webster  case,  and  the  report  of  the 
proceedings  was  daily  telegraphed 
to  all  parts  of  the  country.  If  we 
look  for  the  circumstances  which 
made  the  case  such  a  special  theme 
of  discussion,  they  seem  to  be  three  : 
first,  the  particularly  brutal  mode 
in  which  the  killing  was  done  ;  next, 
the  sex  of  the  accused  person  and  her 
standing  in  the  community ;  but 
principally  the  fact  that  the  evi- 
dence was  purely  circumstantial  and 
was  such  as  to  afford  singularly 
conflicting  inferences. 

In  August,  1892,  Andrew  Jackson 
Borden  was  a  retired  merchant  of 
Fall  River,  and  lived  in  a  house  on 
the  east  side  of  Second  Street  in 
that  city,  an  important  thoroughfare 
running  north  and  south  and  faced 
partly  by  dwelling  houses,  partly  by 
business  structures.  South  of  the 
Borden  house  and  closely  adjoining 
was  Dr.  Kelly's ;  north  of  it  Mrs. 
Churchill's ;  in  the  rear,  but  diago- 
nally, Dr.  Chagnon's.  Mr.  Borden 
was  seventy  years  of  age.  He  was 
reputed  to  be  worth  S3(X),000  or  more, 
but  his  family  lived  in  the  thrifty 
and  unpretentious  style  character- 
istic of  New  England.  The  mem- 
bers of  the  household  were  Mr. 
Borden  and  four  others:  1.  Mrs. 
Borden,  a  short  but  heavy  person, 
sixty-four  years  of  age,  formerly 
Abl>y  Durfee  Gray,  now  for  twenty- 
five  years  the  second  wife  of  Mr. 
Borden ;  2.  Emma  Borden,  forty- 
one  years  of  age,  a  daughter  of  Mr. 


Borden's  first  marriage,  and  un- 
married ;  3.  Lizzie  Andrew  Borden, 
tliirty-two  years  of  age,  the  other 
child  of  the  first  marriage,  also  un- 
married ;  4.  Bridget  Sullivan,  a  ser- 
vant who  had  been  with  the  family 
nearly  three  years.  Mr.  Borden's 
first  wafe  had  died  some  twenty-eight 
years  before ;  by  the  second  mar- 
riage there  was  no  issue  living. 

In  the  latter  part  of  July  Emma 
Borflen  went  to  visit  friends  in 
Fairhaven,  an  adjacent  town.  On 
Wednesday,  August  3,  however,  the 
number  in  the  household  was  re- 
stored by  a  brief  visit  from  John  V. 
Morse,  a  brother  of  the  first  wife. 
He  came  just  after  noon,  left  for  a 
few  hours,  returned  in  the  evening, 
sleeping  in  the  house,  and  went  out 
the  next  morning.  On  Tuesday 
night,  August  2,  ]\Ir.  and  Mrs. 
Borden  were  taken  suddenly  ill  with 
a  violent  vomiting  illness  ;  Lizzie  Bor- 
den was  also  slightly  affected ;  Brid- 
get Sullivan  was  not.  On  W^ednes- 
day  morning  Mrs.  Borden  con- 
sulted a  physician  as  to  this  illness. 
On  Thursday  morning,  August  4, 
the  only  persons  known  to  be  in  the 
house  were  Mr.  and  Mrs.  Borden, 
Miss  Borden,  Mr.  Morse,  and  the 
servant  Bridget  Sullivan.  Before 
describing  the  occurrences  of  the 
morning  it  is  necessary  to  explain 
the  arrangement  of  the  house. 

The  appended  plan  shows  the 
situation  of  the  rooms  on  the  ground 
and  upper  floors.  As  to  the  ground 
floor,  it  is  enough  to  call  attention 
to  the  fact  that  there  were  three 
doors  only :  the  front  door,  the 
kitchen  door,  and  the  cellar  door; 
that  access  from  the  back  door  to  the 
front  hall  might  be  obtained  through 
the  kitchen  only,  and  thence  through 
the  sitting-room,  or  through  the 
dining-room  and  one  or  both  other 
rooms,  and  that  in  the  front  hall 
were    two    small    closets.     On    the 


'  Based  on  daily  reports  of  testimony  in  the  Boston  Herald.     Parts  of  the  original 
article  arc  omitted.  —  Ed. 


PLAN  OF  THE  Borden  Premises. 


Guest  Room 


Ol    LUMBEK  PILE 


o^ 


Q 

o 

I 
©  '2 


^^^g  0 


N-i^S 


3 

1 
2 

4 

7 
6\ 

5 

5 

1 

— 1 

5 
1 1 * 

Plan  of  the   Borden  House  and  Grounds 


No.  385. 


THE    BORDEN    CASE 


807 


upper  floor  a  doorless  partition 
divided  into  two  small  rooms  the 
space  over  the  dining-room.  Mr. 
and  Mrs.  Borden  occupied  the  room 
over  the  kitchen  ;  Lizzie  Borden  the 
room  over  the  sitting-room  and  the 
front  half  of  the  partitioned  rooms  ; 
and  the  room  over  the  parlor  was 
used  as  a  guest-room  and  sewing- 
room.  The  door  between  the  rooms 
of  Lizzie  Borden  and  Mr.  and  Mrs. 
Borden  was  permanently  locked  on 
both  sides  (on  one  by  a  hook,  on 
the  other  by  a  bolt) ;  so  that  tliere 
was  no  access  from  the  rear  part  of 
the  upper  floor  to  the  front  part. 
Furthermore,  the  door  between  the 
guest-room  and  Lizzie  Borden's  room 
was  permanently  locked  on  both 
sides,  and  in  the  latter  room  a  desk 
stood  against  the  door.  In  the  upper 
hall  over  the  front  door  was  a 
clothes  closet.  As  to  the  condition 
of  the  doors  below,  on  August  3  and 
4,  (1)  the  front  door  was  locked  on 
Wednesday  night  by  Lizzie  Borden, 
the  last  one  to  enter  it ;  the  fasten- 
ing being  a  spring  latch,  a  bolt,  and 
an  ordinary  lock ;  (2)  the  cellar 
door  (opening  into  the  yard)  had 
been  closed  on  Tuesday  and  was 
found  locked  on  Thursday  at  noon  ; 
(3)  the  kitchen  door  was  locked  by 
Bridget  Sullivan  on  Wednesday 
night,  when  she  came  in  (and  was 
found  locked  by  her),  but  on  Thurs- 
day morning  there  was  passing  in 
and  out,  and  its  condition  was  not 
beyond  doubt,  as  we  shall  see  ;  (4)  the 
door  from  the  bedroom  of  the  Borden 
couple  leading  down-stairs  was  kept 
locked  in  their  absence  from  the 
room.  As  to  the  disposition  of  the 
inmates  of  the  house  on  Wednesday, 
Mr.  Morse  slept  in  the  guest-cham- 
ber, Mr.  and  Mrs.  Borden  and  Miss 
Borden  in  their  respective  rooms, 
Bridget  Sullivan  in  the  attic  at  the 
rear. 

On  Thursday  morning  shortly 
after  6,  Bridget  Sullivan  came  down 
the  back  stairs,  got  fuel  from  the 
cellar,  built  the  fire,  and  took  in  the 
milk.  The  kitchen  door  was  thus 
unlocked,    the   wooden   door   being 


left  open,  the  wire  screen  door 
fastened,  as  usual.  Just  l)efore  7, 
Mrs.  Borden  came  down.  Then  Mr. 
Borden  came  down,  went  out  and 
emptied  his  .slop-pail,  and  unlocked 
the  barn  door.  Mr.  Morse  then 
came  down,  and  shortly  after  7  the 
three  eat  l)reakfast.  Mr.  Morse  left 
the  house  at  a  quarter  before  8,  Mr. 
Borden  lettirg  him  out  and  locking 
the  door  behind  him.  Lizzie  Bor- 
den shortly  afterwards  came  down 
and  began  her  breakfast  in  the 
kitchen.  At  this  point  Mr.  Borden 
went  upstairs  to  his  room,  and 
Bridget  went  out  in  the  yard,  having 
an  attack  of  vomiting.  After  a  few 
minutes'  absence  she  returned  and 
found  Lizzie  Borden  absent,  Mrs.  Bor- 
den dusting  the  dining-room,  and  Mr. 
Borden  apparently  gone  down  town. 
Mrs.  Borden  then  directed  Bridget 
to  wash  the  windows  on  both  sides, 
and  left  the  kitchen,  remarking  that 
she  had  made  the  bed  in  the  guest- 
room and  was  going  up  to  put  two 
pillow-cases  on  the  pillows  there. 
This  was  the  last  time  that  she  was 
seen  alive  by  any  witness.  Mr. 
Borden  had  left  the  house  some- 
where between  9  and  9  :  30. 

Bridget  then  set  to  work  at  the 
windows,  after  getting  her  imple- 
ments from  the  cellar,  and  here  the 
kitchen  door  seems  to  have  been  un- 
locked and  left  so.  In  cleaning  the 
windows  of  the  sitting-room  and  the 
dining-room  Bridget  foimd  nobody 
present,  both  Lizzie  Borden  and 
Mrs.  Borden  being  elsewhere.  As 
Bridget  went  out,  Lizzie  came  to  the 
back  door,  apparently  to  hook  it ; 
but  Bridget  seems  to  have  dissuaded 
her.  The  washing  ])egan  with  the 
outside  of  the  windows ;  Bridget 
proceeded  from  the  two  sitting-roonl 
windows  (where  the  screen  door, 
now  imlocked,  was  out  of  sight)  to 
the  parlor-front  windows,  the  parlor 
side  window,  and  the  dining-room 
windows ;  and  during  this  time 
neither  Lizzie  Borden  nor  Mrs. 
Borden  appeared  on  the  lower  floor. 
Then  Bridget  entered  by  the  screen 
door,   hooking  it  behind   her,   and 


808 


PART    III.       PROBLEMS    OF    PROOF 


No.  385. 


proceeded  to  the  washinjj  of  the  in- 
side of  the  windows,  followini:^  the 
same  order  as  before.  While  wash- 
ini;  the  first,  some  one  was  lieard  at 
the  front  door.  Mr.  Borden  had 
come  home,  and  failing  to  enter  the 
screen  door,  had  come  round  to  the 
front  and  was  trying  the  door  with 
his  key,  but  the  triple  fastening  pre- 
vented his  entrance,  and  Bridget 
came  and  opened  it  before  he  was 
obliged  to  ring  the  bell.  At  this 
moment  a  laugh  or  other  exclama- 
tion was  heard  from  the  daughter 
on  the  floor  al)ove.  She  came  down 
shortly  to  the  dining-room  where  Mr. 
Borden  was,  asked  if  there  was  any 
mail,  and  then  volunteered  the  in- 
formation, "Mrs.  Borden  has  gone 
out ;  she  had  a  note  from  some- 
body." It  was  now  10 :  45,  though 
by  a  bare  possibility  7  or  8  minutes 
earlier.  ^Ir.  Borden  took  his  key, 
went  up  the  back  stairs  (the  only 
way  to  his  room),  and  came  down 
again  just  as  Bridget  had  finished 
the  second  sitting-room  window  and 
was  passing  to  the  dining-room.  Mr. 
Borden  then  sat  down  in  the  sitting- 
room  ;  Bridget  l)egan  on  the  dining- 
room  win<lows ;  and  Lizzie  Borden 
I)ut  an  ironing-board  on  the  dining- 
room  table  and  began  to  iron  hand- 
kerchiefs. This  conversation  en- 
sued :  — 

"  She  said, '  Maggie,^  are  you  going 
out  this  afternoon?'  I  said,  'I 
don't  know;  I  might  and  I  might 
not;  I  don't  feel  very  well.'  She 
says,  *  If  you  go  out,  be  sure  and  lock 
the  door,  for  Mrs.  Borden  has  gone 
on  a  sick  call,  and  I  might  go  out 
too.'  Says  I,  'Mi.ss  Lizzie,  who  is 
sick  ?'  *  I  don't  know ;  she  had  a 
note  this  morning ;  it  must  be  in 
town.'" 

Then  Bridget,  finishing  the  win- 
dows, washed  out  the  cloths  in  the 
kitchen  ;  and,  while  she  was  there, 
Lizzie  Borden  stopped  her  iron- 
ing, came  into  the  kitchen  and 
said  :  — 

"There  is  a  tlicap  sale  of  dress 


goods  at  Sargent's  to-day  at  8  cents 
a  yard." 

And  Bridget  said,  "  I  am  going  to 
have  one." 

At  this  point  Bridget  went  up- 
stairs and  lay  down.  In  perhaps 
3  or  4  minutes  the  City  Hall  clock 
struck,  and  Bridget's  watch  showed 
it  to  be  11  o'clock.  Lizzie  Borden 
never  finished  her  ironing.  Miss 
Russell  testified  (without  contradic- 
tion) that  she  afterwards  carried  the 
handkerchiefs  upstairs,  and  that 
there  were  4  or  5  finished  with  2  or 

0  only  sprinkled  and  ready  to  iron. 
The  next  incident  was  a  cry  from 

below,  coming  10  or  15  minutes 
later :  — 

"Miss  Lizzie  hollered:  'Maggie, 
come  down.'  I  said,  'What  is  the 
matter  ? '  She  says,  '  Come  down 
quick,  father's  dead.  Somebody's 
come  in  and  killed  him.'" 

Bridget  hurried  down-stairs  and 
found  the  daughter  at  the  back 
entrance,  leaning  against  the  open 
wooden  door,  with  her  back  to  the 
screen  door.  The  daughter  sent  her 
for  Dr.  Bowen,  and  next,  on  return- 
ing, for  her  friend  Miss  Russell,  Dr. 
Bowen  being  absent.  While  Miss 
Russell  was  being  sought.  Dr.  Bowen 
and  the  neighbor,  Mrs.  Churchill, 
came,  the  latter  first.  Mrs. 
Churchill  gave  the  alarm  at  a  stable 
near  by,  and  the  telephone  message 
reached  police  headquarters  at 
11  :  15.  When  Bridget  came  back 
and  mutual  suggestion  began,  as 
Bridget  relates  :  — 

"I  says,  'Lizzie,  if  I  knew  where 
Mrs.  Wliitehead  was  I  would  go  and 
see  if  Mrs.  Borden  was  there  and 
tell  her  that  ISIr.  Borden  was  very 
sick.'  She  says:  'Maggie,  I  am 
almost  positive  I  heard  her  coming 
in.     W'on't  you  go  upstairs  to  see?' 

1  said :  '  I  am  not  going  upstairs 
alone." 

Mrs.  Churchill  offered  to  go  with 
her.  They  went  u])stairs,  and  as 
Mrs.  Churchill  passed  up,  the  door 
of  the  guest-room  being  open,  she 


'  The  Bordens  always  called  her  by  this  name. 


No.  385. 


THE    BORDEN    CASE 


899 


saw  the  clothing  of  a  woman  on  the 
floor,  the  line  of  sight  running  under 
the  bed.  She  ran  on  into  the  room 
and,  standing  at  the  foot  of  the  bed, 
saw  the  dead  body  of  Mrs.  Borden 
stretched  on  the  floor. ^  It  may  here 
be  mentioned  that  the  medical  tes- 
timony showed,  from  the  tempera- 
ture of  the  body,  the  color  and 
consistency  of  the  blood,  and  the 
condition  of  the  stomach's  contents, 
that  Mrs.  Borden's  death  had  oc- 
curred between  one  and  two  hours 
earlier,  probably  one  and  one-half 
hours  earlier,  than  Mr.  Borden's,  — 
or  not  much  later  or  earlier  than 
9 :  30. 

During  this  time  the  other  neigh- 
bors were  with  Lizzie  Borden,  who 
had  thrown  herself  on  the  lounge  in 
the  dining-room,  not  having  been 
to  see  her  father's  or  her  step- 
mother's bod}^  at  any  time  since  the 
call  for  Bridget.  At  a  neighbor's 
suggestion  she  went  upstairs  to  her 
room,  and  here  without  suggestion 
she  afterwards  (within  half  an  hour 
of  the  killing)  changed  her  dress  and 
put  on  a  pink  wrapper. 

Something  must  now  be  said  in 
brief  description  of  the  manner  in 
which  the  two  victims  had  met  their 
death.  Mr.  Borden's  head  bore 
ten  wounds  from  a  cutting  instru- 
ment wielded  with  a  s^^^ng ;  the 
body  bore  no  other  injury.  The 
shortest  cut  was  one-half  inch  long, 
the  longest  was  four  and  one-half 
inches.  Four  penetrated  the  brain, 
the  skull  at  the  points  of  penetration 
being  about  one-sixteenth  inch  thick. 
The  body  was  found,  lying  on  the 
right  side  on  the  sofa  in  the  sitting- 
room,  the  head  nearest  the  front 
door,  and  the  wounds  indicated  that 
the  assailant  stood  at  or  near  the 
head  of  the  couch  and  struck  down 
vertically  from  that  direction.  Spots 
of  blood  were  upon  the  wall  over 
the  sofa  (30  to  100),  on  a  picture 
on  the  same  wall  (40  to  50),  on  the 
kitchen  door  near  his  feet,  and  on 
the  parlor  door.     On  the  carpet  in 


front  of  the  sofa,  and  on  a  small 
table  near  by,  there  was  no  blood. 
On  Mrs.  Borden's  head  and  neck 
(and  not  elsewhere)  were  twenty- 
two  injuries,  three  ordinary  head 
contusions  from  falling  and  nineteen 
wounds  from  blows  by  a  cutting  in- 
strument, —  of  these,  one  was  on 
the  back  of  the  neck  and  eighteen 
on  the  head.  The  shortest  was  one- 
half  inch,  the  longest  three  and  one- 
half  inches  in  length.  Four  were  on 
the  left  half  of  the  head,  one  being  a 
flap  wound  made  in  the  flesh  by  a 
badly-aimed  cut  from  in  front. 
Some  thirteen  of  these  made  a  hole 
in  the  top  of  the  skull,  crushing  into 
the  brain,  this  part  of  Mrs.  Borden's 
skull  l)eing  about  one-eighth  inch  in 
thickness  and  the  thinnest  part  of 
her  skull.  There  were  blood  spots 
on  the  north  wall,  on  the  dressing- 
case  (over  75),  and  on  the  east  wall. 
The  weapon  or  weapons  employed 
were  apparently  hatchets  or  axes. 
Upon  the  premises  that  day  were 
found  two  hatchets  and  two  axes. 
Of  these  only  one  offered  any  oppor- 
tunity for  connection  with  the  kill- 
ings, for  the  others  had  handles  so 
marked  with  ragged  portions  that 
they  could  not  have  been  cleansed 
from  the  blood  which  they  must 
have  received.  Of  the  fourth  some 
mention  will  be  made  later. 

On  Tuesday,  Wednesday  and 
Thursday,  August  9,  10  and  11, 
the  inquest  was  held  by  Judge  Blais- 
dell,  and  on  Thursday  evening  I^izzie 
Borden  was  arrested  on  charge  of 
committing  the  murders.  The  pre- 
liminary trial  began  before  Judge 
Blaisdell,  August  25,  continuing 
until  September  1,  when  she  was 
found  probably  guilty  and  ordered 
to  be  held  for  the  grand  jury.  The 
indictment  was  duly  found,  and  on 
Monday,  June  5,  1S93,  the  trial 
began  in  the  Superior  Court  of 
Bristol  County,  at  the  New  Bedford 
Court  House.  In  accord  with  the 
law  of  the  State,  the  Court  for  such 
a  trial  was  composed  of  three  judges 


1  See  plan. 


810 


PART    III.       PROBLEMS    OF    PROOF 


No.  385. 


of  the  Superior  Court  of  the  Com- 
monwealth. Those  who  officiated 
on  this  occasion  were  Mason,  C.  J., 
Blodgett,  J.,  and  Dewey,  J. 

The  case  for  the  prosecution  was 
conducted  l)y  Hosea  ]M."  Knowlton, 
District  Attorney  for  the  County, '^ 
and  \Ym.  H.  bloody,  District  Attor- 
ney of  Essex  County.-  The  case 
for  the  defence  was  conducted  by 
George  D.  Robinson,^  Melvin  O. 
Adams,^  and  Andrew  J.  Jennings.^ 

We  now  come  to  consider  the 
question,  what  points  did  the  pros- 
ecution attempt  to  make  against 
Lizzie  Borden  in  charging  the  crime 
upon  her  ?  It  endea^■ored  to  show, 
first,  prior  indications,  (a)  Moti\e, 
{h)  Design  ;  second,  concomitant  in- 
dications, (a)  Opportunity,  (6)  Means 
and  Capacity  ;  third,  posterior  indi- 
cations, (a)  Consciousness  of  Guilt. 
Let  us  take  these  in  order  very 
briefly. 

1.  (a)  Motive.  The  family  his- 
tory was  brought  in  to  show  that 
the  accused  was  not  on  the  best  of 
terms  with  her  stepmother.  This 
was  evidenced  by  the  testimony  of : 
(1)  A  dressmaker,  who  reported  that 
in  a  conversation  held  some  time 
previously,  when  her  "mother"  was 
mentioned,  she  answered:  "Don't 
say  ' mother'  to  me.  She  is  a  mean, 
good-for-nothing  old  thing.  We  do 
not  have  much  to  do  with  her ;  I 
stay  in  my  room  most  of  the  time." 
"Why,  you  come  down  to  your 
meals?"  "Yes,  sometimes;  but 
we  don't  eat  with  them  if  we  can 
help  it."  (2)  The  servant,  who  re- 
ported that,  though  she  never  saw 
any  quarreling,  "  most  of  the  time 
they  did  not  eat  with  the  father  and 
mother."  (3)  The  uncle,  who  (h'd 
not  see  Lizzie  Borden  during  the 
visit  from  Wednesday  noon  till 
Thursday  noon :  (4)  the  sister, 
F^mma,  who  explained  the  ill-feeling 
partly   on   the   ground   of   a   small 


transfer  of  property  by  the  father  to 
his  wife  a  few  years  before,  and  re- 
ported that  since  that  time  the 
accused  had  ceased  saying  "mother" 
and  addressed  her  as  "Mrs.  Borden," 
and  thiit  a  gift  of  other  property  to 
the  daughters  had  only  partially 
allayed  the  ill-feeling  ;  (5)  the  police 
officer,  who  on  asking  Lizzie  Borden 
on  Thursday  noon,  "  When  did  you 
last  see  your  mother?"  was  an- 
swered, "She  is  not  my  mother. 
ISIy  mother  is  dead."  The  general 
effect  of  the  motive  testimony  pur- 
ported to  be  that  the  daughters  were 
afraid  of  the  property  going  to  the 
second  wife,  to  their  exclusion,  and 
that  this  fomented  an  ill-feeling 
existing  on  more  or  less  general 
grounds  of  incompatibility. 

(b)  Design.  No  evidence  was 
offered  of  a  specific  design  to  kill 
with  the  weapons  used.  But  it  was 
attempted  to  show  a  general  inten- 
tion to  get  rid  of  the  victims : 
(1)  Testimon}^  of  a  druggist  and  of 
by-stand  ers  as  to  an  attempted 
purchase  of  prussic  acid  in  the  fore- 
noon of  Wednesday,  the  day  before 
the  killing :  — 

"This  party  came  in  there  and 
inquired  if  I  kept  prussic  acid.  I 
was  standing  out  there ;  I  walked 
in  ahead.  She  asked  me  if  we  kept 
prussic  acid.  I  informed  her  that 
we  did.  She  asked  me  if  she  could 
l)uy  ten  cents'  worth  of  me.  I  in- 
formed her  that  we  did  not  sell 
prussic  acid  unless  by  a  phj^sician's 
prescription.  She  then  said  that  she 
had  bought  this  several  times,  I 
think  ;  I  think  she  said  several  times 
before.  I  says:  'Well,  my  good 
lady,  it  is  something  we  don't  sell 
unless  by  a  prescription  from  the 
doctor,  as  it  is  a  very  dangerous 
thing  to  handle.'  I  understood  her 
to  say  she  wanted  it  to  put  on  the 
edge  of  a  seal-skin  cape,  if  I  remem- 
ber rightly.     She  did  not  buy  any- 


'  Afterwards  Attorne3'-General  of  Massjicliusetts. 

2  Afterwards  .Justifo  of  the  Unitod  States  Supreme  Court. 

3  Former  Governor  of  Ma.ssathu.sett.s. 

*  Eminent  at  the  Boston  Bar  in  the  defense  of  criminal  cases. 

5  Former  partner  of  Mr.  Justice  Morton  of  the  Massachusetts  Supreme  Court. 


No.  385. 


THE    BORDEN    CASE 


811 


thing,  no  drug  at  all,  no  medicine  ? 
No,  sir."  This  was  excluded,  for 
reasons  to  be  mentioned  later. 

(2)  Testimony  of  a  conversation 
on  the  same  Wednesday,  during  an 
evening  call  on  Miss  Russell,  an  in- 
timate friend  :  — 

The  prisoner  said  :  "  I  have  made 
up  my  mind,  x\lice,  to  take  your 
advice  and  go  to  Marion,  and  I  liave 
written  there  to  them  that  I  shall 
go,  but  I  cannot  help  feeling  de- 
pressed ;  I  cannot  help  feeling  that 
something  is  going  to  happen  to  me  ; 
I  cannot  shake  it  off.  Last  night," 
she  said,  "we  were  all  sick  ;  Mr.  and 
Mrs.  Borden  were  quite  sick  and 
vomited  ;  I  did  not  vomit,  and  we 
are  afraid  that  we  have  been 
poisoned  ;  the  girl  did  not  eat  the 
baker's  bread  and  we  did,  and  we 
think  it  may  have  been  the  baker's 
bread," 

"No,"  said  Miss  Russell,  "if  it 
had  been  that,  some  other  people 
would  have  been  sick  in  the  same 
way." 

"Well,  it  might  have  been  the 
milk ;  our  milk  is  left  outside  upon 
the  steps." 

"What  time  is  your  milk  left?" 

"At  4  o'clock  in  the  morning." 

"  It  is  light  then,  and  no  one  would 
dare  to  come  in  and  touch  it  at  that 
time." 

"Well,"  said  the  prisoner,  "prob- 
ably that  is  so.  But  father  has  been 
having  so  much  trouble  with  those 
with  whom  he  has  dealings  that  I 
am  afraid  some  of  them  will  do 
something  to  him  ;  I  expect  nothing 
but  that  the  building  will  be  burned 
down  over  our  heads.  The  barn 
has  been  broken  into  twice." 

"That,"  said  Miss  Russell,  "was 
merely  boys  after  pigeons." 

"  Well,  the  house  has  been  broken 
into  in  broad  daylight  when  Maggie 
and  Emma  and  I  were  the  only  ones 
in  the  house.  I  saw  a  man  the 
other  night  when  I  went  home  lurk- 
ing about  the  buildings,  and  as  I 
came  he  jumped  and  ran  away. 
Father  had  trouble  with  a  man  the 
other    dav    about    a    store.     There 


were  angry  words,   and  he  turned 
him  out  of  the  house." 

(3)  The  suggestion  to  Bridget 
that  she  should  go  to  town  and  pur- 
chase the  dress-goods  mentioned. 

2.  (fl)  Opportunity.  One  of  the 
chief  efforts  of  the  prosecution  was 
to  prove  an  exclusive  opportunity 
on  the  part  of  the  accused.  The 
essential  result  of  the  testimony 
bearing  on  this  may  be  gleaned  from 
what  has  already  been  noted. 
{h)  Means  and  Capacity.  The  medi- 
cal testimony  showed  that  there  was 
nothing  in  the  assaults  which  a 
woman  of  her  strength  might  not 
have  accomplished.  The  lengthy 
testimony  in  regard  to  the  fourth 
hatchet  was  directed  to  showing  that 
it  was  not  incapable  of  being  the 
weapon  used.  The  handle  was 
broken  off ;  but  the  presence  of 
ashes  on  the  handle  in  all  other 
places  but  the  broken  end,  as  well 
as  the  appearance  of  the  break, 
showed  that  it  was  a  fresh  one,  and 
not  impossibly  one  made  after  the 
killing ;  and  if  thus  made,  it  was 
not  impossil)le  that  the  hatchet  was 
used  in  killing,  washed,  rubbed  in 
ashes,  broken  off,  and  the  fragment 
burnt.  A  strong  effort  was  made 
by  the  defense  to  discredit  these  re- 
sults, which  rested  chiefly  on  the 
reports  of  police  officers,  but  it  had 
little  effect. 

3.  (a)  Consciousness  of  Guilt. 
This,  with  exclusive  opportunity, 
were  the  main  objects  of  the  prose- 
cution's attack.  Much  that  was 
here  offered  was  excluded,  and  this 
exclusion  possibly  affected  the  result 
of  the  case.  The  points  attempted 
to  be  shown  were  :  (1)  Falsehoods  to 
prevent  detection  of  the  first  death  ; 
(2)  falsehoods  as  to  the  doings  of 
the  accused  ;  (3)  knowledge  of  the 
first  death ;  (4)  concealment  of 
knowledge  of  the  first  death ;  (5) 
destruction  of  suspicious  materials. 

(1)  To  Bridget  and  to  her  father 
the  accused  said,  as  already  related, 
that  her  mother  had  received  a  note 
and  gone  out.  The  same  statement 
she  made  to  Mrs.  Churchill  and  to 


812 


PART    III.       PROBLEMS   OF    PROOF 


No.  385. 


Marshal  Fleet.  No  note,  however, 
was  found  ;  no  one  who  brought  a 
note  or  sent  a  note  came  forward  or 
was  heard  of ;  no  sound  or  sight  of 
the  sort  was  perceixed  by  Bridget 
or  any  others.  The  only  blot  upon 
an  ahnost  perfectly  conducted  trial 
was  the  attempt  of  the  counsel  for 
the  defense  in  argument  to  show 
that  the  information  as  to  the  note 
emanated  originally  from  Bridget 
and  that  the  accusefl  merely  repeated 
it.  This  was  decidedly  a  breach  of 
propriety,  becaiise  it  was  not  merely 
an  argument  suggesting  the  fair  pos- 
sibility of  that  explanation,  but  a 
distinct  assertion  that  the  testimony 
was  of  that  purport,  and,  therefore, 
in  effect,  a  false  quotation  of  the 
testimony.  In  truth  the  accused's 
statement  about  the  note  was  her 
own  alone  and  was  one  of  the  facts 
to  be  explained. 

(2)  Here  were  charged  three  false- 
hoods :  («)  When  the  accused  was 
asked  wliere  she  was  at  the  time  of 
the  killing  of  Mr.  Borden,  she  said 
that  she  went  out  to  the  barn  (to 
Dr.  Bowen)  "looking  for  some  iron 
or  irons,"  (to  Miss  Russell)  "for  a 
piece  of  iron  or  tin  to  fix  a  screen," 
(to  the  mayor  and  an  officer  and  at 
the  coroner's  inquest  ')  in  the  barn 
loft,  eating  some  pears  and  "  looking 
over  lead  for  sinkers."  The  incon- 
sistency of  the  explanations  was 
offered  as  very  suggestive.  The 
day  was  shown  to  be  a  very  hot  one, 
and  the  loft  was  argued  to  be  too 
hot  for  such  a  sojourn.  Moreover 
Officer  Medley  testified  to  going  into 
the  barn,  in  the  loft,  and  finding  the 
fioor  covered  with  dust,  easily  taking 
an  impression  from  his  hand  or  foot, 
but  on  his  arrival  cjuite  devoid  of 
any  traces  of  the  previous  presence 
of  another.  The  trustworthiness  of 
his  statements  was  attacked  by  wit- 
nesses who  said  that  they  and  others 
had  l)een  there  before  the  officer. 
The  priority  of  their  visits  was  not 
placed  beyond  doubt ;  but  the  effect 


of  the  officer's  statement  of  course 
fell  from  practical  proof  to  a  merely 
probative  circumstance. 

(h)  When  the  accused  was  de- 
scribing her  discox'ery  of  the  father's 
death,  she  said  (to  Officer  Mullaly) 
that  she  heard  "a  jK'culiar  noise, 
sometliing  like  a  scraping  noise,  and 
came  in  and  found  the  door  open;" 
(to  the  servant)  that  she  heard  a 
groan  and  rushed  in  and  found  her 
father  ;  (to  Mrs.  Churchill)  that  she 
heard  a  distress  noise,  came  in,  and 
found  her  father ;  (at  the  inquest) 
that  after  eating  pears  in  the  loft 
and  looking  over  lead,  she  came 
down,  returned  to  the  kitchen, 
looked  in  the  stove  to  see  if  the  fire 
was  hot  enough  for  her  ironing, 
found  that  it  was  not,  put  her  hat 
down,  started  to  go  upstairs  and 
wait  for  Bridget's  noon-day  fire, 
and  thus  discovered  her  father ; 
(to  Officer  Harrington)  that  she  was 
up  in  the  loft  of  the  l)arn  and  thus 
did  not  hear  any  outcry  or  noise  of 
any  kind ;  (to  Marshal  Hilliard) 
that  after  half  an  hour  up  in  the 
barn,  she  came  in  and  found  her 
father.  Here,  again,  a  substantial 
inconsistency  was  charged. 

(c)  Mr.  Borden  had  on,  when 
found,  a  pair  of  congress  boots  or 
gaiters ;  but  at  the  inquest  the 
accused,  before  this  was  pointed  out, 
testified  that  when  he  came  home 
about  10  :  45,  she  assisted  him  to  lie 
down  on  the  sofa,  took  oft'  his  boots, 
and  put  on  his  slippers. 

(3)  Her  knowledge  of  the  first 
death  was  said  to  have  been  indi- 
cated :  (a)  By  the  inevitable  dis- 
cover\'  of  the  body  in  the  guest- 
room through  the  open  door,  or  of 
the  nuu'derer  either  in  passing  about 
or  in  going  up  and  down  the  stairs ; 
(h)  by  the  noise  of  the  scuffie,  if 
another  had  done  it,  and  by  the 
thud  of  the  heavy  woman's  fall ; 
(c)  by  the  readiness  with  which  the 
accused  suggested  that  Mrs.  Borden 
must  have  returned  ;'-   (1)  for  as  her 


'  Her  inquest  testimony  was  excluded,  for  reasons  to  be  considered  later. 
^  This,  however,  was  not  argued  at  the  trial.     Moreover,  no  attempt  was  made  to 
show  that  Mrs.  Borden  had  no  latch-key  to  the  knowledge  of  the  accused. 


No.  385. 


THE    BORDEN    CASE 


813 


father  had  been  in  the  room  off  the 
hall  from  10:45  to,  say,  11,  and  as 
she  had  been  out  in  the  barn  from 
1 1  till  the  killing  was  discovered  and 
others  came  in,  there  was  no  time 
when  the  mother  could  have  re- 
turned since  the  father's  return,  and 
up  to  that  time  the  accused  herself 
predicated  her  absence. 

(4)  If  this  knowledge  existed,  then 
beyond  doubt  the  concealment  of  it 
and  the  pretense  of  ignorance  in- 
volved in  sending  Bridget  to  get  the 
step-mother  was  strongly  indicative 
of  guilt. 

(5)  Some  attempt  was  made  to 
show  a  degree  of  secrecy  and  obstruc- 
tion to  official  investigation  of  the 
rooms ;  but  with  little  or  no  result. 
On  Sunday  morning,  however  (the 
officers  having  informed  her  on 
Saturday  that  she  was  suspected  of 
the  crime),  when  Emma  Borden  and 
Lizzie  Borden  were  in  the  kitchen 
and  officers  w^ere  in  the  yard,  Alice 
Russell  came  in  :  — ■ 

"I  saw  Miss  Lizzie  at  the  other 
end  of  the  sto^•e,  I  saw  IMiss  Emma 
at  the  sink.  Miss  Lizzie  was  at  the 
stove  and  she  had  a  skirt  in  her 
hand,  and  her  sister  turned  and  said  : 
'What  are  you  going  to  do?'  and 
Lizzie  said,  '  I  am  going  to  burn  this 
old  thing  up ;  it  is  covered  ^ath 
paint.'  I  left  the  room  then,  and 
on  coming  back,  Miss  Lizzie  stood  up 
toward  the  cupboard  door,  and  she 
appeared  to  be  either  ripping  some- 
thing down  or  tearing  part  of  this 
garment.  I  said  to  her  :  '  I  wouldn't 
let  anybody  see  me  do  that,  Lizzie.' 
She  didn't  make  any  answer,  but 
just  stepped  one  step  farther  back, 
up  toward  the  cupboard  door.  .  .  . 
Afterwards,  I  said  to  them,  'I  am 
afraid,  Lizzie,  the  worst  thing  you 
could  have  done  was  to  burn  that 
dress.  I  have  been  asked  about 
your  dress.'  She  said:  'Oh,  what 
made  you  let  me  do  it  ?  Why  didn't 
you  tell  me?'" 

The  prosecution  naturally  at- 
tempted, first,  to  identify  this  dress 
as  the  one  worn  on  the  morning  of 
the    killing ;     in    this    they    failed ; 


second,  to  show  at  least  that  the 
dress  worn  on  that  day  was  missing, 
and  was  not  the  one  handed  over 
by  the  accused,  as  the  dress  of  that 
morning.  On  this  point  they  made 
out  a  very  strong  case.  The  dress 
handed  over  by  the  accused  to  the 
officers  as  the  one  worn  on  Thurs- 
day morning,  Avhile  ironing,  and 
afterwards,  was  a  silk  dress,  of  a 
dark  blue  effect;  the  testimony, 
however,  pointed  strongly  to  the 
wearing  of  a  cotton  dress,  light  blue 
with  a  dark  figure.  Such  a  dress 
existed,  and  had  been  worn  on  the 
day  before,  but  not  on  Friday  or 
Saturday. 

Thus  far  the  prosecution.    The  de- 
fense began  with  character  evidence 
based    on    the    accused's    coopera- 
tion in  Sunday-school  and  charitable 
work  and   her  good  standing  as  a 
church    member.     The    moti^'e-evi- 
dence  was  not  shaken ;    though  the 
sister  of  the  accused  represented  the 
ill-feeling  to  be  of  minimum  inten- 
sity.    The  design-e^'idence  of  prus- 
sic  acid  did  not  come  to  the  jury. 
In  regard  to  exclusi\'e  opportunity, 
the  defense  made  no  break  in  the 
chain  of  the  prosecution,  except  in 
sho\\nng  that  the  screen  door  was 
not  closed  at  all  moments  during  the 
morning.     The  evidence  as  to  the 
possibility  of  an  unseen  escape  from 
the  house  was  not  potent  on  either 
side.     But  no  traces  of  another  per- 
son were  shown  within  the  house ; 
and  no  suspicious  person  was  located 
in  the  vicinity  of  the  house  —  if  we 
except    some    vague    reports    of    a 
tramp,  of  a  pale,  excited  young  man, 
and    the    like,    being    seen    on    the 
street,  near  by,  within  a  day  or  an 
hour  of  the  killing.     The  attempt 
failed  to  show  the  impossibility  of 
the  handleless  hatchet  having  been 
used  —  unless  we  assume  (what  the 
defense  desired  to  suggest)  that  the 
testimony  of  all  the  officers  was  wil- 
fully false.     Coming  to  the  evidence 
of  consciousness  of  guilt,  —  the  de- 
fense could  not  shake  the  story  of 
the   note ;    they   merely   suggested 
that  it  might  have  been  a  part  of  the 


814 


PART  III.   PROBLEMS  OF  PROOF 


No.  385 


scheme  of  the  murderer  to  divert 
suspicion.  They  searched  for  the 
note  and  they  advertised  for  the 
sender  or  carrier,  hut  nothing  ap- 
peared. Tlie  inconsistent  stories 
alxnit  going  to  tlie  barn  were  ex- 
phiined  by  the  excitement  of  the 
moment ;  tJie  inquest-story  —  with 
the  most  marked  (li\ergence  —  was 
excluded.  Lead  was  found  in  the 
loft ;  but  no  fish-line  was  shown  ^ 
and  no  screen  was  identified.  It 
was  suggested  that  perhaps  both 
explanations  were  true,  that  both 
purposes  co-existed.  The  inconsist- 
ent stories  as  to  her  return  and  dis- 
covery of  the  murder  were  in  part 
slid  over,  in  part  ignored,  and  in 
part  discredited.^ 

The  discrepancy  between  the 
statement  about  the  slippers  and 
the  actual  foot-coverings  did  not  get 
to  the  jury.  As  to  the  circum- 
stances indicating  knowledge,  their 
force  was  a  matter  of  argument  and 
prol)ability  merely ;  the  defense 
urged  the  contrary  hypotheses  which 
suggest  themselves  to  all.  The  dress 
burning  was  explained  by  the  sister 
to  have  taken  place  in  consequence 
of  a  suggestion  of  hers ;  but  Miss 
Russell's  testimony  contradicted  this. 
The  defense  offered  to  show  a  cus- 
tom in  the  family  of  burning  all  old 
dresses,  but  this  was  rejected.  An- 
other  offer,    also    rejected,    was  to 


show  the  conduct  or  a  demented- 
looking  man,  seen  in  the  woods  near 
the  town,  a  few  days  after  the  mur- 
der, carrving  an  axe,  and  exclaiming 
"Poor  Mrs.  Borden!" 

The  stronghold  of  the  defense  was 
the  utter  absence  of  all  such  traces 
or  marks  as  would  presumably  be 
found  upon  the  murderer.  No  blood 
was  seen  upon  her  by  the  five  or 
six  persons  who  came  in  within  ten 
minutes  and  before  she  donned  the 
pink  wrapper.  No  garment  was 
found  with  blood  or  other  traces 
upon  it.^  No  weapon  l)earing  blood 
or  other  traces  was  found  within  or 
without  the  house.  One  or  two  of 
the  experts  were  willing  to  say  that 
it  was  practically  impossible  to  deal 
the  twenty -nine  blows  without  re- 
ceiving more  or  less  blood  on  the 
garments  and  perhaps  in  the  hair 
(though  it  does  not  appear  that  her 
head  was  examined  for  blood).  It 
is  safe  to  say  that  this  was  the  deci- 
sive fact  of  the  case. 

It  is,  of  course,  impossible  to  re- 
hearse here  all  the  minor  details  of 
evidence  and  argument  offered  on 
either  side.  It  has  been  necessary 
to  make  a  summary  estimate  of  the 
force  of  certain  evidence  mentioned. 

On  Tuesday,  June  20,  at  4  :  32  in 
the  afternoon,  after  less  than  an  hour 
and  a  half  of  deliberation,  the  jury 
returned  a  verdict  of  "not  guilty."* 


'  The  lead-for-sinkers  statement  had  not  been  admitted,  hut  the  counsel  for  the  de- 
fense took  it  up  in  his  argument. 

*  The  inciuest-story,  going  into  particulars,  had  never  been  admitted ;  but  there  were 
still  at  least  two  distinct  .statements. 

^  Except  a  white  skirt  having  at  the  back  and  below  a  spot  of  blood  as  largo  as  a  pin- 
head,  the  spot  being  otherwise  explainable. 

*  It  was  rei)ortnd  that  they  were  of  one  mind  on  the  first  ballot,  and  remained  an  hour 
in  general  conversation,  at  the  suggestion  of  one  member,  merely  to  avoid  letting  the  coun- 
sel for  the  Commonwealth  suppose  that  his  argument  did  not  receive  consideration. 


No.  386. 


durrant's  case 


815 


386.  THE  DURRANT  CASE 
Law  Review.      1895,  Vol.  XXX,  p. 

^  The  ca.se  was  called  on  INIonday, 
July  22,  1895,  in  the  Superior  Court, 
Department  3,  of  the  City  and 
County  of  San  Francisco,  California, 
before  Hon.  Daniel  James  Murphy. 
The  twelfth  juror  was  obtained  on 
Thursday,  August  29,  or  5|  weeks 
later;  21  actual  days  being  con- 
sumed in  selecting  the  jury.  The 
lists  needed  were  a  general  one  of 
1250,  from  the  general  venire,  and 
two  more  special  venires  of  75  each  ; 
of  these,  482  were  challenged  for 
cause,  and  15  peremptorily  (4  for 
the  State,  and  11  for  the  defense). 
The  opening  address,  followed  by  a 
view  of  the  premises,  took  place 
September  4;  the  counsel  for  the 
State  being  Mr.  Wm.  Sanford 
Barnes,  District  Attorney,  and  Mr. 
Edgar  Davis  Peixotto ;  and  for  the 
defense,  Mr.  John  Henry  Dickinson, 
Mr.  Eugene  Nelson  Deuprey  and 
Mr.  Abram  Warren  Thompson. 

The  facts  leading  up  to  the  charge 
were  in  brief  as  follows :  Miss 
Blanche  Lamont,  21  years  of  age, 
lived  with  her  aunt  and  her  aunt's 
husband  at  209  21st  street.  She  had 
been  brought  up  in  Dillon,  Mont., 
and  had  come  for  her  health  to  San 
Francisco,  in  September,  1894,  her 
sister  Maud  (19  years  old)  having 
come  in  the  preceding  June.  She 
had  been,  since  her  arrival,  an  at- 
tendant, as  well  as  her  uncle,  aunt, 
and  sister,  of  Emmanuel  Baptist 
Church,  Pastor  George  J.  Gibson, 
situated  on  the  east  side  of  Bartlett 
street,  halfway  between  22d  and 
23d  streets.  She  here  attended 
with  fair  regularity  the  Sunday- 
school  and  the  morning  service,  as 
well  as  the  weekly  and  monthly 
meetings  of  the  local  branch  of  the 
Young  People's  Christian  Endeavor 
Society.  She  also  went  weekly  to 
the  meetings  of  an  amateur  orches- 
tra, in  which  she  played  the  violin, 
at  Grace  Methodist  Church ;    and. 


(John  H.  Wigmore.  American 
29.) 
for  a  short  period,  went  weekly  to  a 
reading-club,  of  which  her  uncle 
was  a  member.  Other  than  this  she 
went  out  little ;  and  she  was  chiefly 
in  the  society  of  her  own  family, 
except  that  this  or  that  young  man 
more  or  less  frequently  escorted 
her  home  (alone  or  with  her  sister) 
from  the  meetings  of  the  church, 
the  societv,  and  the  orchestra. 

On  Wednesday,  April  3,  1895,  she 
left  her  home  as  usual  to  attend  the 
morning  work  at  the  Girls'  High 
School,  on  Sutter  street,  near  Gough. 
Thence  she  went  (also  in  accordance 
with  her  customary  practice,  be- 
ginning with  that  week)  to  an  after- 
noon cooking  class,  at  the  Girls' 
Normal  School,  on  the  east  side  of 
Cla^'  street,  just  north  of  Powell. 
She  left  this  school  with  the  other 
pupils  at  3  o'clock ;  by  supper  time 
she  had  not  yet  reached  home,  and 
when  morning  came,  she  was  still 
missing.  The  police  were  informed, 
search  was  made,  and  the  disap- 
pearance was  discussed  in  the  news- 
papers as  a  mysterious  case  of  pos- 
sible enticement  or  elopement. 

On  Saturday  morning,  April  13 
(Easter  Sunday  falling  on  April  14), 
some  ladies  went  to  the  Emmanuel 
Church  to  decorate  it  with  flowers. 
Happening  into  the  library,  they 
found  there  the  dead  body  of  one 
Minnie  Williams  (who  had  disap- 
peared on  the  preceding  Friday 
night),  evidently  murdered.  The 
police  were  called,  and  searched  the 
church,  finishing  late  in  the  evening. 
The  search  of  the  belfry  tower,  how- 
ever, was  postponed  until  the  follow- 
ing morning,  —  the  tower  door  being 
locked,  and  (as  afterwards  appeared) 
the  handles  broken  off  and  thrown 
from  the  inside  underneath  the  floor- 
ing. At  9  A.M.  on  Sunday,  the 
search  being  resumed,  the  door  was 
forced  open,  and  on  the  second  or 
top  landing  of  the  belfry  stairs  was 


'  For  the  proceedings  at  the  trial  and  for  other  information  the  writer  is  indebted  to  the 
courtesy  of  T.  Worthington  Hubbard,  Esq.,  of  San  Francisco. 


816 


PART    III.       PROBLEMS    OF    PROOF 


No.  38G. 


found  a  body,  which  was  imnie- 
<liately  suspected  to  he  and  was  soon 
afterwards  identified  by  Mr.  Noble 
as  that  of  BUmche  Laniont. 

The  body  lay  upon  its  back,  en- 
tirely naked  ;  the  hands  crossed  in 
front,  the  feet  together,  and  the 
head  supported  on  each  side  by  a 
block  of  wood  somewhat  in  the 
manner  used  at  autopsies  to  steady 
the  body  to  be  operated  upon.  An 
examination  showed  that  death  had 
occurred  by  strangulation.  The 
lunjjs  and  the  windpipe  were  con- 
gested ;  the  throat  was  compressed, 
and  there  was  some  clotted  blood 
about  the  mouth  and  the  nose ; 
while  upon  the  right  side  of  the  neck 
were  five  finger-nail  incisions,  and 
upon  the  left  side  seven,  one  of 
these  (on  the  left  side)  appearing  to 
be  that  of  a  thumb. 

The  decomposition  which  had  set 
in  pointed  to  perhaps  two  weeks  as 
the  period  elapsing  since  death,  and 
it  had  so  far  progressed  that  it  was 
impossible  to  determine  from  the 
body  whether  an  attempt  on  the 
virtue  of  the  deceased  had  been 
made.  No  blood  appearetl  al)out 
the  premises,'  and  though  the  floor 
was  dusty,  it  was  so  littered  with 
sticks,  sawdust,  shavings,  and  papers, 
that  traces  of  a  struggle  or  of  foot- 
prints were  hardly  to  be  expected, 
if  indeed  there  was  any  serious 
attempt  to  discover  them.  The 
clothes  of  the  dead  girl  were  missing  ; 
but  after  some  search  (made  by  the 
three  or  four  poHcemen  present,  as 
well  as  by  some  of  the  dozen  other 
persons  who  had  been  allowed  in- 
discriminately to  enter)  the  various 
articles  were  found  in  the  following 
places  :  A  glove  and  other  articles 
on  the  floor  near  by;  the  girl's 
school  books  and  strap,  under  the 
joists  in  the  southwest  (front)  cor- 
ner of  the  midflle  ceiling;  her  hat, 
under  the  belfry  flooring;  her  shoes, 
under   tiie  rafters  of   the  lower  ceil- 


ing in  the  southwest  corner ;  another 
glove,  between  the  joists  in  the 
southeast  (rear)  corner  of  the  lower 
ceiling. 

The  situation  and  construction 
of  the  building,  as  they  are  material 
to  the  understanding  of  this  and 
subsequent  parts  of  the  story,  must 
now  be  explained.-  The  church 
building,  measuring  some  115X55 
feet,  stands  full  up  to  the  street 
line  on  a  lot  125X80  feet,  the  street 
being  ()0  feet  wide  over  all,  and  the 
church  standing  some  200  feet  from 
22d  street.  On  the  north  side  of 
the  building  is  an  alley  space  of 
nearly  4  feet,  on  the  south  side 
another  of  20  feet,  both  of  these 
being  fenced  in,  with  a  gate  in  each 
front  fence.  There  is  a  door  on 
the  north  and  on  the  south  sides, 
as  well  as  in  front. 

Within,  on  the  ground  floor,  is 
first  a  vestibule,  with  stairs  leading 
upwards  right  and  left  (to  the  main 
auditorium  vestibule) ;  at  the  left 
side  is  a  small  library  room ;  then 
a  large  Sunday-school  room ;  then 
an  infants'  classroom  separated 
from  the  main  room  by  folding  doors  ; 
and,  at  the  same  or  east  end  of  the 
church,  a  janitor's  room,  a  wash 
room,  and  a  stairway  to  the  next 
floor.  On  the  second  floor,  the  east 
or  rear  end  contains  (back  of  the 
auditorium)  a  pastor's  study,  a 
baptistery,  and  a  choir  and  organ 
loft ;  the  latter  receives  the  stairs 
from  below ;  and  from  a  passage 
behind  the  study  and  the  baptistery 
another  stairway  ascends  through 
the  rafters  to  an  attic  at  the  back 
of  the  roof.  At  the  west  or  front 
end  is  the  main  vestibule,  from  which 
a  stairway  leads  to  a  gallery  on  the 
west  wall,  some  12  feet  above  the 
floor,  and  15  or  20  feet  below 
the  ceiling.  The  belfry  tower,  at  the 
same  end,  projects  from  the  main 
building,  anfl  is  entered  exclusively 
by    a    door    from     this    gallery.     A 


'  Some  stains  found  holow  woro  othnrwiso  oxplaincd. 

^  The  sul)join(!<J  diimrains  show  the  situation  of  th(!  huildinK  and  the  other  localities  im- 
portant in  the  case.  Tlic  interior  of  the;  huildin;^  could  be  rcpn^sonted  —  if  indeed  by  any- 
thing short  of  a  inodi^l  —  only  ijy  several  diagrams,  for  which  spac(;  do(!S  not  suffice. 


^  ^ 


Q  -^ 


(^        -H 


-      -3 


X     a 


-C 

r^ 

ej 

^ 

U 

43 

■*-^ 

"cS 

g 

."" 

H 

tH 

o 

II 

IJ 

2 

II 

Q 

o 

O 

o 

CO 
II 

< 

c 

2 

Q 

o 

u 

t-H 

A  =  Emmanuel  Church. 
B  =  Mrs.  Leake's  House. 


Valencia 


B 

n 

Bartlett 

A 

-T3 

-a 

CO 

<N 

(M 

M 

Mission 

-o ^ 


No.  386.    Streets  and  Premises  in  Dttrrant  Case 


No.  386. 


DURRANT  S   CASE 


817 


winding  stair,  in  53  steps,  goes  up 
within  the  tower  15  feet  to  an  inter- 
mediate or  first  landing,  then  18 
feet  more  to  the  second  or  main 
landing.  The  peculiarity  of  the 
roof  is  that  there  are  three  distinct 
levels,  creating  two  chambers  or 
lofts  extending  over  the  entire  audi- 
torium ;  first,  the  real  or  outer  roof ; 
next,  the  original  ceiling,  several 
feet  below  and  formerly  plastered 
on  the  ceiling  side ;  and  last,  a  new 
wooden  ceiling,  several  feet  below 
the  old  one,  added  in  1894.  The 
wall  at  the  front  or  west  end  is 
sheathed  over  for  the  space  between 
the  new  and  the  old  ceilings ;  but 
there  are  two  openings  (one  like  a 
doorway)  in  the  wall  beams  be- 
tween the  old  one  and  the  roof ; 
and  thus  access  could  be  had  to  it 
at  this  end  from  the  belfry  landing  ;  ^ 
while  at  the  other  or  east  end  the 
attic  over  the  stair  leading  up  from 
the  baptistery  admitted  to  the  lower 
chamber  between  the  old  and  the 
new  ceilings.  Furthermore,  access 
from  the  level  of  the  old  ceiling  to 
the  new  one  could  be  had  at  the 
front  end  by  climbing  down  through 
a  space  between  the  rafters  of  the 
old  ceiling.  Finally,  the  regular 
way  to  get  inside  the  new  ceiling 
from  the  church  proper  was  through 
an  opening  at  the  front  end  above 
the  gallery,  by  means  of  a  ladder 
kept  in  the  gallery  ;  this  access  being 
necessary  in  order  to  adjust  the  gas 
jets  or  "sun-burners"  which  hung 
down  into  the  auditorium  at  the 
rear  or  east  end  through  openings 
in  the  lower  ceiling.  Thus,  the 
murderer,  after  the  belfry  door  han- 
dles were  broken  off  on  the  inside, 
would  have  to  leave  by  stepping 
from  the  belfry  to  the  level  of  the  old 
ceiling,  and  then  through  the  beams 
to  the  lower  ceiling,  and  either  pass- 
ing across  it  to  the  stair  in  the  attic 
at  the  rear  or  climbing  down  by  the 
ladder  to  the  gallery ;  in  either  case 
he  must  be  completely  familiar 
with  the  church ;    while  the  former 


mode  of  exit  would  be  the  more 
natural,  because  he  could  not  have 
placed  the  ladder  beforehand  while 
in  the  girl's  company,  and  without 
the  ladder  the  drop  from  the  ceiling 
to  the  gallery  would  be  unpleasant, 
if  not  dangerous. 

The  surroundings  furnished  also 
these  further  indications.  First,  the 
death  must  have  occurred  before 
the  afternoon  of  April  4,  because 
on  that  day  the  plumbers  were  in  the 
church  and  could  not  get  into  the 
belfry  because  the  handles  were 
broken  off  and  the  door  locked 
Next,  the  murderer  must  have  been 
one  who  was  furnished  with  keys 
to  enter  the  church  and  who  knew 
it  would  be  deserted  at  the  time. 
Finally,  the  entry  must  have  been 
voluntary  on  the  part  of  the  deceased, 
and  therefore  the  murderer  must 
have  been  a  person  sufficiently 
familiar  with  the  deceased  and 
sufficiently  entitled  to  have  business 
at  the  church  to  be  able  to  furnish 
plausible  inducements  to  a  girl  of 
the  character  of  Miss  Lamont  to 
enter  the  church  with  him  for  some 
special  occasion  on  a  week  day. 

How,  then,  was  suspicion  directed 
towards  the  accused,  and  on  what 
evidence  did  the  State  charge  him 
with   the  murder  ? 

We  may  take  up  the  evidential 
material  in  several  groups. 

A.  1.  Motive.  —  Up  to  the  last 
moment  of  time  when  either  Dur- 
rant  or  the  deceased  girl  was  seen, 
there  was  absolutely  no  evidence  of 
a  motive  for  him  to  kill  her.  The 
accused  met  Miss  Lamont  in  Sep- 
tember, 1894,  soon  after  her  arrival. 
He  was  then  librarian  and  assistant 
superintendent  of  the  Sunday-school 
in  Emmanuel  Church,  as  well  as 
usher  at  the  church  services.  They 
were  both  members  of  the  local 
Christian  Endeavor  Society ;  and 
he  had  frequently  escorted  the  sis- 
ters home  from  church  on  Sunday 
and  also  from  the  week-day  meetings 
of   the   societ\'.     He   had   called   at 


'  It  appeared  that  by  a  hole  in  the  plaster  in  the  gallery  wall  there  was  another  possible 
mode  of  access  ;    but  no  question  was  raised  as  to  its  use. 


;i8 


PART    III.       PROBLEMS    OF    PROOF 


No.  386. 


the  house  not  more  than  twice  or 
thrice.  Of  her  few  friends  he  was 
perhaps  her  most  frequent  but  not 
un  exckisive  nor  an  assiduous  attend- 
ant. He  was  at  the  time  23  \'ears 
of  iVfUe,  was  horn  in  Toronto,  and  had 
Hved  in  San  Francisco  some  16  years. 
He  had  attended  the  Emmanuel 
Church  some  three  or  four  years, 
Hved  five  or  six  blocks  distant  from 
the  church,  and  was  in  April,  1895, 
in  his  third  or  senior  year  as  a  stu- 
dent at  the  Cooper  Medical  College. 
Neither  in  his  own  life,  then,  nor 
in  that  of  ]\liss  Lamont,  was  there 
found  any  circumstance  betraying 
a  likely  motive  for  killing  her.' 

2.  Opportunity;  Presence  at  the 
Time  and  Place  of  the  Killing.  — 
The  main  reliance  of  the  State  was 
upon  a  chain  of  testimony  which,  if 
true,  would  place  the  accused  in  the 
church  with  the  deceased  at  the 
probable  time  of  the  murder.  To 
begin  with,  the  accused  had  met 
her  (by  accident,  it  seems ;  at  any 
rate  it  was  the  first  occasion  of  the 
sort)  on  the  very  morning  of  Wednes- 
day, April  3,  on  her  way  to  the 
High  School ;  and  had  ridden  with 
her  in  the  cars  to  the  school,"  there 
leaving  her  and  passing  on  to  the 
MetHcal  College. 

Hut  his  presence  at  the  church 
with  Miss  Lamont  in  the  afternoon 
of  that  day  was  the  main  support  of 
the  State's  charge,  and  this  they 
affirmed  on  the  credit  of  the  follow- 
ing series  of  witnesses,  who  traced 
him  from  point  to  point :  — 

Mias  Edwards:  Came  out  of  the  Nor- 
mal Srhool  about  2  :  55  p.m.,  and  walked 
to  the  corner  (Clay  anfl  Powell)  with 
Blanche  Lamont ;  here  a  young  man  met 
]\liss  Lamont  and  hoarded  the  passing 
car  with  Iier,  sitting  on  the  east  side  (the 
school  side)  of  the  grip  car ;  the  witness 


entered  the  closed  car  attached,  and  rode 
south  with  them  ;  but  she  said  at  one 
time  that  she  did  not,  at  another  that 
she  did,  notice  them  when  the  car 
reached  Market  street.  The  witness 
hatl  never  seen  Durrant  before,  but 
identified   him   positively. 

Mins  Pleasant,  now  INIrs.  Dorgan  : 
Came  out  of  the  school  at  the  same  time 
and  walked  south  on  the  east  side,  in 
company  with  Miss  Lannigan;  at  the 
corner  of  California  street  (two  blocks 
farther)  a  car  overtook  them,  passing 
south,  about  3.05  or  3.10,  and  on  the 
east  side  of  tlie  grip-car,  facing  them,* 
was  Miss  Lamont  with  a  young  man,  the 
latter  holding  an  open  book  and  both 
looking  at  it.  The  witness  had  never 
seen  Durrant  before,  but  identified  him 
positively;  she  called  Miss  Lannigan's 
attention  to  the  couple. 

Miss  Lannigan:  Told  exactly  the 
same  story ;  she  had  never  seen  Durrant 
before,  but  identified  him  positively. 

Mrs.Vogel:  Lived  directly  across  the 
street  (on  the  west  side)  from  the  Nor- 
mal School.  On  the  above  day  she  was 
looking  from  her  front  window  about 
2.07,  and  saw  a  young  man  at  the  corner 
on  the  east  side;  he  walked  back  and 
forth  between  there  and  the  school  till 
3  o'clock,  standing  at  one  point  facing 
the  witness  for  as  much  as  15  minutes 
at  one  time.  The  witness  had  .S300  in 
the  house,  and,  thinking  his  lingering 
suspicious,  watclied  him  carefully,  even 
using  an  opera-glass  for  this  purpose. 
About  3  o'clock,  when  the  scholars  came 
out,  he  met  two  of  them,  and  got  on  the 
grip  car  with  one  of  these,  while  the 
other  entered  the  closed  car.  I'he  wit- 
ness had  never  seen  Durrant  before,  but 
identified  him  jjositively;  the  girls  she 
had  not  noticed  sufficiently  to  identify. 

From  this  point  there  was  no 
tracing  until  that  stage  of  the  jour- 
ney was  reached  in  which  they  would 


'  There  were  but  three  available  hypotheses  as  to  the  motive  of  the  murderer :  (a)  a 
pure  glut  for  blood  ;  (6)  a  sudden  angry  purpose  arising  from  the  girl's  refusal  to  accede  to 
an  improper  proposal,  and  from  her  threat,  or  the  general  probability,  of  speedy  exposure 
of  hor  would-be  seducer's  conduct ;    (c)  murder  to  destroy  the  victim  of  his  rape. 

2  This  was  proved  by  the  conductor  of  the  car,  who  knew  Miss  Lamont  by  sight  as  a 
frequent  passenger  ;  by  a  classmate  of  Durrant  who  was  on  the  same  car  ;  and  by  the  state- 
ments of  the  accused  to  his  classmate,  to  Mrs.  Noble,  and  to  others ;  and  it  was  afterwards 
admitted  by  his  counsel. 

^  The  seats  of  these  cars  run  lengthwise. 


No.  386. 


DURRANT  S   CASE 


819 


pass  along  Valencia  street,  beyond 
the  junction  of  Market  and  Haight. 
il/r.v.  Crossett :  Was  seventy-one  years 
old,  lived  a  few  blocks  south  of  the 
church,  and  had  known  the  defendant 
about  four  years,  having  seen  him  fre- 
quently in  that  time.  On  the  afternoon 
of  April  3  she  was  riding  home  in  a 
Valencia  street  car,  and  saw  the  defend- 
ant sitting  on  the  left  side  of  the  grip 
car  with  a  young  lady,  the  witness 
sitting  on  the  right  forward  seat  inside, 
second  from  the  end.'^  She  identified 
Durrant  positively,  but  as  to  the  young 
lady  she  coidd  say  only  that  her  hat  was 
like  that  shown  as  Miss  Lamont's. 
The  couple  left  the  car  at  21st  or  22d 
street,  and  walked  east  toward  Bartlett 
street.  The  time  of  seeing  them  at 
Valencia  street  near  Market  was  fixed  by 
the  witness  at  a  little  later  than  3.30,  in 
the  following  way :  She  left  her  grand- 
daughter's house,  on  Washington  and 
Laurel  streets,  about  3.20  p.m. ,2  walked 
2  blocks  soutli  to  Laurel  and  Sacramento 
streets,  then  1  block  east  to  Walnut 
and  Sacramento  streets;  boarded  a 
cable  car  and  rode  5  l)locks  east  on  Sacra- 
mento to  Devisadero  ;  changed  and  rode 
10  l)Iocks  south  on  a  cable  car  on 
Devisadero  to  Turk;  changed  and  rode 
in  an  electric  car  8  blocks  south  on 
Devisadero  to  Page;  walked  1  block 
south  on  Page  to  Haight ;  took  a  cable  car 
8  blocks  east  on  Haight  street  to  the 
junction  of  Haight,  Market  and  Valencia ; 


crossed  the  square  and  boarded  the  car 
coming  west  on  Market  street  and 
turning  off  south  at  this  point  on  Valen- 
cia ;  and  it  was  on  this  car  that  she  saw 
the  defendant  and  the  young  lady. 
She  arrived  at  her  own  house,  some  6 
blocks  beyond  the  point  of  their  depar- 
ture from  the  car,  at  3.58  or  3.59  by  the 
clock. 

The  defense  argued  that  her  testimony 
was  valueless,  since  it  was  impossible 
to  make  the  trip  in  that  time.  The  de- 
fendant's witnesses  made  the  same  trip 
(exclusive  of  the  preliminary  3  blocks' 
walk)  in  46  minutes.  Allowing  5  min- 
utes for  the  walk,  this  would  make  an 
error  of  12  or  13  minutes  in  Mrs.  Cross- 
ett's  reckoning  (33  or  34  minutes). 
But  this  discrepancy  was  accounted  for 
(1)  by  proving  an  excessive  delay  of  3 
or  4  minutes  at  one  point  for  the  de- 
fendant's witnesses ;  (2)  by  taking  Mrs. 
Crossett's  daughter's  time  (3.15)  for 
her  starting ;  (3)  by  supposing  ^  some 
minutes'  difference  between  clocks ;  all  of 
which  would  give  43  or  42  minutes  for 
the  defendant's  reckoning,  and  42  or  41 
minutes  for  Mrs.  Crossett's,  —  an  error 
of  no  significance.  The  only  serious 
criticism  to  be  made  upon  her  times  was 
their  inconsistency  with  those  of  the 
other  witnesses.^ 

Martin  Quinlan:  Lived  on  Mission 
street  nearly  back  of  the  church,  and 
knew  Durrant  by  sight  only,  having  seen 
him  several  times.     On  the  above  day  he 


1  These  cars  are  built  in  one  piece,  with  glassed  partitions  between  the  open  or  grip 
section  and  the  closed  section ;   the  seats  all  run  lengthwise. 

2  According  to  her  daughter,  3.15. 

*  Thus  :  By  the  Powell  street  witnesses  the  couple  should  have  reached  21st  or  22d  street 
and  Valencia  by  3.40  at  the  latest ;  by  Mrs.  Crossett's  time,  by  3.48  at  the  earliest,  and 
3.52  at  the  latest ;  while  bv  the  next  witness,  Quinlan's  time,  they  were  at  Bartlett  and 
22d  streets  not  before  4.10.  These  differences  were  hypothetically  accounted  for  as  fol- 
lows :  (1)  A  lounging  or  a  treating  at  a  candy  store  in  changing  cars  at  Market  and  Powell 
streets ;  or  a  meeting  and  talking  there  with  one  Minnie  Williams,  afterwards  murdered, 
this  knowledge  by  her  of  their  doings  being  the  possible  motive  for  her  murder,  as  explained 
later  ;  this  delay  would  reconcile  the  stories  of  Mrs.  Crossett  and  the  Powell  street  witnesses. 
(2)  A  probable  getting  off  the  car  at  21st  street,  on  which  Miss  Lamont's  home  was, 
and  the  resumption  and  consummation  of  the  defendant's  solicitations  to  turn  aside  to  the 
church  down  Bartlett  street ;  a  process  which,  together  with  a  sauntering  along  the  2 
blocks,  would  account  naturally  for  difference  between  the  time  (3.48  or  3.50)  when,  by 
Mrs.  Crossett's  story,  they  left  the  car,  and  the  time  (4.10)  at  which  by  Quinlan's  story 
they  approached  the  church. 

But  it  must  be  remembered  that  the  sole  effect  of  these  discrepancies,  such  as  they  were, 
could  be  to  impeach  the  trustworthiness  of  the  identifying  testimony.  They  did  not  affect 
the  feasibility  by  Durrant  of  the  murder.  Whether  the  two  reached  the  church  by  3.45 
or  by  4.15  was  immaterial  to  the  State  in  this  aspect ;  because,  though  the  killing  (as  will 
be  seen)  could  not  have  been  done  by  him  after  5.05,  his  presence  at  church  for  any  period 
more  than  half  an  hour  before  that  time  was  ample  for  the  deed. 


820 


PART    III.       PROBLEMS    OF    PROOF 


No.  386. 


had  an  appointment  with  one  David 
Clark  at  the  saloon  at  the  northeast 
corner  of  Mission  and  22d  streets ;  and 
at  3.-")o  or  o.oo  (looking  at  the  dock  with 
reference  to  his  appointment),  boarded  a 
Valencia  street  car  on  Market  street  near 
9th ;  he  got  off  at  22d  street,  and  walked 
east  on  the  right-hand  (south)  side ;  at 
the  corner  of  Bartlett  street  he  saw 
Durrant  and  a  young  lady  crossing  from 
the  north  to  the  south  side  of  22d  street 
on  the  east  side  of  Bartlett  street,  the 
witness  being  on  the  southwest  corner 
approaching  them  at  right  angles  as 
they  reached  the  southeast  corner  going 
south,  Durrant  walking  on  the  inside. 
The  time  must  have  been  between  4.10 
and  4.20.  The  appointment  was  kept, 
and  the  witness,  in  going  about  with 
Clark,  took  many  drinks,  which  served  as 
material  for  criticism  on  cross-e.xamina- 
tion.' 

David  Clark:  Corroborated  this  wit- 
ness as  to  the  appointment,  and  fixed  the 
times  as  the  same,  having  looked  at  tlie 
clock  in  the  saloon.- 

Mrs.  Leake:  A  member  of  the  Em- 
manuel Church,  an  elderly  person,  lived 
at  124  Bartlett  street,  on  the  west  side 
almost  directly  opposite  the  north  alley 
gate.  She  had  known  Durrant  for  two 
years,  having  seen  him  nearly  every  Sun- 
day, and  on  the  above  day  she  was  look- 
ing out  of  her  window,  between  4  and 
4.30  P.M.,  expecting  and  looking  for  her 
daughter,  when  she  saw  Durrant  and  a 
young  lady,  the  former  on  the  inside  of 
the  walk,  approaching  the  church  from 
22(1  street  on  the  east  side  of  Bartlett 
street.  They  went  on  past  the  church 
and  entered  the  south  alley  gate,  Dur- 
rant opening  it.  The  witness  identified 
him  positively  (though  she  could  not 
remember  his  clothes) ;  the  young  lady 
she  thought  at  the  time  was  either  Miss 
Lamont  or  Miss  Turner.  The  witness 
wore  glasses  for  reading  only,  and  did 
not  h.ave  them  on  when  she  looked  out. 

George    R.    King:    Organist    of    Em- 


manuel Church  and  assistant  librarian  of 
the  Sunday-school,  19  years  old,  well 
acquainted  with  Durrant  and  the  Lamont 
sisters,  went  to  church  on  the  above 
day  "just  about"  o  p.m.  to  practice  a 
piece  on  the  piano  in  the  main  school- 
room. He  entered  by  the  front  door, 
went  into  the  library  for  a  few  moments, 
then  went  to  the  piano,  and  had  played 
2  or  3  minutes  when  the  defendant  ap- 
peared at  the  folding  doors  (between 
the  main  room  and  the  infants'  room), 
and  came  through  them  into  the  main 
room.  He  had  neither  coat  nor  hat  on; 
but  his  vest  and  necktie  were  in  order. 
The  witness  said:  "Hello,  you  look 
pale!''  and  Durrant^  explained  that  he 
had  been  fixing  the  sun-burners  over  the 
auditorium,  and  had  been  overcome 
by  the  gas ;  then  gave  him  fifty  cents  and 
asked  him  to  get  some  bromo-seltzer ; 
the  witness  went  to  a  drug  store  one  and 
one  half  blocks  away,  and  brought 
back  the  bromo-seltzer;  Durrant  went 
with  him  to  the  kitchen  and  drank  it. 
About  this  time  Durrant  mentioned  that 
he  had  that  morning  ridden  on  the  car 
with  Blanche  Lamont.  He  later  went  to 
a  mirror  to  see  how  pale  he  was.  After 
he  had  at  King's  recjuest  helped  the  lat- 
ter to  bring  down  a  small  cal)inet  organ 
from  the  choir  loft,  they  went  to  the 
library,  where  Durrant  found  and  put 
on  his  hat  and  coat  and  they  left  the 
church  by  the  front  door,  about 
6  P.M.-" 

Analyzing  the  story  of  the  seven 
witnes.ses  who  bring  him  to  the  door 
of  the  church,  we  find  that  the  first 
four  did  not  know  him  before,  but 
that  three  of  these  knew  Blanche 
Lamont,  while  all  four  agreed  upon 
the  circumstances  ;  and  that  the  last 
three  had  known  Durrant  before, 
but  did  not  know  or  could  not  posi- 
tively identify  Miss  Lamont. 

It  will  be  now  necessary  to  notice 
the  remainin<r  evidence  of  the  State, 


•  This  witn(!.ss'  character  for  intoRrity  was  impeachod  by  half  a  dozen  witnesses. 

2  An  attempt  was  made,  but  of  shght  consequence  only,  to  impeach  this  witness'  charac- 
ter. 

'  Durrant  himself  tolls  that  he;  said  :  "You  would  be  pale,  too,  if  you  had  been  where  I 
have." 

*  He  arrived  home  at  G :  15,  and  was  thereafter  satisfactorily  accounted  for. 


No.  386. 


DURRANT  S   CASE 


821 


3.    Subsequent  Indications  of  Guilt. 

(1)  On  Wednesday,  April  10,  three  rings 
worn  by  the  deceased  came  by  post, 
wrapped  in  a  piece  of  the  Examiner  news- 
paper, to  Mrs.  Noble,  the  aunt.  The 
paper  bore  in  pencil  the  names  "John  T. 
Kinp-,  Prof.  Schernstein."  Both  George 
King  (there  being  no  John  T.  King) 
and  Mr.  Schernstein,  the  deceased's 
music  teacher  (who  should  have  given 
her  a  lesson  on  April  3,  the  day  of  dis- 
appearance, but  waited  in  vain  at  the 
house),  denied  on  the  stand  that  they 
had  written  the  names.  But  Durrant's 
connection  with  it  could  not  be  shown. 

(2)  On  Friday,  April  12,  the  church 
janitor,  Sademan,  saw  Durrant  about 
4  P.M.  waiting  at  the  ferry  at  the  foot  of 
JNIarket  street;  Dui-rant  explained  that 
there  was  a  report  that  Blanche  Lamont 
would  come  to  the  city  that  afternoon 
b\'  the  ferry,  and  he  wished  to  see  if  it 
would  prove  true.  To  two  fellow-mem- 
bers of  the  Signal  Corps  who  passed  him 
there  and  asked  if  he  had  heard  anything 
about  her,  he  made  answer  that  he 
had  a  clew,  the  terms  of  the  answer  being 
disputed.  They  also  testified  that  he 
explained  that  he  was  waiting  for  an- 
other member  of  the  corps.^  (3)  On 
some  day  between  April  4  and  10,  about 
11  A.M.,  Mr.  Oppenheimer,  a  pawn- 
broker of  405  Dupont  street,  was  visited 
by  a  young  man,  who  submitted  a  cut- 
diamond  ring  for  sale,  the  witness  de- 
clining to  buy.  The  wdtness  identified 
Durrant  positively  as  the  man,  and 
identified  the  ring  as  one  of  the  three 
worn  by  the  deceased  and  returned 
through  the  post  on  April  10.  A  Mr. 
Phillips,  passing  by  the  shop  about  the 
same  period,  identified  Durrant  as  seen 
standing  in  front  of  the  shop. 

B.  V\e  may  now  turn  to  the  defend- 
ant's evidence  directed  to  the  de- 
struction of  the  fabric  thus  woven  by 


the  State.  As  the  State's  main 
reliance  (apart  from  the  admitted 
fact  of  his  being  in  the  church  at  5 
P.M.)  was  upon  the  testimony  which 
sent  Durrant  in  the  company  of  the 
deceased  to  the  door  of  the  church 
by  4.15  on  the  day  of  her  disappear- 
ance, and  upon  the  story  of  his  after- 
wards bringing  her  ring  to  sell,  so 
the  defense  concentrated  its  attack 
mainly  on  those  two  supposed  facts. 

1.  Motive.  —  As  no  indication  of 
a  sinister  motive  had  been  pro- 
duced against  the  defendant,  there 
Avas  here  nothing  to  be  disputed  by 
him.  The  usual  good  character  tes- 
timony was  ofi'ered. 

2.  Opportunity ;  Durrant  at  Ari- 
other  Place  until  too  late  to  commit 
the  Murder.  —  The  defense  admitted 
without  ciualification  that  Durrant 
was  at  the  church  as  testified  by 
George  King  at  5.05  (approxi- 
mately) on  April  3;  but  proposed 
to  show  that  he  was  at  or  near  the 
Medical  College  until  so  late  an  hour 
that  he  could  not  have  arrived  at 
the  church  before  4.55 ;  and  in  10 
minutes  the  deed,  concededly,  could 
not  have  been  done. 

In  this  view,  then,  the  testimony 
of  the  seven  eye-witnesses  who  be- 
lieved that  they  saw  Durrant  with 
Miss  Lamont  (or  another  person) 
at  successive  stages  of  the  route  to 
the  church  was  of  course  discredited. 
Against  all  of  the  seven  (except 
Quinlan),  the  defense  expressly  dis- 
claimed any  imputation  of  dis- 
honesty. It  explained  their  identify- 
ing testimony  as  so  many  cases  of 
mistake  or  illusion,  and  argued  that 
the  constant  appearance  of  the  ac- 
cused's picture  in  the  newspapers 
had  tended  to  create  the  hallucina- 
tion that  he  was  the  one  whom  they 
had  seen.     This  they  attempted  to 


'  Other  doings,  not  significant,  were  these.  At  the  evening  prayer-meeting  of  April  3, 
Durrant  sat  next  to  Mrs.  Noble,  said  he  had  promised  to  bring  Blanche  "The  Newcomes" 
but  had  forgotten  it ;  asked  whether  Blanche  was  coming  that  evening  ;  said  that  he  would 
bring  the  book  on  Thursday  ;  and  did  bring  it  on  Friday.  About  April  10  he  came  to  Mrs. 
Noble's  house  (as  nearly  every  member  of  the  church  had  done)  and  offered  to  search  for 
her  at  places  (meaning  of  ill-fame)  which  the  police  did  not  know  of,  but  a  friend  would 
show  him.  This  theory  of  her  disappearance,  he  afterwards  explained,  had  been  suggested 
to  him  by  a  detective,  an  explanation  not  improbable  in  fact. 


822 


PART   III.       PROBLEMS    OF    PROOF 


No.  386. 


enforce,  as  to  the  last  four,  by  point- 
ing out  that  they  had  not  appeared 
at  tlie  preUminary  hearing,  and  had 
not  notified  the  prosecution  of  their 
supposed  knowledge  until  several 
weeks  later.  The  discrepancies  al- 
leged between  the  statement  of  Mrs. 
Crossett  and  the  others  as  to  the 
time  of  day  when  Durrant  was  seen 
have  already  been  referred  to. 

As  to  the  constructive  portion  of 
the  story  of  the  defense,  it  falls  into 
two  parts:  (1)  The  fixing  of  Dur- 
rant's  whereabouts  till  4.55 ;  (2) 
The  explanation  of  his  reason  for 
going  to  the  church  at  all  and  of  his 
doings  while  there.  The  defense, 
it  will  be  seen,  had  in  the  latter  part 
(resting  mainly  on  the  defendant's 
own  testimony)  a  doul)le  risk  to  en- 
counter ;  for  not  only  would  the 
failure  to  prove  the  facts  alleged 
leave  the  State's  story  unshaken,  but 
any  serious  inconsistencies  or  pal- 
pable falsities  would  tend  to  dis- 
credit his  entire  story  as  a  manufac- 
tured one. 

(1)  Durrant  at  the  Medical  Col- 
lege. The  defendant  himself  with 
commendable  courage  (and  yet  his 
case  inevitably  involved  it)  took 
the  stand  to  tell  his  own  story,  which 
was  in  brief  as  follows  :  — 

On  April  3,  the  day  of  the  disappear- 
ance, his  last  morning  lecture  closed  at 
12,  a  recess  of  one  hour  following.  Not 
feeling  well  enoiigli  for  a  hearty  lunch,  he 
went  north  on  Webster  street  for  a  walk, 
stopping  at  the  corner  of  Clay  street 
to  buy  some  nuts  which  he  ate  as  he 
walked.  He  returned  by  1  p.m.,  and 
finding  a  notice  that  Dr.  Stillman  (the 
next  lecturer)  would  not  come  that  day, 
went  with  Student  Ross  for  another  walk 
north  on  Webster  street,  meeting  on 
the  way  Student  Carter,  and  returning 
in  half  or  three  quarters  of  an  liour ; 
then  went  to  the  lil)rary  for  about  the 


same  time,  speaking  there  with  Student 
Diggins,  then  went  downstairs  and 
talked  with  Student  Glaser,  omitting  a 
lecture  by  Dr.  Hansen;  then  attended 
Dr.  Cheney's  lecture  from  3.30  to  4.15, 
taking  5  pages  of  notes;  then  took  the 
cars  from  Sutter  to  Larkin,  to  Mission, 
to  22d  street,  getting  off  at  Bartlett,  and 
reaching  the  church  library  at  4.5.5 
P.M.  by  the  watcli. 

xAs  to  this  part  of  the  story,  the 
three  students,  Ross,  Carter  and 
Diggins,  testified  that  they  remem- 
bered the  conversations  and  walks 
respectively ;  but  they  were  unable 
to  identify  the  date ;  the  circum- 
stances making  April  3  of  greater  or 
less  probability  in  different  in- 
stances.^ Student  Glaser  was  not 
questioned  on  this  point.  Dur- 
rant's  presence  at  the  lecture,  how- 
ever (3.30-4.15),  would  have  dis- 
posed conclusively  of  the  State's 
story.  As  to  this,  first,  neither  the 
lecturer  nor  a  single  student  of  the 
74  usually  in  the  class  could  remem- 
ber whether  Durrant  was  or  was  not 
present  at  that  lecture,  —  a  not 
unnatural  state  of  mind,  since  12 
or  13  days  elapsed  before  his  arrest 
would  cause  them  to  recall  the  oc- 
casion. Next,  and  of  most  conse- 
quence, the  attendance-roll  did  show 
Durrant  to  be  present,  — -  the  ab- 
sent ones  being  marked  by  an  "A," 
and  Durrant's  name  having  no 
such  mark  appended.  But  the  ac- 
curacy of  this  roll  was  questioned  by 
the  State.  The  evidence  pro  and 
con  as  to  the  roll-call  was  as 
follows  :  — 

Dr.  Cheney:  At  the  close  of  the  lec- 
ture the  roll  was  called  by  Student  Gray, 
standing  beside  him  and  marking  it. 
Dr.  Cheney,  though  having  no  personal 
knowledge,  believed  the  roll  to  be  cor- 
rect, having  subsequently  questioned 
each  student   (ai)parently  after  the  ar- 


'  It  may  be  pointed  out  that  even  if  the  walks  had  occurred  on  that  day,  the  State's 
story  was  not  thus  disproved ;  for,  taking  the  niininium  estimate  (half  an  hour)  for  the 
walk  and  the  liljrary  visit,  we  reach  only  2  p.m.  ;  and  the  15  blocks  to  Clay  and  Powell 
streets  could  have  been  covered  by  car  in  15  minutes,  bringing  us  to  2.15,  a  time  not  ma- 
terially different  from  that  at  whitrh  Mrs.  Vogel  first  saw  hitn  waiting  there  near  the  school 
(2.07). 


No.  386. 


DURRANT  S    CASE 


823 


iTcst)  and  found  the  record  corrobo- 
rated.^ 

Student  (Iray,  in  marking  the  roll,  de- 
pended entirely  on  the  answers  as  heard, 
not  on  eye-sight.  In  March  the  roll 
had  not  been  written  up,  and  so  the  roll 
for  April  3  w-as  at  first  by  error  marked 
in  the  blank  space  of  INIarch  31,  and  after- 
wards was  copied  into  the  correct  place, 
the  original  marks  being  erased.  The 
roll  method  was 'liable  to  error,  he  ad- 
mitted, and  in  the  succeeding  June  an 
improved  system  was  adopted.  He  had 
no  means  of  knowing  whether  one  stu- 
dent was  answering  for  another.  Ques- 
tions as  to  his  experience  on  this  point 
on  past  occasions  were  ruled  out.  On 
the  defendant's  cross-examination,  how- 
ever, it  was  brought  out  that  on  at  least 
two  occasions  shortly  afterwards  (April 
8  and  12)  he  had  himself  asked  a  fellow- 
student  to  answer  for  him,  and  on  one 
of  these  it  was  only  when  the  defendant 
was  called  upon  to  recite  that  his  absence 
was  detected.  Out  of  the  74  usually  in 
the  class,  apparently  all  (except  one 
deceased)  testified  that  they  did  not 
answer  for  Durrant  on  April  3 ;  but  one 
of  them,  who  was  marked  absent,  testi- 
fied that  he  was  in  fact  present. 

But,  besides  the  evidence  (what- 
ever it  might  amount  to)  of  the  roll- 
call  record,  the  notebook  of  Dur- 
rant was  of  consequence.  His  5 
pages  of  notes  fairly  represented  the 
lecture,  and  were  as  much  like  those 
of  other  students  as  they  would 
naturally  be.  Two  classes  of  evi- 
dence, however,  were  offered  by  the 
State  to  destroy  the  value  of  this 
circumstance,  (a)  It  was  claimed 
that  there  had  been  ample  oppor- 
tunity to  copy  them  in  afterwards. 
On  April  10,  Student  Glaser  went 
over   with   Durrant   at   the   college 


their  notes  of  this  day,  April  3, 
Glaser  alone  reading  and  Durrant 
copying  from  time  to  tiine.^  As  to 
this,  Durrant  explained  that  a 
mutual  "quiz,"  for  purposes  of  im- 
provement, etc.,  was  not  uncommon, 
and  that  he  had  copied  only  two 
rules  in  all. 

(6)  Furthermore,  his  notebook 
remained  at  the  house  till  April  17th 
(unthought  of  by  the  police),  when 
it  was  sent  to  his  attorney's  office 
(Durrant  having  been  arrested  on  the 
14th) ;  his  attorneys  told  him  the 
notes  were  not  complete,  and  the 
book  remained  in  their  possession 
for  an    indefinite    time    thereafter. 

(c)  It  was  claimed  that  Durrant 
had  expressly  admitted  that  he  had 
few  or  no  notes  of  that  lecture,  and 
had  tried  to  borrow  from  others  to 
complete  them.  Student  Graham 
went  on  April  20th  to  the  prison, 
and  Durrant,  asking  Graham's  com- 
panion to  step  aside,^  — 
"asked  me  if  I  would  lend  him  my  notes 
to  compare  with  his  own.  He  told  me  he 
had  no  notes  at  all,  and  if  he  could  get 
them  from  me  he  could  establish  his 
alibi.  He  told  me  I  could  take  them  to 
his  house  and  put  them  in  his  book  and 
thus  have  them  brought  to  him.  He  also 
said  I  might  learn  them  and  then  tell 
them  to  him." 

Graham  did  not  accede  to  this 
request.  Durrant  admitted  express- 
ing to  Graham  a  wish  to  have  the 
notes,  because  "he  didn't  know 
whether  he  had  full  notes,"  and 
made  this  singular  explanation  :  "  I 
was  following  instructions  of  one 
of  m}^  lawyers  to  get  notes  of  Dr. 
Cheney's  lecture  and  complete  my 
own  notes  and  compare  them."  •* 


1  This  evidence,  in  another  form,  was  objected  to  and  excluded,  but  afterwards  permitted, 
when  the  defense  declined  to  accept  the  opportunity. 

-  On  April  10  he  alreadj'  knew  for  several  days  that  Miss  Lament  had  disappeared  on 
the  3d. 

'  It  was  their  joint  request,  Durrant  said. 

*  Some  apparent  inconsistencies  hero  appeared  in  his  story.  He  claimed  that  when  he 
was  arrested  on  the  14th,  he  had  forgotten  whether  he  had  notes,  and  first  learned  from  his 
attorneys  on  the  17th  that  he  had.  But  (1)  on  the  10th  he  had  already  gone  over  the  same 
notes  with  Student  Glaser ;  (2)  on  the  20th  he  at  least  told  Student  Graham  that  he  did 
not  know  whether  he  had  full  notes. 

It  must  be  added  that,  according  to  two  or  three  reporters,  Durrant,  when  first  arrested, 


824 


PART    III.       PROBLEMS    OF    PROOF 


No. 


(2)  Durrant  at  the  Church.  How- 
did  Durrant  happen  to  be  at  the 
church  at  all,  on  the  day  of  Mis.s 
Lament's  disappearance  ?  His  pur- 
pose, according  to  his  own  story, 
was  to  repair  the  easterly  "sun- 
burner"  hanging  through  the  ceiling 
above  the  rostrum.  It  consisted  of 
24  gas  jets,  one  being  fitted  with  an 
electric  vibrator,  by  means  of  which 
all  were  lit.  The  wire  ran  75  feet 
to  the  gallery  wall,  where  a  gas 
vahe  turned  on  the  gas  and  a  push- 
button made  the  connection  with  a 
battery.  Durrant's  story,  in  brief, 
was  as  follows  :  — 

He  was  interested  in  electricity  (but 
knew  nothing  of  gas),  and  had  several 
times  repaired  the  sun-burner  attach- 
ment. He  had  several  times  been  told  of 
defects  by  Mr.  Davis,  the  treasurer,  by 
one  of  the  trustees,  and  by  the  janitor, 
Sademan ;  one  of  these  occasions  was  in 
the  preceding  January.  About  March 
23  preceding,  a  trustee  or  Sademan  (later 
he  fixed  it  as  Sademan)  told  him  that 
the  lights  would  not  work  at  the  first 
press  of  the  button,  and  he  said  he  would 
look  after  it.  When  he  came  to  the 
church  he  went  to  the  library,  put  his 
watch  in  his  coat,  and  left  coat  and  hat 
there  on  a  box ;  went  througli  the  Sun- 
day-school room  up  to  the  auditorium ; 
proceeded  to  the  gallery  at  the  front 
end  to  turn  on  the  gas ;  plugged  ijie  but- 
ton, turned  the  gas  half  on,  raised  the 
ladder,  mounted,  went  along  the  lower 
ceiling  to  the  opening,  took  off  the 
cover  and  reflectors,  remedied  with 
nippers  the  spring  on  the  vibrator  (an 
operation  of  4  miiuites  or  so),  tested  its 
working,  and  returned  to  the  gallery 
and  sluit  off  the  gas.  While  making  the 
repairs  he  lay  on  his  stomach,  liis  head 
protruding  downwards  through  the  open- 


ing over  the  gas,  and  the  escaping  gas 
nauseated  him.  This  it  was  that  caused 
the  paleness  described  by  the  witness 
King.  The  rest  of  his  story  coincided 
substantially  with  that  of  King. 

A  \'igorous  cross-examination  of 
nearly  two  days  was  met  by  Durrant 
with  almost  entire  success  so  far  as 
this  part  of  his  story  was  involved, 
—  a  circumstance  of  considerable 
significance  in  view  of  the  great 
mass  of  details  involved.  But  the 
State  attacked  the  story  at  several 
points  in  the  following  ways  :  — 

(a)  The  treasurer  Davis  and  each  of 
the  five  trustees  testified  that  they  had 
not  spoken  about  the  gas  to  Durrant  at 
any  time  in  1895.  The  janitor  Sademan 
testified  that  he  had  had  no  conversation 
with  Durrant  about  the  sun-burner 
at  or  about  the  time  stated,  and  that 
the  gas  apparatus  was  "in  a  perfect 
state  of  repair,"  except  for  a  loose  key 
in  the  front  lobby  below,  which  some- 
times caused  a  slight  leak.^  (b)  Experts 
testified  that  the  effect  of  inhaling  gas 
would  be  a  flush  and  redness  of  the  face, 
not  a  paleness;  but  an  expert  for  the 
defense  denied  this,  (c)  King  testified 
that  when  he  entered  the  library  (which 
must  have  been  about  5,  or  after  Dur- 
rant had,  by  his  own  story,  arrived) 
he  saw  no  hat  and  coat  there;  and,  as 
the  door  was  locked  when  they  went 
back  there  before  leaving,  it  would  fol- 
low (assuming  that  his  not  seeing  them 
indicated  that  they  were  in  fact  not  there) 
that  Durrant,  and  lie  only,  had  put 
them  there  in  the  meantime,  i.e.,  during 
King's  absence  to  get  the  bromo-seltzer ; 
since  it  was  admitted  that  a  new  lock 
(to  keep  out  book  thieves)  had  been  put 
on  tlie  door  only  a  few  days  before,  to 
which   Durrant  and   himself  alone  had 


told  thiMii  that  ho  had  reached  the  church  between  4  and  4. .30.  This  ho  exphiiiiod  as  a  mis- 
under.staiiding  of  his  expression  "gone  to  the  church  between  4  and  4. .30,"  .signifying  the 
time  of  hiaving  the  Medical  .School.  But  the  newspaper  reports  of  what  witne.sses  had 
said  or  would  say,  proved  so  unrelial)le  throughout  the  trial  that  this  particular  evidence 
did  not  play  an  important  part. 

'  Workmen  had  repaired  the  single  wall-burners  in  the  church  on  April  2,  and  this,  as 
the  .source  of  a  gas  escape,  was  made  much  of  by  the  defense ;  as  also  the  fact  that  King,  on 
entering,  smolled  gas  in  the  lobliy  below.  But  this  could  not  affect  the  question  of  the 
state  of  repair  of  the  sun-burner;  and  so  far  as  it  was  offered  to  show  the  cause  of 
Durrant's  nausea,  it  was  of  no  consequence,  for  the  only  gas  that  could  have  ovcrrcomo 
him  was  that  which  ho  inhaled  from  the  sun-burner,  while  the  leak  in  the  lobby  accounted 
for  what  King  smolled. 


No.  386. 


DURRANT  S   CASE 


825 


keys,  and  since  the  interval  of  his  absence 
had  afforded  Durrant  time  to  put 
the  articles  there.  The  effect  of  this 
would  be  merely  to  show  that  Durrant's 
story  about  putting  them  there  on  his 
first  arrival  was  false.' 

Durrant's  Exclusive  Opportunity. 
—  As  further  negativing  the  hostile 
effect  of  the  State's  testimony  put- 
ting Durrant  at  the  church  on  that 
afternoon  (whether  with  or  without 
Miss  Lamont),  it  w^as  of  course  open 
to  the  defense  to  show  the  possibility 
or  probability  of  some  other  person 
having  equal  opportunity  to  commit 
the  crime  or  showing  equally  strong 
traces  of  guilt.  In  this  respect 
much  was  promised,  but  little  at- 
tempted, and  practically  nothing 
effected.  The  State  had  shown,  as 
to  modes  of  access,  that  the  north 
door  to  the  church  had  been  nailed 
up  in  the  previous  year ;  that  to  the 
front  door  keys  were  possessed  by 
King  and  the  janitor  Sademan  only  ; 
and  that  to  the  south  door  keys 
were  possessed  by  only  King,  Dur- 
rant, Sademan,  Pastor  Gibson,  and 
the  President  of  the  Ladies'  Aid 
Society,  Mrs.  Moore ;  furthermore, 
that  the  murderer  must  have  been 
completely  familiar  with  the  church 
interior.  Practically,  then,  the  mat- 
ter lay  between  the  defendant.  King, 
Sademan  and  Gibson.  As  to  the 
former  two,  no  attempt  whatever 
was  made  to  implicate  them,  and 
we  must  assume  that  it  was  not 
possible  to  do  so.  But  a  distinct 
effort,   indirect  rather   than   direct, 


was  made  to  fix  suspicion  on  Pastor 
Gibson.  It  probably  originated  in 
the  fair,  though  not  striking,  resem- 
blance between  the  writing  on  the 
inclosure  of  the  deceased's  rings 
sent  to  Mrs.  Noble  and  some  speci- 
mens of  Pastor  Gibson's  hand- 
wTiting.  The  pastor  was  called  to 
the  stand  to  identify  this  handwrit- 
ing, but  for  no  other  purpose. 
Other  bits  of  evidence  noted  below, 
of  little  or  no  real  significance,  were, 
however,  made  much  of  by  the  de- 
fense (though  scarcely  mentioned 
in  counsel's  argument).^ 

3.  Durranfs  Subsequent  Conduct. 
—  The  defense  paid  special  atten- 
tion to  destroying  the  effect  of  two 
incidents  of  the  State's  story,  — 
the  visit  to  the  pawnbroker  Oppen- 
heimer,  and  the  waiting  at  the  ferry 
on  April  12. 

The  attack  on  the  Oppenheimer  story 
was  made  in  several  ways :  (1)  Durrant 
and  his  mother  testified  that  he  never 
wore  in  the  daytime  at  that  season  the 
overcoat  which  the  pawnbroker  said  he 
had  on.  (2)  The  pawnbroker  appeared 
to  be  somewhat  nearsighted.  (3)  Others 
who  were  sent  or  had  for  their  own  pur- 
poses gone  to  offer  him  jewelry  testified 
to  errors  made  by  him  in  describing  them. 
(4)  A  Mr.  Lenahan,  of  the  same  general 
appearance  as  Durrant,  had  offered 
him  a  similar  ring  about  the  same  time ; 
but  this  witness'  testimony  was  very 
weak ;  moreover  Oppenheimer  instantly 
picked  out  the  Lamont  ring  when  the 
two  were  shown  him  together.  (5) 
Diurant's  presence  at  other  places  on 
the  mornings  of  the  period  in  question 


'  It  may  be  added  that  if  Durrant  had  really  come  down  by  way  of  the  west  gallery,  he 
would  naturally  have  gone  directly  down  the  stairs  at  the  west  end  to  the  library  to  get 
his  hat  and  coat,  instead  of  going  unnecessarily  to  the  stairs  at  the  east  end  and  then  back 
through  the  Sunday-school  rooms  to  the  library.  That  he  came  down  at  the  east  stairs 
would,  on  the  other  hand,  be  perfectly  consistent  with  his  having  just  committed  the 
murder,  for  as  already  mentioned,  the  natural  way  of  retreat  from  the  belfry  was  along 
the  new  ceiling  to  the  east  end  and  thence  down  to  the  baptistery  and  down  the  stairs  to 
the  Sunday-school  rooms. 

It  may  also  be  noted  that  as  the  gas-fitters  (for  some  unexplained  reason)  took  out  the 
sun-burners  on  April  4,  there  was  no  means  of  testing  Durrant's  story  as  to  his  doings 
over  the  ceiling. 

2  (1)  Footprints,  in  the  belfry,  of  a  shoe  larger  than  Durrant's;  (2)  Marks  of  a  chisel 
and  a  hammer  on  the  belfry  door,  a  chisel  and  a  hammer  being  found  in  a  box  in  the  pas- 
tor's study  ;  (3)  shoes,  of  which  one  bore  a  brown  spot,  found  in  the  pastor's  study.  But 
the  attendant  explanations  and  contradictions  were  such  that  this  evidence  may  be  fairly 
described  as  worthless 


S26 


PART   III.       PROBLEMS    OF   PROOF 


No.  386. 


was  showQ ;  but  only  partially.  (6) 
Durrant  was  shown  to  have  a  little 
money  in  bank,  and  the  ring  was  worth 
only  S2.50. 

The  ferry  incident  was  so  ex- 
plained that  perhaps  Durrant  did 
not  in  fact  contradict  himself  as  to 
liis  reason  for  being  at  the  ferry. 
He  claimed  that  he  was  really  look- 
ing for  Blanche  Lamont ;  and,  so 
far  as  his  sliare  in  her  death  was  con- 
cerned, this  was  quite  consistent 
with  his  interest  as  a  friend  in  her 
whereabouts.^  But  the  prosecution 
made  much  of  the  absurdity  of  his 
story  that  he  received  the  advice 
to  go  there  from  an  unknown  man, 
who  stopped  him  on  the  street  and 
then  left  him,  and  that  Durrant 
made    no    attempt    to    inquire^   his 


name  or  his  source  of  information  oi 
to  follow  him ;  and  to  this  extent 
the  incident  was  used  to  discredit 
his  whole  story. 

On  Saturday,  November  2,  at 
3.30  P.M.,  after  27  days  actually 
occupied  by  the  gi\'ing  of  testimony, 
and  5  or  6  more  by  the  addresses  of 
counsel,  the  jury  retired.  Within 
30  minutes  they  returned  with  a 
verdict  of  "Guilty  of  murder  in  the 
first  degree."  A  juror  afterwards 
revealed  that  this  result  was  reached 
without  discussion  and  upon  the 
first  ballot.  It  is  sufficient  to  note 
that  the  verdict  appeared  to  l^e  in 
harmony  with  the  opinion  of  the 
communitv. 


'  The  pro.secution's  view  of  his  real  purpose,  which  could  not  be  brought  out  on  thi.? 
trial,  was  that  he  was  waiting  for  Miss  Williams,  a  girl  who  also  had  disappeared  at  the 
same  time  and  was  supposed  to  have  been  murdered  by  Durrant. 


No.  387. 


LUETGERT  S   CASE 


827 


387.    THE   LUETGERT   CASE. 
Law  Review.      1897.     Vol.   XXXII 

On  May  1,  1897,  Adolph  Louis 
Luetgert,  a  native  of  Germany, 
lived  with  his  wife  Louisa,  also  a 
German  by  birth,  in  a  house  on 
Hermitage  avenue,  near  Diversey 
boulevard,  in  Chicago.  The  hus- 
band was  52  years  of  age,  large  and 
heavy ;  the  wife  was  42  years  of 
age,  small  and  frail,  weighing  about 
105  pounds.  They  had  been  mar- 
ried some  19  years,  and  had  two 
children,  Louis,  12  years  old,  and 
Elmer,  5  years  old.  Arnold,  a 
grown-up  son  of  the  husband  by  a 
former  marriage,  lived  elsewhere  in 
Chicago.  The  only  other  inmate 
of  the  Luetgert  household  was 
Mary  Siemering,  a  second  cousin  of 
Mrs.  Luetgert,  who  worked  for 
them  as  maid.  Adolph  Luetgert 
had  made  his  way  from  small  be- 
ginnings ;  at  one  time  a  tanner, 
afterwards  a  saloon  keeper,  then  a 
butcher,  he  now  carried  on  the 
manufacture  of  sausages  in  a  large 
factory  adjoining  his  residence,  and 
in  one  of  the  buildings  he  had  also 
a  grocery  store  and  a  meat  market. 
He  had  been  reputed  rich,  and  in 
the  surrounding  district  of  humble 
homes  he  was  looked  upon  as  a  mag- 
nate. In  the  course  of  the  preced- 
ing year,  however,  he  had  lost  some 
$25,000  through  the  schemes  of  an 
English  swindler,  and  matters  had 
rapidly  gone  from  bad  to  worse, 
until  in  March,  1897,  the  sausage 
factory  had  been  closed,  only  a  few 
hands  being  retained  for  retail  opera- 
tions. The  foreclosure  of  a  chattel 
mortgage  was  impending,  and  on 
May  4,  shortly  after  the  events  to 
be  narrated,  the  sheriff  took  charge 
of  the  factory,  and  a  sale  under  the 
chattel  mortgage  took  place  on 
May  11. 


(John  H.  *Wigmore.      American 

p.'  187.) 

On  the  evening  of  Saturday,  May 
1,  about  10.15  or  a  trifle  later,  little 
Louis  Luetgert  came  home  from 
the  circus,  entered  the  kitchen  by 
the  rear  steps,  and  began  to  recount 
his  experiences  to  his  mother,  who 
was  sitting  under  the  gaslight, 
dressed  in  a  loose  brown  wrapper 
and  in  slippers.  "Was  it  worth 
the  10  cents?"  she  asked.  "Oh, 
yes,  it  was  worth  a  great  deal  more 
than  10  cents,"  he  insisted  enthusias- 
tically. But  his  story  was  inter- 
rupted by  his  father,  who  just  then 
entered  from  the  bathroom,  with  a 
lantern  in  his  hand,  and  said,  "You 
had  better  go  to  bed  now ;  y6u  can 
talk  about  the  circus  in  the  morning." 
The  boy  went  to  his  room,  which 
was  on  the  same  floor.  He  saw  the 
father  pick  up  his  lantern  (which 
he  had  at  first  set  down),  and  later 
he  heard  him  go  down  the  basement 
stairs  on  the  way  out  to  the  factory  ; 
for  the  father  did  not  sleep  in  the 
house,  but  in  a  room  partitioned  off 
from  the  factory  office,  with  some 
favorite  big  dogs  for  his  only  com- 
panions. The  servant,  Mary  Sie- 
mering, was  already  in  her  room  in 
bed.  A  little  later  in  the  evening 
(as  some  persons  were  found  to 
assert),  husband  and  wife  were  seen 
walking  on  Hermitage  avenue,  and 
along  the  alley  towards  the  factory  ; 
but  this  testimony  was  so  open  to 
question  that  it  may  be  laid  out  of 
consideration  ;  ^  particularly  as  its 
correctness  or  incorrectness  did  not 
seriously  affect  the  other  elements 
of  the  controversy.  This  much,  at 
least,  is  certain,  that  the  wife  was 
left  in  company  with  the  husband 
about  half  past  ten  o'clock  on  Sat- 
urday evening.  May  1.  According 
to    the   prosecution,  she  has   never 


^  Gottliebe  Schimicke,  14  years  old,  and  Emma  Schimicke,  an  elder  sister,  declared  that 
they  saw  this  on  the  night  of  May  1  ;  but  the  possibility  of  an  error  in  dates  is  so  serious, 
and  they  were  so  confused  on  cross-examination  and  had  so  discredited  themselves  by 
contradictions  at  other  times,  that  one  finds  it  impossible  (while  not  disputing  their  hon- 
esty) to  lay  any  stress  on  the  incident  they  related.  But  Nicholas  Faber  testified  to  the 
same  effect,  and  there  may  well  have  been  truth  in  the  story.  Charles  Hengst,  passing  the 
place  a  little  later,  thought  he  heard  a  cry ;  but  little  weight  can  be  given  to  such  experiences. 


82S 


PART    III.      PROBLEMS    OF   PROOF 


No.  3S7. 


since  been  seen  in  human  form, 
alive  or  dead,  bv  anv  other  person.^ 
On  Tueschiy,'  May  4.  Diedrich 
Bieknese,  a  brother  of  ]Mrs.  Luet- 
gert,  hving  in  the  country  near 
Chicago,  came  to  call  at  the  Luet- 
gert  house,  but  did  not  find  his 
sister  there.  Luetgert  said,  when 
Bicknese  inquired  where  she  was, 
"  I  don't  know ;  ain't  she  at  your 
place?"  and  then  explained  that 
he  supposed  she  had  run  away. 
He  said  he  would  let  Bicknese 
know  in  a  week  or  two,  if  anything 
turned  up ;  but  Bicknese  was  not 
satisfied  with  this  dilatory  attitude ; 
and  when,  on  returning  next  day 
to  the  Luetgert  house,  he  learned 
that  his  sister  was  still  missing, 
he  spent  ^Yednesday,  Thursday,  and 
Friday  in  making  inquiries  of  va- 
rious relatives  and  friends,  and  ended 
by  notifying  the  police  on  Friday, 
May  7.  Luetgert  meanwhile  had 
done  nothing,  and  had  even  re- 
proached Bicknese  for  publishing 
the  family's  disgrace  involved  in  his 
wife's  desertion.  On  Saturday, 
May  8,  the  police  began  their  search, 
dragging  the  river,  the  sewers,  and 
the  clay  pits,  and  inquiring  of  all 
relatives  and  intimates.  Six  days 
later  they  turned  their  attention 
(in  a  somewhat  l)elated  fashion) 
to  the  factory  employees,  to  dis- 
cover what  had  been  done  there 
on  the  day  of  the  disappearance ; 
and  on  Saturday,  May  15th  (two 
weeks  after  the  disappearance), 
upon  hearing  the  story  of  Bialk,  the 
factory  watchman,  five  of  the  police 
(including  Captain  Schuettler  and 
Inspector  Schaack),  with  Bialk, 
visited  the  factory  buildings  and 
examined  a  large  steam  vat  (11'  X 
3'  X  2' 8"),  one  of  three  commonly 
used  for  dipping  sausages,  and  stand- 
ing in  the  basement  of  the  main 
building.  This  vat  tliey  found 
about  iialf  full   of  a  reddish-brown 


liquid,  emitting  a  sickening  odor. 
A  plug  on  the  outside,  near  the  bot- 
tom, was  withdrawn  by  one  of  the 
police,  and  some  gunny  sacks  (found 
near  at  hand)  were  spread  on  the 
floor  at  the  bunghole.  As  the 
liquid  passed  out,  a  slimy  sediment 
and  a  number  of  small  pieces  of 
bone  were  deposited  on  the  sacks. 
The  vat  was  then  further  searched, 
and  at  the  bottom,  besides  other 
bone  fragments,  there  were  found 
two  plain  gold  rings,  stuck  together 
(one  inside  the  other)  and  covered 
with  a  slimy,  reddish-gray  sub- 
stance ;  the  smaller  was  a  guard 
ring,  the  larger  a  wedding  ring 
and  on  the  inner  surface  of  the 
latter  was  engraved  in  script  "  L. 
L."  and  "  18  carat."  It  was  later 
abundantly  shown  that  these  rings 
(or  their  facsimiles)  had  been 
habitually  worn  by  Louisa  Luetgert, 
the  missing  woman." 

The  police  found  also,  under  or 
near  this  vat,  a  hair  a  foot  long,^ 
a  piece  of  leather,  a  piece  of  cloth, 
some  pieces  of  string,  a  hairpin, 
and  the  apparent  half  of  an  upper 
false  tooth.  It  was  later  clearly 
shown  by  Mrs.  Luetgert's  dentist 
that  she  had  a  few  false  teeth  in  her 
upper  jaw,  but  none  in  the  lower. 
The  police  found  also,  in  a  pile  of 
ashes  in  the  street  near  by,  at  a 
spot  where,  by  Luetgert's  order,  the 
smokehouse  ashes  had  been  dumped 
on  Monday,  May  3,  other  frag- 
ments of  bone,  as  well  as  some  pieces 
of  burned  cor.set  steel  (identified 
as  such  by  a  corset  maker).  The 
most  characteristic  of  the  boiled 
and  burned  bone  fragments  were 
identified  by  the  two  osteologists 
of  the  Columbian  Museum  as  a 
femur  (thigh),  a  rib,  a  sesamoid 
(extra  bone  near  the  big  toe),  a 
phalanx  (toe  joint),  a  tem- 
poral bone  (skull  fragment),  a 
metacarpal    (finger    joint),    and    a 


1  The  dofonso  claimed  appearances,  discus.sod  later. 

'  There  was,  to  be  sun;,  testimony  denying  that  Mrs.  Luetgert  ever  had  rings  of  this 
description  ;    but  it  carried  no  weight. 

'  Other  hair  was  found  at  the  sewer  opening  in  the  basement  near  by,  but  some  or  all 
of  it  proved  to  be  hog  hair. 


No.  3S7. 


LUETGERT  S  CASE 


829 


w 


N 


O E 


PREMISES  OF  ADOLPH  LUETGERT 

AA,  Diversey  boulevard,  315  ft.  frontage.  BB,  Hermitage  ave.,  290  ft.  frontage. 
CC,  Fence,  near  railroad  track.  D,  Main  building  and  store,  main-floor  plan.  E,  Factory 
building.  F,  residence.  G,  stable.  H,  wagin-housB.  a,  relative  position  of  middle  vat, 
in  basement  below,  b,  relative  position  of  smokehouse  furnaces  in  basement,  c,  elevator. 
d,  stairway  down  from  main  floor.  /,  office,  on  main  floor;  grocery,  etc.,  on  rest  of  same 
floor,  g,  shipping  room,  h,  passageway,  from  D  to  E,  27X13  ;  its  level  is  slightly  below 
the  main  floor  of  D,  and  through  an  opening  one  can  look  down,  across  the  elevator-shaft, 
to  the  basement  floor.  i,  casing-room,  j,  engine-room,  k,  boiler-room.  Z,  chimney. 
7n,  ice-house,  n,  entrance,  o,  chicken-yard.  p,  back  door,  q,  garden,  r  r,  garden 
fence,     s  s  s  s,  alley. 


humerus  (upper  arm) ;  but  whether 
they  were  human  or  not  was  after- 
wards seriously  disputed.  The  red- 
dish liquid  was  said  to  contain 
traces  of  blood  material  (alkaline 
hematine).  The  ashes  were  said 
to  contain  phosphoric  traces  of 
human  flesh ;  but  it  was  afterwards 
disputed  whether  the  quantity  was 
more  than  would  naturally  be  found 
in  all  sawdust  ashes. 

On  Monday,  May  17,  in  view  of 
the  discoveries  of  the  police,  Adolph 
Luetgert  was  arrested  on  the  charge 
of  murdering  his  wife.  Upon  the 
preliminary  hearing  he  was  bound 


over  to  the  grand  jury,  and  then 
indicted,  and  after  another  lengthy 
hearing  he  was  refused  bail.  Com- 
mendable promptness  was  shown 
in  the  collection  of  evidence,  and  the 
trial  began  on  August  23,  before 
Judge  Richard  S.  Tuthill,  in  the 
Cook  County  Criminal  Court. 
After  only  a  week  consumed  in  ob- 
taining a  jury,  the  opening  address 
was  made  on  August  30.  The  trial 
lasted  nearly  two  months  (till  Octo- 
ber 21),  and  such  was  the  general 
interest  excited  by  it  that  news- 
papers in  middle-sized  cities  a 
thousand    miles    distant    gave    up 


830  PART  III.   PROBLEMS  OF  PROOF  No.  387. 

to    it    daily    two    columns    of    tele-  he    even    discouraged     the    eflPorts 

graphic  news.     The  prosecution  was  that  were  made;    and   he  did  not 

represented  l)y  the  State's  Attorney  go  to  see  the  police  until  they  sent 

for  Cook   County,   Charles   Samuel  for    him,    although    he    knew    Cap- 

Deneen,  and  l)y  his  first  assistant,  tain  Schuettler  personally  and  had 

Willard  Milton  McEwen,  who  con-  once  sought  his  aid  about  the  loss 

ducted  most  of    the  cross-e.xamina-  of  one  of  his  big  dogs.^     It  seems 

tions.     The  defense  was  represented  clear     that     he     maintained     illicit 

by  William  A.  Vincent  and  by  Al-  relations  with  Mary  Siemering,  the 

bert    Phalen.     The   jury    was    con-  maid,^  and  had  threatened   to  take 

ceded  by  all  to  be  an  exceptionally  her  into  the  factory  (where  he  slept) 

intelligent  one.'  if  his  wife  made  trouble  about  her,* 

I.  What  was  the  fabric  of  evi-  and  had  asked  her,  after  the  disappear- 
dence  upon  which  the  State  based  ance,  to  keep  house  for  him.^  Be- 
its accusation  against  the  husband  ?  sides  this,  he  at  the  same  time  proved 

1.  Motiir.  —  It  was  clearly  shown  his  insensibility  to  the  situation  and 

that  he  was  unkind  to  his  wife,  and  exhibited  a  singular  folly  by  writing 

regarded    her  as    an    incumbrance;  from    the    jail    to    Mrs.    Christina 

he  had  even  intimated  indefinitely  Feldt   (a  rich  widow  who  had  had 

an   inclination    to   get   rid    of   her.^  money   transactions  with   him   and 

It  was  also  proved  beyond  a  doubt  was  in  some  respects  a  confidante) 

that  he  had  shown  no  sorrow  over  a  series  of  amorous  letters,  in  which 

her  disappearance,  and  was  wholly  he  spoke  of  the  future  that  now  lay 

indifi'erent  to  her  fate.     He  let  her  before    them    when    he    should    be 

brother  conduct  the  search  for  her ;  liberated.'^     These  letters  may  have 

'  A  feature  of  their  experience,  novel  in  jury  annals,  was  the  permission  of  the  court  that 
they  should  take  exercise  during  their  long  confinement  by  playing  ball,  after  adjournment, 
on  a  field  near  by.  An  unfortunate  result  was  that  one  of  the  jurors  took  cold,  and  was 
threatened  with  severe;  illness.  The  second  trial  began  on  Dec.  14,  before  Judge  Joseph 
E.  Gary,  the  celebrated  judge  who  presided  at  the  trial  of  the  anarchists,  and  ended  P'eb.  9, 
1898.  The  defendant  had  at  this  trial  different  counsel,  Lawrence  Harmon,  Max  Joseph 
Riese,  and  John  Edward  Kehoe.  The  evidence  at  the  second  trial  covered  substantially 
the  same  ground  as  at  the  first  trial ;  a  few  differences  have  been  noted  in  the  following 
pages ;  but  space  does  not  suffice  to  touch  upon  all,  and  the  evidence  at  the  first  trial  is 
for  several  reasons  more  satisfactory  as  the  basis  for  a  study  of  the  case.  At  the  second 
trial  the  defendant  himself  took  the  stand  ;  but  his  testimony  on  the  whole  consisted  in 
denials  of  the  more  salicsnt  facts  asserted  by  the  prosecution's  witnesses  and  in  reenforcing 
the  testimony  to  the  facts  offered  by  the  defense ;  and  there  seems  no  need  of  more  than  a 
few  references  to  its  tenor. 

^  By  Mrs.  Tosch:  He  had  said  when  his  wife  was  at  one  time  ill,  that,  if  he  had  waited  a 
minute  longer  before  calling  the  doctor,  "the  dirty  rotten  beast  would  have  croaked": 
that  he  felt  sometimes  "like  he  could  take  her  and  crush  her."  By  Mrs.  Grieser :  On  one 
occasion,  when  he  was  angry,  his  wife  asked  what  the  matter  was ;  he  told  her  "to  go  and 
stick  her  nose  in  the  cooking  pot"  ;  then  he  threw  a  plate  at  the  ceiling  and  broke  it,  and 
said,  "she  was  no  wife  for  him;  she  had  l)ecii  rais(Kl  in  a  pigsty;  she  was  a  wooden 
shoe."  By  Mrs.  Feldt:  He  often  said  that  he  could  not  live  any  longer  with  his  wife. 
By  F.  A.  Schullz:  On  Sept.  2,  1896,  he  saw  Luetgert  holding  his  wife  by  the  throat  and 
choking  her  in  the  yard  at  the  chicken  coop. 

'  The  defendant  claimed  that  he  had  called  up  various  hospitals  on  the  telephone  at  the 
time,  but,  singularly  enough,  without  giving  his  name.  He  did  not  deny  otherwise  his 
failure  to  search  for  her. 

*  She  herself  admitted  this  to  the  police  and  to  the  grand  jury. 

*  By  Mrs.  Touch,  Mrs.  Feldt. 
^  By  Mary  Siemcriii;j. 

'  "  Beloved  dear  Christina,  .  .  .  this  is  our  battle  [and  when  it  is  won]  as  soon  as  I  can 
be  with  you,  we  will  have  more  money  than  we  need.  .  .  .  Yours  forever,  true,  loving 
Louis."  "Where  there  is  sincere  love,  there  is  everlasting  faithfulness  in  pleasure  as  well 
as  in  trouble,  through  life  until  death.  ...  (I  hope]  you  have  for  me  the  same  trust  and 
belief.  .  .  .  Your  faithful  and  sincere  loving  friend  till  death,  Louis."  Mrs.  Feldt  handed 
over  these  letters,  having  experienced  a  revu!sif)n  of  fcn^ling  when  it  seemed  to  her  that  he 
was  simply  using  her  as  a  source  of  funds  for  his  defense. 


No.  387. 


LUETGERT  S    CASE 


831 


been  insincerely  intended  merely 
to  dupe  her  into  lending  more  money 
to  him  (though  they  were  in  this 
only  partially  successful) ;  hut  even 
on  this  supposition  they  indicated 
his  state  of  mind  towards  his  missing 
wife. 

2.  Preparations.  —  On  March  11, 
1897,  he  had  purchased  from  a 
wholesale  drug  house  a  barrel  (378 
pounds)  of  crude  potash.  The  bar- 
rel stood  in  the  shipping  room  of 
the  sausage  factory  (the  head  being 
broken  in)  until  April  24.  On  that 
day  Luetgert  ordered  the  smoke- 
house helper,  Frank  Odorowsky, 
to  take  the  barrel  down  to  the  base- 
ment, break  up  the  lumps,  and  put 
them  into  the  large  middle  vat, 
already  described,  cautioning  him 
at  the  same  time  against  handling 
the  caustic  stuff  with  the  bare  skin. 
This  he  did,  "Ham"  Frank  Levan- 
dowsky,  another  employee,  being 
called  in  to  help.  The  substance 
in  the  barrel  "burned  like  fire" 
wherever  it  touched  him.  and  he  had 
to  put  rags  on  his  hands  and  in  front 
of  his  face, and  even  then  received  sev- 
eral severe  burns,  the  scars  of  which 
he  showed  in  court.  The  stuff  was 
placed  in  three  barrels,  standing 
alongside  of  the  middle  vat.  Bialk, 
the  watchman,  and  Luetgert  then 
placed  the  potash  in  the  vat,  con- 
nected a  hose  so  as  to  cover  the  sub- 
stance with  water,  then  turned  on 
the  factory  steam  so  as  to  dissolve 
the  potash.  Here  it  lay  di.ssolving 
during  the  week ;  and  on  Saturday, 
May  1  (the  day  of  the  wife's  disap- 
pearance), about  a  quarter  of  9  in 
the  evening,  Luetgert,  in  the  pres- 
ence of  Bialk,  the  watchman,  again 
turned  on  the  steam  into  this  vat. 
The  steam  was  kept  on,  and  the 
vat  continued  to  boil,  until  about  3 
o'clock  Sunday  morning,  when  Luet- 
gert shut  it  off,  and  (between  3 
and  4  o'clock)  went  up  to  his  room 


in  the  office.  During  the  mean- 
time the  watchman  was  tending 
the  engine  in  the  other  l)uilding. 

3.  Opportunity.  —  Twice  during 
this  period  between  9  and  3  o'clock, 
the  watchman  was  absent  from 
his  post  at  Luetgert's  order.^ 
Shortly  after  9,^  he  was  sent  with  an 
empty  white  bottle,  as  a  sample, 
to  a  drug  store  on  Clybourn 
avenue  (the  going  and  coming  re- 
quired not  less  than  thirty  minutes) 
to  get  a  similar  l^ottle  of  Celery- 
Kola  compound  ;  on  returning  with 
it,  he  found  the  ordinary  passages 
from  the  engine  room  buikling  into 
the  vat  room  closed,  and  he  handed 
the  bottle  to  Luetgert  over  a  wicket 
gate  at  the  elevator.  Again,  shortly 
after  10  o'clock,  he  was  sent  to 
the  same  store  with  another  bottle, 
this  time  a  blue  one  (Hunyadi 
water),  to  be  duplicated;  the  drug 
clerk  had  this  time  to  be  roused 
from  bed,  and  the  trip  occupied 
some  three  quarters  of  an  hour ; 
Luetgert  met  him  as  before  at  the 
gate  and  took  the  bottle,  and  Bialk 
returned  to  the  engine  room,  and 
stayed  there  the  rest  of  the  night. 
These  two  bottles  did  not  appear  to 
be  needed,  and  their  use,  or  non-use, 
remained  to  be  explained.  The 
inference  from  these  errands  was 
that  Luetgert  desired  for  some  ul- 
terior purpose  to  secure  the  watch- 
man's absence.  It  will  be  noticed 
that  it  was  during  the  watchman's 
second  interval  of  absence  that 
Luetgert  came  over  (almost  directly) 
to  the  house  and  sent  little  Louis 
out  of  the  kitchen  to  bed.  If 
Luetgert  killed  his  wife  at  the  vat 
in  the  basement,  after  inducing 
her  to  go  over  there  with  him  from 
the  house,  it  could  have  been  done 
in  this  secure  interval  between 
about  10.30  and  11  o'clock;  and 
it  must  have  been  done  then  or  not 
at  all.2 


'  The  drug  clerk  corroborated  the  times  of  these  two  errands. 

^  The  hours  by  the  clock  may,  of  course,  have  varied  slightly  from  these ;  but  the 
available  interval  of  complete  secrecy  and  security  could  not  have  been  less  than  half  an 
hour  nor  more  than  three  quarters  of  an  hour.  At  any  point  of  time  after  that  interval,  it 
seems  practically  certain  that  either  Bialk  would  have  seen  the  woman  (had  she  been  in 


832 


PART   III.       PROBLEMS    OF    PROOF 


No.  387. 


4.  Consummation  of  the  Deed.  — 
Between  3  and  4  o'clock  in  the  morn- 
ing, Luetgert  went  up  to  the  office, 
where  he  was  found  by  the  watch- 
man about  7  o'clock,  when  the  latter 
went  off  duty.  Luetgert  was  nap- 
ping in  a  chair,  his  feet  on  the  tal)le, 
his  clothes  not  removed.  He  told 
the  watchman  not  to  let  the  fire  go 
out,  but  to  keep  it  banked  with  the 
steam  at  fifty  pounds  (the  usual 
amount  for  week-day  work).  Dur- 
ing the  day  Luetgert  was  in  and 
about  the  factory.  At  G  o'clock  the 
same  evening  (Sunday,  May  2),  the 
watchman  came  on  duty  again.  He 
found  the  hose  running  into  the  vat, 
a  chair  from  the  office  placed  facing 
the  vat,  the  floor  covered  with  a 
streaky,  slimy  substance  (the  over- 
flow from  the  vat)  containing  little 
flakes  of  bone,  the  fire  out  under  the 
boiler,  and  ashes  in  front  of  the  fur- 
nace. About  4  o'clock  on  Sunday 
afternoon,  the  factory  chimney  had 
been  seen  hy  several  persons  to  be 
smoking,  —  a  singular  occurrence 
for  Sunday.  On  Monday  morning 
early,  the  smokehouse  man,  Odo- 
rowsky,  came  on  duty,  and  found  the 
same  slimy,  stinking  substance  on 
the  floor,  and  saw  also  a  shovel 
standing  near  the  vat,  the  blade 
covered  with  the  slimy  stuff  (having 
been  used  apparently  to  lift  out  the 
contents  of  the  vat).  Alongside  of 
the  vat  he  also  saw  three  small 
wooden  doors  (from  the  smoke- 
house), and  a  number  of  gunny 
sacks,  the  doors  and  sacks  being 
wet  and  slimy,  as  though  they  had 
been  placed  over  the  l)oiling  vat  to 
confine  the  steam  and  intensify  the 
boiling.  While  Odorowsky  was 
there,    Luetgert    knocked    out    the 


stopper  of  the  vat,^  and  then  Odo- 
rowsky, under  Luetgert's  direction, 
cleaned  into  the  sewer  opening  (in 
the  basement)  all  that  he  could  of 
the  sticky,  slimy  liquid  on  the  floor, 
scraped  up  the  more  solid  stuff'  into 
a  barrel,  and  dumped  it  near  the 
fence  by  the  railroad  track ;  he 
then  carried  out  what  remained  and 
buried  it  in  the  yard,  —  all  as  dic- 
tated to  him  by  Leutgert.  On  the 
same  morning,  another  man,  at 
Liietgert's  orders,  hauled  out  the 
ashes  from  the  furnace  and  dumped 
them  into  the  street ;  and  it  was 
at  the  supposed  locality  of  this  de- 
posit that  the  bones  and  corset- 
steels  already  spoken  of  were  later 
found.  From  the  vat  were  after- 
wards obtained,  as  already  de- 
scribed, the  two  rings  and  the 
other  bones.  A  large  pocket  knife, 
handed  to  Mrs.  Feldt  by  Luetgert 
when  arrested,  was  found  to  con- 
tain, when  tested  microscopically, 
traces  of  flesh  and  blood  on  the 
grooves  at  the  edge.    • 

5.  Guilty  Suppression  of  Evi- 
dence. —  From  various  quarters 
came  indications  of  Luetgert's  anx- 
iety to  suppress  all  accounts  of  his 
doings  on  this  Saturday  night  and 
Sunday.  (1)  He  sent  the  watchman, 
Bialk  (as  we  have  seen),  away  from 
the  factory  upon  two  errands,  ap- 
parently fictitious.  Moreover,  after 
he  heard  that  the  police  had  been 
talking  with  Bialk  (May  14),  he 
went  to  the  house  of  the  latter 
(then  in  bed  with  pretended  illness ; 
an  officer  being  concealed  under  the 
bed),  upbraided  him  with  talking 
to  tlie  police,  and  asked  what  they 
had  found  in  their  search  ;  when  he 
was  told  thev  had  found  nothing,  he 


the  vat  room)  when  he  returned  with  the  second  bottle,  or  (perhap.s)  from  the  engine  room 
would  have  heard  the  two  conversing,  and  al.so  (perhaps)  that  Luetgert  would  not  have 
ventured  upon  violence  within  th(!  possihI(>  hcuiring  of  Bialk.  On  tlus  other  hand,  a  half 
hour's  interval  was  amplct  time  for  the;  killing,  since;  the?  process  (as  the;  traces  in  the  vat 
indicate)  need  have  involv(;d  only  a  choking  or  knocking  down  and  thou  a  placing  of  the 
entire  body,  the  clothc^s  still  upon  it,  in  the  boiling  potash. 

If  it  should  be  asked  why  he  should  contrive  two  fictitious  errands,  the  answer  is  that  he 
may  have  intendtjd  to  do  the  killing  during  the  first,  but  then  recollected  that  Louis  was 
still  at  the  circus  and  would  inquire  for  his  mother  on  returning. 

'  "He  was  mad,"  "He  never  looked  so  wild  as  he  did  that  Monday,"  said  the  helper; 
the  inference  being  that  he  was  disappointed  because  the  potash  had  not  disposed  of  every- 
thing. 


No.  387. 


LUETGERT  S    CASE 


833 


said,  "  That  is  good ;  you  and  your 
son  can  go  to  work  for  me  soon,  when 
I  start  up  the  factory."  (2)  When 
Odorowsky  cleaned  the  floor  on 
Monday  morning,  he  said,  "  What 
the  devil  have  you  been  doing  here  ?  " 
and  Luetgert  answered,  "  Don't 
say  anything  about  it,  Frank,  and 
I  will  see  that  you  have  a  good  job 
as  long  as  you  live."  (3)  On  Satur- 
day, May  15,  he  went  to  the  saloon 
of  a  friend,  near  by,  and  talked 
with  Mrs.  Tosch,  the  proprietor's 
wife,  about  the  efforts  of  the  police. 
He  said,  "If  you  know  of  anybody 
that  saw  anything,  tell  me."  She 
said  that  Charlie  Maeder,  his  en- 
gineer, was  telling  of  the  Sunday 
smoke  from  the  chimney.  Then 
he  told  her  to  tell  the  engineer  to 
say  nothing  about  the  smoke ;  and 
later  in  the  day  he  came  back  and 
tried  to  induce  Mr.  Tosch  to  go 
across  the  street  to  the  dance  hall 
and  get  the  engineer  away,  so  as  to 
stop  his  talking  to  the  police  about 
the  smoke.  Subsequently  this  same 
Maeder  disappeared,  and  at  the 
time  of  the  trial  was  known  to  be 
in  Germany ;  the  inference  being 
that  he  knew,  or  was  supposed  by 
Luetgert  to  know,  too  much  about 
the  smoke,  and  perhaps  about 
other  things.  (4)  He  showed  the 
utmost  reluctance  to  allow  the  aid 
of  the  police  to  be  called  in,  and 
falsely  told  his  two  brothers-in-law 
that  he  had  hired  detectives.  (5) 
He  gave  different  versions  of  his 
wife's  reasons  for  leaving,  which, 
though  they  were  rather  mere  opin- 
ions than  assertions  of  fact,  were 
nevertheless  inconsistent,  (a)  He 
told  his  brother-in-law,  Bicknese, 
that  he  thought  she  had  gone  off, 
perhaps  to  Bicknese's  house,  but 
that  she  had  showed  no  signs  of 
losing  her  mind ;  (6)  then,  a  few 
moments  later,  he  said  that  she 
might  have  gone  off  with  another 
man;  (c)  on  May  15,  he  first  ad- 
vanced the  theory  that  she  had  "  got 
crazy"  and  wandered  off;    this  was 


said  to  the  police  captain,  and  he 
explained  that  he  had  not  reported 
the  disappearance  because  he 
thought  she  might  come  back  and 
he  did  not  want  the  disgrace  of 
notoriety. 

Thus,  the  main  points  of  the  case 
made  out  by  the  State  were  as 
follows : 

1.  The  improbability  of  a  volun- 
tary desertion  by  Mrs.  Luetgert ; 
and,  in  particular,  the  impossibility 
of  discovering  any  trace  of  the  living 
woman  ; 

2.  The  presence  about  the  prem- 
ises of  the  apparent  remains  of  her 
body ; 

3.  An  ample  motive  in  the  hus- 
band for  getting  rid  of  her ; 

4.  A  suitable  opportunity  for  him, 
and  for  him  only,  to  do  this ; 

5.  Operations  by  the  husband 
about  the  factory,  consistent  only 
with  some  unusual  deed,  and  cor- 
responding to  the  mode  of  destruc- 
tion indicated  by  the  traces  of  the 
body; 

6.  Conduct  of  the  husband  in- 
dicating a  guilty  consciousness. 

IL  How  were  these  cumulative 
items  disposed  of  by  the  defense  ? 

1.  Improbahility  of  Voluntary 
Desertion.  —  The  refutation  of  this 
was  attempted  in  two  ways :  (a) 
By  evidence  that  Mrs.  Luetgert 
(a')  had  often  and  recently  expressed 
an  intention  to  leave  her  husband, 
and  {a")  had  shown  signs  of  losing 
her  mind ;  {h)  By  evidence  that  she 
had  been  seen  alive  earl^^  in  May 
{i.e.  after  the  disappearance  from 
home),  near  Kenosha,  in  Wisconsin, 
about  forty-five  miles  from  Chicago. 

(a)  This  evidence  was  given  by 
six  witnesses.  If  their  testimony 
could  be  fully  believed,  it  is  not  too 
much  to  say  that  it  should  ha\e 
created  such  a  fair  probability  of  her 
voluntary  departure  as  would  al- 
most justify  a  jury's  reasonable 
doubt ;  for  she  was  said  (at  least 
by  Mary  Siemering)  ^  distinctly 
to  have  planned  going  off  and  con- 


'   Mary  Siemering  originally  told  a  great  deal  that  was  damaging  to  the  defendant ;    but 
she  retracted  most  of  it  on  the  stand,  and  seemed  altogether  an  unreliable  witness. 


834 


PART   III.       PROBLEMS    OF    PROOF 


No.  3S7. 


cealing  herself  in  some  distant  town 
as  a  servant.^     There  were,  however, 
several    reasons    for    distrusting    it 
completely.     (1)  None  of  these  per- 
sons,  singularly  enough,   had   come 
forward  to  inform  or  had  disclosed 
in  any  way  these  utterances  of  Mrs. 
Luetgert  until  the  time  of  trial,  — 
either   during   the  two  weeks    that 
the  police  were  dragging  the  river 
and  the  newspapers  discussing  the 
disappearance,  or  when  their  friend 
Luetgert    was    arrested,    or    during 
the  two  long  preliminary  examina- 
tions ;     their    recollection,    in    short 
(it  is  difficult  to  doubt),  had  the  sus- 
picious appearance  of  being  forced 
or  manufactured  for  the  occasion. 
(2)  The  two  suppositions,  that  she 
was  deliberately  concealing  herself, 
and  that  she  was  wandering  about 
insane,  were  somewhat  inconsistent ; 
moreover,    both    were    inconsistent 
with    Luetgert's   suggestion    to    her 
brother  that  she  had  gone  off  with 
another  man.     (3)  The  probability 
that  she  would  be  sitting  in  a  wrap- 
per   and    slippers,    reading,    a   few 
moments   or  hours    before   so    mo- 
mentous   a   step,    would    be  small. 
(4)  The  probability  that,  after  such 
planning,   she    would,   nevertheless, 
go    off    equipped    only   with   wrap- 
per, slippers,  and  shawl,-  would  be 
also  decidedly  small,     (o)  The  prob- 
ability  that    she  would    go    oft'    at 
all  by  midnight,  when  there  was  no 
obstacle  whatever  to  her  departure 
in    the    daytime,  would    be    slight. 
(6)   The   probability   that   the   wife 
would  remain  in  hiding  and  let  her 
hus})and  hang  for  her  murder  would 
be  also  exceedingly  small.      (7)  This 
supposed   plan   to   go   off   and   hide 
was  inconsistent  with  the  Kenosha 


story,  next  decribed,  the  theory  of 
which  was  that  she  was  apparently 
making  for  a  farm  owned  by  Luet- 
gert himself. 

(6)  The  so-called  Kenosha  alibi 
was  supported  by  six  witnesses  (one 
of  whom  had  known  INIrs.  Luetgert 
personally) ;  these  persons  saw  a 
strange  woman  in  that  region  on 
May  3,  4,  5,  and  9,  whom  they 
thought  was  Mrs.  Luetgert.  But 
(1)  the  only  identification  (except 
of  the  one  person  above)  was  by  a 
tintype  picture  taken  several  years 
before;  (2)  some  or  all  of  the  iden- 
tifiers seemed  clearly  to  have  ex- 
pressed at  other  times  disbelief  in 
the  identity,  and  in  two  instances 
at  least  there  was  evidence  of  deliber- 
ate falsifying ;  (3)  they  differed  ma- 
terially as  to  the  description  of  the 
strange  woman ; ''  (4)  eight  other 
persons  who  had  seen  the  same 
strange  woman  denied  her  likeness 
to  Mrs.  Luetgert ;  (5)  if  she  was  at 
Kenosha,  it  was  apparently  because 
there  was  there  a  farm  owned  by 
Luetgert,  which  she  would  naturally 
seek  if  she  had  chosen  to  come  that 
way  at  all ;  but  there  was  no  evi- 
dence that  she  ever  turned  up  at  the 
Luetgert  farm. 

The  Kenosha  alibi,  in  short,  was  a 
claim  too  fragile  and  suspicious  to 
be  given  much  weight,  if  any,  at 
least  in  the  face  of  such  circum- 
stances as  the  rings  in  the  vat.'' 

2.  Presence  of  Traces  of  the  Body. 
—  These  traces,  as  we  have  seen, 
were  (1)  two  rings,  stuck  together, 
one  marked  "  L.  L."  ;  (2)  a  number 
of  bone  fragments,  corset  steels,  a 
rag,  a  long  hair,  etc. ;  (3)  a  slimy 
substance,  etc.  The  last  would  in- 
dicate  the   presence   of   a   body   of 


'  The  defendant  also  spoke,  at  the  senond  trial,  of  express  assertions  by  her,  on  the  night 
of  the  disappearance,  of  an  intention  not  to  stay  and  witness  their  pecuniary  ruin  and  dis- 
grace. 

*  Both  Luetgert  and  Mary  Siemering  told  the  police  that  those  only  were  missing.  As 
to  money  for  a  journey,  she  certainly  had  no  more  than  $80  ;  hut  whether  she  could  have 
had  this  much,  or  any  at  all,  was  so  open  to  dispute  that  no  argument  can  be  founded  on 
the  state  of  her  purse. 

'  OiK^  said  that  she  was  a  blonde  and  wore  a  sailor  hat ;  another,  that  she  had  black 
hair  and  i'.yo.n  and  wore  a  slouch  hat. 

■•  .\t  the  second  trial  the  K(!nosha  (ili}>i  was  abandoned,  and  an  alibi  at  various  other 
places  was  put  forward.     The  above  testimony  is  typical  of  all  of  these  efforts. 


No.  387. 


LUETGERT  S    CASE 


835 


flesh  and  blood ;  the  second  would 
mark  it  as  human  and  female; 
the  first  would  identify  it  as  Louisa 
Luetgert's.  All  these  indications 
the  defense  strenuously   disputed. 

(1)  There  was  only  one  way  of 
explaining  away  the  cohering  rings, 
i.e.  that  they  had  been  caused  to 
be  made  and  then  placed  there  by 
some  implacable  enemy  of  Luet- 
gert's, —  either  by  one  of  the  police 
when  searching,  or  by  one  of  the 
employees,  or  by  one  of  the  persons 
who  gained  access  on  the  day  of  the 
sheriff's  sale.  May  11.^  Numerous 
considerations  make  such  a  supposi- 
tion improbable  in  the  uttermost, 
if  not  humanly  impossible ;  these 
will  easily  suggest  themselves,  and 
it  would  here  take  too  much  space 
to  analyze  them.^ 

(2)  The  identification  of  the  bones 
as  human  or  as  female,  and  of  the 
blood  and  phosphorus  traces,  was 
contradicted  by  several  anatomical 
and  chemical  experts.  Of  the 
directly  opposing  testimony  on  this 
point,  it  must  suffice  to  say,  that  the 
witnesses  on  both  sides  were  emi- 
nent and  competent,  and  that  some 
of  the  witnesses  on  each  side  were 
more  or  less  shaken  on  cross-exami- 
nation.^ That  any  of  the  bones  were 
fully  proved  to  be  human,  it  is 
hardly  possible  to  assert ;  yet  it 
certainly  was  not  made  out  (nor 
even,  perhaps,  seriously  claimed) 
that  they  could  not  be  human.  The 
identification  of  the  corset  steels 
and  the  human  hair  was  not  laid 
open  to  doubt ;  the  difficulty  here 
(as  also  for  the  strings,  leather,  and 
cloth)  was  that  they  might  perhaps 


have  come  from  other  sources  than 
a  dead  body. 

(3)  The  slimy  substance,  and  the 
other  refuse,  it  was  suggested,  came 
from  the  soap-making  process  de- 
scribed below. 

3.  Motive.  —  Witnesses  were 
brought  to  disprove  the  ill-treat- 
ment of  his  wife  by  Luetgert ;  but 
they  spoke  merely'  of  never  having 
seen  such  behavior,  and  the  prosecu- 
tion's showing  (it  must  be  said)  was 
not  otherwise  shaken. 

4.  Opportunity.  —  This  was  dis- 
puted in  two  ways.  («)  Little 
Louis  Luetgert  spoke  of  waking  and 
hearing  near  at  hand  a  "rustling," 
late  in  the  night  of  May  1,  and  the 
voice  of  his  mother,  answering  his. 
call,  said,  "It's  me."  But  this 
story  had  never  once  been  told  be- 
fore by  him,  even  at  the  preliminary 
examinations ;  and,  as  the  boy  had 
been  meanwhile  in  the  custody  of 
the  defense,  this  afterthought  of  his 
can  hardly  be  treated  as  valuable. 
{h)  The  presence  of  Bialk,  the  watch- 
man, in  the  engine  room  all  night, 
was  argued  as  negativing  any  real 
opportunity  for  the  crime.  But 
(1)  Bialk  was  absent  long  enough  to 
allow  its  commission ;  (2)  after  the 
body  had  been  put  into  the  vat, 
there  was  nothing  for  him  to  see; 
(3)  Luetgert  would  not  have  been 
deterred  by  the  fear  of  Bialk's  in- 
trusion, for  Bialk,  like  the  other 
employees,  was  evidently  too  much 
afraid  of  Luetgert  to  take  such  a 
liberty.^ 

5.  Operations  at  the  Vat.  —  That 
a  solution  of  potash  had  been  pre- 
pared in  the  vat,  and  that  Luetgert 


'  It  is  true  that  there  is  a  second  possibility,  viz.  that  the  woman  had  thrown  the  rings 
herself  into  the  vat  before  leaving ;   but  this  does  not  seem  worth  considering. 

2  Two  only,  as  illustrations,  may  be  suggested:  (1)  TJie  miscreant  must  have  divined 
exactly  where  to  place  the  rings  so  as  to  harmonize  most  closely  with  the  other  facts  then 
quite  unknown;  (2)  the  maker  of  the  rings  must  have  been  a  confederate  in  a  conspiracy, 
else  ho  would  have  come  forward  and  informed. 

'  The  incident  simply  illustrated  anew  the  failure  of  our  modern  system  of  expert  testi- 
mony; that  failure  resulting,  be  it  noted,  not  from  any  inherent  uncertainty  in  the  sub- 
ject nor  in  skilled  testimony  as  such,  but  in  the  marshaling  of  opposing  experts,  each  of 
them  subjected  to  the  suspicion  of  partisanship  ;  the  result  being  that  the  helpless  layman  i3 
forced  to  regard  them  merely  as  units  to  be  set  off  one  against  the  other. 

*  By  Bialk:  "I  haven't  done  it  [i.e.  looked  in  on  him]  because,  if  Mr.  Luetgert  saw  me,  I 
would  have  got  something." 


833 


PART    III.       PROBLEMS   OF    PROOF 


No.  387. 


had  gone  through  a  proces.s  of  boil- 
ing something,  and  then  dispo.sing 
of  it,  was  not  denied.  The  explana- 
tion offered  was  that  he  had  l)een 
trying  to  make  a  quantity  of  soft- 
soap,  preparator\-  to  a  thorough 
cleaning  of  the  sausage  factory  in 
order  to  make  a  good  impression 
upon  possible  purchasers  or  lenders 
of  money.  William  Charles,  Luet- 
gert's  brother-in-law  and  business 
agent  or  partner,  testified  fully  to 
this  plan.  According  to  his  story, 
the  potash  bought  for  this  purpose 
in  March  had  not  been  used,  be- 
cause the  pending  negotiation  for 
the  sale  of  the  factory  fell  through ; 
and  the  plan  was  again  thought  of 
when  there  seemed  a  new  prospect 
of  raising  money.  During  all  this 
time  the  potash  was  left  plainly  in 
view  in  the  shipping  room.  The 
undertaking  of  soap  making  was 
left  Ui.til  the  night  time  because  dur- 
ing the  day  Leutgert  was  too  busy 
in  looking  after  his  business  and 
trying  to  raise  money.  There  was 
no  attempt  to  conceal  the  process, 
and  Bialk  and  Odorowsky  were  called 
in  to  help.  The  additional  material 
required  consisted  of  three  barrels  of 
grease  or  tallow  and  one  barrel  of  ref- 
use meat  and  bones  ;  these  Charles 
himself  had  seen  Luetgert  put  into 
the  middle  vat,  where  the  potash  was, 
about  7  P.M.  on  Saturday,  May  1, 
and  Adolph  Elandt,  an  hostler  (still 
in  Luetgert's  employ),  testified  to 
taking  the  l)arrels  out  of  the  ice  house 
and  placing  them  alongside  the  vat 
about  7  A.M.  on  the  same  day.^ 
The  .soap  making,  however,  had 
failed,  the  grease  all  coagulating  in 
one  mass  and  the  tallow  in  another ; 
so  that  the  mixture  was  u.seless,  and 
the  material  was  therefore  cleaned 
up  and  thrown  away.^ 


It  is  important  at  this  point  to 
appreciate  the  relation  of  this  plaus- 
ible story  to  the  rest  of  the  case. 
(a)  If  the  story  were  false,  and  no 
.soap  making  had  ever  been  at- 
tempted, the  defense  was  without 
strength  at  any  one  point.  All  the 
most  sinister  interpretations  of  the 
extraordinary  process  of  Saturday 
and  Sunday  pressed  irresistibly  for 
immediate  acceptance.  They  could 
mean  nothing  but  murder ;  and 
with  the  other  evidence  they  seemed 
to  leave  no  room  for  doubt,  (h) 
Suppose,  on  the  other  hand,  that 
the  soap  making  story  were  true. 
It  would  still  be  not  impossible  that 
the  soap  making  had  been  under- 
taken as  a  mere  cover  for  the  murder, 
and  that  the  body,  the  grease,  and 
the  sausage  refuse  had  been  boiled 
together.  Nevertheless,  the  soap 
making  once  assumed  as  a  fact,  the 
case  of  the  prosecution  was  decidedly 
weakened.  The  whole  boiling  pro- 
cess and  the  preceding  preparations 
were  open  to  an  innocent  explana- 
tion ;  the  Sunday  smoke  and  the 
subsequent  disposal  of  the  refuse 
were  perhaps  natural  enough  ;  and 
the  slimy  stuff,  the  reddish  liquid, 
and  some  at  least  of  the  bones  were 
possibly  accounted  for ;  while  the 
uncertainty  as  to  the  nature  of  the 
other  bones  was  emphasized,  and 
demanded  fairly  to  be  solved  in  favor 
of  the  accused.  The  only  fact  of 
the  process  remaining  wdiolly  unex- 
plained by  this  theory  was  the  pres- 
ence of  the  rings  in  the  vat.  This, 
'to  be  sure,  with  the  other  evidence, 
might  well  go  for  proof ;  but  one 
at  least  could  not  quarrel  with  those 
who  would  in  that  situation  find 
their  minds  in  suspense  and  give  the 
accused  the  benefit  of  the  doubt. 
Thus,  in  short,  if  the  soap-making 


1  Three  witnesses  testified  to  this  man's  having  originally  denied  all  knowledge  of  the 
affair.  Moreover,  Odorowsky  and  Levandowski,  the  regular  men  about  the  factory,  did 
not  remember  seeing  Elandt  in  the  basement  at  any  time  on  that  day. 

2  This  theory  was  further  supported  l)y  expert  testimony  that  the  various  traces  found 
on  the  premises  were  inconsistent  with  the  hypothesis  that  a  human  body  had  been  boiled 
there,  but  were  consistent  with  the  soap-making  theory;  and  upon  this  issue,  and  its 
details,  another  hopeless  conflict  of  testimony  arose.  Much  burning,  boiling,  and  t(!sting 
was  done ;  and  two  grucsouK;  experiments  with  human  bodies  wore  conducted  in  the  self- 
SJima  middle  vat  of  the  basement. 


No.  387. 


LUETGERT  S    CASE 


837 


story  were  false,  the  accused's  case 
(it  would  seem)  was  left  hopelessly 
weak  ;  while,  if  it  were  true,  his  case, 
though  not  clear,  was  perhaps  en- 
titled to  the  benefit  of  a  reasonable 
doubt.  In  this  way  the  soap- 
making  story  may  be  said  to  have 
formed  the  crucial  element  in  the 
case. 

Was  it  to  be  believed  ?  There 
were  numerous  objections  to  be 
made  to  it,  —  some  slight,  some 
grave,  some  fatally  significant.  (1) 
The  story  was  not  advanced  at  the 
time  of  his  arrest  or  at  either  of  the 
preliminary  hearings,  when  it  would 
have  been  natural  to  clear  himself 
by  it.  Moreover,  neither  Bialk  nor 
Odorowsky,  the  helpers,  were  told 
of  the  purpose  of  the  process,  though 
it  would  have  been  natural  to  ex- 
plain to  them  at  the  time ;  nor  was 
any  one  else  told,  except  (as  alleged) 
Charles.  In  short,  it  bore  the  ap- 
pearance of  an  afterthought.  (2) 
If  the  purpose  of  the  process  was  so 
innocent,  why  should  Luetgert  take 
the  depths  of  the  night,  stay  cfose 
by  the  vat  till  3  in  the  morning,  and 
then  sit  in  his  chair,  fully  clothed, 
until  daylight  ?  That  he  was  too 
busy  in  the  daytime  looking  for 
money  not  only  does  not  explain  all 
this,  but  was  not  true,  for  he  was 
proved  by  his  own  witnesses  to  have 
been  about  the  factory  all  day  Sun- 
day, when  the  factory  was  idle.  (3) 
If  the  purpose  was  innocent,  why 
was  he  so  anxious  that  Charlie 
Maeder  should  say  nothing  about 
the  Sunday  smoke,  and  why  did 
he  not  explain,  as  was  natural,  to 
Mrs.   Tcsch,  that  his  soap  making 


had  required  an  extra  fire  on  that 
Sunday  ?  (4)  If  the  purpose  was 
innocent,  why  did  he  send  Bialk 
away  from  the  basement  upon  two 
needless  errands  ?  ^  (5)  If  the  pur- 
pose of  the  potash  was  this  soap 
making,  why  did  he  tell  the  selling 
clerk  of  Lord,  Owen  &  Co.  that  the 
potash  was  an  order  on  commission 
for  another  person  ?  (6)  Why  was 
any  soap  making  needed,  when  the 
factory,  so  far  as  appears,  wa; 
sufficiently  clean  ?  "■  (7)  If  cleanli- 
ness was  so  persistently  in  his  mind, 
why  did  he  leave  such  a  mess  in  the 
vat  for  two  weeks  ?  And  why, 
when  the  soap  making  failed,  did 
he  show  no  further  attempts  to 
carry  out  his  important  project  of 
cleaning  the  factory  ?  (8)  Why, 
before  making  soap,  did  he  not 
take  pains  to  learn  more  exactly 
the  conditions  of  the  process, 
and  why  did  he  proceed  in  a 
way  which  his  own  soap  making 
experts  declared  could  never  have 
produced  good  soap  ?  What  could 
have  made  him  suppose  that  refuse 
meat  and  bones  were  essential  to 
the  process  ?  Why  did  he  appar- 
ently shovel  out  some  of  the  bones 
after  the  failure,  and  burn  them  in 
the  smokehouse  ?  And  if  there 
were  separate  masses  of  grease  and 
tallow  (said  by  Charles  to  have  been 
formed),  why  did  they  appear  to 
Odorowsky  as  a  slimy  stinking  sub- 
stance permeating  the  whole  liquid  ? 
(9)  What  moved  Luetgert,  if  pre- 
paring for  soap  making,  to  purchase 
and  boil  down  enough  potash  — ■ 
378  pounds  —  to  make,  as  his  own 
expert    admitted,     from      IGOO     to 


1  The  Celery-Kola  compound  may  indeed  have  been  desired  for  some  ill  turn  ;  but  the 
nature  of  it  was  not  explained  ;  moreover,  why  were  not  both  commissions,  if  genuine, 
given  to  Bialk  for  a  single  errand  ?  The  Hunyadi-water  errand  was,  in  itself,  natural 
enough,  for  Luetgert  was  accustomed  to  .use  it ;  but  it  was  shown  that  he  had  already  a 
stock  of  thirty  filled  bottles  at  his  disposal  in  the  factory ;  and  why  should  he  send  out 
for  one  ?  It  was  explained  that  these  bottles  had  been  used  and  then  fraudulentlj'  refilled 
with  water  from  his  pump,  to  be  palmed  off  upon  retail  customers  at  his  store ;  but  this 
explanation  only  suggests  that  a  man  who  will  so  cheat  his  customers  will  not  hesitate  to 
manufacture  evidence.  Moreover,  he  did  not  drink  the  Hunyadi  water  after  all ;  why  not  ? 
It  was  said  that  the  druggist  had  sent  him  the  wrong  brand  of  Hunyadi  water ;  but  it  did 
not  appear  that  the  difference  was  enough  to  cause  him  to  reject  it. 

2  By  Odorowsky :  "I  cleaned  the  basement  pretty  nearly  every  day,  good  and  clean"  ; 
cleaning  was  a  regular  part  of  his  work.  The  deputy  sheriff  foreclosing  on  May  4  was  sur- 
prised to  find  a  sausage  factory  so  clean  a  place. 


838 


PART  III.   PROBLEMS  OF  PROOF 


No.  387 


2000  pounds  of  soft-soap,*  — 
enough  to  clean  the  factory  several 
times  over?  (10)  Why  should  he 
wish  to  be  his  own  soap  maker, 
when  there  were  at  hand  in  his 
grocery  shop  many  cases  of  hard 
soap,  and  several  boxes  of  soapine 
and  scrubine,  equally  suited  for  his 
purpose?  (11)  Why  should  he  pro- 
ceed in  his  own  way  clumsily  to 
make  soft  soap  (if  soft  soap  he 
must  have)  at  an  expense  of  Slo 
for  potash  and  something  more  for 
his  fuel  and  salable  grease,  when 
with  less  money  he  could  have 
bought  at  SI  a  barrel  enough  soft 
soap  to  answer  his  supposed  pur- 
pose? (12)  Finally,  it  was  ap- 
parently impossible  that  he  could 
have  tried  at  all  to  make  soap,  be- 
cause there  were  no  barrels  of  grease 
in  his  basement  on  the  evening  of 
May  1,  and  there  never  had  been 
during  any  one  week  since  March 
more  than  half  a  barrel.  This  was 
proved  by  Albert  Brinkhoff,  the 
teamster  of  Lester  &  Co.,  fertilizer 
makers,  who  had  a  contract  with 
Luetgert  for  all  the  grease  (tallow) 
and  bone  profluct  of  the  sausage 
factory.  Until  March,  when  the 
factory  shut  down,  this  man  had 
come  every  day  for  the  grease  and 
bones,  which  were  left  in  barrels 
in  the  basement ;  but  after  that  date 
he  called  only  every  Saturday,  get- 
ting now  only  as  much  weekly  as 
before  he  got  dailw     On  no  Satur- 


day had  he  taken  away  more  than 
70  pounds,  and  on  Saturday  morning. 
May  1  (the  day  of  the  supposed 
soap  making),  at  his  usual  call,  he 
had  taken  away  all  that  then  re- 
mained, —  about  66  pounds  of 
grease  (tallow)  and  115  pounds  of 
bones.-  It  w'as  thus  impossible 
that  there  could  have  been  three 
barrelfuls  (about  800  pounds)  in  the 
basement  on  Saturday  evening.'' 
This  fact,  it  would  seem,  disposed 
fatally  of  the  soap-making  explana- 
tion, and  put  it  out  of  the  case  as 
not  merely  an  improbability,  but 
an  impossibility. 

6.  Guilt II  Conduct. — The  answer 
to  this  evidence  was  simply  a  denial 
of  some  of  the  assertions  and  an  im- 
peachment of  the  witnesses.  The 
accused's  disinclination  to  report 
his  wife's  disappearance  was  ascribed 
to  a  wish  to  avoid  the  notoriety  and 
disgrace  of  publicity.^  But  it  must 
be  said  that  the  evidence  adduced 
by  the  prosecution  remained  sub- 
stantially undisturbed  and  unex- 
plained. 

On  October  21st,  after  deliberating 
for  sixty-six  hours,  the  jury  were 
unal)le  to  agree,  and  by  consent 
were  discharged.  They  stood  nine 
for  conviction  and  three  for  acquit- 
tal. On  February  9,  1898,  the 
second  jury  brought  in  a  verdict  of 
guilty,  fixing  the  sentence  at  im- 
prisonment for  life.  This  sentence 
was  explained  as  due  to  no  doubts 


'  By  another  witness  for  the  defense,  800  pounds ;  by  a  witness  for  the  prosecution  (a 
foreman  of  Armour  &  Co.,  making  100,000  pounds  of  soap  daily),  one  and  a  half  tons. 

2  Two  ex-employees  of  Luetgert  also  testified  that  there  had  never  been  a  full  barrel  of 
tallow  accumulated  before  the  weekly  removal.  Odorowsky  and  Lewandowsky,  who  had 
put  the  potash  near  the  vat,  saw  no  tallow  or  bones  there  on  Saturday,  May  1. 

5  In  surrebuttal  it  was  shown  that  there  did  exist  in  the  ice  house  a  quantity  of  fine 
tallow  used  in  making  sausages ;  but  it  was  of  a  quality  which  no  one  could  be  conceived 
of  as  wishing  to  waste  in  the  manufacture  of  coarse  soft  soap. 

*  Mr.  Goodrich,  a  membei  of  his  counsel's  firm,  testified  that  on  Monday,  May  3,  two 
days  after  the  disappearance,  Luetgert  had  consulted  him  about  his  pecuniary  tioubles, 
and  incidentally  mentioned  that  his  wife  had  left  him  ;  Mr.  Goodrich  agreed  with  him  that 
it  was  better  not  to  make  the  matter  public,  as  it  would  prevent  his  raising  money  on  his 
property.  But  this  .seems  a  slim  reason  for  such  secrecy  ;  for  if  the  wife  was  in  fact  missing 
when  it  came  to  requiring  a  release  of  dower,  all  the  previous  concealment  would  avail 
nothing. 

On  the  second  trial,  the  defendant  gave  much  time  to  explaining  that  his  pecuniary  trou- 
bles prevented  him  from  spending  time  in  the  search.  This  led  to  a  refutation  from  a 
former  bookkeeper,  whose  testimony  to  the  frauds  and  falsifications  in  his  business  showed 
(if  believed)  that  the  defendant  was  an  unscrupulous  swindler  of  the  deepest  dye;  this 
testimony  of  course  was  attacked  as  false. 


No.  3S7. 


LUETGERT  S   CASE 


839 


of  guilt,  but  to  scruples  as  to  capital 
punishment. 

Looking  over  the  case  as  a  whole, 
the  prosecution  may  be  said  to  have 
presented  a  thorough  array  of  sig- 
nificant circumstances,  covering  all 
the  chief  avenues  of  inference,  and 
amounting  in  combination  to  an  ir- 
resistible prima  facie  case.  The 
only  weaknesses  of  the  prosecution 
were  (so  to  speak)  accidental  ones, 
not  inherent  in  its  case  nor  essential 
to  its  argument ;  for  the  inconclu- 
siveness  of  the  Schimicke  girl's  story, 
and  the  uncertainty  resulting  from 
conflict  of  the  osteological  and 
chemical  experts,  which  seemed  at 
the  time  to  be  a  serious  reverse  for 
the  prosecution,  yet  in  truth  are 
seen,  upon  a  survey  of  the  whole 
case,  to  concern  only  two  subsidiary 
and   non-essential   circumstances. 

The  case  of  the  defense  was  in 
itself  a  weak  and  unsubstantial 
one,  except  for  the  soap-making 
story  and  the  plea  of  desertion, 
which  were  prima  facie  elements  of 
great  intrinsic  weight.  The  real 
achievement  of  the  defense,  however, 
consisted  in  its  determined  attack 
all  along  the  line,  opposing  every 
accusing  circumstance  by  some  an- 
swer or  other,  however  weak.  The 
result  was  a  noise  and  smoke  of 
general  conflict,  and  an  appearance 
of  real  balance  of  forces  and  uncer- 
tainty of  issue,  while  a  close  observa- 
tion, after  the  smoke  had  cleared 
away,  seemed  to  show  that  there 
never  had  been  any  real  equality 
of  forces  and  that  at  most  points 
the  opposing  movement  could  hardly 
be  described  as  more  than  a  feint. 


It  was,  perhaps,  this  general  and 
vigorous  attempt  to  give  battle 
all  along  the  line  which  marks  the 
trial  out  for  prominence  among 
others  of  its  class.  It  belongs,  to 
be  sure,  to  those  ca.ses  in  which 
the  evidence  was  entirely  circumstan- 
tial ;  but  so  many  of  the  supposed 
circumstances  depended  upon  con- 
flicting testimony  that  it  is  impos- 
sible to  settle  upon  the  data  of  in- 
ference without  assuming  that  one 
or  the  other  set  of  witnesses  spoke 
falsely.  It  is  therefore  not  a  pure 
case  of  circumstantial  evidence.  In 
difficulty  of  solution  as  a  problem 
and  in  perennial  capacity  for  differ- 
ence of  opinion,  it  can  never  com- 
pare with  the  famous  cases  which 
will  forever  interest  the  student,  — 
such  trials  as  that  of  Captain  Donel- 
lan,  of  Tutor  Monson,  of  Elizabeth 
Canning,  of  Cadet  Whitaker,  of 
Lizzie  Borden.  The  cool,  grim, 
unique  method  of  the  supposed 
uxoricide ;  the  choice  by  fate  of  a 
sausage  factory  as  the  locality  of 
the  crime ;  the  cellar,  the  vats,  the 
potash,  the  slime ;  the  imagined 
picture  of  the  husband  stirring  at 
midnight  the  caldron  ih  which  his 
wife  slowly  seethes  to  jelly ;  and 
the  curious  responsiveness  of  the 
sausage  market  to  the  repulsive 
though  unfounded  suspicions  of 
potential  adulteration,  —  these 
features,  to  be  sure,  were  at  least 
distinctive,  and  served  to  give  the 
case  current  notoriety ;  but  they 
do  not  contribute  to  place  it  among 
the  great  problems  of  circumstantial 
evidence. 


840 


PART    III.       PROBLEMS    OF    PROOF 


No.  388. 


388.    KARL  FRANZ'S  CASE.^ 

The  Queen  v.  Franz.  Murder.  — 
The  prisoner,  a  German,  was  indicted, 
alone,  for  the  willful  murder  of 
Martha  Halliday,  on  the  10th  of  June, 
1861,  at  Kin^jswood,  near  Reigate. 

On  the  7th  of  June,  three  days 
before  the  murder,  a  young  German 
(not  the  prisoner)  had  called  on 
Mademoiselle  Tietjens,  using  the 
name  of  Kron,  and  obtained  a  letter 
from  her  to  some  one  at  Hamburgh, 
representing  that  he  was  in  distress, 
and  desired  to  return  to  his  own 
country.  There  was  evidence  that, 
late  on  the  night  of  the  9th  of  June, 
the  prisoner  and  another  foreigner 
were  near  the  spot,  and  they  were 
identified  as  having  bought  some 
string  at  Reigate.  The  murder  was 
committed  on  the  night  of  the  10th 
of  June.  The  deceased  was  found 
tied  hand  and  foot  with  string 
(identified  with  that  proved  to  have 
been  so  bought),  and  something  was 
forced  into  her  throat  (apparently 
with  the  object  of  preventing  an 
outcry),  by  which  she  had  been 
suffocated.  There  was  a  stick  or 
club  found  and  two  pieces  of  wood, 
indicating  an  intention  of  the  bur- 
glars to  use  violence,  if  disturbed. 
The  house  had  been  forcibly  entered, 
and  the  object  evidently  had  been 
robbery.  In  the  room  were  found 
divers  papers,  which  it  was  admitted 
belonged  to  the  prisoner,  and  also 
the  letter  given  by  Mademoiselle 
Tietjens,  addressed  to  Adolph  Kron  ; 
there  was  likewise  a  book  containing 
entries  })y  the  prisoner,  in  the  man- 
ner of  a  diary,  coming  down  to  the 
8th>  9th,  and  10th  of  some  month. 
On  the  12th  of  June,  two  days  after 
the  murder,  the  prisoner  and  another 
foreigner  were  in  Whitechapel,  where 
they  went  to  a  lodging  house,  and 
where  the  other  left  him.  On  the 
16th  or  17th  of  June,  the  prisoner 
(as  it  appearefl  by  his  subsequent 
statement)     had    heard     that    two 


{a.  As  reported  in  2  F.  &  F.  580.)  .  . . 
Germans,  Franz  and  Kron,  were 
suspected  of  the  murder.  On  the 
23d  of  June,  the  prisoner,  being  in 
Newgate  for  some  offense,  was  there 
told  of  this  charge  with  the  usual 
caution,  and  gave  a  false  name, 
stating  that  he  had  come  from  Hull 
through  Leeds,  and  had  lost  his 
papers. 

On  the  27th  of  June,  being  brought 
up  for  the  first  time  on  this  charge, 
he  ga\e  the  false  name,  and  declared 
he  had  never  been  at  Reigate. 
After  a  remand,  he  was  brought  up 
again  on  July  1st,  and  the  discovery 
of  the  pocket  book,  etc.,  was  stated 
in  his  presence.  On  the  8th  he 
was  brought  up  again,  after  a 
week's  remand ;  and,  after  hearing 
all  the  evidence,  he  made  a  state- 
ment. He  declared  that  he  was 
thus  robbed  both  of  his  pocket 
book  and  "  pass,"  his  papers,  and 
some  of  his  clothes ;  and  he  ac- 
counted for  his  identification  by 
suggesting  that  the  murderer  had 
worn  his  coat  and  dropped  his 
pocket  book  and  papers  on  the  spot. 
He  said  one  of  the  foreigners  was 
called  Kron,  and  among  the  papers 
found  in  his  pocket  book  was  a 
letter  to  Kron.  He  did  not  in  his 
statement  make  any  allusion  to 
the  foreigner  with  whom  he  had 
gone  to  the  lodging  house  on  the 
12th  of  June. 

Many  witnesses  swore  to  seeing 
two  foreigners  at  or  near  the  place 
about  the  time  of  the  murder,  and 
identified  the  prisoner  as  one  of 
them  with  more  or  less  distinctness. 
They  were  traced  walking  towards 
London  on  the  11th,  and  woidd  have 
reached  London  probably  on  the 
12th,  the  day  on  which  the  prisoner, 
with  a  foreigner,  were  found  entering 
London,  fatigued  and  in  search  of 
washing  and  refreshment,  as  if  they 
had  been  out  all  night.  And  the 
prisoner's  things  were  tied   with    a 


^  [This  ease  is  givoM  in  throe  difT(;ront  accounts,  as  a  study  in  the  adequacy  and' relative 
tiustworthiness  of  different  commentators.  Sec  what  was  said  in  the  introductory  text 
to  Part  III.     Tlie  citation  of  tlie  full  report  of  the  case  is  given  in  the  Appendix.  —  Ed.] 


No.  388. 


K_\RL   FRANZ  S    CASE 


841 


string,  which  taUied  with  that 
found  about  the  corpse,  and  l)oth 
pieces  were  identified  by  the  maker, 
who  had  sold  string  to  the  seller, 
at  Reigate,  who  had  identified 
the  prisoner  as  the  purchaser  of 
string  from  him  just  before  the 
murder. 

The  prisoner  called  no  witnesses  ; 
his  statement  being,  that  his  papers 
had  been  stolen  at  Leeds.  It  must 
have  been  by  some  person  who  on 
the  7th  of  June  had  a  letter  from 
Madame  Tietjens  in  London,  and 
on  the  10th  was  at  Reigate,  on  the 
scene  of  the  murder. 

Blackburn,  J.  (charging  the  jury) : 
The  first  question  is,  has  the 
crime  been  committed  ?  That  must 
be  determined  before  you  can  say 
whether  the  prisoner  is  guilty  of  it. 
You  will  hardly  have  a  doubt  here 
that  a  murder  has  been  committed 
by  some  one.  .  .  .  All  who  are 
parties  to  that  violence  are  guilty 
of  murder.  You  need  not  take  on 
yourselves  the  responsibility  of  that 
[law].  I  take  that  on  myself.  The 
great  question  for  you  is,  whether, 
taking  all  the  circumstances,  it  is 
made  out  to  your  satisfaction  that 
the  prisoner  was  one  of  those  who 
inflicted  that  violence. 

The  whole  case  turns  on  circum- 
stantial evidence ;  i.e.  no  eyes 
have  witnessed  the  act.  You  are 
to  weigh  each  circumstance  to  see 
if  it  is  proved  by  itself.  There  are 
many  circumstances  put  in  evidence  ; 
you  may  believe  some,  and  think 
others  not  established ;  but  when 
you  take  all  those  things  that  you 
are  satisfied  of,  take  into  view  all 
the  evidence,  and  see  those  circum- 
stances. Some  of  the  facts  are  more 
strongly  established  than  others. 
But  the  question  for  you  is,  if  all 
the  circumstances  you  think  es- 
tablished lead  you  to  such  certainty 
as  you  would  act  on  in  a  matter  of 
great  consequence,  that  the  prisoner 
was  one  of  those  persons ;  if  so, 
it  is  your  duty  to  public  justice  to 
say  so.  But  if,  taking  all  those 
circumstances,  you  think  that  fact 


not  made  out,  the  prisoner  is  en- 
titled to  be  acquitted.   .  .  . 

Not  guilty. 

Karl  Franz's  Case.  {h.  As  stated 
by  H.  L.  Adam,  The  Story  of 
Crime,  19 — ,  p.  313.)  .  .  .  Some 
years  ago  a  mysterious  crime  was 
committed  at  Kingswood  Rectory, 
Reigate.  The  rector  and  his  family 
had  gone  away,  leaving  the  hou.se 
in  charge  of  a  Mrs.  Halliday,  who 
was  the  wife  of  the  parish  clerk. 
One  night  she  went  to  bed  as  usual, 
and  the  next  morning  was  found 
dead  —  murdered.  She  was  bound 
hand  and  foot  on  the  bed,  and  in  her 
mouth  some  sacking  had  been  stuffed, 
which  had  suffocated  her.  An  ex- 
amination of  the  premises  soon 
revealed  the  fact  that  the  crime 
had  been  committed  by  thieves. 
The  fact  that  they  had  taken  noth- 
ing with  them  pointed  to  the  sup- 
position that  they  must  have  been 
disturbed.  Now  the  village  school- 
master lived  opposite,  quite  near, 
and  on  the  night  in  question  he 
returned  home  rather  late,  and 
slammed  his  gate  as  he  went  in. 
It  must  have  been  this  noise  which 
alarmed  the  burglars  at  a  moment 
when  they  had  succeeded  in  silencing 
the  unfortunate  lady,  preparatory 
to  sacking  the  place,  and  induced 
them  to  clear  out.  The  probability 
was  that  they  thought  it  was  the 
gate  of  the  house  they  were  in  which 
was  slammed,  and  that  somebody 
was  entering  the  house.  The  men 
left  behind  them  a  packet  of  six 
papers  tied  with  a  thread,  and  these 
formed  important  clews,  and  led 
to  curious  developments. 

How  many  burglars  were  there  ? 
Clearly  two,  by  the  footprints  about 
the  house.  Their  method  of  pro- 
cedure was  also  soon  "  recon- 
structed "  by  the  police.  They 
had  first  gone  to  the  kitchen  win- 
dow, where  they  had  failed  to  effect 
an  entry.  They  had  then  taken 
themselves  to  the  back  of  the 
house,  climbed  on  to  the  roof  of  a 
small  "  lean-to "  building  just  be- 
neath the  window  of  the  room  in 


842 


PART   III,       PROBLEMS    OF    PROOF 


No.  3S8. 


which  the  victim  was  sleeping, 
removed  the  window,  chnibed  into 
the  room,  and  committed  the  crime 
of  murder.  At  that  moment  the 
schoohnaster's  gate  shimmed,  they 
retreated  by  the  same  way  they  had 
entered,  and  hastily  made  ofi". 

What  were  the  clews  ?  Let  us 
first  examine  the  papers.  They 
were  in  German,  and  consisted  of  a 
certificate  of  birth,  a  certificate  of 
baptism,  and  the  credentials  which 
in  Germany  are  given  to  craftsmen. 
All  the  papers  purported  to  belong 
to  and  be  concerning  one  Johann 
Carl  Franz,  of  Scandau,  in  Upper 
Saxony.  In  addition  to  these  docu- 
ments there  was  a  letter  of  a  begging 
description,  signed  Adolph  Khron, 
a  second  letter  from  a  well-known 
Continental  vocalist,  and  lastly  a 
slip  of  paper  containing  a  number 
of  addresses.  So  far  the  papers. 
Inquiry  in  the  neighborhood  soon 
elicited  the  information  that  two 
foreigners  had  appeared  at  the 
Cricketers  Inn  the  previous  evening, 
had  slept  there  the  night,  and  the 
following  day  were  seen  not  far 
from  Kingswood  Rectory ;  the  sup- 
position being  that  they  were  "re- 
connoitring." They  were  also  known 
to  have  purchased  from  a  general 
shop  some  peculiar  string  known  as 
''rublay,"  the  like  of  which  had 
lieen  used  to  bind  the  deceased 
woman.  It  seemed  pretty  conclusive 
now  that  the  two  foreigners  in 
question  were  the  culprits.  But 
where  were  they  ?  In  one  of  the 
papers  referred  to  there  was  a  descrip- 
tion of  the  "Carl  Franz"  men- 
tioned, but  the  police  could  discover 
no  trace  of  such  a  person. 

In  spite  of  these  clews  it  seemed 
that  no  further  light  was  destined 
to  be  thrown  upon  this  dark  deed. 
However,  some  time  after,  an  illumi- 
nating ray  .shone  across  the  path  of 
the  mystery,  which  served  though 
to  render  the  surroundings  even 
darker  still.  One  day  a  destitute 
German  was  arrested  in  London 
upon  some  trivial  charge,  but  what 
interested   the  police  most  was  his 


striking  resemblance  to  the  "Carl 
Franz"  of  the  papers,  and  he  was 
handed  over  to  the  Reigate  police. 
At  first  he  said  his  name  was  "  Salz- 
mann,"  but  upon  being  pressed  he 
admitted  that  his  name  was  Carl 
Franz,  and  that  some  of  the  papers 
found  at  the  rectory  were  his  prop- 
erty I  Upon  searching  his  lodgings 
they  came  across  a  shirt  tied  round 
with  a  piece  of  string  identical  with 
that  purchased  by  the  two  foreigners 
and  tiiat  found  on  the  body  of  the 
deceased  woman  I  In  addition  to 
this,  he  was  identified  as  being  one 
of  the  two  strangers  seen  in  Reigate. 
Could  anything  be  blacker,  more 
conclusive  ? 

Yet  in  spite  of  all  this,  the  man 
was  innocent.  It  appeared  that 
Franz  had,  some  weeks  prior  to  the 
murder,  landed  at  Hull  and  traveled 
on  foot  to  London.  On  the  way  he 
fell  in  with  two  fellow  countrymen, 
sailors,  one  of  whom  was  named 
Adolph  Khron,  the  other  William 
Gerstenberg.  The  latter  had  no 
"papers,"  and  was  very  pressing 
in  trying  to  induce  Franz  to  let 
him  have  his,  which,  however,  the 
latter  steadfastly  refused  to  do. 
One  evening  they  all  lay  down  in  a 
field  upon  a  heap  of  straw  and  went 
to  sleep.  WHien  Franz  awoke  his 
companions  had  disappeared,  as 
also  had  his  papers.  Eventually 
he  arri\ed  in  London  in  a  destitute 
condition.  One  day  he  made  him- 
self known  to  one  of  his  countrymen, 
who  took  him  into  an  eating  house 
and  paid  for  a  meal  for  him.  Dur- 
ing the  latter,  Franz's  companion 
produced  a  newspaper  containing 
an  account  of  the  murder  at  Reigate, 
in  which  it  was  stated  that  two 
foreigners  were  connected  with  the 
crime,  one  of  whom  was  named 
Carl  Franz.  At  this  Franz  be- 
came alarmed,  and,  in  order  not  to 
be  annoyed,  changed  his  name, 
adopting  the  one  given  to  the 
police,  "Salzmann." 

This  story,  however,  was  not 
considered  by  the  police  sufficient 
to    clear    him.     What    about    the 


No.  3S8. 


KARL   FRANZ  S   CASE 


843 


string  ?  It  was  found  that  this 
could  only  be  matched  at  the 
manufacturer's.  Questioned  as  to 
how  he  came  into  possession  of  the 
string  found  at  his  lodgings,  Franz 
explained  that  he  simply  picked  it 
up  outside  a  tobacconist's  shop  in 
Whitechapel.  This,  on  the  face  of 
it,  looked  very  like  a  lame  excuse, 
yet  it  proved  to  be  correct,  and  was 
not  the  least  strange  part  of  this 
very  strange  story.  It  was  found 
that  the  shop  he  had  indicated  was, 
in  fact,  near  his  lodgings,  and 
moreover  it  was  also  within  a  stone's 
throw  of  the  warehouse  of  the  very 
string  maker  who  made  the  partic- 
ular "rublay"  cord  for  the  Reigate 
tradesman  !  The  prisoner's  solicitor 
was  of  an  inquiring  turn  of  mind, 
so  he  went  to  Whitechapel,  and  on 
the  doorsill  of  the  printer's  office 
next  to  the  tobacconist's  mentioned 
by  Franz  himself  picked  up  a  piece 
of  "rublay"  cord.  Inside  the  office 
they  had  a  ball  of  it. 

There  was  yet  the  evidence  of 
identification  to  be  disposed  of, 
and  upon  this  being  sifted  it  was 
found  to  be  very  weak.  A  number 
of  persons  who  had  seen  the  two 
foreigners  in  Reigate  both  before 
and  after  the  murder  swore  that 
Franz  was  one  of  them.  But  ex- 
perience has  proved  to  demonstra- 
tion that  the  average  evidence  of 
identification  is  most  unreliable, 
and  some  people,  carried  away  by 
their  imagination,  which  is  in  no 
way  discouraged  by  the  police, 
will  swear  almost  anything.  It 
was  fortunate  for  Franz  that  the 
man  who  should  most  readily  have 
identified  him  had  he  been  one  of 
the  murderers,  entirely  failed  to  do 
so.  That  was  the  potman  of  the 
Cricketers  Inn  at  Reigate,  who  had 
had  the  two  foreigners  under  his 
notice  for  two  days,  and  was  partic- 
ularly attracted  to  them  by  their 
conversing  in  a  foreign  tongue. 
The  others  had  only  seen  the 
strangers  casiuilly.  This  negative 
witness  therefore  was  worth  more 
than  all  the  other  positive  witnesses 


put  together.  His  lack  of  evidence 
was  conclusive.  But  even  further, 
the  Continental  vocalist,  a  letter 
from  whom  was  found  among  the 
papers  left  behind  by  the  murderers 
at  Kingswood  Rectory,  testified  that 
she  gave  a  letter  of  introduction 
to  a  young  German  named  Adolph 
Khron,  but  that  the  prisoner  was 
certainly  not  the  man.  This  evi- 
dence confirmed  the  prisoner's  state- 
ment that  one  of  the  men  he  met 
on  his  way  to  London,  and  who  stole 
his  papers,  was  named  Adolph 
Khron.'  When  the  police  questioned 
him  concerning  the  papers  he  gave  a 
minutely  correct  description  of  those 
which  belonged  to  him,  and  which 
had  been  stolen  from  him. 

There  was,  of  course,  nothing  left 
to  do  but  to  release  the  prisoner, 
which  was  accordingly  done.  There 
can  be  no  doubt  that  the  murder 
was  committed  by  the  two  German 
sailors  who  robbed  Franz,  and  who 
were  never  captured.  As  to  their 
present  whereabouts.  Old  Time 
knows,  but  he  won't  tell. 

Karl  Franz's  Case.  (c.  As  stated 
by  N.  W.  Sibley,  Criminal  Appeal 
and  EvideJice,  1908,  p.  210.)  .  .  . 
The  facts  shown  in  evidence  in  the 
Kingswood  murder  case  were  that 
Martha  Halliday,  the  victim  of  the 
crime,  was  the  wife  of  the  parish 
clerk,  and  acted  as  caretaker  at 
Kingswood  Vicarage,  in  Surrey,  in 
the  absence  of  the  Vicar  and  his 
family.  On  Monday  evening,  June 
10,  1861,  she  parted  from  her 
husband  at  the  Vicarage  door  be- 
tween six  and  seven  o'clock.  Next 
morning,  when  Halliday  was  pro- 
ceeding to  the  Vicarage  to  see  his 
wife,  he  noticed  footprints,  ap- 
parently of  two  strangers,  on  the 
Vicarage  grounds.  The  footprints 
were  traced  to  the  kitchen  window, 
in  front  of  the  house,  where  an 
apparent  attempt  had  been  made 
to  break  in,  which  had  been  foiled 
by  shutters.  The  footprints  then 
were  traced  to  beneath  the  window 
of  the  room  in  which  Martha  Halli- 
day   slept.     W'hen     Halliday     pro- 


844 


PART    III.       PROBLEMS   OF    PROOF 


No.  38S. 


ceedecl  to  the  back  door  of  the 
parsonage  he  found  it  closed,  as  he 
had  left  it  on  the  previous  evening ; 
then,  "passing  to  the  other  side  of 
the  house,  he  found  the  front  door 
partially  opened.  This  being  the 
re\erse  of  what  was  usual  during 
the  family's  absence,  he  became 
doul)ly  alarmed.  Not  finding  his 
wife  downstairs,  he  went  to  her 
bedroom,  and  there  found  her  lying 
on  the  floor  in  her  nightdress, 
evidently  murdered.  She  had  been 
suffocated  ;  a  sock  was  thrust  with 
great  violence  into  her  mouth  as  a 
gag,  and  her  tongue  was  forced  back 
over  the  glottis.  It  was  evident 
that  she  had  been  roused  from  her 
sleep  by  the  breaking  of  the  pane 
of  glass  and  by  the  burglars  having 
overturned,  in  their  ingress  through 
the  window,  the  looking-glass  on 
the  chest  of  drawers.  She  was 
further  secured  by  tying  her  feet  and 
arms  tightly  around  with  some 
rublay  cord  Avhich  the  offenders 
must  have  brought  with  them, 
prepared  with  slip  knots.  There 
was  picked  up  just  under  the  bed 
and  about  six  inches  from  the 
shoulder  of  the  corpse,  a  packet  of 
six  papers  tied  round  with  a  thread. 
Upon  opening  the  packet,  these 
papers  were  all  found  to  be  WTitten 
in  German.  Three  of  the  six  papers 
were  a  book  called  the  "  service 
book,"  being  the  credentials  fur- 
nished in  Germany  to  craftsmen 
and  others ;  a  certificate  of  birth, 
and  a  certificate  of  baptism,  all 
three  purporting  to  belong  to  Johann 
Carl  Franz,  of  Schandau,  in  Upper 
Saxony.  The  other  three  papers 
did  not  suggest  any  connection 
with  Franz.  One  was  a  letter 
soliciting  relief  from  some  lady 
of  (piality,  signed  "  Adolph  Kron." 
There  was  also  a  letter  from  Madame 
Tietjens,  the  then  famous  operatic 
singer,  dated  June  7th,  the  Friday 
precefling  the  crime.  Lastly,  there 
was  a  slip  of  paper  with  a  numl)er  of 
addresses  on  it.  All  six  papers 
found  on  the  scene  of  the  crime 
were    written    in    German.     There 


was  also  a  thick  bludgeon-shaped 
stick  found  in  the  room.  It  was 
also  evident  that  the  ruffians  must 
have  quitted  the  house  precipitately, 
as  presumably  the  motive  was  rob- 
bery, but  nothing  was  taken,  though 
the  purse  of  the  victim,  with  some 
money  and  a  ring  in  it,  was  found 
in  the  pocket  of  her  dress,  hanging 
on  the  door  of  her  room.  The 
conjecture  that  the  burglars  must 
have  been  disturl)ed  seemed  in- 
directly confirmed  by  the  fact  that 
the  village  schoolmaster,  on  re- 
turning home  at  midnight  on  the 
night  of  the  murder,  stated  that  he 
slammed  his  gate  with  some  noise, 
and  he  lived  close  to  the  parsonage. 
The  clew  afforded  by  the  papers 
found  by  the  corpse  —  furnishing 
inflamed  probability  that  the  murder 
had  been  committed  by  two  Ger- 
mans —  appeared  at  once  to  iuira\el 
the  mystery,  as  very  indicative 
evidence  was  at  once  forthcoming 
of  the  presence  of  one,  if  not  two, 
pairs  of  rough-looking  foreigners 
in  the  neighborhood,  and  in  the 
immediate  vicinity  of  the  parsonage, 
only  a  few  hours  before  the  time 
when  the  murder  must  have  been 
committed.  About  midday  on  Sun- 
da}',  the  day  before  the  crime  was 
committed  (it  having  been  com- 
mitted during  the  night  of  Monday, 
June  lOth),  two  foreigners,  one 
short  and  dark,  the  other  fairer  and 
taller,  entered  the  town  of  Reigate 
from  the  London  side,  and  applied 
for  lodging  at  the  Cricketers  public 
house,  immediately  opposite  the 
police  station,  four  miles  from  Kings- 
wood.  They  went  out  after  an  hour 
to  make  some  purchases,  which 
consisted  of  small  quantities  of 
meat,  barley,  and  flour.  While  at 
the  ( 'ricketers  Inn  the  two  foreigners 
sat  in  the  public  room,  and  were  well 
observed  by  the  potman  and  the 
freciuenters  of  the  place.  They  left 
the  Cricketers  Inn  at  half  past  four 
in  the  afternoon  on  the  next  day, 
Monday,  June  10th.  On  Monday, 
June  lOth,  between  two  and  four 
o'clock  in  the  afternoon,  two  foreign- 


No.  3SS. 


KARL    FRANZ  S    CASE 


845 


ers  purchased  a  ball  of  string  of 
peculiar  make  at  Reigate.  The 
maker,  in  subsequently  describing 
the  string,  pronounced  it  to  be 
rublay  cord,  and  very  seldom  made. 
The  men  were  some  six  minutes  in 
suiting  themselves  with  this  string, 
and  were  noticed  both  by  the 
mistress  of  the  shop  and  her  servant. 
On  ^Monday  afternoon,  at  a  time 
subsequent  to  the  departure  of  the 
two  men  from  the  Cricketers  Inn  at 
Reigate,  two  foreigners  Avere  seen 
crossing  Reigate  Hill  on  the  road  to 
Kingswood.  About  seven  o'clock 
on  Monday  evening,  within  little 
more  than  a  mile  from  the  parsonage 
at  Kingswood,  a  laborer  saw  two 
men,  ten  yards  off,  under  a  beech 
tree  in  a  thicket  called  Kingswood 
Roughit.  On  this  same  tree  there 
was  found,  in  a  search  made  subse- 
quently to  the  murder,  the  broken 
end  of  a  branch,  which  corresponded 
with  the  thick  bludgeon-shaped  stick 
found  in  the  room  where  the  murder 
was  committed.  Finally,  a  police 
'constable,  stationed  at  Sutton,  at 
2.30  A.M.  on  the  morning  of  Tuesday, 
June  11th,  met  two  foreigners  talk- 
ing and  walking  very  fast  towards 
London,  on  the  road  between  Kings- 
wood  and  Sutton.  Mr.  Alcock, 
M.  P.,  in  whose  employ  the  husband 
of  the  murdered  woman  was,  offered 
a  reward  of  £200  for  the  discovery 
of  the  perpetrators  of  the  crime. 

After  a  few  weeks,  a  destitute 
German  was  arrested  in  London 
upon  the  charge  of  being  secreted 
in  a  house  in  Old  Broad  Street  with 
intent  to  commit  felony.  On  arrest 
he  gave  his  name  as  Saltzmann, 
but  became  suspected  of  the  Kings- 
wood  murder  by  being  identified 
by  witnesses  from  Reigate,  and  he 
ultimately  confessed  his  name  was 
Franz.  On  July  8th  he  was  brought 
before  the  magistrates  at  Reigate,  and 
was  committed  for  trial.  Three  facts 
pointed  strongly  to  the  guilt  of  the 
prisoner:  (1)  He  was  completely  iden- 
tifiefl  on  the  testimony  of  a  police 
officer  from  Saxony  as  the  owner  of 
the  papers   bearing  his    name,  and 


the  individual  to  whom  the  service 
l)ook  had  been  delivered  in  Germany, 
which  had  been  found  within  a  few 
inches  of  the  corpse  of  the  murdered 
woman  by  her  husband  on  Tuesday, 
June  11th;  (2)  Mrs.  Mary  Pither, 
of  Reigate,  at  whose  shop  the  two 
foreigners  had  purchased  the  string 
on  the  ^Monday,  gave  evidence 
before  the  magistrates  that,  to  the 
best  of  her  belief,  Franz  was  one  of 
them.  She  recognized  the  voice. 
She,  however,  declared  that  his 
appearance,  hair,  and  cap  impressed 
her  more  than  his  countenance. 
She  could  not  "realize  his  counte- 
nance." Franz,  she  added,  looked 
thinner  than  when  she  saw  him 
previously.  She  described  the  pur- 
chaser of  the  string  as  "rather  tall, 
fair,  and  thin."  In  the  account 
of  the  police  court  proceedings  in 
the  Times,  Franz  was  described  as 
"slight  and  lithe,  about  5  feet  5 
inches  in  height ;  he  has  very 
trifling  indications  of  a  light  downy 
beard,  and  appears  to  be  little 
more  than  twenty  years  of  age." 
Mrs.  Pither's  servant  identified 
Franz  with  more  distinctness.  It 
appears  that  the  two  foreigners 
took  about  six  minutes  to  purchase 
the  string,  having  rejected  kinds 
previously  offered  them.  James 
Blunden,  a  laborer,  gave  evidence 
that  Franz  appeared  to  correspond 
with  one  of  the  two  foreigners  he 
saw  standing  in  a  thicket  about  a 
mile  and  a  quarter  from  Kingswood 
Rectory  a  little  after  seven  in  the 
evening  before  the  commission  of 
the  murder.  But  this  witness  also 
declared  that  he  could  not  identify 
him  with  any  certainty.  Both  the 
men  Blunden  saw  in  the  thicket  were 
dressed  in  dark  clothes.  But  Mary 
Elsey,  a  servant  to  Mrs.  Pither, 
swore  positively  that  the  prisoner 
was  one  of  the  two  foreigners  who 
piirchased  string  at  her  shop  l^etween 
two  and  four  on  the  Monday  after- 
noon. Mr.  J.  F.  Matthews,  a 
builder,  of  Reigate,  expressed  his 
belief  before  the  magistrates  that 
he  recognized   the  prisoner  as  one 


846 


PART   III.       PROBLEMS   OF    PROOF 


No.  388. 


of  two  men  he  met  on  the  road 
going  towards  Kingswood  between 
three  and  five  on  the  IMonday 
afternoon.  He  stated  that  at  first 
sight,  on  seeing  him  full  face  at  the 
station,  he  failed  to  recognize  the 
prisoner,  but  on  seeing  Franz  in 
court  he  believed  him  to  be  the 
person  whom  he  passed  on  the 
road.  He  added  that  the  two 
men  he  passed  looked  very  hard 
at  him,  and  so  he  turned  round  and 
looked  at  them.  George  Rose- 
blade,  the  potman  at  the  Cricketers 
Inn,  Reigate,  recollected  the  two 
foreigners  who  came  to  that  place 
on  Sunday,  June  9th,  about  11.15 
A.M.,  and  stayed  there  till  4.30  p.m. 
on  the  next  day.  He  declared  that 
the  prisoner  was  the  taller  of  the 
two,  and  the  one  who  could  not 
speak  English.  But  this  witness 
only  identified  Franz  after  a  third 
examination.  Finally,  Police-con- 
stable Peck  iflentified  Franz  as  the 
taller  of  the  two  foreigners  he  met 
very  early  in  the  morning  of  June 
11th,  on  the  road  between  Kings- 
woofl  and  Sutton,  walking  very  fast 
towards  London.  He  stated  that  he 
believed  Franz  to  be  the  one  of  the 
two  foreigners  who  stood  on  the 
other  side  of  the  road,  but  who 
spoke  two  or  three  times  in  his 
presence  to  the  other  foreigner. 
However,  this  witness  did  not  render 
vesry  conclusive  evidence,  as  he 
could  not  positively  swear  to  Franz's 
identity  with  one  of  the  foreigners 
he  met ;  he  merely  said  he  believed 
the  prisoner  to  be  that  man.  —  It 
is  curious  to  note  that  Adolph  Kron, 
who  was  more  proximately  identified 
with  the  packet  of  papers  found  near 
the  corpse  of  the  murdered  woman 
than  Franz,  was  described  with 
the  utmost  distinctness  by  all  the 
above  witnesses,  as  well  as  by  Ma- 
dame Tietjens.  The  fact  that  he 
should  ha\e  been  more  clearly 
descril:)ed,  however,  seems  accounted 
for  by  the  fact  that  he  alone  of  the 
two  foreigners  knew  English  and 
acted  as  spokesman.  A  person  is 
more  likely  to  identify  another  with 


whom  he  has  spoken  than  a  third 
person  whom  he  has  neither  an- 
swered nor  addressed  a  remark  to. 
It  .seems  impossil)le  not  to  suppose 
that  Kron  was  one  of  the  parties 
who  committed  the  crime.  But 
though  Kron  was  proved  to  have 
been  in  company  with  Franz  at  a 
lodging-house  in  Whitechapel  some 
days  after  the  murder,  the  former 
deserted  the  latter  on  June  15th, 
and  was  never  again  heard  of  till  his 
reported  death  in  September  of  that 
year. 

Police-constable  Bashford,  of  Rei- 
gate, swore  positively  that  Franz 
was  one  of  the  two  foreigners  he 
saw  at  the  Cricketers  Inn  on 
Monday,  June  10th,  and  declared 
that  the  other  was  "dark-haired 
and  fresh  complexioned,"  very 
\outhful  in  appearance,  did  not 
look  above  twenty,  and  was  very 
short,  little  over  five  feet  in  height. 
Madame  Tietjens  described  Kron, 
whom  she  had  assisted  on  the  Fri- 
day preceding  the  murder,  out  of 
compassion  to  a  destitute  foreigner, 
as  a  boyish-looking  person  of  prob- 
ably eighteen  or  nineteen  years  of 
age.  He  had  light  brown  hair,  wore 
a  brown  coat,  blue  and  white 
striped  shirt  with  a  turn-down  collar, 
and  a  black  necktie.  The  potman 
at  the  Cricketers  Inn  at  Reigate 
described  one  of  the  two  foreigners 
who  came  there  on  the  Sunday 
morning  as  about  nineteen  years 
of  age,  about  five  foot  three  or  four 
in  height.  He  wore,  this  witness 
added,  a  very  dark  coat,  dark  trou- 
sers, common  blue  striped  shirt  anfl 
black  necktie,  with  a  collar  turned 
down  over.  The  police-constal)le 
who  met  the. two  foreigners  walking 
very  rapidly  on  the  road  between 
Kingswood  and  Sutton  very  early  on 
Tuesday  morning,  June  11th,  de- 
clared that  the  one  with  whom  he 
exchanged  remarks  was  about  nine- 
teen years  of  age,  about  five  foot 
one  inch  in  height,  had  dark  frizzly 
hair,  and  was  dressed  in  dark  clothes 
with  a  cap.  David  Levi,  a  Polish 
Jew,  stated  before  the  magistrates 


No.  388. 


1L\RL   FRANZ  S    CASE 


847 


at  Croydon  that  he  recognized 
Franz  as  one  of  two  foreigners  he 
met  in  Osborne  Street,  Whitechapcl, 
on  June  12th,  that  is,  two  days  after 
the  crime.  The  other  foreigner 
was  a  smaller  man  than  Franz, 
not  more  than  eighteen  or  nineteen 
years  of  age,  and  looked  quite  a 
boy.  Levi  directed  the  men,  who 
said  they  had  been  out  all  night,  to 
a  lodging-house.  It  also  appeared 
that  after  three  or  four  days  the 
two  had  a  quarrel,  in  the  course  of 
which  Kron  struck  Franz.  The 
latter  then  said  :  "  Don't  think  so 
much  of  yourself,  you  know  very 
well."  Kron  betrayed  marks  of 
great  discomfiture  at  the  remark, 
and  parted  from  Franz  next  morn- 
ing, on  June  loth. 

The  third  circumstance  that  ap- 
peared to  connect  Franz  with  the 
crime  was  that  there  was  found 
round  a  shirt  left  by  him  at  his 
lodgings  a  piece  of  hempen  cord, 
of  precisely  the  same  kind  and  the 
same  appearance  as  the  pieces  with 
which  the  limbs  of  the  victim  of  the 
Kingswood  murder  had  been  bound, 
and  matching  as  precisely  with  the 
bulk  from  which  the  ball  sold  at 
Reigate  to  the  two  foreigners  had 
been  severed. 

The  prisoner's  statement,  which 
is  invested  with  nothing  less  than 
decisive  interest  in  vieAV  of  the 
occurrences  that  transpired  at  his 
arrest,  is  as  follows :  "  I  will  con- 
fess that  I  am  Johann  Carl  Franz, 
from  Shandau.  I  have  hitherto 
instinctively  kept  it  secret  from 
love  of  life.  It  might  be  the  16th  or 
17th  of  June  when  I  went  about  in 
Whitechapel  about  4  o'clock  in 
the  afternoon.  I  heard  a  couple  of 
young  men,  who  had  the  appearance 
of  mechanics,  speak  together,  and 
I  perceived  by  their  language  they 
were  Germans.  As  they  separated 
from  one  another  I  accosted  one  of 
them  and  complained  to  him  of  my 
distress,  telling  him  I  had  eaten 
nothing  the  whole  day,  and  that  a 
penny  was  wanting  to  pay  for  my 
bed.     He   gave   me   as    answer,    '  I 


am  hungry  too ;  let  us  go  into  the 
next  eating-house.'  There  he  had 
some  peas  given  to  me  few  2d.  He 
himself  ate  broth.  Afterwards  he 
read  the  newspaper,  and  said, '  There 
are  two  other  Germans  Ijeing  pur- 
sued ;  one  is  called  Johann  Carl 
Franz.'  At  that  I  was  very  much 
frightened  and  turned  pale.  He 
perceived  by  my  face  that  I  did  so, 
and  asked  me,  'What's  the  matter 
with  you  ? '  He  said  that  the  other's 
name  was  Adolphe  Krohn.  Here- 
upon he  related  to  me  that  he  was 
a  journeyman  baker,  and  would 
emigrate  to  America  in  a  few  days. 
I  must  already  announce  that  I 
stated  to  Sergeant  Spittal  that  I 
wandered  on  the  road  from  Hull 
to  London  with  two  German  sailors. 
Of  them,  the  younger  one  was 
named  Adolphe  Krohn,  and  the 
taller  one  —  of  my  stature  —  was 
named  William  Gerstenberg.  I  was 
Avandering  with  both  of  them ; 
I  do  not  know  the  name  of  the 
nearest  town  from  Hull  where  I  met 
both  sailors.  I  traveled  with  them 
to  beyond  Leeds.  There  we  passed 
the  night  in  the  open  fields  behind 
a  straw  stack.  When  I  awoke,  at 
six  o'clock  in  the  morning,  both  the 
sailors  were  vanished,  and  had  taken 
my  traveling  bag  with  them.  In 
this  bag  there  was  a  brown  greatcoat, 
a  pair  of  brown  buckskin  trousers, 
a  waistcoat  from  the  same  piece  as 
that  which  I  now  wear,  and  my 
papers,  consisting  of  a  sailor's  pass- 
book, a  certificate  of  birth  and 
baptism,  and  a  railway  tariff.  These 
were  together  in  a  blue  cover. 
Both  the  sailors  had  expressed  that 
they  were  going  to  furnish  themselves 
with  money  from  some  Catholic 
priest,  because  they  thought  that 
the  Catholic  priests  were  always 
very  rich,  and  they  themselves 
were  Catholics.  But  the  tallest 
one  had  no  papers,  and  was  con- 
stantly asking  me  whether  I  had 
no  papers  to  spare  for  him.  I  con- 
stantly refused  him  them  because 
I  wanted  to  keep  them  myself. 
Now  I  must,  at  the  same  time,  own 


848 


PART  III.   PROBLEMS  OF  PROOF 


No.  38a 


that  I  am  really  married,  and 
have  a  wife  with  two  children. 
AVhen  I  heard  the  name  Adolphe 
Krohn  in  the  eating-house,  I  im- 
mediately foreboded  that  it  might 
be  the  two  sailors,  and  that  the 
tall  one  had  seized  my  papers.  In 
that  the  only  error  consists  that  so 
many  people  here  in  Reigate  fancy 
they  have  seen  me,  because  the 
tallest  one  wore  my  whole  attire. 
The  taller  one  had  no  coat  at  all 
when  I  was  with  them.  He  went  in 
a  sailor's  blue  shirt,  and  probably-  he 
put  on  my  brown  o\ercoat,  and 
thus  he  hatl  much  resemblance  to 
me.  Adolphe  Krohn,  the  other 
one,  spoke  English  better  than 
German.  Both  pretended  to  have 
been  born  in  Vienna.  Now  I  can 
aver  to  the  magistrates  that  I 
have  never  been  in  Reigate,  and 
take  the  greatest  oath  that  I  am 
no  murderer. "  ^ 

This  extraordinary  narrative  re- 
ceived dramatic,  if  merely  admit- 
tedly partial,  corroboration  by  evi- 
dence that  came  into  the  possession 
of  the  Crown  after  Franz's  arrest. 
The  prisoner  mentioned  a  railway 
tariff  as  among  the  papers  that  had 
been  stolen  from  him,  and  this  was 
not  found  at  Kingswood.  Again, 
in  order  to  prove  the  prisoner's 
handwriting,  the  Crown,  at  the 
trial,  produced  a  diary  kept  by 
the  prisoner  from  the  time  he  left 
his  home,  recording  his  arrival  at 
Hull,  his  travels  through  Leeds, 
Oldham,  and  ]\Ianchester  to  Liver- 
pool, his  stay  there  while  endeavor- 
ing to  get  a  ship  for  America,  his 
departure  for  London,  and  his 
passage  through  Warrington  and 
some  other  places  to  Leek  in  Staf- 
fordshire, where  the  narrative 
abruptly  ended.  The  entries  in 
this  diary  came  down  to  the  8th, 
9th,  10th  of  some  month.  It  then 
transpired  that  the  railway  tariff, 
the  diary,  and  a  certificate  of  con- 
firmation had  l)een  picked  up  by 
two  tramps  on  a  heap  of  straw  in  a 
roadside  hovel  on  the  borders  of 
'  The  Times,  July 


Northamptonshire,  and  had  been 
brought  by  them  to  a  magistrate  on 
July  9th,  the  day  after  the  prisoner 
told  his  story,  of  which  it  thus 
afl'orded  a  singular  corroboration. 

Again,  it  was  true  that  the 
prisoner  had  a  pack  when  he  landed 
in  England,  though  non  constat  that 
it  was  stolen.  It  was  suggested 
that,  owing  to  the  state  of  destitu- 
tion he  was  in,  he  might  have  sold 
or  pawned  it,  but  no  such  transac- 
tion was  shown  to  have  occurred. 
A  Very  curious  coincidence  was  that 
an  unfinished  letter  of  Franz  to  his 
parents  was  found  on  him  to  the 
following  effect :  "  Dear  Parents,  — 
for  goodness'  sake,  what  shall  I  do  ? 
You  know  with  Avhat  resolution  I 
went  to  work  to  get  to  America.  I 
found  myself  in  a  most  horrible 
position,  but  how  I  came  in  that 
position  is  very  natural."  It  is 
difficult  to  conceive,  broken  and 
abrupt  as  this  epistle  is,  a  more 
natural  letter  to  pen  than  this  for  a 
man  who,  like  Franz,  found  himself 
suddenly  exposed  to  a  terrible 
charge,  alone  and  destitute  in  a 
strange  land,  assuming  the  hypothe- 
sis that  he  was  an  innocent  man ; 
and  the  question  on  this  view  seems 
solely  to  resolve  itself  into  the  in- 
quiry whether  it  can  be  supposed 
that  the  letter  was  a  mere  stratagem 
to  induce  the  view  that  he  was  inno- 
cent. It  must  be  rememl)ered  that 
Franz  was  not  a  good  character, 
having  been  previously  convicted  of 
felony  in  Saxony.  But  supposing  it 
to  be  a  mere  criminal  ruse,  it  seems 
strange  that  the  letter  should  not 
have  been  finished.  There  was  an 
interval  of  a  whole  montii  between 
the  date  of  the  murder  at  Kings- 
wood  and  Franz's  arrest  for  loiter- 
ing with  intent  to  commit  a  felony 
in  Old  Broad  Street.  If,  therefore, 
he  had  formed  the  design  of  simu- 
lating innocence  by  the  fabrication 
of  a  document,  he  had  plenty  of 
time  within  which  he  might  have 
effected  his  object. 

The  weak  points  in  Franz's  story 

9,  18G1,  p.  5.  col.  d. 


No.  388. 


K.\RL   FRANZ  S    CASE 


849 


are  his  knowledge  of  Kron,  his  entire 
failure  to  prove  an  alibi,  and  the 
entire  absence  of  any  proof  that 
William  Gerstenberg  ever  existed. 
In  spite  of  the  great  reward  offered, 
the  apprehension  of  Kron  was  never 
effected.  It  seems  quite  impossible 
to  assume  Kron's  innocence.  The 
letters  found  by  the  corpse  must, 
only  three  days  before  the  crime, 
have  been  in  Kron's  actual  posses- 
sion ;  this  observation  is  clearly 
justified  as  regards  the  letter  of 
Madame  Tietjens.  The  packet 
found  by  the  corpse  was  far  more 
incriminating  as  regards  Kron  than 
as  regards  Franz,  as  there  was  noth- 
ing to  show  when  the  pass  and  bap- 
tismal certificate  had  last  been  in 
Franz's  hands.  All  that  can  be  sup- 
posed is  that  they  were  in  his  hands 
when  he  landed  at  Hull  in  April  of 
the  same  year.  On  the  other  hand, 
it  is  plain  to  demonstration  that  the 
letter  of  Madame  Tietjens  must 
have  been  in  Kron's  possession  on 
the  7th  of  Jvme,  the  murder  having 
been  committed  on  the  10th  of  that 
month.  Again,  all  the  five  witnesses 
who  described  the  two  foreigners  in 
the  vicinity  of  Reigate  and  Kings- 
wood  described  one  of  them  exactly 
as  Madame  Tietjens  described  Kron. 
As  the  spokesman  of  the  two  for- 
eigners at  Reigate,  Kron  exposed 
himself  to  much  more  certain  evi- 
dence of  identity.  The  guilt  of 
Kron  appears  a  far  less  precarious 
hypothesis  than  the  guilt  of  Franz. 

But  Franz  was  associated  with 
Kron  in  all  imaginable  ways.  Ac- 
cording to  Franz's  owti  admission 
he  was  associated  with  Kron  before 
the  murder.  By  documentary  evi- 
dence the  association  of  the  two  is 
brought  down  to  a  later  date  than 
seems  consistent  with  Franz's  story. 
It  was  stated  in  a  paragraph  in  the 
Times  that  a  short  time  before  the 
murder  Kron  applied  to  a  gentleman 
in  the  City  for  relief,  and  procured 
ten  shillings  and  a  free  pass  to  Ham- 
biH'g  by  a  steam  vessel  which  was 
leaving  London  for  that  place  on  the 

1  The  Times, 


following  day ;  and  this  pass  was 
found  upon  the  prisoner  Franz  when 
apprehended.  Again,  Franz  and 
Kron  were  identified  indirectly  by 
the  packet  found  by  the  corpse  of 
the  murdered  woman  in  the  parson- 
age at  Kingswood,  to  say  nothing 
of  the  evidence  as  to  identity  re- 
garding the  two  foreigners  seen  in 
the  vicinity  immediately  preceding, 
and  after,  the  time  when  the  crime 
must  have  been  committed.  Lastly, 
there  is  evidence  that  Franz  was 
associated  with  a  foreigner  two  days 
after  the  murder  in  Whitechapel, 
whose  description,  as  given  by  a 
witness,  corresponded  in  all  respects 
with  the  description  of  Kron  given 
by  iMadame  Tietjens  five  days  before 
the  murder.  This  witness,  David 
Levi,  who  casually  befriended  Franz 
and  his  companion  as  a  foreigner, 
described  the  latter  as  "a  smaller 
man  than  Franz,  and  not  more  than 
18  or  19  years  of  age;  he  looked 
quite  a  boy,  and  was  a  foreigner." 
The  identification  of  Franz  by  this 
witness  was  complete,  as  he  stated 
to  him  that  he  came  from  Shandau 
in  the  Saxon  Swiss,  that  he  intended 
to  proceed  to  America,  and  that  he 
had  a  wife  and  two  children.  This 
statement  corresponded,  therefore, 
in  three  material  particulars  with 
the  statement  Franz  subsequently 
made  before  the  magistrates. 

Blackburn,  J.,  as  regards  the 
evidence,  told  the  jury  that  it  cer- 
tainly was  a  very  material  question 
for  them  whether  it  had  been  satis- 
factorily established  that  the  prisoner 
was  one  of  the  men  who  was  seen 
near  the  scene  of  the  murder  shortly 
before  it  was  committed ;  and  if 
they  believed  this  to  have  been  made 
out,  they  would  then  have  to  take 
into  consideration  the  other  circum- 
stances of  the  case,  and  say  by  their 
verdict  whether  the  evidence  satis- 
fied them  that  the  prisoner  was  one 
of  the  parties  concerned  in  the  mur- 
der.^ It  seems  regrettable  that 
neither  the  account  of  the  Kings- 
wood  murder  in  the  "  Annual  Regis- 
August  8,  1S61. 


850 


PART    III.       PROBLEMS   OF    PROOF 


No.  388. 


ter,"  nor  the  report  ui  the  Times, 
nor  the  report  of  R.  r.  P'ranz  (1861, 
2  F.  &  F.  580)  affords  the  slightest 
clew  as  to  the  direction  of  Blackburn, 
J.,  as  to  the  probative  force  of  the 
discovery  of  the  packet  of  letters 
identified  with  Kron  and  Franz 
found  within  six  inches  of  the 
corpse  of  the  murdered  woman. 
Yet  one  may  doubt  whether  a  more 
dramatic,  if  not  a  more  significant, 
evidentiary  fact  ever  transpired, 
even  at  a  trial  for  murder. 

On  the  other  hand,  it  seems  very 
(Hfficult  to  understand  the  extraor- 
(Unary  prominence  that  appears  to 
have  been  given  to  the  bludgeon 
foimd  in  the  room,  considered  as  an 
evidentiary  fact.  When  Blackburn, 
J.,  in  his  summing-up,  came  to  the 
evidence  of  the  policeman,  who  pro- 
duced the  bludgeon  and  the  other 
two  pieces  of  wood,  he  said  to  him  : 
"Step  forward  and  help  the  jury. 
Don't  make  any  statement;  but 
show  the  jury  the  pieces  of  wood."  ^ 
There  was,  of  course,  conclusive  evi- 
dence tiiat  the  bludgeon  had  been 
cut  from  the  beech  tree  in  Kings- 
wood  liuftet,  where  the  lal>orer 
Blunden  saw  two  men  standing  at 
se\"en  o'clock  in  the  evening  of  the 
10th  of  June,  the  night  when  the 
murder  was  committed.  There  was, 
however,  nothing  else  that  could 
ha\e  been  significant  about  the 
bludgeon,  as  the  murdered  woman 
was  suffocated  with  a  sock.  It  was 
stated  that  there  were  no  bruises 
found  on  the  corpse,  so  the  bludgeon 
could  not  possibly  have  l)een  used. 
The  discovery  of  the  l)ludgeon  with- 
out any  marks  in  the  room  of  the 
murdered  woman  may,  however, 
have  possessed  significance  as  show- 
ing tlie  precipitancy  with  which  the 
ruffians  fled.  Tliis  fact,  in  turn,  may 
lia\e  l)een  considered  as  negativing 
the  conchision  that  rol)l)ery  was  not 
intended  l)ecause  there  had  l)een 
nothing  stolen.  The  fact  that  rob- 
bery was  probably  intended  was  of 
great  legal  importance,  because 
Blackburn,  J.,  directed  the  jury 
'  R.  V.  Fram,  (1861) 


that  it  was  a  case  of  constructive 
nuirdcr. 

The  following  comment  appeared 
in  the  leading  article  in  the  Times 
on  the  evidence  in  Franz's  case : 
"  A  book  which  bears  the  name  of 
Mohan  Carl  Franz'  is  found  in  the 
room  of  the  murdered  woman ;  it 
is  admitted  that  the  prisoner  is  the 
owner  of  the  book,  and  it  is  admitted 
that  whoever  left  it  in  the  room 
murdered  the  woman.  This  does 
not,  of  course,  of  itself,  prove  the 
identity  of  the  owner  of  the  book 
with  the  person  who  left  it  in  the 
room  of  the  murdered  woman ;  it 
is  possible,  as  the  prisoner's  counsel 
insisted,  that  the  book  might  have 
gone  previously  out  of  the  prisoner's 
possession.  It  is  possible  that  Jo- 
hann  Carl  Franz  had  slept  till  six 
o'clock  in  the  morning  behind  a 
straw  stack  with  two  companions, 
and  that  when  he  awoke  he  found 
his  traveling  companions  had  car- 
ried off  his  bag,  containing,  among 
other  articles,  his  papers  and  this 
book.  This  is  a  possible  account  of 
the  termination  of  the  connection 
between  Johann  Carl  Franz's  book 
and  Johann  Carl  Franz.  But  there 
is  other  evidence,  besides  that  of  the 
book,  against  the  prisoner.  He  is 
seen  in  the  immediate  neighborhood 
of  the  murder  the  day  before,  he 
goes  into  a  shop  at  Reigate  and  buys 
a  ball  of  string :  a  young  woman  in 
the  shop  identifies  him  positively 
and  without  the  least  hesitation.  It 
is  not  common  string :  it  is  very  un- 
common string  indeed  ;  Joseph  Dun- 
more,  who  made  it  for  Mr.  Cramp, 
who  sold  it  to  Mrs.  Pither,  in  whose 
shop  is  was  bought,  pronounces  it  to 
be  rublay  cord  and  very  seldom 
made.  Accordingly,  when  the  string 
which  tied  the  feet  and  hands  of  the 
murdered  woman  and  the  string 
which  had  been  tied  round  the  blue 
shirt  of  the  prisoner  taken  by  the 
police  were  handed  into  court, 
Joseph  Dunmore  identifies  both  as 
being  the  same  kind  of  string  and  of 
this  uncommon  kind  :  '  I  hackled 
2  F.  &  F.  580,  583. 


No.  388. 


KARL   FRANZ  S    CASE 


851 


the  hemp  in  its  rough  state  myself, 
and  afterwards  spun  it  myself,  and 
made  the  halls  myself.'  Thus  the 
purchase  in  the  shop  at  Reigate 
affords  much  more  than  the  mere 
proof  of  the  prisoner  being  in  the 
vicinity  of  the  murder  at  the  time 
of  the  perpetration,  viz.,  in  certain 
links  of  evidence  which  connect  the 
prisoner  with  the  murder.  The 
links  connect  the  string  round  the 
murdered  woman  with  the  string 
round  Franz's  shirt,  and  again,  the 
string  round  both  with  the  person 
identified  in  court  with  Franz  as  the 
purchaser  of  the  string  in  the  shop 
at  Reigate.  Mary  Elsey's  evidence 
and  that  of  Joseph  Dunmore  thus 
corroborate  each  other  remarkably ; 
indeed,  the  identification  of  Franz 
with  the  purchaser  of  the  string  is 
admitted  by  the  prisoner's  counsel, 
though  Franz  himself  disowned  it 
before  the  Bench  at  Reigate,  and 
attributed  the  apparent  resemblance 
to  the  real  purchaser  of  the  string 
having  on  at  the  time  Franz's 
clothes,  carried  off  by  him  with  the 
bag  —  an  explanation  which  would 
imply  that  the  prisoner's  clothes  in 
the  bag  were  an  exact  duplicate  of 
those  worn  by  him  in  court  when 
the  identification  was  made."  ^  It 
seems,  on  a  reference  to  the  "An- 
nual Register,"  that  this  account, 
according  to  Franz's  statement  in 
the  police  court,  is  rather  hard  upon 
the  prisoner.  In  the  police  court 
proceedings  Franz,  as  has  been  seen, 
denied  that  he  had  ever  been  at 
Reigate,  much  more  that  he  was 
one  of  the  two  foreigners  who  pur- 
chased the  string  there.  It  is  of 
some  interest  to  observe  that  the 
Times  report  of  the  assize  trial 
before  Blackburn,  J.,  does  not 
altogether  bear  out  the  statement 
in  the  leading  article  that  Franz, 
through  his  counsel  (Hon.  G.  Den- 
man,  K.  C),  admitted  that  he  was 
one  of  the  two  foreigners  who  pur- 


chased the  rublay  cord  at  Reigate. 
Denman,  K.  C,  on  the  contrary, 
merely  made  an  admission  that 
Franz  was  seen  in  the  neighborhood 
of  the  place  where  the  crime  was 
committed  in  company  with  another 
man.  He  also  stated  that  this  was 
the  principal  evidence  against  Franz. 

There  is  no  doubt  that  this  preg- 
nant admission  that  Franz  was  one 
of  the  tW'O  foreigners  seen  in  the 
vicinity  puts  an  altogether  different 
complexion  on  his  story  before  the 
magistrates,  in  which  he  stoutly 
denied  he  had  ever  been  at  Reigate. - 
The  circumstance  appears  conclu- 
sively to  indicate  that,  if  at  that 
time  a  prisoner  had  been  able  to 
give  evidence  on  his  own  behalf,  and 
if  Franz  had  elected  to  do  so,  cross- 
examination  would  have  pulverized 
a  story  so  full  of  retractation  and 
contradiction  as  his  original  story. 
The  final  admission  that  he  had 
been  in  the  vicinity  of  the  crime 
with  another  German,  coupled  with 
the  entire  want  of  any  e\'idence  of 
the  existence  of  Gerstenberg,  and  of 
the  theft  of  his  pack,  would  have 
gone  far  to  totally  impair  his 
defense. 

However,  it  was  clearly  a  far  less 
dangerous  admission  for  his  counsel 
to  make,  that  Franz  was  in  the 
vicinity  of  the  place  where  the 
crime  was  committed,  than  that  he 
purchased  the  string  at  Reigate. 
This  last  fact  was  not  admitted  by 
his  counsel  at  the  trial,  in  spite  of 
the  statement  in  the  Times  leading 
article.  A  reference  to  the  "  Annual 
Register"  shows  the  great  impor- 
tance of  this,  as  the  evidence  was 
that  the  two  Germans  at  the  Cricket- 
ers Inn,  among  whom  Franz  was 
identified  by  at  least  two  witnesses, 
were  distinct  from  the  two  Germans 
who  purchased  the  string.  The 
rublay  cord  of  peculiar  make  was 
purchased  by  the  two  Germans  at 
Mrs.  Pither's  shop   in  Reigate  be- 


1  The  Times,  August  9,  1861. 

^  Cf.  Times,  July  16,  1861,  for  Franz's  statement  before  the  magistrates,  and  Times, 
August  8,  1861,  for  Denman,  K.  C.'s,  admission  that  Franz  had  been  seen  in  the  neighbor- 
hood of  the  place  where  the  crime  was  committed  in  company  with  another  man. 


852 


PART    III.       PROBLEMS    OF    PROOF 


No.  388. 


tween  two  and  four  o'clock  in  the 
afternoon  of  ]Monday,  June  10th, ^ 
and  the  evidence  of  the  potman  at 
the  Oicketers  Inn  Avas  that  the 
two  Germans  who  came  to  that 
phice  on  the  9th  came  downstairs 
the  next  morning  at  8.30  and  re- 
mained at  tlie  Cricketers  Inn  till 
half  past  four  o'clock  on  that  day. 
This  was  the  Monday  on  the  night 
of  which  the  murder  took  place. - 
The  Kingswood  murder  case,  there- 
fore, instances  in  a  very  signal  man- 
ner that  the  truth  of  the  facts 
composing  a  strand  of  circumstan- 
tial evidence  depends  on  minute  and 
careful  oljservation,  as  to  which 
e\en  the  most  conscientious  wit- 
nesses may  make  unintentional  mis- 
statements. The  mistress  of  the 
shop  where  the  two  foreigners  pur- 
chased the  string  on  the  Monday 
could  not  determine  the  hour  of  the 
purchase  with  any  more  definiteness 
than  that  it  occurred  between  tAvo 
anfi  four  o'clock  in  the  afternoon. 
This  induces  the  suspicion  that  her 
evidence  was  not  rendered  with 
enough  precision  to  he  relied  on  as 
to  the  time,  though  it  was  no  doubt 
true  the  purchase  was  a  fact.  The 
importance  of  the  matter  is  that  the 
current  of  evidence  is  that  the  per- 
sons who  bought  the  string  at  Rei- 
gate  committed  the  murder  at  Kings- 
wood  a  few  hours  later,  and  that, 
accepting  Mrs.  Pither's  statement, 
Franz  cannot  have  been  one  of  the 
two  Germans  who  purchased  the 
string  from  her  between  two  and  four 
on  Monday  afternoon,  if  he  was  one 
of  the  two  Germans  at  the  Cricketers 
Inn,  because  the  potman  stated  that 
the  two  latter  did  not  leave  the  place 
till  half-past  four.  It  is  this  state- 
ment of  the  shopkeeper  at  Reigate 
that  is  the  .sole  authority  for  con- 
cluding that  there  were  two  pairs  of 
foreigners  in  the  vicinity  of  Reigate 
about  the  time  of  the  miu'der,  an 
hypothesis  that  envelops  the  whole 
ca.se  with  an  impenetrable  ob.scurity. 


But  in  view  of  its  vague  nature  it  is 
clear  that  there  is  no  placing  any 
implicit  reliance  on  Mrs.  Pither's 
statement  as  to  time.  The  dismis- 
sal of  this  evidence  as  to  time  must 
equally  involve  the  entire  abandon- 
ment of  the  hypothesis  that  there 
were  two  foreigners  in  the  vicinage 
at  the  date  of  the  murder.  The 
Times  report  of  the  police  court  pro- 
ceedings is,  as  has  been  noticed,  en- 
tirely inconsistent  with  the  hypothe- 
sis.^ 

It  is  rather  curious  to  observe,  in 
view  of  the  variance  between  Franz's 
statement  before  the  magistrates  at 
Reigate  and  the  defense  raised  by 
his  counsel  at  Croydon  Assizes,  that 
Denman,  K.  C,  stated,  in  his  ad- 
dress to  the  jury,  that  Franz  was 
not  a  man  of  bad  character.*  This 
was  undoubtedly  incorrect.  A 
police  inspector  stated  at  the  police 
court  that  a  communication  had 
been  received  at  the  Foreign  Office 
from  the  British  Consul  at  Dresden, 
stating  that  this  Franz  had  been  a 
\'ery  indifferent  character,  and  that 
he  had  suffered  two  years  and  eight 
months'  imprisonment  for  felony.^ 
Again,  the  leading  article  in  the 
Times  ^  does  not  draw  the  conclusive 
inference  that  must,  nevertheless, 
be  derived  from  the  letter  of 
Madame  Tietjens  to  Kron  having 
been  found  in  the  packet  of  letters 
found  l)y  the  corpse.  This  letter 
was  dated  the  Friday  Ijcfore  the 
murder,  June  7th,  and  therefore  must 
have  been  in  Kron's  possession  only 
three  days  before  the  date  of  the 
crime.  In  Foster  and  Finlason's 
Reports  it  is  stated  that,  if  Franz's 
letters  were  stolen,  they  must  have 
l)een  stolen  by  the  person  to  whom 
Madame  Tietjens  gave  the  letter 
dated  June  7th. ^  There  appears, 
therefore,  to  be  drawn  an  implicit 
distinction  between  Kron  and  "the 
person"  to  whom  Madame  Tietjens 
gave  the  letter.  There  is  no  doubt 
from  the  evidence  of  Madame  Tiet- 


»  Times,  July  9,  1861. 
*  Times,  August  H,  1801. 
^  R.  V.  Fram,  (1861)  2  F 


-  Times,  .July  Ifi,  1861. 
»  Times,  .July  16,  1861. 
&  F.  580,  582. 


»  Times,  July  9  and  16,  1861. 
8  August  9,  1861. 


No.  388. 


KARL   FRANZ  S   CASE 


853 


jens  that  the  person  to  whom  she 
gave  the  letter  was  not  Franz. ^ 
While  there  is  no  doubt;  that  Kron 
employed  various  aliases  —  Jeret- 
zky,  Ahlborn,  etc.  —  there  is  no  evi- 
dence that  any  one  personated  him, 
if  the  statement  of  F'ranz  is  to  be 
believed.  Again,  according  to  the 
prisoner  Franz,  the  person  who  saw 
Madame  Tietjens  must  have  been 
Kron,  who  was  very  short  and  boyish 
looking.  Franz  did  not  accuse  Kron, 
but  stated  that  he  suspected  one 
Wilhelm  Gerstenberg  of  having 
stolen  the  letters.^  There  was,  how- 
ever, no  proof  whatever  adduced 
that  this  man  existed  except  the 
statement  of  Franz. 

Again,  it  appears  "sub  modo"  to 
support  the  view  that  Kron  stole 
Franz's  papers  that  all  the  six  papers 
found  by  the  corpse  were  bound  up 
with  one  thread,  and  that  one  of 
them  must  have  been  in  Kron's 
possession    four    days    previously. 

But  the  report  in  Foster  and  Fin- 
lason  seems  inadequate  to  the  degree 
of  inaccuracy  in  its  account  of  the 
evidence.  It  does  not  mention  the 
one  circumstance  that  so  strikingly 
corroborated  Franz's  story  as  to  the 
loss  of  the  letters  :  the  fact  that  some 
documents  identified  with  him  had 
undoubtedly  been  found  by  tramps 
on  the  borders  of  Northamptonshire, 
far  farther  south  and  nearer  London 
than  Leek,  in  Staffordshire,  where 
the  entries  in  the  prisoner's  diary 
abruptly  ended.  The  report  in 
Foster  and  Finlason  gives  a  very 
inadequate  description  of  the  rebut- 
ting circumstantial  evidence  adduced 
for  the  defense  in  two  other  particu- 
lars ;  it  does  not  state  that  it  was 
proved  the  prisoner  had  a  pack 
when  he  landed  at  Hull,  which  might 
have  been  stolen  from  him  ;  and  also 
omits  mentioning  that,  however 
peculiar  the  string  found  tied  round 
the  corpse  of  the  victim,  its  corre- 
spondence with  that  purchased  the 
day  previously  at  Reigate  and  with 
that  tied  round  Franz's  shirt  seems 


deprived  of  any  significance  since 
it  was  easily  obtainable  in  White- 
chapel.  It  was  a  necessary  assump- 
tion of  the  case  for  the  prosecution 
that  the  string  round  the  corpse  of 
the  victim  must  have  been  purchased 
by  Franz  in  Reigate.  Again,  the 
report  in  Foster  and  Finlason  cate- 
gorically states  that  Franz's  diary 
was  found  in  the  parsonage  at  Kings- 
wood  (p.  .580),  whereas  the  fact  was 
that  the  three  papers  connected  with 
Franz  found  near  the  corpse  were  a 
service  book,  a  certificate  of  birth, 
and  a  certificate  of  baptism.  The 
diary  was  found  by  tramps  on  the 
borders  of  Northamptonshire,  about 
a  hundred  miles  away  from  Kings- 
wood,  and  a  whole  month  after- 
wards.^ The  discovery  of  the  diary 
afforded  nearly  as  strong  presump- 
tive evidence  of  Franz's  innocence 
as  the  discovery  of  the  other  three 
documents  in  the  room  of  the  mur- 
dered woman  did  of  his  guilt,  be- 
cause it  proved  that  some,  at  least, 
of  his  papers  had  passed  out  of  his 
possession.  As  the  entries  in  the 
manuscript  book  gave  a  consistent 
account  of  his  wanderings  after  he 
landed  at  Hull,  and  purported 
finally  to  show  that  on  the  10th  of 
some  month  he  arrived  at  Leek,  in 
Staffordshire,  and  as  the  murder  for 
which  he  was  tried  was  committed 
on  June  10th,  if  the  entry  in  the 
diary  could  have  been  assumed  to 
apply  to  the  month  preceding  that 
on  which  it  was  found,  Franz  woidd 
have  possessed  clear,  if  not  conclu- 
si\e,  evidence  of  an  alibi,  as  he 
would  then  have  been  able  to  show 
that  at  the  date  of  the  Kingswood 
murder  he  was  at  Leek  in  Stafford- 
shire. It  is  clear  that,  as  he  did 
not  do  this,  the  10th  day  of  the 
month  referred  to  in  the  diary 
must  have  been  May  10th,  as  the 
Foreign  Office  were  informed  that 
Franz  left  Konigstein,  in  Saxony,  in 
April,  1861.^  But  in  his  statement 
before  the  magistrates  at  Reigate, 
Franz  entirely  failed  to  account  for 


1  Times,  July  16,  1861 ;   R.  v.  Franz,  2  F.  &.  F.  580. 
«  Ann.  Reg.,  1861,  Chronicle,  pp.  142-3. 


2  Times,  July  9,  1861. 
*  Times,  July  11,  1861. 


854 


PART    III.       PROBLEMS    OF    PROOF 


No.  388. 


his  movements  either  previous  to, 
or  at  the  tUite  of,  the  Kingswood 
murder,  or,  it  may  be  adck'd,  sul)se- 
quently. 

While  the  report  of  R.  v.  Franz 
in  Foster  and  Finhison  seems  \ery 
clearly  to  err  on  the  side  of  both 
inaccuracy  and  omission,  there  is 
nothing  to  confirm,  in  the  Times 
report  of  the  proceedings  before  the 
magistrates  at  Reigate,  the  state- 
ment in  the  "  Annual  Register  "  that 
three  witnesses  before  the  magis- 
trates, who  were  not  examined  at 
the  trial,  deposed  that  two  foreign- 
ers, one  short  and  dark,  and  the 
other  fairer  and  taller,  were  within 
a  hundred  yards  of  the  Kingswood 
parsonage  at  five  o'clock  on  the 
Sunday  afternoon,  June  9th  —  the 
day  before  the  crime  —  at  which 
time  two  other  persons  specified 
that  two  similar  foreigners  were 
seated  in  the  taproom  at  Reigate.^ 
Again,  it  was  stated  in  the  leading 
article  in  the  Times  that  Franz  was 
seen  "in  the  immediate  neighbor- 
hood of  the  murder  the  day  before."  - 
But  there  is  nothing  in  the  Times 
report  of  the  police  court  proceedings 
that  in  the  slightest  degree  supports 
the  notion  that  there  was  evidence 
that  any  foreigners  were  seen  in  the 
immediate  vicinity  of  Kingswood 
parsonage  on  the  Sunday.''  That, 
in  particular,  Franz  should  have 
been  seen  in  the  vicinity  of  the 
murder  on  the  Sunday  is  directly 
contradictory  to  the  evidence  of  the 
potman  at  the  Cricketers  Inn, 
George  Roseblade,  who  stated  that, 
with  the  exception  of  about  an 
hour's  absence  at  midday  on  Sun- 
day, the  two  foreigners  who  stayed 
there  (amongst  whom  he  identified 
Franz),  remained  indoors  the  whole 
of  that  day.  As  Kingswood  is  four 
miles  from  Reigate,  it  would  have 
been  clearly  impossible  for  two  per- 
sons who  had  no  knowledge  of  the 
district  to  have  gone  out  and  made 
some   purchases,   and,    in    addition, 

»  Ann.  Reg.,  1861,  Chron.,  143. 

*  Cf.  ante,  p.  210. 

*  Times,  August  7,  1801. 


have  walked  at  least  eight  miles,  in 
the  brief  space  of  one  hour.  But 
the  matter  is  concluded  by  the  fact 
that  no  evidence  was  tendered  that 
two  foreigners  were  seen  in  the 
vicinity  of  the  murder  the  day  before 
the  crime.  If  any  such  evidence 
had  been  tendered,  it  may  be  added, 
it  seems  certain  that  a  report  of  it 
would  have  appeared  in  the  Times 
notice  of  the  police  court  proceed- 
ings of  the  Kingswood  murder. 
That  report  was  so  full  that,  at  the 
trial  at  Croydon  Assizes,  tiie  learned 
reporter  contented  himself  with  a 
mere  epitome  of  the  evidence  pre- 
viously given,  mentioning  that  there 
had  already  been  a  very  detailed 
account  of  the  evidence  given  before 
the  magistrates.^  It  seems,  there- 
fore, nearly  essential  to  conclude 
that  there  was  no  evidence  of  a 
second  pair  of  foreigners  in  the 
vicinity  of  Kingswood  parsonage 
the  da.y  before  the  murder,  though  a 
little  more  doubt  may  possibly  exist 
as  to  whether  on  that  day  there 
was  not  some  evidence  that  there 
were  two  pairs  of  Germans  in  Rei- 
gate. Even  this  last  point  is  highly 
uncertain,  and  the  conclusion  of  the 
account  in  the  "Annual  Register" 
leads  to  the  abandonment  of  that 
hypothesis. 

The  "Annual  Register,"  in  its 
final  observations  on  the  Kingswood 
murder,  states  that  none  of  the  for- 
eigners who  were  at  Reigate  at  the 
date  of  the  murder  have  been 
traced,  and  that  no  clew  has  been 
found  to  imra\'el  the  mystery.^ 
This  is,  undoulitedly,  incorrect  as  re- 
gards Kron,  even  considered  merely 
as  a  resume  of  annual  information 
about  events.  The  Times,  on  Sep- 
tember 7,  1861,  under  a  paragraph 
headed  "Supposed  Discovery  of  the 
Remains  of  Adolphe  Krohn,"  stated 
that  the  police  in  Surrey  had  been 
informed  that  the  dead  body  of  a 
man  believed  to  be  Krolm  had  been 
found  at  High  Leigh,  near  Warring- 


'  Cf.  Times,  July  9  and  16,  1861. 
'  Ann.  Reg.,  1861,  Chron.,  144. 


No.  388. 


K.\RL   FRANZ  3    CASE 


855 


ton,  Cheshire.  The  body  found 
was  that  of  a  young  man,  apparently 
a  foreigner,  between  twenty-five  and 
thirty  years  of  age.  It  was  found 
in  a  field  adjoining  the  highroad 
from  the  south  to  Liverpool.  De- 
composition had  proceeded  so  far 
that  no  trace-  of  features  could  be 
discerned,  but  m  dress,  height,  and 
every  other  ascertainable  particular 
the  body  corresponded  with  the 
published  description  of  Adolphe 
Kron.  It  must  be  remembered  that 
a  reward  of  200  pounds  had  been 
offered  by  Mr.  Alcock,  M.  P.,  for 
Kron's  apprehension,  so  the  pub- 
lished description  is  likely  to  have 
been  both  detailed  and  widely  cir- 
culated. No  marks  of  violence  were 
discovered ;  nothing  whatever  was 
found  in  the  pockets  of  the  deceased's 
clothing ;  and  it  is  supposed  that 
the  man  must  have  lain  down  and 
died  from  exliaustion  shortly  after 
the  Kingswood  murder  was  com- 
mitted, having  fled  from  London 
on  June  15th.     From  a  statement 


that  appeared  in  the  Times  on  Jidy 
11,  ISOl,  it  seems  highly  pr;)l)able 
that  the  body  found  was  that  of 
Kron.  It  was  for  some  reason 
anticipated'  Kron  would  proceed 
north,  and  that  his  sole  iinxlus 
vivcndi  would  be  that  of  soliciting 
alms  from  charitable  foreigners  un- 
der different  aliases. 

A  curious  feature  of  the  Kings- 
wood  murder  case  is  that  no  atten- 
tion was  paid  to  footprint  evidence, 
which  it  nevertheless  distinctly  ap- 
pears was  available.  The  account 
in  the  "Annual  Register"  states 
that  when  Halliday  went  to  see  his 
wife  at  Kingswood  Rectory  the 
morning  after  the  crime  he  traced 
the  footprints  of  two  persons,  and 
that  they  proceeded  upi  to  the 
kitchen  Avindow,  where  an  entry  had 
clearly  been  foiled  by  the  shutters, 
and  that  these  same  footprints  were 
afterwards  traced  to  beneath  the 
window  of  the  murdered  woman. 
The  entire  neglect  of  such  evidence 
appears  culpable  laches. 


85G 


PART    III.       PROBLEMS   OF    PROOF 


No.  389. 


389.  HILLMON  v.  INSURANCE  CO.  (Ch.\rles  S.  Gleed.  18th 
Annual  Report  of  the  Kansas  State  Superintendent  of  Insurance.  1887. 
p.  49.)  ' 


Preliminary.  —  The  Hilhnon 
cases  in  the  I'nited  States  Circuit 
Court  for  the  District  of  Kansas  are 
styled :  Sallie  E.  Hillmon  c.  The 
Mutual  Life  Insurance  Company  of 
New  York ;  Sallie  E.  Hillmon  v. 
The  New  York  Life  Insurance  Com- 
pany of  New  York ;  Sallie  E.  Hill- 
mon (".  The  Connecticut  Mutual 
Life  Insurance  Company.  These 
cases  were  docketed  on  the  Kith  of 
July,  ISSO. 

The  first  trial  was  at  Leavenworth, 
June  14-July  1,  1882,  before  the 
Hon.  Cassius  G.  Foster,  of  the 
United  States  District  Court  for  the 
District  of  Kansas,  the  attorneys  be- 
ing L.  B.  Wheat,  John  Ilutchiugs,  R. 
J.  Borgolthaws,  and  »S.  A .  Rifjg.s  for  the 
plaintifl" ;  and  George  J.  Barker  and 
James  W.  Green  for  the  defendants. 
The  jurors  were  as  follows  :  R.  B. 
McClure,  Thomas  White,  James 
]\I.  Walthal,  Wm.  Stocklel)rand,  E. 
H.  Hutchings,  Leonard  Bradley, 
J.  T.  Fulton,  Daniel  Horville,  Wm. 
Lyons,  J.  S.  Tood,  John  P.  Gleich, 
and  Samuel  Kieser.  This  jury  failed 
to  agree,  seven  being  for  the  plain- 
tiff, and  five  for  the  defendants. 

The  second  trial  was  at  Leaven- 
worth, in  Jime,  1885,  before  the 
Hon.  David  J.  Brewer,  United 
States  Circuit  Judge,  the  attorneys 
being  L.  B.  Wheat,  John  Hutchings, 
and  Snrnuel  A.  Riggs  for  the  plaintiff, 
and  George  J.  Barker,  J.  W.  Green, 
and  Charles  S.  Gleed  for  the  defend- 


ants.    The  jurors  were  as  follows : 

B.  M.  Tanner,  J.   P.   G.   Creamer, 

C.  O.  Knowles,  H.  D.  Shepard, 
Nelson  Giles,  Jr.,  R.  H.  Stott,  G. 
W.  Greever,  Wm.  N.  Nace,  Joseph 
Kleinfield,  Wm.  H.  Hamrn,  H.  A. 
Cook,  and  P.  B.  Maxson.  This 
jury  failed  to  agree,  IMessrs.  Tanner, 
Kleinfield,  Stott,  Maxson,  Creamer, 
and  Shepard  being  for  the  i)laintifr, 
and  Messrs.  Greever,  Giles,  Knowles, 
Cook,  Nace,  and  Hamm  for  the 
defendants. 

The  third  trial  was  at  Topeka,  Feb. 
29-Mar.  20,  1888,  before  the  Hon. 
O.  P.  Shiras,  Judge  of  the  United 
States  District  Court  for  the  North- 
ern District  of  Iowa,  the  attorneys 
being  L.  B.  Wheat,  John  Hutchings, 
and  Samuel  .1.  Riggs  for  the  plaintiff, 
and  George  J.  Barker,  J.  W.  Green, 
Charles  S.  Gleed,  and  J]'illiam  C. 
Spangler  for  the  defendants.  The 
jurors  were  as  follows :  Samuel 
Kozier,  Jacob  Moon,  J.  S.  Bouton, 
A.  S.  Davidson,  N.  S.  Miller,  Riley 
Elkins,  J.  S.  Earnest,  John  W.  Farns- 
worth,  Enoch  Chase,  Furman  Baker, 
G.  W.  Coffin,  and  J.  P.  Rood.  This 
jury  agreed  on  the  second  ballot, 
rendering  a  verdict  of  S35,730  (in  all) 
for  the  plaintiff". 

The  cases  are  now  (April,  1888)  in 
the  Circuit  Court  pending  the  argu- 
ment of  a  motion  for  a  new  trial. 
If  this  motion  is  overruled,  an  appeal 
will  probai)ly  be  taken  to  the  United 
States  Supreme  Court."^ 


'  [A  typewritten  copy  was  supplied  for  use  in  this  work,  by  the  courtesy  of  Mr.  Gleed. 
-Eo.j 

2  (The  appeal  was  so  taken.  In  1892  (Mutual  Life  Ins.  Co.  v.  Hillmon,  145  U.  S.  285), 
the  judgnifiit  was  set  aside,  and  a  new  trial  ordered.  This  fourth  trial  took  place  Jan.  9- 
Mar.  19,  1895;  the  jury  di.sagrced.  The  fifth  trial  took  place  Mar.  U-Mar.  31,  1896, 
and  the  jury  disagreed.  The  .sixth  trial  took  place  Oct.  17-Nov.  18,  1899,  and  the  jury 
gave  a  verdict  for  the  plaintiff.  This  verdict  was  later  affirmed  on  appeal :  Connecticut 
Mut.  Life  Ins.  Co.  v.  Hillmon  (107  Fed.  842,  C.  C.  A.,  April,  1901)  ;  but  was  finally  set  aside 
in  the  Supreme  Court  (188  U.  S.  208,  .January,  1903),  two  judges  dissenting. 

Of  the  three  defendants,  each  had  chosen  a  different  course: 

The  New  York  Life  Insurance  f'o.  had  settled,  in  1898,  before  the  sixth  trial,  the  case 
being  dismissed.  In  1890,  during  the  Populist  goverrmient,  the  State  Insurance  Commis- 
sioner haffT)arred  these  three  companies  from  doing  business  in  Kansas,  owing  to  the  pop- 
ular disapproval  of  the  companies'  resistance  to  the  Hillmon  claim.  To  regain  admission 
to  the  State,  this  settlement  was  made.  Later,  upon  a  change  of  political  administration, 
the  bar  was  removed  for  all. 


No.  389. 


HILLMON   V.    INSURANCE   CO. 


857 


In  stating  the  facts  in  this  contro- 
versy, the  writer  has  confined  him- 
self to  the  evidence  adduced  at  the 
second  and  third  trials,  except  as 
otherwise  ndicated ;  and,  though 
sure  that  the  companies  are  in  the 
right,  he  still  feels  bound  in  this 
sketch  to  make  a  clear  distinction 
between  the  facts  and  his  construc- 
tion of  them  —  between  citations 
from  the  evidence,  and  his  opinions. 
Aside  from  his  knowledge  of  the 
cases  as  an  attorney,  he  was  one  of 
the  first  newspaper  reporters  to 
become  familiar  with  them,  and  has 
a  personal  acquaintance  with  most 
of  the  witnesses.  Such  familiarity 
gives  him  a  knowledge  of  many  facts 
which,  under  the  rules  of  evidence, 
cannot  go  to  the  jury,  but  which 
might  properly  appear  here.  He 
has  thought  best,  however,  to  avoid 
criticism  by  confining  himself  to 
what  appeared  or  was  closely  sug- 
gested in  court,  and  to  further  give 
both  sides  of  the  case  a  hearing  by 
quoting  the  reports  of  the  arguments 
made  by  the  plaintiff's  counsel  at 
the  trial  at  Leavenworth.  These 
reports  were  made  in  the  Daily 
Standard  by  Henry  C.  Burnett,  now 
of  New  Mexico,  also  one  of  the  first 
journalists  engaged  on  the  case,  and 
a  thoroughly  competent  and  con- 
scientious reporter.  All  citations 
from  the  testimony  of  the  second 
trial  are  from  the  bound  volumes  of 
reports  made  by  Mr.  F.  O.  Popenoe, 
the  official  stenographic  reporter. 
If  the  writer  has  made  errors  of  any 
sort  in  quoting  the  evidence,  they 
are  certainly  trivial  and  unimpor- 
tant, as  the  utmost  accuracy  has 
been  desired. 

The  Evidence. 

HiUmon  and  Wife,  before  IliUmons 
Disappearance.  (In  Evidence.)  — 
John    W.     Hillmon    was    born    in 


Indiana,  in  1845,  and  was  therefore 
about  thirty-four  years  of  age  at  the 
time  of  his  alleged  death  near 
Medicine  Lodge,  Kansas,  March  17, 
1879.  He  came  to  Kansas  with  his 
father,  who  settled  near  Valley 
Falls,  Jefferson  county,  Kansas. 
He  attended  school  more  or  less, 
and  then  became  a  cattle  herder 
and  farm  laborer,  working  for  vari- 
ous farmers  and  cattlemen  in  Jef- 
ferson, Leavenworth,  and  Douglas 
counties.  He  entered  the  army  in 
1863,  at  eighteen  years  of  age,  and 
remained  al)out  one  year.  In  1874 
he  went  to  Colorado,  and  worked  in 
the  mines  at  Quartzville  and  Central 
City  as  a  miner  and  mining  boss. 
In  1876  he  returned  to  his  home  in 
Kansas,  and  resumed  his  occupation 
as  cattle  herder.  He  left  Kansas 
again  in  1876,  going  to  Sweetwater 
and  Reynoldsville,  Texas,  where  he 
engaged  in  killing  buffalo,  gathering 
buffalo  bones  and  hides,  and  in 
hauling  freight.  He  returned  to 
Kansas  via  New  Mexico  and  Colo- 
rado, selling  the  ox  teams  of  his 
Texas  outfit  at  various  points  on  the 
return  trip,  and  arriving  at  Law- 
rence in  August,  1877.  For  a  time 
he  bought  and  sold  hogs  in  Law- 
rence. On  or  about  December  15, 
1878,  he  left  Lawrence  for  a  trip  to 
Wichita,  Dodge  city,  and  other 
western  and  southwestern  points,  as 
he  said,  to  find  a  cattle  ranch,  leav- 
ing Wichita  December  26,  1878. 

The  following  extracts  from  his 
pocket  journal  will  show  the  char- 
acter of  this  first  trip,  the  journal  or 
memorandum  book  having  been 
taken  from  the  body  of  the  man 
killed  near  Medicine  Lodge  on  the 
18th  day  of  March,  1879 : 

"John  W.  KiUmon's  book ;  residence, 
Lawrence,  Kansas.     Mrs.  S.  E.  Hillmon, 


The  Mutual  Life  Insurance  Co.  of  New  York,  in  1900,  made  satisfaction  of  the  judgment 
obtained  in  1899  on  the  sixth  trial. 

The  case  was  dismissed  against  the  Connecticut  Mutual  Life  Insurance  Co.,  in  1903, 
presumably  because  of  a  settlement  after  the  Supreme  Court's  order  for  a  new  trial. 

Thus  ended  the  Hillmon  Case. 

For  most  of  this  later  history  of  the  case,  the  Compiler  is  indebted  to  Morton  Albaugh, 
Esq.,  Clerk  of  the  United  States  District  Court  for  the  District  of  Kansas,  at  Topeka.  —  Ed. J 


858 


PART    HI.       PROBLEMS   OF    PROOF 


No.  389. 


corner  Henry  and  Alal)ama  streets, 
Lawrence,  Kansas.  Traveling  conijjan- 
ion,  J.  H.  Brown  ;  residence,  Wyandotte, 
Kansas. 

"My  first  memorandum  I  lost  after  I 
had  been  out  a  few  days,  so  I  replaced  it 
with  a  new  one.  Could  not  recall  all 
that  I  had  in  my  first,  hut  placed  my 
dates  correct.  I  lost  it  the  second  day 
from  Wichita,  together  with  some  cough 
medicine ;  I  had  caught  a  severe  cold 
at  Wichita,  and  provided  for  it.  Colds 
are  numerous  through  this  part.  Pre- 
scription, Bon  Bay  root. 

"December  ISth.  I  left  Lawrence 
on  the  ISth  of  December,  187S,  for  the 
purpose  of  looking  up  a  stock  ranch  in 
the  southwest.  Went  by  way  of  the 
Atchison,  Topeka  &  Santa  Fe  to  Wichita. 
Arrived  at  Wichita  at  twelve  at  night. 
Found   snow  about  three  inches  deep. 

"December  19.  On  the  morning  of 
the  19th  looked  around  town  during  the 
day.  Wichita  is  a  livery  town.  Streets 
full  of  teams  every  day.  They  will  face 
the  storm  to  go  to  the  city. 

"December  20.  Rather  warm  over- 
head. The  snow  melting  some.  Wrote 
a  letter  home,  and  one  to  Baldwin. 
Looked  around  some  for  a  team.  Did 
not  get  any  up  to  this  evening. 

"December  26.  Started  early  for  the 
west.  Turned  cold  and  began  to  storm. 
Drove  all  day,  nearly  facing  the  storm. 
The  country  is  dotted  with  houses  all 
over  the  prairie.  No  timber  and  no 
accommodations  to  amount  to  anything. 
Stopped  at  night  about  2o  miles  from 
Wichita.  Their  principal  fuel  is  corn 
stalks. 

"December  27.  Cold.  A  long  drive 
through  rather  an  unsettled  country. 
Jack  frosted  his  feet.  Had  to  break 
road  most  of  the  way.  Horses  as  well 
as  us  was  very  tired.  vStojijied  for  the 
night  with  some  Hoosiers,  tliough  they 
made  us  very  comfortable. 

"December  28.  Drove  tliirty-five 
miles,  and  arrived  at  Medicine  Lodge 
about  four  in  the  evening.  The  weather 
has  been  so  cold,  and  the  scarcity  of 
fuel  has  prevented  us  from  camping  out. 
There  is  no  timber  from  here  to  Wichita, 
about  a  liMiidn-d  iiiilcs.     Settlers  have  to 


haul  what  timber  they  use  forty  or 
fifty  miles.  Received  a  letter  from  L. 
Seelig,  Lawrence,  Kansas.  Did  not 
receive  any  word  from  home. 

"December  29.  At  INIedicine  Lodge. 
Snowed  during  the  past  night.  Too 
cold  to  travel.  Remained  in  town. 
Wrote  a  letter  home.  Went  to  church  at 
night.  Medicine  affords  a  very  good  con- 
gregation for  a  new  and  frontier  town. 

"January  6.  After  looking  around 
we  find  that  we  have  broke  our  wagon. 
Will  have  to  go  back  to  Sun  City  to  get 
it  fixed.  The  wind  is  blowing  very 
hard  and  cold.  I  think  something  very 
strange  will  happen  soon.  It  has  not 
snowed  any  since  yesterday.  Have 
just  had  a  good  time  after  our  horses. 
They  got  loose  and  ran  all  over  the 
country.  Think  they  are  done  running 
for  a  while  except  they  are  hitched  up. 
Last  night  was  very  cold  and  blustery. 
This  morning,  the  7th,  threatened  snow. 
Wind  cold  from  the  north.  We  are  in 
camp  on  the  Medicine  river,  at  Myers's 
ranch,  about  twelve  miles  west  of  Sim 
City.  Jack  is  comj)laining  with  cold. 
Nothing  to  do  to-day  except  set  by  the 
fire,  and  it  smokes  so  we  can  hardly  see 
at  times.  This  kind  of  weather  will 
make  one  almost  curse  camp  life,  and 
himself  for  being  so  silly  as  to  start  on  a 
trip  of  this  kind  during  the  winter  months. 
I  have  projjhesied  a  cold  winter  this 
winter,  but  so  far  it  has  overreached  my 
expectatiojis.  My  opinion  was  formed 
by  the  extra  quality  of  all  kinds  of  furs, 
both  small  and  large.  Muskrats  in  the 
north  build  higher  than  they  was  known 
to  for  years.  The  sun  goes  down  to- 
night dark  with  snow  and  wind.  I  think 
it  has  been  as  blustery  an  afternoon  as  I 
have  ever  witnessed.  This  kind  of 
weather  is  what  will  condemn  this  part 
of  the  country  for  stock.  It  will  be 
almost  impossible  to  save  near  all  of  the 
stock.  Admitting  it  a  good  country, 
why  was  man  made  to  drift  in  the  world 
like  wild  animals  ?  I  gue.ss  the  intent 
was  good,  and  our  life  what  we  make 
them.  I  would  freely  give  fifty  dollars 
if  I  had  postponed  my  tri])  until  one 
mcmth  later  at  least.  I  think  then  a 
man  would  have  .some  show  to  travel 


No.  389. 


HILLMON   V.    INSURANCE   CO. 


859 


with  safety,  while  now  he  has  but  very 
Httle. 

"January  8.  Rather  pleasant  over- 
head. Old  man  Myers  came  down  to 
camp  and  talked  until  we  both  had  the 
headache.  He  thinks  himself  the 
pioneer  of  Kansas,  and  has  only  been  in 
the  country  about  four  years.  He  says 
woman  is  a  swindle,  and  that  every  one 
knows.     At  least  his,  for  they  look  worse 

than  h 1  sewed  for  murder.     We  have 

concluded  that  we  will  set  in  camp  a  day 
or  two  longer,  and  see  what  the  weather  is 
going  to  do.  A  fair  prospect  for  a  good 
day  to-morrow. 

"January  12.  We  left  Medicine  river 
early  in  the  morning.  It  had  every 
appearance  of  being  a  beautiful  day. 
Traveled  northwest.  Crossed  the  head 
of  Spring  creek,  near  Bannister's  ranch 
W^e  found  the  road  very  rough  and  tire- 
some. The  sand  hills  numerous.  Snow 
badly  drifted  in  many  places.  We  put 
up  for  the  night  at  Smith's  ranch,  14 
miles  southeast  of  Kinsley.  I  should 
like  to  own  all  this  country,  if  I  had  it 
on  a  'oig  hill  or  mountain  where  I  could 
roll  it  down  by  sections.  I  think  then  I 
could  save  many  from  living  out  a  miser- 
able existence,  which  they  are  trying  to 
do  here  on  these  bald  prairies,  without 
wood  or  coal  to  keep  themselves  warm. 
If  the  country  affords  such,  many  of 
them  are  not  able  to  buy,  but  burn  corn 
stalks  and  hay. 

"January  20.  Warm  and  pleasant 
overhead.  Roads  very  bad.  Mud  and 
ice.  Arrived  in  Wichita  in  the  after- 
noon. Think  we  will  wait  a  few  days 
and  see  if  the  traveling  will  get  better. 
Think  will  go  south  to  the  Nation  line 
next  time. 

"January  22.  At  W^ichita  waiting  for 
the  roads  to  get  a  little  better.  They 
are  very  muddy.  The  weather  looks 
some  like  a  storm  again,  cloudy  and  dark. 
Wichita  is  packed  with  teams  in  the 
streets.  I  think  it  is  the  boss  town  of 
Kansas  for  business.  Hogs  seem  to  be 
in  good  demand.  Buyers  are  quarreling 
over  themto-day.  They  are  bringing  S2.60 
for  good  ones.  Wheat  54  cents.  Corn  is 
selling  at  about   18  cents.     W'ichita  is 


having  a  glorious  time,  that  is,  the  pray- 
ing portion  of  the  city.  22d.  Went  to 
church  in  the  evening.  Thought  it 
would  last  all  night.  They  have  several 
mourners  —  fish  for  the  preachers. 

"January  25.  Started  home  morning 
at  5  o'clock.  Arrived  at  Lawrence  half- 
past  three  evening.  Met  Mr.  Wiseman 
of  the  Mutual  Life,  Topeka. 

"January  26th  and  27th  at  home. 

"January  28.  Left  Lawrence  12.40 
by  A.  T.  &  S.  F.  for  W  icliita.  Weather 
damp  and  cloudy.  Arrived  at  Wichita 
at  10  in  the  evening. 

"February  8.  Still  I  remain  in 
Wichita  waiting  for  the  roads  to  get  in  a 
passable  condition.  They  are  very  bad. 
I  think  I  have  never  did  as  hard  work 
in  my  life  as  I  have  done  in  the  past  six 
weeks.  It  is  killing  me  almost  by  inches 
to  loaf  around  and  do  nothing  as  I  have 
been  doing  of  late.  I  think  I  will  leave 
here  within  a  day  or  two,  if  I  have  to  go 
home. 

"Monday,  17th.  Cloudy  and  cool. 
Am  at  home  in  Lawrence. 

"ISth,  19th  and  20th,  at  home. 

"23d.  Came  home  in  the  evening. 
Very  warm.  Don't  see  as  there  is  any 
good  to  grow  out  of  me  tr\-ing  to  keep 
track  of  my  misdeeds,  while  I  am  apt 
to  err  as  any  one.  And  that  I  would  be 
sure  ashamed  not  to  make  a  memoran- 
dum of,  and  only  show  up  the  best  parts 
as  others  have  done  before  me.  I  do 
not  want  to  be  an  exception  to  the  rule  or 
make  any  new  ones  so  to  keep  from  an- 
swering any  hard  questions.  If  any  one 
should  want  to  know  where  I  spent  my 
evenings  I  will  say  to  them  I  have  for- 
gotten to  make  a  memorandum  of  the 
time,  and  my  memory  is  bad,  as  I  never 
charge  it  with  anything,  and  of  course 
cannot  answer  prompting.  So  ends  this 
part  at  LawTence. 

"February  23,  1870. 

"  (Signed)  J.  W.  Hillmon." 

On  January  25,  1879,  Hillmon 
went  from  Wichita  to  LawTence,  for 
a  few  (lays,  and  returned  to  Wichita, 
leaving  there  on  March  4,  1879,  on 
his  next  and  last  trip,  prior  to  his 
disappearance  at  Crooked   creek,  a 


860 


PART    III.       PROBLEMS    Ol<    PROOF 


No.  389. 


few  miles  from  ^Medicine  Lodfje, 
Rarl)er  county,  Kansas.  The  two 
^Yichita  trips  in  search  of  a  ranch 
were  exceedingly  hard  ones.  Ke  was 
accompanied  l\v  John  H.  Brown, 
who  had  also  been  his  companion  in 
Colorado  and  Texas,  and  the  two 
men  were  at  home  wherever  night 
overtook  them. 

Hillmon  was  married  October  3, 
1S78,  to  Sally  E.  Quinn,  al)out  foin- 
and  a  half  months  before  his  dis- 
appearance. Hillmon  and  wife  lived 
in  one  room  in  the  house  of  Mrs. 
Judson,  where  they  were  married, 
in  Lawrence.  Mrs.  Hillmon  was  a 
second  cousin  to  Levi  Baldwin,  who 
li\ed  near  Tonganoxie,  Leaven- 
worth county,  Kansas,  and  who  was 
Hillmon's  best  friend.  Mrs.  Hill- 
mon came  to  Kansas  from  Colum- 
bus, Ohio,  at  an  early  age,  and  had 
been  employed  at  Lawrence  as  a 
family  servant,  and  waiter  in  a  res- 
taurant, which  was  managed  by  her 
mother. 

Hillmon  was  always  a  poor  man. 
No  one  knows  of  his  ever  having 
had  money  or  property  of  conse- 
quence except  the  train  taken  from 
Texas  and  sold  in  Mexico  and  Colo- 
rado (his  possession  of  which  is  ex- 
plained later),  and  two  notes  given 
to  Hillmon  by  Levi  Baldw'in,  and 
produced  for  the  first  time  on  the 
last  trial.  Three  notes,  signed  "  Hill- 
mon &  Brown,"  the  signatures  hav- 
ing l)een  identified  as  the  work  of 
Hillmon,  and  the  notes  having  been 
executed  to  McKamy  &  Anderson, 
of  Texas,  were  introduced  by  the 
defendants  to  contradict  the  evi- 
dence that  Hillmon  had  money  above 
his  debts.  The  Texas  parties,  to 
whom  these  notes  were  gi\'en,  wrote 
to  the  City  Marshal  of  Lawrence, 
saying  that  Hillmon  was  wanted. 
Hon.  J.  B.  Johnson  holds  an  unpaid 
note  of  Hillmon's  for  SlOO,  given  by 
Hillmon  for  professional  services, 
which  note  has  never  been  collect- 
ible. 

An  accurate  description  of  Hill- 
mon at  the  time  he  was  last  in 
Lawrence,  is  as  follows  :  Weight,  1G5 


pounds;  height,  5  feet  9  inches; 
hair,  brown;  mustache,  full;  teeth, 
imperfect,  and  one  gone ;  face  egg- 
shaped,  and  broadest  through  the 
temples  ;  cheek  bones,  medium,  and 
not  prominent  or  high  ;  nose,  straight 
and  regular ;  jaws,  tapering  to  the 
front ;  lips,  closed  ;  scar  on  back  of 
head  and  on  hand,  and  vaccination 
sore  on  arm. 

(Not  in  Evidence.) — Hillmon  and 
Brown  bought  the  train  which  they 
used  in  Texas  of  McKamy  and 
Anderson,  and  gave  back  the  three 
notes  for  about  $1(500  each  above 
referred  to,  and  a  bill  of  sale  for  the 
train.  The  train  Avas  taken  to  New 
Mexico  and  Colorado  and  sold  as 
also  above  stated,  and  the  notes 
were  never  paid.  It  was  on  this 
account  that  the  police  inquiry  came 
from  Texas  to  City  Marshal  Brock- 
elsby,  of  Lawrence.  Hon.  W.  N. 
Allen  once  paid  a  l)ond  for  about 
$100  for  Hillmon  when  the  latter  had 
been  arrested  in  Jefferson  county, 
with  others,  for  brutally  trying  to 
force  information  out  of  an  old 
farmer  on  the  subject  of  horse 
stealing. 

(Comment.)  —  From  all  the  evi- 
dence it  appears  that  Hillmon  was  a 
rough  character,  familiar  chiefly  with 
the  hard  life  of  the  soldier,  the  plains- 
man, the  miner,  the  hunter,  and  the 
cowboy ;  accustomed  to  seeing  hu- 
man life  held  cheaply ;  practically 
an  outlaw  ;  absolutely  poor ;  with- 
out a  definite  occupation ;  with  no 
particular  respect  for  women,  or 
home,  or  relations,  or  law.  He  was 
mentally  active,  however,  and  al- 
ways had  work  or  business  of  some 
kind  in  which  he  showed  more  or 
less  cunning  and  shrewdness.  His 
penmanship  was  better  than  ordi- 
nary, and  his  journal  gives  evidence 
of  considerable  crude  thought.  Such 
was  John  \V.  Hillmon  at  the  time  of 
his  disappearance. 

From  all  the  evidence  it  seems 
that  Mrs.  Hillmon  before  marriage 
was  a  young  woman  of  good  char- 
acter and  industrious  hal)its.  As  a 
family   servant   and    waitress    in   a 


No.  389. 


HILLMON   I).    INSUR.\NCE   CO. 


8^1 


re.staurant  she  supported  herself, 
and  perhaps  assisted  in  the  support 
of  her  mother  and  sister,  her  father 
being  dead.  Her  marriage  does  not 
seem  to  have  materially  changefl  the 
situation,  as  her  subsequent  living 
arrangements  were  of  the  simplest 
sort.  After  the  insuranee  quarrel 
began,  she  entered  on  the  interesting 
chapter  of  her  life.  In  nine  years  she 
has  tra\'eled  much  and  prospered 
fairly.  She  may  or  may  not  be 
married.  She  was  not  asked  her 
name  by  any  of  the  attorneys,  but 
she  was  accompanied  through  the 
trial  by  a  Mr.  Smith,  who  is  under- 
stood to  be  her  present  husband. 
Why  her  attorneys  did  not  develop 
this  fact,  if  fact  it  be,  on  the  trial, 
the  writer  does  not  know. 

The  Insurance  Transaction.  (In 
Evidence.) — Shortly  after  the  mar- 
riage of  Hillmon,  which  took  place 
October  3,  1878,  he  went  with  his 
friend  Levi  Baldwin  to  the  ofhce  of 
J.  H.  Blythe,  attorney,  at  Ton- 
ganoxie,  a  small  town  in  Leaven- 
worth county,  and  asked  his  advice 
as  to  the  best  methods  for  securing 
insurance.  Mr.  Blythe  was  not  a 
regular  insurance  agent,  but  he  told 
Hillmon  and  Baldwin  what  he  knew 
in  the  line  of  their  inquiries.  On 
the  31st  of  October,  1878,  Hillmon 
and  Baldwin  went  to  the  office  of 
A.  L.  Selig,  a  well-known  insurance 
man  in  Lawrence,  to  whom  Hillmon 
applied  for  insurance  in  the  New 
York  Life  Insurance  Company  in 
the  sum  of  S.")000.  On  December  4, 
1878,  he  and  Baldwin  again  called 
on  ]Mr.  Selig  and  applied  for  a  second 
policy  on  the  life  of  Hillmon  in  the 
Xew  York  Life  Insurance  ( 'ompany 
in  the  sum  of  $.5000.  The  New 
York  Life  Insurance  Company 
issued  policies  on  the  applications 
made  to  it.  The  Connecticut 
Mutual  was  refused  on  technical 
grounds.  On  the  4th  day  of  Decem- 
ber, the  same  day  the  applications 
were  made,  Hillmon  and  Baldwin 
called  also  on  G.  W.  K.  Griffith,  of 
Lawrence,  and  made  application  for 
insurance  in  the  Mutual  Life  Insur- 


ance Compan\'  of  Xew  York  in  the 
sum  of  -SIO.OOO.  The  Mutual  Life 
Insurance  Company  issued  a  policy 
as  applied  for.  On  February  14, 
1879,  Hillmon  returned  from  Wichita 
to  Lawrence,  and  applied  for  a 
policy  in  the  Connecticut  Mutual 
Life  Insurance  Company  in  the 
sum  of  .S5000,  which  policy  was 
granted.  This  gave  Hillmon  insur- 
ance for  .SIO.OOO  in  the  Mutual  Life 
of  New  York,  $10,000  in  the  New 
York  Life,  and  $5000  in  the  Con- 
necticut Mutual,  the  total  being 
$25,000  in  all.  The  annual  pre- 
miums on  this  sum  called  for  about 
$60  a  month.  Hillmon  made  the 
first  semiannual  payments,  part  in 
cash,  and  part  by  one  note,  the 
latter  being  given  to  Mr.  Selig, 
agent  of  the  Connecticut  Mutual 
Company. 

The  insurance  agents  testified 
that  they  had  never  known  of  Hill- 
mon's  personal  character  or  financial 
standing  when  the  policies  were 
issued,  except  that  he  was  vouched 
for  by  Levi  Baldwin  as  a  cattleman 
with  money.  Baldwin  was  a  farmer, 
supposed  to  be  in  good  circum- 
stances, but  subsequent  evidence 
proved  that  he  was  bankrupt. 
]\Ir.  J.  S.  Crew,  as  assignee  of 
a  bank,  had  to  foreclose  a  mort- 
gage on  Baldwin's  farm.  Baldwin 
asked  him  to  wait  until  the  money 
was  paid  on  Hillmon's  insurance,  as 
he  would  then  have  $10,000.  After 
the  litigation  commenced,  Crew 
would  wait  no  longer,  and  the  fore- 
closure was  made,  after  which 
Baklwin  removed  to  New  Mexico. 

One  policy  was  declined  because 
Hillmon  wanted  permission  to  ride 
fast  after  cattle  and  carry  firearms. 
Hillmon's  last  visit  to  Lawrence 
seems  to  have  been  on  a  matter  of 
life  insurance,  as  a  question  had  been 
raised  as  to  the  validity  of  his  policy, 
on  the  ground  that  he  had  never 
been  vaccinated.  He  objected  to 
vaccination  until  assured  beyonfl  a 
doubt  by  the  agents  of  the  company 
that  in  case  of  death,  his  policy 
would  be  void,  on  the  ground  of  his 


862 


PART    III.       PROBLEMS    OF   PROOF 


No.  389. 


misstatements  as  to  his  having  been 
vaccinated.  On  receiving  this  as- 
surance, his  reluctance  was  over- 
come, and  he  was  vaccinated  by  Dr. 
J.  H.  Stuart,  on  the  20th  day  of 
February,  1S79. 

Dr.  PhilHps  testified  that  in  the 
fall  of  1878,  when  living  in  Ton- 
ganoxie,  Levi  Baldwin  at  his  office 
made  some  statements  in  regard  to 
life  insurance.  He  said :  "  Doc, 
would  it  not  be  a  good  scheme  to 
get  your  life  insured  for  all  .\ou  can, 
and  get  some  one  to  represent  you 
as  dead,  and  then  skip  out  for  Africa 

or  some  other  d place  ?  "    Phillips 

replied  that  it  might  be  done,  and 
that  he  presumefl  such  things  had 
been  done.  Baldwin  thought  it 
might  be  done  "like  a  top." 

Hillmon  was  never,  by  any  of  the 
agents,  urged  or  solicited  to  take 
insurance.  The  proposition  first 
came  from  him  —  an  unusual  occur- 
rence —  and  the  insurance  granted 
was  merely  what  he  asked  for. 
There  seems  to  have  been  no  special 
reason  why  he  should  take  out  in- 
surance of  any  kind,  as  the  country 
was  quiet,  no  Indian  raids  had  oc- 
curred in  that  locality  for  a  long 
time,  and  the  alleged  object  of  the 
journey  being  one  suggestive  of  a 
quiet  and  uneventful  journey. 

(Comment.)  —  It  should  be  noted 
that  Levi  Baldwin  was  anxious  to 
pile  up  insurance  on  Hillmon,  but 
took  none  himself.  The  agents  were 
rloubtless  in  fault  in  issuing  such 
insurance  to  such  a  man,  but  the 
backing  of  Baldwin  was  what  se- 
cured it.  Baldwin  was  a  bankrupt 
at  this  time,  though  the  fact  was  not 
generally  known.  Agent  Griffith 
di.scovered  the  situation  when  too 
late,  and  conversed  with  Selig  about 
it.  The  taking  of  825,000  worth  of 
insurance  by  a  man  who  had  not 
the  slightest  prospect  of  ever  being 
able  to  pay  the  annual  premiums 
stamps  the  transaction  as  that  of  a 
villain  or  a  busine.ss  fool. 

The  Tracjcdy,  and  the  Inquests. 
(In  Evidence.)  —  In  that  desolate 
camp  on  Crooked  creek,  two  him- 


dred  yards  from  a  sparsely  traveled 
highway,  on  the  17th  day  of  March, 
1879,  at  about  the  hour  of  sundown, 
a  man  was  shot  through  the  head 
and  killed.  When  farmer  Briley 
returned  with  John  H.  Brown,  who 
had  notified  him  of  the  killing,  he 
found  a  wagon  and  a  campfire  about 
twelve  feet  apart,  and  near  the  fire 
was  the  man  who  had  been  shot. 
The  bullet  from  a  caliber-44  gun 
had  entered  the  skull  one  and  a  half 
inches  above  and  one  inch  in  front 
of  the  auditory  meatus  on  the  right 
side,  and  had  passed  out  on  the 
left  side  one  inch  above  the  auditory 
meatus.  The  feet  of  the  body  were 
towards  the  fire,  and  the  head  was 
supported  on  a  few  fagots.  The 
dead  man's  hat  was  burning  in  the 
flames. 

John  Brown  said  the  dead  man 
was  Hillmon,  and  that  in  taking 
the  gun  out  of  the  wagon  in  prepar- 
ing for  bed,  he  (Brown)  had  caught 
the  hammer  on  the  wagon  box  or  a 
blanket  and  the  gun  had  been  dis- 
charged. He  heard  a  groan,  turned, 
saw  Hillmon  stagger  and  start  to 
fall,  and  running  to  him  caught  him 
in  his  arms  and  swung  him  around 
away  from  the  fire.  He  then  took 
a  horse  and  went  for  the  nearest 
farmer.  The  following  morning  Mr. 
Paddock,  a  justice  of  the  peace,  held 
an  inquest,  after  which  the  body  was 
carried  to  Medicine  Lodge,  where 
another  inquest  was  held.  After 
the  second  inquest  the  body  was 
buried,  and  Brown  and  Levi  Bald- 
win and  Alva  Baldwin  had  l)rought 
material  to  the  grave  to  fence  it, 
when  Major  Theodore  Wiseman 
and  Mr.  Tillinghast,  insurance 
agents,  and  Col.  Sam  Walker,  all  of 
Lawrence,  arrived  and  insisted  on 
exhuming  the  body  for  identification. 

From  the  hour  that  the  disinter- 
ment took  place.  Walker,  Wiseman, 
and  Tillinghast  have  been  sure  that 
the  body  was  not  Hillmon.  Levi 
Baldwin  has  said  it  was  Hillmon. 
Brown,  who  is  the  only  person  who 
can  absolutely  know,  has  sworn  both 
that    it   was   and   that   it  was   not ; 


No.  380. 


HILLMON    I'.    INSURANCE    CO. 


863 


while  Alva  Baldwin,  brother  of 
Levi  Baldwin,  and  one  of  the  most 
intimate  acquaintances  of  Hillmon, 
has  never  appeared  in  court.  Why 
the  plaintiff  has  not  called  him  is 
not  known.  The  defendants  have 
feared  him  because  of  his  relation- 
ship to  Baldwin  and  Mrs.  Hillmon. 

Before  the  parties  from  Lawrence 
reached  Medicine  Lodge,  Brown 
wrote  to  Mrs.  Hillmon  a  touching 
letter,  which,  for  the  purpose  of 
breaking  the  news  to  a  waiting  bride 
that  her  husband  had  been  stupidly 
killed  and  hurriedly  buried  in  a 
strange  land,  only  twenty-four  or 
forty-eight  hours  from  home,  in 
winter,  may  be  considered  a  model. 
The  letter  was  as  follows  : 
"  Medicine  Lodge,  March  19,  1879. 

"Mrs.  S.  E.  Hillmon  :  I  am 
sorry  to  state  the  news  that  I  have 
to  ^tate  to  you.  John  was  shot  and 
killed  accidentally  by  a  gun  as  I 
went  to  take  it  out  of  the  wagon, 
about  15  miles  north  of  this  place. 
I  had  him  dressed  in  his  best  clothes, 
and  buried  in  Medicine  Lodge  grave- 
yard. I  shall  wait  here  until  Mr. 
Paddock  hears  from  you.  If  you 
will  leave  me  to  take  charge  of  the 
team,  I  will  dispose  of  them  to  the- 
best  advantage,  and  take  the  pro- 
ceeds, and  when  I  come  back  to 
Lawrence  I  will  relate  the  sad  news 
to  you.  Probalily  you  have  heard 
of  it  before  you  get  this  letter. 
"  Yours  truly, 

"  John  H.  Brown." 

Arriving  at  Lawrence,  the  dead 
body  was  met  at  the  station  by 
Mr.  C.  W.  Smith,  the  undertaker, 
who  had  received  a  dispatch  from 
Levi  Baldwin,  asking  him  to  take 
charge  of  the  remains.  The  body 
vvas  taken  to  the  undertaking  es- 
tablishment and  properly  cared  for 
in  the  matter  of  treatment  for 
preservation.  It  was  then  placed  in 
an  outhouse  used  for  the  purpose, 
where  it  could  be  seen  by  all  who 
desired  to  do  so.  Mrs.  Hillmon  de- 
bated as  to  whether  she  should  see 
the  body  or  not,  but  finally  went  to 
look   at    it.     On   her    visit    it   was 


being  prepared  for  preservation  and 
burial,  and  she  made  a  second 
visit.  The  physicians  and  others 
saw  it,  as  hereafter  shown.  The 
body  was  removed  to  Oak  Hill 
cemetery  and  buried,  but  was  again 
taken  up  and  photographed  —  two 
negatives,  a  front  and  a  side  view 
being  taken.  The  side  view  was 
taken  first,  then  the  front  view. 
The  latter  showed  the  nose  in  a 
broken-down  condition  on  one  side. 
The  body  was  minutely  described 
by  the  physicians  as  follows : 
Weight,  147  pounds ;  height,  five 
feet  eleven  and  five-eighths  inches ; 
hands,  long  and  slender ;  foot,  ten 
and  one  half  inches  long ;  hair, 
dark  brown,  nearly  black,  heavy, 
long,  and  wavy  ;  mustache,  thin  and 
stubby  ;  teeth,  large,  white,  perfect, 
and  firmly  set;  face,  long  and 
thin,  narrowest  through  the  temples ; 
cheek  bones,  high  and  prominent ; 
nose,  Roman,  and  highest  near  the 
center ;  lips,  parted,  and  the  upper 
short,  showing  the  teeth ;  jaws, 
strong  and  square,  as  shown  by  cast 
of  teeth ;  stomach  and  bowels,  en- 
tirely empty  ;  vaccine  scab  on  arm, 
fourteen  days  old ;  free  from  scars 
on  head  or  hands. 

The  Coroner  of  the  county.  Dr. 
Morse,  held  an  inquest,  J.  W.  Green 
being  then  County  Attorney.  The 
jury  returned  a  verdict  (as  here- 
after stated)  to  the  effect  that  the 
body  was  not  Hillmon's. 

Identification  of  the  Body.  (In 
Evidence.)  —  Mrs.  Hillmon,  John 
Eldridge,  a  stable  keeper.  Will 
Covey,  a  teamster,  Levi  Baldwin, 
John  H.  Brown,  Dr.  Fugate,  a  veteri- 
nary surgeon,  Mr.  Rahskopf,  a 
dealer  in  hides,  and  five  men  — 
Derrick  L^pdegraff,  H.  ]\I.  Davis, 
J.  W.  Uppeman,  Clark  Gilmore, 
and  E.  INI.  Byerly  —  at  Medicine 
Lodge,  were  the  witnesses  who 
swore  that  the  body  was  that  of 
John  W.  Hillmon.  Covey,  Fugate, 
and  Rahskopf  did  not  know  Hillmon 
intimately,  and  the  five  men  at 
Medicine  Lodge  merely  testified 
that   the  dead   man   was   the   man 


864 


PART   III.       PROBLEMS    OF    PROOF 


No.  389. 


they  had  seen  in  the  wagon  with 
Brown  going  west.  The  Medicine 
Lodge  witnesses  (Hd  not  know 
HiUmon  personally,  but  believed 
that  the  dead  man  was  the 
man  they  had  seen  briefly,  as 
above  described.  Mr.  Riggs  spent 
considerable  time  in  and  about 
^Medicine  Lodge  working  up  this 
line  of  evidence. 

Mrs.  HiUmon,  immediately  before 
the  body  reached  Lawrence,  went 
to  the  office  of  G.  W.  E.  Griffith,  in 
response  to  a  letter  from  Griffith 
asking  her  to  call  and  take  steps  to 
make  proof  of  death.  At  Griffith's 
office  Mrs.  Hillmon  met  Griffith 
and  A.  Selig,  insurance  agents. 
They  asked  her  for  a  description  of 
her  husband.  Both  Griffith  and 
Selig  testified  that  she  seemed  un- 
able or  unAvilling  to  give  any  descrip- 
tion. They  attempted  to  take  down 
what  she  answered,  but  stopped 
,  trying,  as  they  could  get  nothing 
definite  from  her.  What  they  did 
get  down  on  paper  in  the  beginning 
was  given  to  County  Attorney 
J.  W.  Green,  to  the  best  of  Mr. 
Griffith's  recollection.  Mr.  Green 
never  remembered  having  seen  any- 
thing of  the  sort.  ]\Ir.  Selig  .says 
that  Mrs.  Hillmon  said  that  she  did 
not  know  her  husband  very  well. 
At  the  in(iuest  Mrs.  Hillmon  was 
accompanied  by  her  first  attorney, 
Mr.  R.  J.  Borgholthaus.  She  pro- 
duced pictures  of  her  husband,  but 
would  not  answer  satisfactorily  cjues- 
tions  put  to  her  by  the  County 
Attorney  and  the  coroner's  jury. 
When  asked  how  much  hair  her 
husband  had,  she  answered  that  he 
had  more  than  Mr.  Green.  As 
that  gentleman  was  bald,  this  wild 
dash  of  levity  afi'onh'd  a  pleasing 
break  in  the  melancjjoly  course  of 
the  proceedings. 

The  jury  found  the  body  to  be 
that  of  an  unknown  man  feloniously 
shot  by  John  II.  Brown.  Four  of 
these  jurymen  —  K.  B.  (Jood,  J.  W. 
.\dams,  W.  O.  Hubbell,  and  .\ndrew 
Tosh,  knew  Hilhuon  well,  and  swore 
that  the  bo(i\-  was  not  that  of  Hill- 


mon. The  same  was  sworn  to  by 
W.  H.  Lamon,  the  photographer 
who  took  the  pictures  of  Hillmon, 
exhibited  by  Mrs.  Hillmon,  and  also 
the  picture  of  the  dead  man ;  Col. 
Sam  Walker,  who  saw  the  body 
when  it  was  first  exhiuned  at  Medi- 
cine Lodge;  Theodore  Wiseman, 
who  was  also  at  the  opening  of  the 
grave  at  Medicine  Lodge ;  A.  L. 
Selig,  Mr.  Tillinghast,  and  G.  W.  E. 
Griffith,  insurance  agents  ;  Edward 
Monroe,  a  hackman  who  had  carried 
Hillmon ;  George  Gould,  an  im- 
plement dealer ;  Jo.seph  Bebout,  a 
farmer  ;  Wm.  Brown,  another  farmer 
(the  three  latter  having  done 
business  with  Hillmon) ;  Wm. 
Brockelsby,  Cit}'  Marshal  of 
Lawrence,  who  at  the  time  of  the 
disappearance  was  looking  for  Hill- 
mon on  information  from  the  Texas 
parties  who  had  lost  their  teams ; 
Frank  L.  Woodruff,  merchant,  who 
had  traded  with  Hillmon  frequently  ; 
Dr.  V.  G.  Miller,  who  examined 
Hillmon  for  his  policy  in  the  Mutual 
Life  Insurance  Company  of  New 
York,  and  who  knew  him  well ; 
Dr.  J.  H.  Stuart,  who  examined 
Hillmon  for  his  policies  in  the  New 
York  Life,  and  who  vaccinated  him 
on  the  20th  of  FWiruary ;  and  Dr. 
C.  V.  Mottram,  who  also  knew  him. 
Dr.  Stuart  met  Hillmon  in  Selig's 
office  October  31,  1S7S,  and  on  that 
day  examined  him  for  life  insurance. 
Early  in  December  he  examined 
him  again  for  another  policy.  On 
the  2()th  day  of  F^ebruary  he  vac- 
cinated Hillmon  at  two  points  on 
the  left  arm.  Hillmon  consulted 
him  five  or  six  times  about  the  vac- 
cination. All  or  practically  all  of 
the  witnesses  above  named  as  hav- 
ing sworn  positively  that  the  body 
was  not  that  of  Hillmon,  based  their 
belief,  first,  on  their  general  inability 
to  recognize  the  dead  face ;  and, 
second,  on  the  facts  that  the  dead 
man,  as  compared  with  Hillmon, 
had  very  much  rlarker  hair,  higher 
cheek  bones,  a  broader  chin,  a  more 
Roman  nose,  larger  hands  and 
longer    arms,    better    teeth,    larger 


L^3.  389. 


HILLMON    l\    INSURANCE    CO. 


865 


feet,  and  a  longer  measurement. 
Not  all  of  these  witnesses  testified  to 
all  of  these  faets,  but  all  testified 
to  some  of  them,  and  nearly  all  to 
nearly  ail  of  them. 

An  important  branch  of  the  testi- 
mony of  identification  was  the  tooth 
testimony.  The  following-named 
witnesses,  thirty-eight  in  number, 
testified  that  Hillmon  had  a  de- 
fective tooth,  or  was  minus  a  tooth 
altogether  from  the  front  part  of  the 
upper  jaw,  most  of  them  locating 
it  on  the  upper  left  side,  immedi- 
ately in  front  of  the  eyetooth  ;  Major 
Wiseman,  Colonel  Sam  Walker, 
Oliver  Walker,  W'illiam  Hogan, 
Jackson  Hogan,  Tinnette  Korkadel, 
Charles  Snow,  Josiah  B.  Brown, 
James  T.  Cameron,  Mrs.  M.  J.  Dart, 
Dr.  V.  G.  Miller,  Frank  H.  Hatch. 
J.  E.  Taylor,  W.  S.  Angel,  H.  D. 
Marshall,  Mrs.  Wm.  T.  Faxon, 
Joseph  Bebout,  Claude  Holliday, 
Harriet  Adams,  James  A.  Adams, 
E.  L.  Emmons,  Mr.  Rothwell, 
R.  A.  Brown,  Joshua  Wilson, 
William  Brockelsby,  Mrs.  Smith, 
Wm.  T.  Faxon,  Mary  Carr,  Mar- 
garet Jane  Kaufman,  Jackson 
Taylor,  Robert  Blake,  S.  D.  Nixon, 
Mrs.  Harris,  W.  W .  Nichols,  George 
A.  Nichols,  Mrs.  Geo.  A.  Nichols, 
Maggie  J.  Dixon,  and  Jefferson 
Schleppy.  Wiseman  remembered 
that  there  was  something  imperfect 
about  Hillmon's  front  teeth.  Colo- 
nel Walker  remembered  that  once 
when  lying  on  a  bunk  in  his  stable, 
Hillmon  came  to  the  place  where  he 
was  lying,  and  hung  his  overcoat  on 
a  nail  over  him.  While  they  were  in 
this  relative  position,  Walker  no- 
ticed the  absence  of  one  tooth  in 
the  front  part  of  Hillmon's  upper 
jaw,  and  remembered  it  at  the  time 
because  his  son  Oliver  has  lost  a 
tooth  in  exactly  the  same  place. 
Oliver  Walker  remembered  the  same 
c'rcumstance  —  the  absence  of  the 
tooth  —  because  of  having  himself 
lost  a  tooth  from  the  same  place. 
Wm.  Hogan  remembered  a  defec- 
tive tooth.  Tinnette  Korkadel,  of 
Valley  Falls,  was  a  schoolmate  of 


Hillmon's,  and  for  many  years  an 
intimate  friend  of  the  family.  She 
remembered  that  as  a  boy  Hillmon 
had  a  black  or  discolored  tooth  on 
the  left  front  of  the  upper  jaw. 
Hillmon  was  once  very  attentive  to 
her.  James  T.  Cameron  knew  Hill- 
mon when  both  were  farmers  in  the 
same  neighl)orhood.  They  once  had 
a  con\'ersation  with  reference  to 
the  missing  tooth.  Cameron  swore 
positively  that  the  tooth  next  to  the 
upper  left-hand  eyetooth  was  gone. 
Mrs.  M.  J.  Dart,  who  had  seen 
Hillmon  and  Mrs.  Hillmon  at  her 
house,  swore  positively  as  to  the 
missing  tooth.  Mrs.  Faxon  was  at 
the  house  of  Wm.  T.  Faxon,  whom 
she  subseciuently  married,  when  the 
first  Mrs.  Faxon  was  ill.  Sallie  E. 
Quinn  was  a  domestic  in  the  employ 
of  Mrs.  Faxon  at  that  time.  One 
day  she  received  a  call  from  Mr. 
Hillmon,  and  Sallie  asked  Mrs. 
Faxon  what  she  thought  of  her 
choice.  Mrs.  Faxon  replied  that 
she  liked  him  much,  but  that  it  was 
a  pity  that  he  had  lost  a  front  tooth. 
Wm.  T.  Faxon  on  that  occasion 
noticed  the  absence  of  the  tooth,  and 
as  he  had  been  buying  false  teeth 
for  his  wife,  made  some  remark  as 
to  how  much  it  would  cost  to  put  a 
false  tooth  in  Hillmon's  mouth. 
This  remark  caused  his  wife  some 
annoyance,  as  she  considered  what 
was  said  as  a  complaint  about  the 
expense  which  she  had  thus  incurred. 
Mr.  and  Mrs.  F'axon  swore  positively 
as  to  the  missing  tooth.  Josiah  Wil- 
son knew  Hillmon  near  Tonganoxie. 
He  swore  positively  that  Hillmon 
had  a  tooth  out  of  the  left  front  of 
the  upper  jaw.  Claude  Holliday 
knew  Hillmon  intimately,  and  re- 
membered the  absence  of  the  tooth. 
He  mentioned  one  time  in  particular 
when  the  absence  was  more  than 
usually  noticeable,  because  Hillmon 
laughed.  George  A.  Nichols  and 
his  wife,  Hillmon's  sister,  formerly 
Mary  E.  Hillmon,  both  testified 
positively  to  the  absence  of  a  tooth 
from  their  brother's  upper  jaw  on 
the   left   side,    front.     Mr.    Nichols 


866 


PART    III.       PROBLEMS   OF    PROOF 


No.  389. 


had  known  Hillmon  since  1865, 
and  had  been  his  most  intimate 
friend.  He  first  noticed  the  entire 
al^sence  of  a  tooth  in  1S72,  hut 
before  that  had  noticed  for  many 
vears  that  a  tooth  wa.s  discolored. 
\V.  W.  Nichols,  brother  of  G.  A. 
Nichols,  knew  Hillmon  intimately, 
and  swore  that  one  of  his  upper 
front  teeth  was  either  out  or  de- 
fective. Dr.  Miller,  in  making  his 
examination  of  Hillmon  for  insur- 
ance, noticed  the  absence  of  a  tooth 
from  the  left  front  of  the  upper  jaw. 
Jeffer.son  Schleppy,  cousin  to  Hill- 
mon, testified  to  the  absence  of  the 
tooth. 

(Not  in  Evidence.)  —  Dr.  Howe, 
a  Lawrence  dentist,  now  living  in  the 
City  of  Mexico,  says  that  some  time 
before  the  Hillmon  affair  became 
notorious,  two  men  called  upon  him 
to  have  an  artificial  tooth  matle  for 
the  position  in  front  and  next  to 
the  eyetooth,  on  the  left  side  of  the 
upper  jaw.  He  did  not  know  Hill- 
mon, but  identified  Brown  as  the 
other  of  the  two  men.  His  books 
were  destroyed,  so  that  any  entries 
which  he  might  have  made  could  not 
assist  him  in  identifying  the  men. 
The  plate  was  never  called  for,  and 
Mr.  Howe  lost  what  he  had  in  the 
job. 

(Comment.)  — The  cross-exami- 
nation of  all  these  witnesses  elicited 
the  fact  that  there  were  many 
persons  with  whom  they  were  in- 
timately acquainted,  the  condition 
of  whose  teeth  they  could  not  tell. 
They  were  asked  about  the  mer- 
chants with  whom  they  dealt  and 
other  people  with  whom  they  were 
well  acquainted,  various  questions 
as  to  teeth,  etc.,  the  majority  of 
which  questions  they  were  unable  to 
answer  as  definitely  as  they  were 
swearing  on  the  subject  of  Hillmon's 
lost  tooth. 

(In  Evidence.)  —  A  small  item  in 
the  testimony  of  identification  re- 
lated to  the  hair.  One  of  the 
Walters  sisters  testified  in  a  general 
way  that  her  brother's  temples  were 
bare.     A   witness    for    the   plaintiff 


swore  from  the  looks  of  the  pictures 
that  the  hair  of  the  dead  man  grew 
over  the  temples.  Hillmon's  hair 
Was  an  ordinary  brown.  Walters 
had  hair  almost  black ;  so  had  the 
corpse.  The  testimony  as  to  the 
(juality  of  Walters'  hair  and  Hill- 
mon's was  mixed,  some  saying  one 
way  and  some  another  —  the  dif- 
ficulty evidently  being  that  no  two 
witnesses  had  the  same  standard  of 
comparison. 

Another  item  of  importance  was 
the  fact  that  the  clothes  of  the  dead 
man  were  slightly  too  small  for  him. 
This  was  obser\'ed  by  the  members 
of  the  coroner's  jury,  the  under- 
takers, and  the  physicians. 

Another  important  branch  of  the 
testimony  of  identification  was  the 
vaccination  testimony.  Dr.  Stuart 
vaccinated  Hillmon  on  the  20th  of 
February,  and  on  the  25th  the  vac- 
cination was  found  to  be  "working" 
well.  The  dead  man  was  killed  on 
the  17th  of  the  following  March, 
27  days  from  the  date  of  the  vac- 
cination. The  vaccination  scabs  on 
the  dead  man's  arm  were  found  to 
adhere  closely  to  the  arm,  and  had 
to  be  removed,  if  at  all,  with  force. 
The  area  of  the  vaccination  was  cut 
out  by  Dr.  Stuart  from  the  arm  of 
the  dead  man  and  preserved  in 
alcohol.  It  was  of  no  possible  use 
to  anybody,  and  so  was  thrown 
away  when  Dr.  Stuart  removed 
from  Lawrence.  The  defendant 
maintained  and  the  physicians  testi- 
fied that  the  course  of  a  healthy 
vaccination  would  have  left  the 
arm  j)ractically  well  in  a  period  of 
twenty-seven  days.  As  the  vac- 
cination scabs  showed  the  vaccina- 
tion to  })e  a  perfectly  healthy  one, 
so  far  as  could  be  determined  by 
careful  examination,  the  physicians 
for  the  defendants,  Drs.  Miller, 
Mottram,  Morse,  Stuart,  Branstrup, 
Alexander,  Jones,  and  Hibben,  gave 
it  as  their  opinion  that  the  vaccina- 
tion marks  on  the  dead  body  could 
not  have  been  from  the  vaccination 
of  Hillmon  rlone  on  the  2()th  day  of 
February.     All  these  physicians,  as 


No.  389. 


HILLMON   V.    INSURANCE   CO. 


867 


well  as  several  called  by  the  plain- 
tiff, testified  that  an  unhealthy 
condition  of  the  body  or  an  accident 
might  have  prolonged  the  life,  so 
to  speak,  of  the  vaccine  sore,  and 
it  was  this  remote  general  possibility 
which  was  relied  on  to  nidlify  the 
defendants'  testimony  on  this  sub- 
ject. 

(Comment.)  —  The  physicians 
were  practically  a  unit  on  the  sub- 
ject of  vaccination.  All  maintained 
that  the  progress  of  a  perfectly 
healthful  and  uninjured  vaccina- 
tion sore  was  definite  and  cer- 
tain ;  that  an  injury,  like  a  blow, 
or  any  gross  impurity  of  the  blood, 
would  prolong  the  sore ;  and  that 
any  sore  so  prolonged  Avould  have  a 
different  appearance  from  the  per- 
fectly natural  vaccine  sore.  The 
sore  on  the  dead  man  was  a  perfect 
vaccine  sore,  as  sworn  to  by  the 
four  physicians  who  saw  it. 

(In  Evidence.)  —  Another  impor- 
tant branch  of  the  testimony  of 
identification  was  that  in  relation 
to  the  condition  and  contents  of  the 
stomach  of  the  dead  man.  Brown 
and  Hillmon,  according  to  the  testi- 
mony of  tKe  former,  had  eaten  a 
meal  of  bacon,  bread,  and  coffee 
about  an  hour  before  sundown  on 
the  afternoon  of  the  killing.  The 
physicians,  testifying  for  the  de- 
fendants as  above  named,  gave  it 
as  their  opinion  that  the  occurrence 
of  death  at  the  length  of  time  men- 
tioned after  eating,  in  cold  weather, 
would  cause  evidences  of  undigested 
food  to  be  found  in  the  stomach. 
The  post-mortem  examination  only 
revealed  a  small  quantity  of  mucus. 
The  physicians  agreed  that  digestion 
under  some  circumstances  could  go 
on  after  death  —  that  is,  given  food 
and  gastric  juice  in  a  stomach  not 
too  cold,  a  chemical  action  would 
take  place  which  would  result  in 
the  dissolution  of  the  food.  Such 
action  would  take  place  in  any 
receptacle  as  well  as  in  the  stomach. 
The  greatest  range  of  temperature 
given  as  permitting  this  chemical 
action  was  between  zero  and  boiling 


point,  Fahrenheit.  It  was  also 
shown  that  if  tlic  food  in  the  stomach 
of  the  dead  body  had  become  de- 
composed —  particularly  if  it  had 
become  decayed  and  gaseous  —  the 
rough  riding  from  Medicine  Lodge 
to  the  railroad  station  at  Hutchinson, 
and  from  Hutchinson  by  cars  to 
Lawrence,  might  have  dispersed 
such  gases  bj-  the  process  described 
as  analogous  to  the  process  of  per- 
spiration. The  majority  of  the  phy- 
sicians gave  a  good  deal  of  latitude 
to  all  their  opinions  on  this  subject 
of  digestion,  although  the  majority 
were  clearly  of  the  opinion  that  if 
the  meal  described  had  been  eaten 
as  described,  and  the  man  killed  as 
stated,  in  a  condition  of  unusually 
cold  weather  as  proven,  the  chances 
would  be  largely  in  favor  of  the  stom- 
mach  showing  signs  of  undigested 
food,  particularly  as  the  stomach  it- 
self was  in  good  condition. 

(Comment.) — The  testimony  on 
the  subject  of  digestion  was  very 
interesting,  but  was  certainly  not 
very  tangible  and  conclusive  for 
the  jury.  It  would  undoubtedly 
be  summed  up  by  a  strictly  impartial 
observer  as  having  the  effect  of 
showing  that  the  theory  of  the  de- 
fendants was  a  very  plausible  but 
not  conclusive  one. 

(In  Evidence.)  —  Another  im- 
portant branch  of  the  testimony  of 
identification  related  to  the  respec- 
tive measurements  of  Hillmon  and 
the  dead  man.  A  certified  copy  of 
Hillmon's  enlistment  in  the  army 
at  18  years  of  age  shows  him  to  be 
five  feet  eight  inches  high.  His 
discharge  a  year  later  showed  the 
same  height.  In  his  application  for 
msurance  in  the  Mutual  Life,  Hill- 
mon gave  his  height  as  five  feet 
eleven  inches.  All  other  policies 
were  copied  from  this  —  at  least  in 
the  matter  of  height.  Dr.  Miller, 
examiner  for  the  Mutual  Life  Insur- 
ance Company,  testified  that  Hill- 
mon called  at  his  office,  and  stated 
to  him  that  he  had  made  a  mistake 
in  giving  his  height.  The  Doctor 
then  measured  him  in  the  presence 


868 


PART    III.       PROBLEMS    OF    PROOF 


No.  389. 


of  Selig,  and  made  a  memorandum 
on  a  blank  leaf  of  his  office  ledger  as 
to  the  result  of  that  measurement, 
wliich  was  five  feet  nine  inches. 
The  memorandum  in  tiie  ledger  was 
written  out  in  full,  dated,  and  sworn 
to  as  having  been  made  at  the  time 
of  the  measurement,  and  as  accu- 
rately recording  the  results  of  that 
measurement.  The  memorandum 
itself  was  not  admitted  as  evidence, 
but  the  Doctor  was  permitted  to 
hold  it  in  his  hand,  and  from  it 
refresh  his  memory  as  he  testified. 
Mr.  Selig  was  present  when  this 
measurement  was  made,  and  knew 
all  about  it,  excepting  that  he  could 
not  swear  that  he  actually  examined 
the  measuring-line  himself  as  it  was 
applied  to  the  wall.  The  memo- 
randum made  was  as  follows  : 

"  Lawrence,  Kansas,  December  17, 
1878  —  John  W.  Hillmon  called  on 
me  and  reported  a  slight  mistake  in 
his  height.  He,  Hillmon,  is  five 
feet  nine  inches,  in  place  of  five  feet 
eleven  inches,  as  stated  in  his  policy 
for  life  insurance  in  the  New  York 
Mutual. 

"  V.  G.  Miller." 
Hillmon  also  stated  the  correction 
as  to  height  to  Dr.  Stuart,  but 
no  memorandum  was  made  of  it. 
The  witnesses  as  to  Hillmon's 
height  —  to  the  effect  that  he  was 
five  feet  nine  inches  high  —  were 
J.  H.  Stuart,  Dr.  V.  G.  Miller, 
Major  Theo.  Wiseman,  Joseph 
Bebout,  A.  L.  Selig,  W.  W.  Nichols, 
Geo.  A.  Nichols,  Mrs.  Nichols, 
Draves  of  Wichita,  H.  D.  Marshall, 
Claude  Holliday. 

Another  important  branch  of  the 
testimony  of  identification  related 
to  the  scar  on  Hillmon's  hand. 
W.  W.  Nichols  swore  that  once  when 
he  was  in  camp  with  Hillmon  in 
Texas,  and  while  some  general 
shooting  was  being  done  at  a  mark, 
Hillmon  attempted  to  crowd  a 
loaded  cartridge  into  his  breech- 
loading  gun  with  a  stick,  and  ex- 
ploded the  cartridge,  the  shell  of  it 
cutting  a  long  wound  around  tiie 
base   of   one   thumb,   and   an    inch, 


more  or  less,  on  the  outside.  This 
wound  left  a  scar,  which  was  sworn 
to  as  being  very  plainly  seen  sub- 
sequenth'  by  W.  W.  Nichols,  G.  A. 
Nichols,  and  Mrs.  G.  A.  Nichols, 
Hillmon's  sister,  when  Hillmon  was 
making  his  sister's  family  a  visit,  in 
Washington  county.  H.  D.  Mar- 
shall and  Uufus  Whitney  also  swore 
to  the  scar. 

William  Brown  traded  shoes  with 
Hillmon,  and  George  A.  Nichols  and 
Jefferson  Schleppy  also  testified  as 
to  the  size  of  Hillmon's  foot.  It 
was  a  foot  calling  for  shoes  number 
eight  or  nine.  The  dead  man's 
shoes  mysteriously  disappeared  on 
the  trip  between  Medicine  Lodge 
and  Hutchinson  from  Hillmon's 
trunk.  Brown  and  Baldwin  having 
charge  of  all  the  effects,  as  well  as  of 
the  body. 

Mr.  C.  W.  Smith,  the  undertaker, 
and  Doctors  Stuart,  Mottram,  and 
Miller  measured  the  dead  body, 
and  found  it  to  be  five  feet  eleven 
and  five  eighths  inches  long.  The 
witnesses  who  testified  to  this  part 
of  the  description  of  Frederick 
Adolph  Walters  were  twenty-five  in 
number.  The  witnesses. who  swore, 
among  other  things,  that  the  photo- 
graphs of  the  dead  man  were  those 
of  Frederick  Adolph  Walters  were 
twenty-two  in  number.  Among 
those  witnesses  were  the  entire 
family  of  Walters  at  Fort  Madison. 
Four  witnesses  at  All)uquerque 
identified  the  photographs  of  Hill- 
mon as  the  man  they  had  known 
near  Albuquerque.  One  other  wit- 
ness, at  Breckenridge,  Colorado, 
.swore  to  having  seen  Hillmon  per- 
.sonally.  This  testimony,  however, 
was  not  very  satisfactory. 

Levi  Baklwin  testified  to  having 
known  Hillmon  eight  or  ten  years. 
The  photograph  of  Hillmon  ex- 
hibited had  been  in  his  home  a  long 
time.  He  traded  clothes  with  Hill- 
mon a  short  time  before  he  went 
.south.  Could  not  tell  exactly  where 
the  trade  took  place,  but  thought  it 
was  in  Jufl.son's  house  at  Leaven- 
worth.    The     body     exhumed     at 


No.  3S9. 


HILLMON    V.    INSURANCE    CO. 


869 


Medicine  Lodge  had  on  the  same 
coat  and  vest  which  he  had  traded 
to  HiUmon.  IJahlwin  could  not 
remember  whether  he  sent  Ililhnon 
$25  at  one  time  and  $10  at  another 
time,  or  not.  Hillmon  had  good 
teeth.  Baldwin  testified  at  the 
coroner's  jury  that  he  did  not  rec- 
ollect about  Hillmon's  teeth,  but 
said  at  the  trial  that  the  tooth  case 
was  not  fixed  on  his  mind  until  after 
he  saw  the  teeth  exposed  and  be- 
came satisfied. 

Another  important  liranch  of  the 
testimony  of  identification  was  the 
scar  on  the  back  of  Hillmon's  head, 
sworn  to  by  George  Lewis,  the  bar- 
ber, whose  habit  it  was  to  cut  Hill- 
mon's hair  so  as  to  hide  the  scar ; 
Mr.  V.  P.  Newman,  a  blacksmith, 
who  stood  by  on  one  occasion  while 
Lewis  was  so  cutting  the  hair ;  and 
Jeft'erson  Schleppy,  Hillmon's  cousin. 
The  dead  man  had  no  scar  on  the 
back  of  his  head. 

Another  item  in  the  identification 
was  the  finding  of  a  mole  on  the 
dead  man's  back,  which  was  sworn 
to  positively  by  the  Fort  Madison 
witness  as  being  exactly  in  the  loca- 
tion of  a  mole  on  the  back  of  Walters. 

Physicians  Miller,  Mottram, 
Morse,  and  Stuart  testified  that 
judging  from  the  skin,  hair,  teeth, 
and  appearance  generally  of  the 
dead  body,  it  was  that  of  a  man 
about  2'5  years  of  age.  This  opinion 
was  right  if  the  body  was  that  of 
Walters,  wrong  if  it  was  that  of 
Hillmon. 

(Comment.)  —  The  method  of 
cross-examining  the  witnesses  on  the 
subject  of  their  remembrance  of  the 
tooth  peculiarity,  though  easily 
understood  by  one  who  gives  the 
subject  careful  attention,  is  very 
effective  with  the  casual  observer, 
the  point  of  it  being  that  because  a 
man  remembers  a  certain  thing  he 
must  necessarily  remember  every 
other  thing  of  equal  importance. 
If  the  matter  be  carefully  consid- 
ered, however,  it  soon  appears  that 
about  the  only  rule  which  can  be 
laid    down    for   the   explanation    of 


what  is  remembered,  is  that  a  man 
remembers  what  he  remembers. 
The  mind  is  a  sieve.  It  loses  more 
than  it  holds.  We  see  and  hear,  and 
do  a  multitude  of  things  daily,  all  of 
which  might  be  remembered,  but 
most  of  which  are  forgotten.  The 
fact  that  one  fails  to  remember  an 
occurrence  of  last  month  is  not  proof 
that  he  does  not  remember  a  similar 
occurrence  of  ten  years  ago.  Most 
of  our  memories  are  latent,  and  we 
are  aware  of  them  only  when  some 
special  circumstance  recalls  them  to 
mind.  If  one  be  asked  to  name  all 
the  acquaintances  seen  yesterday, 
the  list  will  be  very  brief ;  but  after 
it  is  finished,  if  he  be  asked  a  more 
leading  question  (for  example : 
Did  you  not  see  John  Doe,  or  Rich- 
ard Roe  ?)  the  answer  may  be  yes, 
although  without  such  reminder  the 
fact  might  have  been  forever  be- 
yond recall.  It  is  fair  to  presume 
that  in  the  minds  of  the  jury  this 
style  of  cross-examination  utterly 
blotted  out  the  overwhelming  evi- 
dence of  thirty  or  more  reliable  men 
on  the  subject  of  the  teeth. 

Mrs.  Hillmon,  Buchan,  and  Brown. 
(In  E\'idence.)  —  A  very  important 
branch  of  the  testimony  consisted 
of  that  given  by  Mrs.  Hillmon, 
John  H.  Brown,  Hillmon's  compan- 
ion at  the  time  of  his  disappearance, 
and  Hon.  William  J.  Buchan,  of 
Wyandotte.  A  large  part  of  the 
testimony  of  these  three  is  so  closely 
interwoven  as  to  make  it  convenient 
to  present  all  together.  So  far  as 
Brown  was  concerned  up  to  the  time 
of  the  disappearance,  there  is  little 
to  be  said  about  him  except  that  he 
was  much  like  Hillmon  in  his  general 
characteristics,  though,  it  seems,  was 
in  every  waj'  a  much  weaker  man. 
He  had  been  a  miner  with  Hillmon 
in  Colorado,  and  had  traveled  with 
him  in  Texas  on  his  various  long 
trips.  The  two  trips  west  from. 
Wichita  were  made  in  Brown's  com- 
pany. Brown  testified  that  he  and 
Hillmon  had  on  the  first  trip  traveled 
from  Wichita  to  Medicine  Lodge ; 
thence   to  Sun   Citv ;    thence   to  a 


870 


PART    III.       PROBLEMS    OF    PROOF 


No.  389. 


town  on  the  Santa  Fe  road  ;  thence 
to  Great  Bend  ;  thence  to  Hutchin- 
son ;  thence  back  to  Wichita. 
Between  the  return  to  Wichita  and 
the  departure  for  tlie  second  trip 
Brown  testified  that  Hilhiion  re- 
turned to  Lawrence.  On  the  second 
trip  the  two  men  went  from  Wichita 
to  Kingman ;  thence  to  Harper 
City  ;  thence  to  Me<Hcine  Loflge ; 
thence  to  Sun  City ;  thence  to  Ehn 
creek,  finally  to  Crooked  creek, 
where  the  disappearance  took  place. 
Brown  testified  that  he  arrived  at 
Crooked  creek  on  the  IGth  of  March, 
and  that  while  in  camp  during  the 
next  day  a  man  called  during  the 
forenoon.  In  the  afternoon  Brown 
and  Hillmon  had  been  shooting  with 
a  gun  at  a  mark,  and  after  they  were 
through  Hillmon  put  the  gun  back 
in  the  wagon,  with  the  muzzle 
sticking  out.  About  bedtime 
Brown  went  to  get  ready  for  bed. 
He  took  hold  of  the  barrel  of  the  gun 
and  pulled  it  over  his  right  shoul- 
der. The  hammer  caught  on '  the 
wagon,  and  the  gun  was  discharged. 
Brown  testified  that  he  dropped  the 
gun,  turned,  and  went  to  Hillmon, 
who  was  twelve  feet  distant,  and 
caught  him  before  he  fell,  and 
swung  him  around  away  from  the 
fire.  He  then  got  a  horse  and  went 
three  quarters  of  a  mile  to  a  house 
and  told  w'hat  had  occurred.  The 
man  of  the  house  returned  with  him 
to  the  camp.  The  man's  name  was 
P.  B.  Briley.  He  was  the  same  man 
who  was  at  the  camp  in  tlie  morning. 
The  next  morning  Esquire  Pad- 
dock held  an  inquest.  They  then 
took  the  body  and  went  to  Medicine 
Loflge,  where  an  inquest  was  held. 
The  next  day  the  body  was  buried  at 
Medicine  Lodge.  After  Levi  and 
Alva  Baldwin,  Colonel  Walker, 
Major  Wiseman,  and  Tillinghast 
came  from  Lawrence,  Brown  went  to 
the  grave  to  help  take  up  the  body. 
He  returned  with  the  body  to  Law- 
rence. Brown  testified  that  when 
they  left  W'ichita  on  the  last  trip  a 
man  stayed  with  them  all  the  time 
ihey  were  at  Cowskin  creek.     This 


man  joined  them  about  three  miles 
out  from  Wichita.  The  stranger 
left,  and  was  not  with  the  two  men 
at  camp  when  the  disappearance 
took  place.  W^hen  the  inquest  w^as 
lield  at  Lawrence,  Brown,  after 
giving  his  testimony,  left  towm  in  a 
hurry,  and  returned  to  the  vicinity 
of  W\'andotte,  where  Brown's 
father  lived.  Brown's  father  ap- 
plied to  State  Senator  W.  J.  Buchan, 
at  Wvandotte,  for  help  for  his  son. 
This  "  w^as  in  March,  1879.  Tlie 
elder  Brown  explained  the  diffi- 
culty in  which  John  had  become  in- 
volved, and  asked  Buchan  to  go  to 
Lawrence  and  try  to  manage  the 
matter.  This  Buchan  did,  without 
result.  Some  time  later,  Reuben 
Brown,  brother  of  John  Brown, 
called  on  Senator  Buchan,  and  asked 
him  to  go  to  Lexington  to  see  John. 
At  Lexington  Buchan  and  Brown 
discussed  the  matter  fully,  and 
Brown  stated  that  the  job  was  as 
bad  as  it  could  be,  and  he  wanted 
Buchan  to  see  the  agents  of  the 
insurance  companies,  as  he,  Brown, 
wished  to  turn  State's  evidence 
and  get  out  of  the  difficulty.  Brown 
went  across  the  street  from  the 
railroad  track  and  wrote  the  follow- 
ing letter : 

"  Mirs  Hillmon  i  would  like  to  now 
where  Johny  is  and  How  that  busi- 
ness is  and  what  i  shall  doe  if  any 
thing.  Let  me  now  threw  my 
Father. 

"John  H.  Brown." 
Senator  Buchan  testified  that  this 
letter  was  written  by  Brown  in 
order  to  get  information  out  of 
Mrs.  Hillmon  about  her  husband. 
Buchan  again  saw  Brown  at  Park- 
ville,  and  found  Levi  Baldwin  trying 
to  get  Brown  to  sign  proofs  of  death. 
Baldwin  told  Brown  that  he  would 
not  have  to  go  on  the  stand,  as  the 
theory  of  the  insurance  companies 
was  that  the  body  was  that  of  Frank 
Nichols,  and  that  was  as  good  a 
thing  as  he  (Baldwin)  wanted,  as  he 
could  produce  Nichols  in  court. 
Buchan  told  Brown  that  he  would 
be    compelled    to    go    and    testify, 


No.  3S9. 


HILLMOX    r.    INSURANCE    CO. 


871 


which  he  said  he  would  not  do.  He 
again  proposed  to  turn  State's  evi- 
dence, which  fact  Buchan  had  pre- 
viously reported  to  the  insurance 
companies. 

On  the  4th  of  September,  1S79, 
Buchan  went  again  to  Parkville, 
and  asked  Brown  to  put  his  state- 
ments in  writing.  This  Brown  did, 
and  afterward  went  before  Justice 
McDonald  and  swore  to  the  state- 
ment. This  statement  or  confes- 
sion was  as  follows : 
"State    of    Missouri,    County     of 

Platte,  ss.  : 
John  H.  Brown,  of  lawful  age,  being 
first  duly  sworn  according  to  law,  deposes 
and  says  :  My  name  is  John  H.  Brown. 
My  age  is  thirty  years.  I  am  acquainted 
with  John  W.  Hillmon.  Also  Mrs.  S.  E. 
Hillmon,  and  Levi  Baldwin,  of  Douglas 
County,  Kansas.  Have  known  John 
W.  Hillmon  for  about  five  years.  Have 
been  with  him  a  good  deal  for  the  past 
two  years.  Was  with  him  last  INIarch 
at  Wichita,  and  on  the  trip  from  there  to 
and  around  IMedicine  Lodge,  in  Barber 
county,  Kansas,  where  it  is  claimed  that 
I  killed  him  on  the  17th  day  of  March, 
1S79.  Along  about  the  10th  day  of 
December,  1878,  John  W.  Hillmon, 
Levi  Baldwin,  and  myself  talked  about 
and  entered  into  a  conspiracy  to  defraud 
the  New  York  Life  Insurance  Company 
and  the  ^Mutual  Life,  of  New  York,  out 
of  some  money  to  be  obtained  by  means 
of  effecting  a  policy  or  policies  on  the 
life  of  said  John  W.  Hillmon.  Baldwin 
was  to  furnish  the  money  to  pay  the 
premiums,  and  to  keep  up  the  policies 
in  case  they  had  to  be  renewed.  Our 
original  arrangement  was  to  get  Hill- 
mon's  life  insured  for  SI 5,000,  l)ut  it  was 
afterwards  changed  to  S2.5,000.  Hill- 
mon and  myself  were  to  go  off  southwest 
from  Wichita,  Kansas,  ostensibly  to 
locate  a  stock  ranch,  but  in  fact  to  in 
some  way  find  a  subject  to  pass  off  as 
the  body  of  John  W.  Hillmon,  for  the 
purpose  of  obtaining  the  insurance 
money  aforesaid.  We  had  no  definite 
plan  of  getting  the  subject,  but  to  in 
some  manner  get  one ;  the  final  termi- 
nation of  the  matter  was  the  last  idea 
thought    of.     Our    first    trip    out    from 


Wichita  the  last  days  of  December, 
while  the  snow  was  on  the  ground,  v/e 
ex[)ected  to  find  a  subject  that  would 
appear  to  be  Hillmon  frozen  to  death, 
and  that  could  not  be  identified  only  by 
the  clothes  and  papers  found  on  it,  and 
so  I  could  pass  it  off  as  Hillmon. 

"  We  went  from  Wichita  to  Medicine 
Lodge;  then  direct  to  Sun  City;  from 
there  to  Kinsley ;  from  there  to  Great 
Bend,  on  the  Santa  Fe  Road;  then  to 
Larned,  and  on  to  Wichita  via  Hutchin- 
son. Hillmon  and  myself  were  entirely 
alone'  on  this  trip.  Iliff,  of  Medicine 
Lodge,  saw  Hillmon  on  the  trip.  We 
put  up  at  his  stable.  I  then  stayed  at 
Wichita  until  the  4th  of  March.  Hill- 
mon, in  the  meantime,  went  to  Lawrence 
to  see  his  wife  and  get  some  more  money. 
He  returned  about  the  1st  of  March,  and 
on  the  5th  we  left  on  our  second  trip. 
We  went  due  west  to  Cowskin  creek, 
then  west  to  Harper  City,  then  to 
Medicine  Lodge,  on  by  Sun  City,  and 
beyond  some  miles.  Then  we  turned 
northeast  down  Medicine  river  to  a  camp 
on  Elm  creek,  about  eighteen  miles 
north  of  Medicine  Lodge,  where  Hill- 
mon is  claimed  to  have  been  killed. 
We  got  there  about  an  hour  before  sun- 
down, and  stayed  in  camp  until  the  next 
evening.  We  overtook  a  stranger  on 
this  trip,  the  first  day  out  from  Wichita, 
about  two  or  two  and  one  half  miles 
from  town,  who  Hillmon  invited  to  get 
in  and  ride,  and  who  he  (Hillmon)  pro- 
posed to  hire  to  herd  and  work  for  him 
on  the  ranch  as  proposed  to  be  located. 
This  man  was  with  us  during  all  this 
trip.  Hillmon  proposed  to  me  that  the 
man  would  do  to  pass  off  for  him.  I 
contended  with  him  that  the  man  would 
not  do  to  pass  off  for  him,  giving  him 
various  reasons  why  the  man  would  not 
answer  his  description,  and  complained 
and  objected  because  his  proposition  was 
to  take  the  man's  life;  and  I  protested, 
and  said  that  was  going  beyond  what 
we  had  agreed,  and  something  I  had  never 
before  thought  of,  and  was  beyond  my 
grit  entirely.  But  Hillmon  seemed  to 
get  more  deeply  determined  and  des- 
perate in  the  matter.  Pains  were 
taken  not  to  have  more  than  two  of  us 
seen  together  in  the  wagon.     Sometimes 


872 


PART   III.       PROBLEMS    OF    PROOF 


No.  389. 


one  and  then  the  other  would  be  kept 
back  out  of  sight.  On  his  trip  up  to 
Lawrence,  Hillmon  was  vaccinated. 
His  arm  was  quite  bad.  HiUmon  kei)t 
at  the  man  until  he  let  him  vaccinate 
him,  which  he  did,  taking  his  pocket- 
knife  and  using  virus  from  his  own  arm 
for  the  purpose.  He  also  traded  clothes 
with  him,  Hillmon  first  giving  him  a 
change  of  underclothing,  then  trading 
suits  —  the  one  he  was  killed  in.  The 
suit  he  was  buried  in  was  a  suit  Hillmon 
traded  with  Baldwin  for.  This  man  ap- 
peared to  be  a  stranger  in  the  country,  a 
sort  of  an  easy-go-long  fellow,  not 
suspicious  or  very  attentive  to  anything. 
His  arm  became  very  sore,  and  he  got 
quite  stupid  and  dull.  He  said  his  name 
was  either  Berkley  or  Biu-gess,  or  some- 
thing sounding  like  that.  We  always 
called  him  Joe.  He  said  he  had  been 
around  Fort  Scott  awhile,  and  also  had 
worked  about  Wellington  or  Arkansas 
City.  I  do  not  know  where  he  was  from, 
nor  where  his  home  or  friends  were. 
I  did  not  see  him  at  Wichita  that  I 
know  of.  I  had  but  very  little  to  say 
to  the  man,  and  less  to  do  with  him. 
He  was  taken  in  charge  by  Hillmon,  and 
yielded  willingly  to  his  will.  I  dreaded 
what  I  thought  was  to  be  done,  and  kept 
out  of  having  any  more  to  do  with  him 
than  possible.  I  frequently  remon- 
strated with  Hillmon,  and  tried  to  deter 
him  from  carrying  out  his  intentions  of 
killing  the  man. 

"  The  next  evening  after  we  got  to  the 
camp  last  named,  the  man  Joe  was 
sitting  by  the  fire.  I  was  at  the  hind 
end  of  the  wagon,  either  putting  feed  in 
the  box  for  the  horses  or  taking  a  sack  of 
corn  out,  when  I  heard  a  gun  go  off.  I 
looked  around,  and  saw  the  man  was 
shot,  and  Hillmon  was  pulling  him  away 
around  to  keep  him  out  of  the  fire. 
Hillmon  changed  a  daybook  from  his 
own  coat  to  Joe's,  and  said  to  me  every- 
thing was  all  right,  and  that  I  need  not 
be  afraid,  but  it  would  be  all  right.  He 
t(Jd  me  to  get  a  jiony,  and  go  down  to  a 
ranch  about  three  quarters  of  a  mile, 
and  get  some  one  to  come  up.  He  took 
Joe's  valise,  and  started  north.  This 
was  about  sundown.  We  had  no  ar- 
rangements about    communicating  with 


each  other.  He  first  promised  to  do  so, 
but  I  told  him  I  did  not  want  to  know 
where  he  was;  that  in  case  I  should,  I 
might  find  out  some  other  way.  I  have 
ne\er  heard  a  word  from  him  since.  At 
LaN\Tence,  Mrs.  Hillmon  gave  me  to 
understand  that  she  knew  where  Hill- 
mon was,  and  that  he  was  all  right. 
The  man  over  whom  an  inquest  was  held 
at  camp,  afterwards  at  Medicine  Lodge 
and  Lawrence,  Kansag,  was  the  man, 
Joe  Burgess  or  Berkley,  killed  by  Hill- 
mon, as  related  above,  and  John  W. 
Hillmon  I  believe  to  be  still  alive.  At 
least  he  left  our  camp,  and  went  north, 
as  stated  above,  after  killing  Joe.  Hill- 
mon said  he  would  assume  the  name  of 
William  Marshall.  Baldwin,  wife,  and 
Mrs.  Hillmon  knew  all  about  this.  In 
my  testimony  at  La\\Tence  I  stated  the 
route  taken,  as  above  described,  but  the 
man  who  I  described  as  being  in  camp 
with  us,  and  who  I  said  went  off  with 
some  wagon,  was  Joe,  the  man  killed. 
I  afterwards,  sometime  in  August,  1879, 
made  four  affidavits  under  great  im- 
portunities from  Baldwin,  who  came 
after  me  tliree  different  times,  the  last 
time  persuading  me  to  go  with  him  to 
Kansas  City,  where  Hon.  Samuel  Higgs 
insisted  on  my  signing  them.  I  don't 
think  ]\Ir.  Riggs  is  aware  of  the  facts  in 
this  case,  nor  the  other  counsel  in  the  case. 

"  I  make  the  above  statements  in  the 
Hillmon  case  as  the  full  and  true  facts 
in  the  case,  regretting  the  part  I  have 
taken  in  the  affair. 

(Signed)  John  H.  Brown. 

Subscribed  in  my  presence,  and  sworn 
to  before  me,  this  4th  day  of  September, 
A.D.,    1879.     My   term    expires    on   the 
2d  day  of  April,^  1883. 
(Seal.) 

Francis  M.  McDonald, 

Notary  Public." 

Brown  gave  Buchan  a  power  of 
attorney  to  act  for  him  in  securing 
immunity  from  prosecution,  in  re- 
turn for  his  confession.  Subse- 
quently Buchan  also  had  from  the 
insurance  companies  the  same  sort 
of  power  of  attorney  to  bind  them 
to  what  Brown  required.  These 
authorizations  were  as  follows  : 


No.  389. 


HILLMON    V.    INSURANCE   CO. 


873 


"Parkville,  Mo.,  Sept.  4,  1S79. 
"I  hereby  authorize  W.  J.  Buohaii  to 
make  arrangements,  if  he  can,  with  the 
insurance  companies  for  a  settlement  of 
the  Hillmon  case,  by  them  stopping  all 
pursuit  and  prosecution  of  myself  and 
John  W.  Hillmon,  if  suit  for  money  is 
stopped  and  policies  surrendered  to 
companies. 

"  John  H.  Brown." 

"W.  J.  BuciiAN,  Esq. —  Dear  Sir: 
On  behalf  of  the  Mutual  Life  the  New 
York  Life,  and  the  Connecticut  Mutual 
Life,  I  hereby  authorize  and  employ 
you  to  procure  and  surrender  the  policies 
of  insurance  on  the  life  of  John  W.  Hill- 
mon. 

"  H.  B.  MuNN. 
"Kansas  City,  Sept.  5,  1879." 

The  transaction,  so  far  as  Buchan 
was  concerned,  became  an  arbitra- 
tion, with  himself  as  arbitrator. 
Brown  then  authorized  Buchan  to 
say  that  he  would  testify  in  ac- 
cordance with  his  statement  or 
confession,  provided  the  companies 
would  take  no  steps  to  prosecute 
Hillmon,  Mrs.  Hillmon,  Baldwin,  or 
himself.  The  insurance  companies, 
on  the  other  hand,  were  bound  to 
do  what  Brown  reciuired  of  them  ac- 
cording to  the  terms  of  his  proposi- 
tion. Senator  Buchan  said  that 
after  the  papers  were  signed  he  re- 
turned home,  and  next  saw  Brown 
at  his  office  in  Wyandotte.  At  the 
time  of  signing  the  statements 
Brown  spoke  of  getting  Mrs.  Hill- 
mon to  surrender  the  policies. 
Buchan  told  him  that  if  he  did  that, 
it  would  probably  end  the  matter. 
He  said  he  would  see  Mrs.  Hillmon. 
Buchan  promised  Brown  not  to 
show  his  statements  to  the  authori- 
ties or  to  reveal  •  his  whereabouts 
until  he,  Buchan,  had  secured  their 
promise  not  to  prosecute,  as  above 
described.  Brown  went  to  see  Mrs. 
Hillmon  at  Levi  Baldwin's  house. 
Baldwin  went  to  Lawrence  on  horse- 
back and  brought  Mrs.  Hillmon  out 
by  getting  a  neighbor  to  carry  her 
part  way,  as  the  roads  were  bad, 
and  taking  her  the  rest  of  the  way 


himself.  At  about  eleven  o'clock 
at  night  Mrs.  Hillmon  and  Brown 
met  at  Baldwin's  house,  and,  ac- 
cording to  Mrs.  Hillmon's  testimony, 
Brown  told  her  that  he  had  turned 
State's  evidence,  and  could  not 
testify  for  her  in  the  insurance  cases. 
The  next  morning  they  had  another 
inter\iew,  and  made  an  appoint- 
ment to  meet  at  Leavenworth  on 
September  L5th,  1879.  Brown,  Mrs. 
Hillmon,  and  Buchan  met  at  Leav- 
enworth. The  policies  were  with 
Mr.  Wheat,  at  Leavenworth.  Mrs. 
Hillmon  signed  full  release  of  all  her 
interest  in  the  insurance  policies. 
She  also  went  with  Buchan  to  Mr. 
W^heat's  office  to  demand  the  policies. 
Mr.  Wheat  refused  to  give  up  the 
policies,  saving  he  had  a  lien  on 
them  for  810,000.  ISIrs.  Hillmon 
and  Buchan  returned  to  Wyandotte. 
Buchan  showed  Mrs.  Hillmon  the 
agreement  of  the  companies  not  to 
prosecute  Brown.  Also  Brown's 
statement.  This  statement  was 
torn  up  and  put  in  the  stove,  but 
was  afterwards  fished  out  of  the 
stove  and  preserved,  when  it  de- 
veloped that  there  was  to  be  a 
contest  over  the  policies.  Mrs.  Hill- 
mon remained  in  Wyandotte  some 
time  with  Buchan.  She  afterwards 
went  to  Ottawa.  Returning  from 
Ottawa  she  signed  a  supplementary 
release,  and  afterwards  stayed  for 
about  three  weeks  at  Buchan's 
house.  She  went  to  Trenton,  Mis- 
souri, where  she  stayed  three  weeks 
or  a  month.  Buchan  had  nothing 
to  do  with  fixing  the  place  of  meeting 
at  Leavenworth,  he  going  there  at 
Brown's  request.  Buchan  got  no 
fees  from  the  Browns,  but  did  get 
from  8500  to  8700  from  the  insurance 
companies,  including  expen,ses.  Mr, 
Wheat  was  retained  by  Levi  Baldwin, 
While  absent  from  Wyandotte, 
Mrs.  Hillmon  wrote  to  Buchan  the 
following  letter : 

"Saturday  Jan.  the  3,  1880 
"  Hon.  W.  J.  Buchax,  Wyandotte  :  I 
am  now  ready  to  go  to  Colorado  as  soon  as 
you  send  the  ticket  and  money.     I  hope 


PART    HI.       PROBLEMS    OF    PROOF 


No.  389. 


you   had    no    trouble    with    B in 

convincing  him  that  he  would  be  doing 
what  was  right. 

"I  can't  stay  here  much  longer  as 
parties  in  Lawrence  are  making  En- 
quaries  about  me  and  it  will  ne\er  do  for 
me  to  see  them  you  know  how  that  is 
dont  you. 

"Pleas  send  as  soon  as  you  can  get 
this  this  as  I  am  living  in  fear  all  the 
time. 

"Keep  all  these  papers  as  things  are 
looking  rather  dark  some  time  I  will 
write  and  tell  you  what  to  do  as  there 
will  be  no  use  now  to  say  anything  })ut 
after  while  things  will  be  better  1  think. 

"Will  close  with  many  thanks  for  past 
favors. 

"Please  answer  and  oblige 

"  S.  E.  HiLLMON. 

"  P.S.  direct  S.  E.  Hillmon  Tonganoxie 
Leavenworth  Co  Kansas." 

"  Ott.wva,  Kans.  Sep  the  20  79 

"Mis.  Blchan  Attorney  at  L.-vw 
Wyandotte  :  Your  letter  of  the  19  just 
received.  I  cant  come  down  until  Mon- 
day as  my  trunk  wont  get  here  sooner 
then  then  and  I  dont  know  but  I  will 
have  to  go  for  it  myself  and  that  I  dont 
want  to  do. 

"my  health  is  evpr  so  much  better  but 
I  dont  think  it  best  for  me  to  stay  here 
longer  than  monday.  you  say  for  me  to 
come  Monday  or  Tuesday  monday  will 
answer  the  same  won't  it  it  will  never  do 
for  j'ou  to  come  to  my  sisters.  I  will 
tell  you  the  reason  when  I  see  you. 

"when  1  started  from  Law-rence  I  had 
very  little  money  and  I  will  be  obleged 
to  ask  you  to  send  me  enough  to  bye  my 
Ticket  to  your  city.  I  wrote  to  L. 
Baldwin  but  he  had  no  money  for  me. 
Well  rneby  in  a  short  time  I  can  make 
enough  without  asking  friends  as  my 
health  is  so  much  better. 

"I  did  write  that  letter  to  Riggs  & 
Borgholthaus  have  got  no  answer  and 
don't  want  any. 

"I  will  be  on  the  Wendsday's  Train 
without    something    offle    happens, 
"your  Friend 

"  S.  E.  Hillmon." 

(Comment.)  —  It  is  impossible 
for  most  people  to  believe  tluit   if 


John  H.  Brown,  Mrs.  Hillmon,  nnd 
Levi  Baldwin  had  been  absolutely 
sure  that  the  dead  man  brought  to 
Lawrence  was  John  W.  Hillmon, 
tliey  would  have  so  readily,  cheer- 
fully, and  with  almost  indecent 
haste  done  ail  in  their  power  to  sur- 
render the  policies  and  relieve  the 
companies  of  all  liability.  Brown, 
through  liis  father,  secured  an  at- 
torney, Buchan,  and.  that  attorney 
entered  into  negotiations  with  the 
insurance  companies,  whereby  Brown 
might  be  safe  from  the  liability  of 
prosecution.  Brown  then  went  to 
Le\'i  Baldwin,  who  had  seen  the 
dead  man  and  sworn  positively 
that  it  was  Hillmon.  liahlwin  went 
to  Lawrence  over  very  bad  roads, 
and  with  great  difficulty  brought 
j\Irs.  Hillmon  to  his  house.  At  his 
house  Brown  and  Mrs.  Hillmon  dis- 
cussed the  matter,  and  concluded  to 
go  to  Leavenworth  and  secure  the 
policies.  Baldwin  did  not  object. 
After  the  releases  were  executed 
]\Irs.  Hillmon  seemed  to  feel  no 
particular  regret  at  losing  S25,000 
worth  of  insurance,  though  she  knew 
positively  that  the  body  at  Lawrence 
was  that  of  her  husband.  Instead 
of  treating  Buchan  and  Brown  as 
conspirators  against  her  welfare — 
not  only  in  robbing  her  of  her  money, 
but  in  establishing  her  husband's 
character  as  a  nuirderer  —  she  seems 
to  have  treated  lirown  very  well,  and 
fallen  back  on  Buchan  as  her  friend 
and  adviser.  This  conduct  cannot 
be  reconciled  with  any  theory  of  the 
innocence  of  Mrs.  HiUmon,  Baldwin, 
or  Brown.  Senator  Buchan's  testi- 
mony remains  unimpeached  after 
the  application  of  every  rule  or 
method  known  to  the  law  —  except 
in  the  arguments  made  by  one  of 
his  warmest  friends  and  achisers, 
and  perhaps  his  most  intimate  busi- 
ness as.sociate,  the  Hon.  John  Hutch- 
ings,  attorney  for  the  plain tifl". 

Frederick  Adolpli  ll' alters.  (In 
Evidence.)  —  The  defendants  claim 
that  the  body  brought  to  Lawrence 
was  that  of  one  Frederick  Adolph 
Walters.     The  evidence  shows  that 


f^o.  389. 


HILLMON   V.    INSURANCE   CO. 


875 


a  young  German  by  that  name  lived 
with  his  parents  at  P\)rt  Madison, 
Iowa,  and  that  in  March,  1878,  he 
left  that  place  for  the  purpose  of 
bettering  his  condition.  He  was 
a  cigar  maker  by  trade,  and  had  his 
implements  with  him  in  Lawrence. 
The  evidence  shows  that  after  he 
left  home  he  went  to  Burlington, 
Omaha,  Leavenworth,  and  Kansas 
City.  From  Kansas  City  he  went 
to  Holden,  Missouri,  to  visit  a 
brother,  C.  F.  Walters,  who  was 
located  there  editing  a  newspaper. 
From  there  he  went  to  Paola,  and 
from  Paola  to  Lawrence,  where  he 
was  located  for  some  weeks,  and 
during  which  time  he  was  sick. 
From  Lawrence  he  went  out  into  the 
country,  and  assisted  farmers  in 
harvesting.  From  Lawrence  he 
went  to  Emporia,  and  from  Emporia 
to  Wichita.  He  had  from  the  time 
he  started  from  home  been  in  the 
custom  of  writing  to  a  Miss  Alvina 
Kasten,  of  Fort  Madison,  Iowa  (to 
whom  he  was  engaged  to  be  married), 
at  least  every  ten  days,  and  to  his 
familv  as  often  as  once  in  two  weeks. 
On  the  first  day  of  March,  1879, 
a  few  days  before  Hillmon  left 
Wichita  for  the  alleged  purpose  of 
looking  up  a  stock  ranch,  Walters 
wrote  to  Miss  Kasten,  as  follows : 

"Wichita,  KANSAS,  March  1,  1879. 

"Dearest  Alvina:  Your  kind  and 
ever-welcome  letter  was  received  yester- 
day afternoon,  about  an  hour  before  I 
left  Emi)oria,  so  I  did  not  have  time  to 
answer  it  at  Emporia.  I  will  stay  here 
until  the  fore  part  of  next  week,  and  then 
will  leave  here  to  see  part  of  the  country 
which  I  never  expected  to  see  when  I 
left  home,  as  I  am  going  with  a  man  by 
the  name  of  Hillmon,  who  intends  to 
start  a  sheep  ranch,  and  as  he  promised 
me  more  wages  than  I  could  make  at 
anything  else,  I  concluded  to  take  it  for 
a  while,  at  least  until  I  struck  something 
better.  There  is  so  many  folks  in  this 
country  that  have  got  the  Leadville 
fever,  and  if  I  would  not  have  got  the 
situation  that  I  have  now,  I  would  of 
went  there  myself ;  but  as  it  is  at  present. 


I  will  get  to  see  the  best  part  of  Kansas, 
Indian  Territory,  Colorado  and  New 
Mexico.  The  route  that  we  intend  to 
take  would  cost  a  man  to  travel  from 
$150  to  $200,  but  it  will  not  cost  me  a 
cent;  besides  I  get  good  wages.  I  will 
drop  you  a  letter  occasionally  until  I 
get  settled  down,  then  I  want  you  to 
answer  it,  (you  bet,  honey.)  Don't  it? 
So  you  can  see  that  I  will  not  get  home 
for  a  few  months  yet,  but  cannot  tell  how 
soon  I  will  get  back.  I  am  as  anxious 
to  see  you  as  you  are  to  see  me ;  but  I  • 
do  not  want  to  go  back  there  without  a 
cent  of  money,  for  that  is  not  what  I 
left  for  (you  know).  When  I  get  back 
you  will  get  to  see  me  in  about  the  same 
way  we  parted  (you  bet).  If  anyone 
asks  that  I  am  doing,  tell  them  you  were 
not  informed,  for  it  is  none  of  their 
business.  And  another  thing :  don't 
ask  me  to  write  long  letters,  for  I  would 
without  being  asked,  if  I  could  find  the 
words  when  I  write,  as  I  am  generally 
busy  from  my  (old  woman)  sweet  little 
girl.  But  you  know  how  this  is  without 
being  told.  So  I  will  not  have  to  waste 
any  more  paper  on  that  subject  at  pres- 
ent. I  will  have  to  come  to  a  close  be- 
fore long,  or  I  will  have  to  do  as  that  other 
fellow  —  ^vrite  two  sheets,  and  swindle 
the  postmaster  out  of  three  cents,  and 
you  know  that  I  don't  like  to  do  that, 
pet.  Please  give  compliments  to  in- 
quiring friends,  and  all  the  love  that  you 
can  embrace  for  yourself,  and  nobody 
else.  I  will  close  for  this  time,  love,  to 
let  you  hear  from  me  soon  again. 
"Yours,  as  ever, 

"F.  A.  Walters. 
"P.S.  —  Much  obliged  for  that  poetry, 
and  I  done  as  you  said,  (thought  of  you 
when  I  read  it.)" 

Onthe3dor4thdayof  March,  1879, 
Mrs.  Elizabeth  Rieffennach,  a  sister 
of  Walters,  residing  in  Ft.  Madison, 
Iowa,  received  a  letter  dated  at 
Wichita,  in  wdiich  he  wrote  : 

"Dear  Sister,  and  All  :  I  in  my  usual 
style  will  drop  you  a  few  lines  to  let 
you  know  that  I  intend  leaving  Wichita 
on  or  about  March  oth,  with  a  certain 
Mr.  Hillmon,  a  sheep  trader,  for  Colo- 


876 


PART    III.       PROBLEMS    OF    PROOF- 


Xo.  3S9. 


rado,  and  parts  unknown  to  me.  I  ex- 
pect to  see  the  country  now.  I  will  close. 
Regards  to  all  inquiring  friends;  love 
to  all. 

"  Your  brother, 

"  F.  \.  Walters." 

At  the  same  time  Mr.  ('.  F.  Wal- 
ters, the  brother  at  Koklen,  Mis- 
souri, received  a  letter  from  him, 
stating  that  he  Avas  about  to  leave 
Wichita  with  a  man  by  the  name  of 
Hillmon.  Since  that  time,  no  word 
has  ever  been  received  by  the  friends 
or  family  of  Walters,  nor  has  any 
person  with  whom  he  was  before 
accjuainted  seen  him. 

Some  time  after  this,  his  people 
became  alarmed  by  his  continued 
silence,  and  began  to  make  inquiry. 
His  father  applied  to  the  Odd  Fel- 
lows' Lodge  at  Fort  Madison,  of 
which  his  son  was  a  member,  but 
it  did  nothing  for  him.  He  then 
applied  to  the  Masonic  Lodge  for 
assistance.  ]\lr.  Hobbs,  a  bright 
young  lawyer  of  that  place,  was  the 
master  of  this  lodge.  He  at  once 
applied  to  the  lodge  at  Wichita  for 
assistance.  The  lodge  at  Wichita 
wrote  to  Lawrence,  and  in  response, 
pictures  of  the  dead  body  which 
had  been  brought  there  were  for- 
warded to  it.  These  pictures  in 
turn  were  forwarded  to  Mr.  Hobbs, 
and  by  him  shown  to  the  father, 
who  immediately  recognized  them 
as  pictures  of  his  son,  Frederick 
Adolph  Walters.  He  showed  them 
to  the  members  of  the  family,  and 
one  and  all  under  oath  identified 
the  pictures  as  being  that  of  their 
son  and  brother.  The  pictures  were 
then  shown  to  other  friends,  and  by 
a  large  number  of  them  identified 
as  the  picture  of  Frederick  Adolph 
Walters.  Several  parties  at  and 
near  Lawrence,  where  Walters 
worked,  recognized  the  pictures  as 
those  of  Walters.  Mrs.  Gilmore, 
daughter  of  the  proprietor  of  the 
Central  Hotel,  where  Walters  was 
sick,  identified  the  pictures  posi- 
tively. .Ml  members  of  Walters's 
familv  swore  that  he  had  verv  (hirk- 


brown  hair,  a  wide  forehead,  a 
broad  German  face,  an  aquiline 
nose,  long  hands,  and  extraordinarily 
sound  teeth.  He  was  also  described 
as  Ijeing  Avell  built,  a  skillful  Turner, 
and  five  feet  eleven  inches  high. 
He  had  no  scars  on  his  body  except 
a  small  one,  half  as  large  as  a  pea, 
near  one  ankle,  caused  by  the  bite 
of  a  dog.  This  scar  was  last  seen 
when  Walters  was  twelve  years 
old  —  a  sister  so  testifying.  He  had 
a  mole  on  his  back.  This  descrip- 
tion was  exactly  that  of  the  dead 
man,  except  as  to  the  small  scar. 
Xo  such  scar  was  discovered,  as 
Dr.  Miller  examined  the  body  with 
a  magnifying  glass,  and  found  no 
scars  on  it  except  a  slight  one  on 
one  finger.  Walters  was  a  young 
man  of  excellent  habits  and  strong  so- 
cial attachments.  He  was  on  the  best 
of  terms  with  everybody,  and  had  no 
known  motive  for  leaving  home,  ex- 
cept for  the  purposes  testified  to 
and  indicated  in  his  letter  to  Miss 
Kasten. 

(Comment.)  — The  facts  are  that 
Hillmon  and  Walters  <lisappeared 
simultaneously.  One  of  the  two  re- 
appeared dead.  The  bulk  of  the 
evidence  shows  that  the  dead  man 
was  not  Hillmon  —  that  it  Avas 
Walters ;  that  Hillmon  had  every 
motive  to  prevent  his  reappearance, 
if  alive  —  desire  to  secure  the  in- 
surance money,  and  an  equal  desire 
not  to  go  to  the  penitentiary  ;  and 
that  Walters,  if  alive,  had  every 
motive  to  induce  his  return. 

The  letters  written  from  Wichita 
by  Walters  were  admitted  by  Judges 
Foster  and  Brewer,  but  were  ruled 
out  on  the  last  trial  by  Judge  Shiras. 

The  Walters  sisters  were  both  kept 
away  from  the  last  trial  by  the  death 
of  their  mother,  and  the  serious  illness 
of  other  members  of  his  family. 

General  Xote.s-  and  Considerations. 
—  There  has  been  much  talk  about 
the  presumption  of  death  in  law 
after  the  lapse  of  seven  years  as 
being  a  proper  dependence  for  the 
plaintiff.  This  could  not  Ije,  as  the 
question    is    not    whether    Hillmon 


No.  389. 


HILLMON    V.    INSUR.^NCE    CO. 


877 


is  now  dead,  but  whether  he  (Hed  at 
the  date  of  the  kilHng  at  Crooked 
creek ;  in  other  words,  whether  the 
proofs  of  death  matle  by  Mrs. 
Hillmon  were  good. 

The  five  Medicine  Lodge  witnesses 
who  did  not  see  three  men  in  the 
wagon  at  any  one  time,  are  the  only 
strong  witnesses  for  the  plaintiff, 
and  their  strength  decreases  on 
a  full  statement  of  all  the  facts. 
In  the  first  place,  the  witnesses  are 
vague.  One  was  a  teacher,  and  saw 
the  Avagon  pass  his  schoolhouse. 
Whether  he  was  in  the  building  or 
out,  or  whether  the  school  was  in 
session  or  not,  he  was  unable  to  tell. 
It  seems  that  the  testimony  on  this 
point  might  have  been  very  much 
stronger  if  the  facts  had  been  as 
claimed  by  plaintifl^.  The  Brown 
confession  shows  how  the  appearance 
of  only  two  men  was  kept  up. 

Mrs.  Hillmon  exhibited  a  gold 
ring  which  she  said  Hillmon  had 
once  given  her,  but  had  afterward 
worn  himself  and  returned  to  her 
before  he  went  south.  This  ring 
did  not  seem  to  have  any  connec- 
tion with  the  case,  except  so  far  as 
it  went  to  prove  Hillmon's  love  for 
his  wife. 

The  counsel  for  plaintiff  persis- 
tently crowded  it  before  the  jury 
that  the  defendants  were  rich  and 
therefore  powerful  corporations. 
The  changes  were  rung  on  this  topic 
with  great  skill  and  emphasis. 

When  the  insurance  companies  are 
asked  to  produce  Hillmon,  the  answer 
is  a  demand  for  the  Benders,  or  for 
Tascott,  or  for  ten  thousand  great 
criminals,  well  known  and  clearly 
distinguished,  who  have  escaped 
from  under  the  very  nose  of  the  law. 
Hillmon  was  a  common  man  in 
appearance.  He  was  like  thousands 
of  others  —  miners,  cattlemen,  and 
laborers  —  all  over  the  West.  He 
had  a  long  start  and  all  advantages. 
He  might  have  been  in  Mexico  before 
the  dead  body  reached  Lawrence. 
But  supposing  him  to  have  remained 
in  the  United  States,  he  was  but 
one  of  many  millions,  and  the  terri- 


tory in  which  he  was  at  liberty  to 
lose  himself  was  boundless.  Every 
officer  of  the  law  knows  the  difficulty 
of  finding  a  man  who  has  wit  and 
pluck  and  is  determined  not  to  be 
found.  The  companies  have  made 
little  or  no  effort,  knowing  the  great 
expense  that  would  be  incurred, 
and  the  comparative  hopelessness 
of  success,  and  believing  their  case 
was  sufficiently  strong  without  fur- 
ther evidence. 

INIajor  Houston,  who  had  em- 
ployed Hillmon  a  great  deal  as  a 
cattle  herder,  told  the  writer  a  few 
minutes  after  taking  a  long  look  at 
the  dead  body  that  he  could  not 
recognize  it. 

Arguments  made  by  Counsel 
FOR  Plaintiff. 

Argument  by  L.  B.  Wheat.  —  Mr. 
Wheat  spoke  of  the  long  acquaint- 
ance of  Mr.  and  Mrs.  Hillmon  before 
marriage ;  their  deep  regard  for 
each  other,  as  evidenced  in  one  par- 
ticular by  the  ring  with  "  Remember 
me.  —  J.  W.  H."  engraved  upon 
it ;  their  marriage  and  affection 
for  each  other  ;  his  departure  to  look 
for  a  ranch  in  the  southwest  just  after 
the  Indian  raids  through  western 
Kansas  ;  the  taking  of  life  insurance 
to  protect  his  wife,  and,  as  to  the 
amount  ($25,000),  with  the  full 
knowledge  of  it  by  all  the  companies 
concerned.  The  companies'  agents, 
like  all  agents,  urged  him  to  take 
the  insurance.  They  considered  him 
responsible  for  the  premiums,  and 
were  willing  to  insure  him.  They 
ought  not  to  plead  the  baby  act  now. 
After  urging  him  to  take  it,  they 
cannot  say  that  the  fact  of  his  taking 
it  v/as  evidence  of  fraud.  The  testi- 
mony, Mr.  Wheat  thought,  shows 
that  Hillmon  was  a  man  of  con- 
siderable means  and  of  good  char- 
acter. Such  a  conspiracy  as  the 
defense  alleges  must  result  in  lasting 
separation  from  his  young  wife  — 
the  blighting  of  both  their  lives  for- 
ever —  her  lifelong  misery,  and  his 
eternal  damnation.  He  was  a  per- 
son of  blameless  life  —  nay,  more 
than   that,  his  diary  shows  him  to 


878 


PART    in.       PROBLEMS    OF    PROOF 


No.  389. 


have  been  a  Christian  gentleman. 
But  he  is  charged  with  a  terrible 
crime  —  lifelong  banishment,  self- 
inflicted,  from  wife  and  kindred 
and  friends  for  a  few  paltry  dollars 
that  he  himself  could  never  enjoy. 

Mr.  Wheat  turned  to  the  (luestion 
of  identity.  The  policies  all  put 
Hillmon  at  five  feet  eleven  inches, 
but  a  statement  is  introduced  that 
Hillmon  went  back  to  Dr.  Miller, 
one  of  the  examining  physicians  for 
the  companies,  and  said  he  was  only 
five  feet  nine  inches.  But  the  policies 
were  never  changed  in  that  particu- 
lar. These  policies,  these  silent 
witnesses  that  the  agents  of  the  com- 
panies themsehes  afford,  are  strongly 
corroborated  by  the  oral  testimony 
of  Mrs.  Hillmon,  who  measured  him, 
and  found  him  five  feet  eleven  inches, 
the  same  height  as  the  body  brought 
to  LawTence. 

Mr.  Wheat  asserted  that  the  let- 
ter from  G.  Vs.  E.  Griffith,  the  in- 
surance agent,  to  Mrs.  Hillmon, 
soon  after  the  death  of  her  husbanfl 
was  reported,  asking  her  to  call  and 
make  out  an  application,  and 
Griffith's  questioning  of  her,  aided 
by  Selig,  another  insurance  agent, 
were  for  the  purpose  of  puzzling  her 
in  her  distressed  state  of  mind,  and 
getting  her  to  make  statements  that 
could  be  used  to  beat  her  out  of  the 
insurance.  Then  later  on  they  plied 
her  with  reasons  why  she  should 
not  see  her  husband,  in  an  eft'ort  to 
destroy  a  witness  against  themselves. 

Mrs.  Hillmon,  Arthur  Judson, 
Levi  Baldwin,  John  BrowTi,  and  six 
other  Lawrence  witnesses,  who  knew 
Hillmon  well,  testify  that  the  body 
was  his.  A  half  dozen  Medicine 
Loflge  witnesses,  who  saw  and  be- 
came acquainted  with  Hillmon  a 
short  time  l^efore  his  death,  were 
quoted  where  they  testify  that  they 
saw  the  body,  and  it  was  Hillmon's. 
The  two  men  only  could  be  traced 
from  ^Medicine  Lodge  to  the  place 
of  the  accidental  killing,  and  the  two 
men  were  Hillmon  and  Brown. 

The  photographs  of  Hillmon  and 
the  l)ody  were  placed  in  the  hands  of 


a  jury,  and  attention  called  to  the 
decomposition  in  the  nose  of  the 
body  in  just  the  spot  where  Dr.  Sim- 
mons had  testified  that  he  had 
treated  Hillmon  for  an  injury.  Dr. 
Fuller  testified  that  the  nose  of  the 
body  had  the  appearance  of  having 
been  injured  in  that  spot,  and  it  has 
been  shown  that  tlecomposition  took 
place  more  rapidly  in  injured  parts. 

The  vaccination  of  the  arm  of 
the  body,  it  is  claimed,  was  not  so 
far  along  at  the  time  of  death  as 
it  should  be  on  Hillmon,  but  this 
matter  of  telling  the  age  of  a  vaccine 
sore  is  very  uncertain  at  best,  and 
the  fact  that  the  arm  of  the  body 
was  N'accinated  in  exactly  the  place 
where  Hillmon  was  vaccinated  is  an- 
other strong  piece  of  evidence  in  the 
plaintift"s  favor.  The  insurance 
company's  physicians  carried  away 
the  scab  and  piece  of  the  arm  upon 
which  it  was,  and  now  it  cannot  be 
found.  It  looks  like  suppression  of 
evidence.  At  any  rate,  they  ought 
to  admit  that  the  matter  of  vacci- 
nation is  all  right.  The  hair  of  the 
body  was  dark  brown.  So  was  Hill- 
mon's. Walters's  was  bluish  black. 
The  temples  of  Walters  were  bare. 
Hair  grew  on  Hillmon's  temples, 
and  there  was  hair  on  temples  of  the 
body.  There  was  a  scar  on  Wal- 
ters's leg,  where  he  was  bitten  by 
a  dog.  No  such  scar  was  found  on 
the  body.  The  body  was  so  badly 
decomposed  that  the  identification 
of  it  by  the  Walters  family  by  pho- 
tographs of  it  is  out  of  the  question. 
The  hair  on  the  body  was  fine. 
So  was  Hillmon's.  Walters's  was 
coarse. 

The  tooth  feature  of  the  testimony 
is  very  uncertain  and  unrelial)le. 
Some  of  the  witnesses  may  have 
honestly  imagined  that  Hillmon  had 
a  tooth  out,  but  they  were  mistaken. 
None  of  them  stand  the  test  of 
questions  in  regard  to  other  people's 
teeth.  People  who  know  the  worth 
of  testimony  have  no  confidence  in 
that  offered  about  Hillmon  having 
a  tooth  out.  The  same  industry  and 
expenditure  jnit  forth  to  get  up  this 


No.  389. 


HILLMOX   V.    INSURANCE    CO. 


879 


tooth  testimony  by  the  defense  would 
have  pro(hiced  HiUmon  had  he  been 
in  the  hind  of  the  hvin<f,  and  espe- 
cially had  he  been  in  New  Mexico, 
where  they  say  he  has  been. 

Argument  by  John  Ilutchincis.  — 
Mr.  Hutchings  said  that  the  plain- 
tiff had  pro\ed  by  John  H.  Brown, 
the  person  best  qualified,  that  HiU- 
mon was  killed;  by  Mrs.  Hillmon, 
the  widow,  the  next  best  qualified 
person,  that  the  body  was  that  of 
her  husband  ;  by  Levi  Baldwin,  the 
most  intimate  friend  of  Hillmon, 
that  the  body  was  Hillmon's.  Five 
Medicine  Lodge  witnesses  who  knew 
Hillmon  well  testified  that  the  body 
was  his  at  a  time  when  the  body 
was  best  recognizable.  Some  of 
these  witnes.ses  were  on  the  coroner's 
jury,  and  close  and  not  mere  casual 
observers.  The  photograph  gallery, 
at  which  the  defense  now  sneered, 
was  introduced  by  them.  Mr.  Hutch- 
ings entered  upon  an  exhaustive 
analysis  of  the  photograph  gallery, 
to  show  that  by  this  testimony  of  the 
defense  the  body  was  that  of  Hill- 
mon. Their  own  witnesses  testify 
that  the  body  was  carefully  ex- 
amined by  physicians  with  magnify- 
ing glasses,  and  no  scars  found ; 
their  o\\-n  witnesses  testify  that 
Walters  had  scars  from  a  dog  bite 
and  vaccination.  As  for  the  tooth 
testimony,  it  was  not  possible  for 
two  or  three  dozen  witnesses,  after 
from  six  to  ten  years,  to  remember 
that  he  had  a  tooth  out.  It  was 
contrary  to  common  sense.  Colonel 
Walker  was  too  swift  a  witness.  He 
could  remember  about  Hillmon's 
tooth,  but  he  could  not  tell  which 
leg  B.  J.  Horton  had  lost,  though  he 
has  known  him  and  seen  him  almost 
every  day  for  many  years.  W.  W. 
Nichols  was  a  wretch  who  came  here 
from  Washington  county  for  S148 
and  fees  and  expenses  to  give  testi- 
mony calculated  to  make  his  wife's 
brother  a  murderer.  He  excoriated 
Tillinghast,  Selig,  and  Griffith,  the 
insurance  agents,  for  attempting  to 
entrap  j\Irs.  Hillmon  into  a  de- 
scription   of    her    husband     before 


his  body  arrived.  These  insurance 
companies,  with  boundless  wealth 
and  inexhaustible  resources  at  their 
command,  with  agents  scattered  the 
world  o\er,  with  six  years  to  operate 
in,  have  failed  to  find  Hillmon. 
They  bring  depositions  from  New 
Mexico,  from  a  worthless  class  of 
fellows,  instead  of  bringing  Hillmon. 
Dr.  Miller  produces  a  remarkable 
account  book,  which,  though  not 
intended  for  that  purpose,  contains 
memorandum  of  Hillmon's  height, 
dated  Deceml)er  17th,  according  to 
which  he  was  five  feet  nine  inches. 
Dr.  Stuart  testified  that  Hillmon 
afterwards  came  to  him,  and  gave 
his  height  as  five  feet  eleven. 
Hillmon  must  have  been  a  marvel- 
ous man.  One  of  a  party  of  three, 
traveling  through  a  settled  country, 
camping  out,  and  stopping  at  houses, 
he  succeeded  in  concealing  one  of  the 
party  through  the  entire  journey 
from  Wichita  to  Medicine  Lodge. 
Not  only  that,  but  he  vaccinated 
him,  made  it  work,  kept  the  pro- 
testing Brown  at  bay,  and  succeeds 
in  his  conspiracy.  It  was  a  mar- 
velous transaction. 

In  regard  to  the  Buchan-Brown 
aftair,  he  insisted  that  Buchan  was 
not  Brown's  attorney,  but  attorney 
for  the  companies,  and  that  he  pro- 
cured the  statement  from  Brown 
against  Brown's  protest,  for  the 
purpose  of  enmeshing  Mrs.  Hill- 
mon, and  getting  her  to  release  the 
policies.  Take  the  Kasten  letter 
out  of  the  Walters  theory,  and  noth- 
ing remains  of  it.  The  letter  does 
not  prove  that  Walters  was  going 
with  J.  W.  Hillmon  —  there  were 
other  Hillmons  in  that  part  of  the 
country.  It  does  not  prove  that 
Walters  left  Wichita  at  all.  Why 
don't  the  defense  bring  witnesses 
from  Wichita  to  show  the  associa- 
tion of  Walters  and  Hillmon  ?  Why 
don't  they  bring  the  parties  with 
whom  Walters  l)oarded  at  Wichita, 
and  find  out  where  he  went  from 
there  ?  Mr.  Hutchings  closed  with 
an  appeal  to  the  jury  for  a  verdict  for 
the  plaintiff. 


880 


PART    III.       PROBLEMS    OF    PROOF 


No.  389. 


Argument  by  Samuel  A.  Riggs.  — 
Mr.  Riggs  called  attention  to  the 
difficulty  Mrs.  Hilhnon  has  had  in 
the  prosecution  of  this  case  in  her 
poverty  for  five  years.  He  char- 
acterized the  taking  of  the  insurance 
at  Lawrence  by  Hilhnon  as  an  or- 
dinary transaction  of  life  insurance. 
Hilhnon  was  of  good  character,  and 
in  good  circumstances.  It  has  been 
asserted  that  he  mortgaged  his  life 
to  the  payment  of  premiums  on  a 
large  amount  of  insurance.  It  is 
not  unlikely  that  he  intended  to 
permit  the  policies  to  lapse  after 
his  trip  to  the  Southwest.  As  to 
his  financial  circumstances,  he  was 
for  many  years  in  the  hide  business 
in  Texas,  when  it  was  profitable. 
He  afterwards  fed  250  hogs  at 
AVyandotte.  His  trip  was  a  natural 
one,  made  at  a  proper  time,  as  south- 
western Kansas  is  a  winter  stock 
country.  The  Indians  had  raided 
western  Kansas  in  September,  and  in 
the  following  winter  he  very  natu- 
rall\'  protected  his  young  wife  by 
insuring  his  life.  Riggs  read  the 
account  of  the  killing  as  it  appears 
in  Brown's  deposition.  Brown,  he 
said,  had  stood  up  for  four  years  in 
the  face  of  the  law,  and  asserted 
that  his  first  account  of  the  killing 
was  true.  He  was  here  three  years 
ago,  and  gave  his  testimony.  The 
defense  in  this  case  was  purely  one 
of  suspicion,  beginning  with  the  un- 
true assumption  of  poverty  and  a 
reckless  life  on  the  part  of  Hillmon. 
A  remarkal)le  feature  of  the  case 
and  one  strongly  in  favor  of  Brown, 
is  that  ever  since  the  so-called 
coroner's  inquest  at  Lawrence,  the 
defense  has  been  in  possession  of 
a  detailed  statement  of  Brown's 
as  to  the  trip  that  he  and  Hillmon 
had  made  ;  where  they  went ;  where 
they  stopped ;  and  the  names  of 
families  and  persons  whom  they  met. 
This  has  never  been  produced  in 
court,  and  for  a  good  reason  ;  the 
defense  has  never  been  able  to  show 
that  at  any  time,  anywhere  on  that 
trip,  there  was  a  third  man  in  the 
party  besides  Hillmon  and   Brown. 


With  all  their  money  and  all  their 
power  the\'  ha\e  ne\er  been  able  to 
find  a  vestige  of  Hillmon.  Five 
witnesses  at  Medicine  Lodge,  who 
knew  Hillmon  well  and  saw  the  body, 
testify  it  was  his.  They  are  disin- 
terested witnesses.  We  have  the 
identification  of  tho.se  who  knew 
Hillmon  best.  The  testimony  of  the 
widow  is  the  strongest.  She  sent 
for  the  body  of  her  husband,  asking 
that  if  the  weather  permitted  it 
should  be  brought  to  Lawrence ; 
otherwise  it  might  remain  there  till 
spring.  The  first  thing  at  Medicine 
Lodge,  when  the  body  was  taken  up, 
was  the  cutting  open  of  the  coat- 
sleeve,  and  finding  the  vaccination 
mark.  Now,  mark  you,  as  soon 
as  the  body  arrived  at  Lawrence  it 
was  taken  possession  of  by  the 
undertakers,  and  almost  the  first 
thing  was  the  cutting  out  by  the 
physicians  of  the  company  of  the 
pieces  of  flesh  in  the  arm  on  which 
were  the  vaccination  scabs.  It  was 
carried  away,  and  afterwards  could 
not  be  found.  Under  these  circum- 
stances, it  would  be  but  fair  for  the 
defense  to  concede  that  the  vacci- 
nation was  all  right. 

]Mr.  Riggs  spoke  of  the  action  of 
Griffith,  Selig,  and  Tillinghast  as  a 
trap  purposely  set  for  Mrs.  Hillmon. 
They  tried  to  weaken  her  case  by 
inducing  her  to  make  .some  state- 
ment in  the  description  of  the  body 
which  they  could  use  against  her 
afterward.  Then  the  evidence  of 
John  H.  lirown  had  to  be  disposed  of. 
Brown's  whole  conduct  bore  out  the 
theory  of  innocence.  He  stayed 
with  the  body  at  Medicine  Lodge, 
and  afterwards  went  with  it  to  Law- 
rence. The  so-called  Lawrence  in- 
quest was  an  ex  parte  examination, 
inspirefi  by  the  insurance  companies. 
One  of  the  chief  mf)vers,  Mr.  Barker, 
was  their  paid  attorney.  Immedi- 
ately after  the  arrival  of  the  body  at 
Lawrence,  Mrs.  Hillmon  went  to 
see  it,  but  was  not  allowed  to  do 
so. 

Mr.  Riggs  detailed  the  connection 
of   Brown   with    Buchan,    and   said 


No.  389. 


HILLMON    V.    INSURANCE    CO. 


881 


it  was  a  studied  attempt  on  the  part 
of  the  insurance  companies  to  de- 
stroy Brown  as  a  witness  for  Mrs. 
Hillmon.  We  have  been  asked  wliy 
we  did  not  take  Al.  Baldwin's  dep- 
osition. Look  at  Brown's  deposi- 
tion here.  He  was  cross-examined 
for  nineteen  days.  That  was  a  noti- 
fication, to  us  from  the  defense  that 
we  were  not  to  be  allowed  to  take 
any  more  depositions.  Mr.  Riggs 
did  not  think  it  remarkable  that 
a  poor,  weak  woman,  confronted  by 
the  statement  of  Brown,  rendering 
him  worse  than  useless  as  a  witness 
for  her,  and  in  the  hands  of  a  shrewd 
attorney  like  Buchan,  should  be 
induced  to  release  the  policies.  A 
strong  point,  and  one  that  destroys 
the  Walters  theory  with  e^'idence 
in  which  there  can  be  no  mistake, 
is  the  fact  that  Walters's  temples 
were  absolutely  bare,  while  those 
of  Hillmon  had  hair  on  them  cor- 
responding with  the  temples  of  the 
body,  as  shown  in  the  photograph 
and  testified  to  by  Lamon,  the 
photographer. 

In  finishing,  Mr.  Riggs  urged  the 
jury  to  mete  out  justice  to  the  plain- 
tiff, and  nothing  more,  in  the  un- 
equal contest  which  she  had  sus- 
tained with  these  great  and  powerful 
corporations,  the  insurance  com- 
panies. 

Arguments  made  by  Counsel 
FOR  Defendants. 

Argument  by  J.  W.  Green.  — 
Mr.  Green  urged  that  it  was  not 
incumbent  upon  the  defense  to  show 
that  the  body  was  that  of  John  W. 
Hillmon,  whose  life  was  covered 
by  the  policies.  The  companies  are 
worth  millions.  This  $25,000  is  not 
a  drop  in  the  bucket,  and  would 
hardly  be  worth  contending  for  if 
it  was  not  for  the  fact  that  it  in- 
volves conspiracy,  fraud,  and  cold- 
blooded, atrocious  murder.  Hill- 
mon was  a  wild,  roving  fellow. 
He  herded  cattle  out  here  in  Lea\en- 
worth  county,  went  to  Texas  and 
Colorado,  and  drifted  aimlessly 
about  for  years.  Then  he  suddenly 
took  a  notion  to  have  $25,000  in- 


surance on  his  life.  The  premiums 
amounted  to  $600  a  year  —  more 
than  the  average  man  earns,  more 
than  Hillmon  was  ever  known  to 
earn.  He  mortgaged  his  life  for  that 
sum,  poor  though  he  was.  He 
sought  the  insurance,  was  anxious 
about  the  policies,  paid  a  portion  of 
the  first  year's  premium,  suddenly 
disappeared,  was  reported  killed 
and  buried.  The  men  whom  Mrs. 
Hillmon  says  she  sent  after  the  body 
fenced  the  grave  and  started  away, 
when  the>'  were  required  by  the  in- 
surance companies  to  take  the  body 
up.  It  was  brought  to  Lawrence. 
The  alleged  widow  did  not  go  to  see 
it  for  three  days.  She  kept  away 
from  it  until  she  feared  the  effect  of 
her  action  would  prevent  the  success 
of  the  conspiracy  to  defraud  the 
companies  out  of  $25,000,  and  then 
she  went  to  see  it.  Colonel  Walker 
saw  the  body  at  Medicine  Lodge. 
He  knew  Hillmon  had  a  tooth  miss- 
ing. He  saw  that  the  teeth  of  the 
body  were  perfect,  and  he  put  his 
finger  in  the  mouth  to  see  if  there  was 
a  false  tooth.  It  was  not  there. 
The  body  was  five  feet  eleven  and 
five  eighths  inches  in  height.  Hill- 
mon was  five  feet  nine  inches. 
Three  weeks  after  the  killing,  Mrs. 
Hillmon  could  not  tell  after  the 
examination,  at  Lawrence,  what  her 
husband's  height  was,  but  now  it 
is  convenient  to  do  so,  and  she  re- 
members that  she  measured  him,  and 
that  he  was  the  same  height  as  the 
corpse.  Dr.  Miller,  of  Lawrence, 
who  testifies  that  Hillmon  was  five 
feet  nine  inches,  that  he  measured 
him,  and  made  a  record  which  is 
produced  in  court,  is  a  disinterested 
and  thoroughly  reliable  witness. 
Four  witnesses  testify  that  Hillmon 
was  five  feet  nine.  -  His  own  state- 
ment that  he  was  five  feet  eleven  was 
taken  from  the  policies,  but  he  was 
not  measured.  Mrs.  Hillmon  could 
not  or  would  not  describe  her  hus- 
band's body  before  the  arrival  of 
the  body  at  Lawrence.  That  was 
very  suspicious. 

As  to  the  tooth  testimony,   Mr. 


882 


PART    III.       PROBLEMS    OF    PROOF 


N'o.  380. 


Green  said  that  any  number  of  men 
who  do  not  know  that  a  tooth  is 
missing  cannot  equal  one  witness 
who  does.  Hilhnon's  schoohnates 
and  boyhood  ae(|uaintances  swear 
that  he  had  a  bad  front  tooth  and 
the  relatives  and  acquaintances 
swear  that  later  in  life  he  had  lost 
that  tooth.  As  to  the  vaccination, 
competent  physicians  who  examined 
the  seal)  on  the  arm  of  the  body  say 
that  it  could  not  have  been  older  than 
19  days,  and  from  all  appearances 
was  only  14  days  old.  Yet  Hillmon 
was  vaccinated  Februarv  2oth,  and 
killed  March  18th.  'if  AYalters 
was  vaccinated  at  Wichita  about  the 
time  of  leaving  there  with  Hillmon, 
the  .scab  on  the  arm  of  the  body 
woidd  correspond  with  the  scal^  on 
Walters's  arm  at  the  time  of  the 
killing,  so  far  as  age  is  concerned. 
At  Lawrence  j\Irs.  Hillmon  said 
that  the  body  was  that  of  her  hus- 
band, but  six  months  later  she  con- 
fessed that  it  was  not,  by  giving  Mr. 
Buchan  releases  of  the  policies. 

Was  it  the  body  of  Walters  ?  So 
his  own  family  testify,  and  one  of 
his  sisters,  Fannie  Walters,  bears  a 
striking  resemblance  in  features  to 
the  face  of  the  cadaver.  Those 
sisters  testified  by  their  tears  and 
grief  as  well  as  by  their  words.  Mr. 
Green  read  the  letter  from  Walters 
to  Alvina  Kasten  wherein  he  says 
that  he  was  going  southwest  with 
Hillmon.  No  one  had  questioned 
the  genuineness  of  the  letter.  '  The 
ring  mark  on  the  finger  of  the  body 
whifli  the  plaintiff's  attorneys  had 
tried  to  make  a  point  on  was  in  all 
probability  the  mark  of  the  ring  that 
Alvina  Kasten  had  testified  that 
she  gave  liim  when  they  parted. 
Walters  is  traced  from  his  home  at 
Fort  Madison  to  Wichita,  and  from 
that  point  writes  a  letter  saying 
that  he  is  going- away  to  the  south- 
west with  Hillmon.  After  that  he  is 
never  heard  of.  A  body  answering 
in  description  to  his  is  i)roduced, 
anrl  his  relatives  and  friends  testify 
that  it  is  his,  and  still  we  are  asked 
to  regard  these  as  a  series  of  coin- 


cidences meaning  nothing  and  prov- 
ing notliing.  Walters  was  five  feet 
eleven  inches  in  height,  had  dark- 
brown  curly  hair,  high  cheek  bones, 
a  Roman  nose,  liglit  nuistache,  per- 
fect teeth,  was  muscular,  had  long 
bony  fingers  and  large  feet.  That  is 
an  excellent  description  of  the  body 
of  the  man  mysteriously  killed  and 
hastily  buried  at  Medicine  Lodge. 
There  was  a  mole  on  Walters's  back, 
and  so  there  was  on  the  back  of  the 
body.  The  scars  on  Hillmon's  hands 
and  nose  must  have  been  plainly 
visible  if  the  testimony'  is  correct, 
and  there  is  no  reason  to  doubt  it, 
and  yet  the  doctors  with  their 
magnifying  glasses  could  not  find 
them  on  the  body. 

Mr.  Green  commented  \'ery  sar- 
castically on  the  "photograph  gal- 
lery" and  the  fancied  resemblance 
between  Hillmon  and  the  cadaver, 
and  pointed  out  the  similarity  be- 
tween the  cadaver  and  Walters. 

Argument  made  by  Gcor(/c  J. 
Barker.  —  Mr.  Barker  said  he  be- 
lieved the  original  plan  and  object 
of  the  first  trip  made  by  Brown  and 
Hillmon  in  December  was  to  find 
a  dead  body  that  could  be  passed  off 
for  that  of  Hillmon.  This  failed, 
and  another  plan  was  adopted,  which 
was  the  murder  of  Walters  and  the 
palming  off  of  his  body  for  that  of 
Hillmon.  Mr.  Barker  bore  down 
with  considerable  stress  on  the 
letters  written  from  Wichita  by 
Walters  to  his  intended'  and  to  his 
sister,  wherein  he  said  he  was  going 
away  with  Hillmon.  What  did  Hill- 
mon want  of  Walters  ?  Walters  had 
no  money  and  no  stock.  Hillmon 
had  no  use  for  him  except  the  terrible 
purpose  for  which  he  did  use  him. 
The  three  men  flid  not  leave  Wichita 
together.  Brown  testifies  that  three 
or  four  miles  from  Wichita  they 
picked  up  a  man.  This  man  in  all 
human  probability  was  Walters. 
The  second  trip  to  ^Medicine  Lodge 
consumed  nuich  more  time  than  tlie 
first.  It  was  on  this  trip  that  Walters 
was  prepared  for  slaughter.  He  had 
to  be  vaccinated.     That  was  prob- 


No.  389. 


HILLMON    V.    INSURANCE    CO. 


883 


ably  done  in  the  camp  on  Cowskin. 
In  a  covered  wagon  with  one  seat 
a  third  man  could  easily  be  con- 
cealed. There  were  few  people 
along  the  route  to  see  them.  They 
stopped  in  lonely  places.  Mr.  Barker 
called  the  attention  of  the  jury  to 
the  diary  taken  from  the  pocket  of 
the  dead  man,  from  which  he  read, 
and  said  it  had  evidently  been  writ- 
ten to  read  and  to  l)e  the  means  of 
identifying  the  person  upon  whom  it 
was  found  as  John  W.  Hillmon. 
Two  days  after  the  killing,  Brown 
coolly  writes  to  Mrs.  Hillmon,  tells 
her  he  has  killed  her  husband,  and 
asks  what  he  shall  do  with  the  ponies. 
Here  is  a  man  who  carries  S2o,000 
on  his  life ;  he  is  buried  at  Medicine 
Lodge,  away  from  kindred  and 
friends ;  his  widow  at  Lawrence  is 
kept  in  ignorance  for  several  days. 
Brown  waits  around  Medicine 
Lodge  a  week.  Levi  and  Al.  Bald- 
win come  down  there.  They  do 
not  take  the  body  up,  but  build  a 
fence  around  the  grave  of  this  man 
with  !$25,000  insurance  on  his  life. 
The  hat  had  been  burned  up  when 
the  killing  occurred ;  the  shoes 
were  lost  on  the  way  to  Hutchinson. 
These  two  important  articles  of 
identification  were  thus  disposed  of. 
The  body  was  taken  up  at  the  in- 
stance of  the  insurance  companies 
and  taken  to  Lawrence,  Avhere  people 
who  knew  Hillmon  might  see  it. 
In  regard  to  the  tooth  and  height 
testimony,  Mr.  Barker  said  that 
it  was  not  possible  that  Colonel 
Walker,  Dr.  Miller,  OUie  Walker, 
Hillmon's  sister  and  brother-in-law, 
could  be  mistaken.  In  describing 
the  missing  Fred  Walters,  the  Wal- 
ters family  had  described  the  body 
almost  exactly.  Hillmon  and 
Brown  were  three  months  trying 
to  find  a  cattle  ranch.  No  question 
of  identity  was  raised  at  the  Barber 
county  inquest.  LTpdegrafl^,  the 
hotel  keeper,  who  thought  he  knew 
Hillmon,  and  who  evidently  did 
know  him  as  well  as  any  of  the  Medi- 
cine Lodge  witnesses,  showed  on 
cross-examination  that  he  had  only 


seen  Hillmon  a  few  times  and  could 
not  give  any  satisfactory  descrip- 
tion of  him.  So  it  was  with  many  of 
the  Lawrence  witnesses.  Insurance 
agents  at  Lawrence  did  just  right 
in  suspecting  that  something  was 
wrong,  and  acting  upon  that  hy- 
pothesis. 

What  interest  had  the  Walters 
sisters  in  giving  their  testimony  as 
they  did  ?  They  had  nothing  at 
stake  except  identification  of  their 
brother ;  they  are  not  after  $25,000 
insurance.  Walters's  sisters  should 
know  him  if  anybody  did.  There 
is  no  reason  why  he  should  remain 
away  all  these  years.  All  the  ties 
of  nature,  mother,  sisters,  father, 
sweetheart,  all  bind  him  to  home. 
They  ask  us  why  we  don't  produce 
Hillmon  ?  He  is  hid  and  has  the 
best  of  reason  for  being  hid ;  his 
hands  are  red  with  blood.  We  ask 
them,  where  is  Walters  ? 

If  a  man  ever  tells  the  truth,  it  is 
when  he  talks  to  his  minister  or  his 
lawyer.  Brown  made  the  confession 
to  his  own  attorney  that  Hillmon  had 
killed  Walters,  but  does  not  give 
the  right  name  of  the  person  killed. 
He  did  not  want  to  bring  the  wrath 
of  the  Walters  family  down  on  him. 
Can  honest,  intelligent  jurymen 
found  a  verdict  on  the  testimony  of 
such  a  man  as  Brown  after  he  said 
what  he  did  to  his  attorney  ?  He 
robs  a  woman  of  her  husband  and 
then  brands  that  husband  as  a 
murderer.  His  perfidy  is  boundless 
and  his  testimony  wholly  unreliable. 
This  is  the  man  who  is  the  principal 
and  vital  witness  for  the  plaintiff. 
Mrs.  Hillmon  saw  the  dead  body, 
and  stoutly  asserted  it  was  her  hus- 
band. Six  months  afterwards  she 
acknowledged  that  it  was  not,  by 
surrendering  her  policies.  Had  she 
known  that  to  have  been  the  body 
of  her  husband,  would  she  not  have 
scorned  the  proposition  of  Buchan 
that  she  release  the  companies  ? 
Levi  Baldwin,  her  friend  and  adviser, 
would  never  have  permitted  her  to 
come  to  Leavenworth  and  give 
those' releases. 


8S4 


PART    III.       PROBLEMS    OF    PROOF 


No.  389. 


]\Ir.  Barker  closed  witli  an  appeal 
to  the  jury  to  do  justice  as  between 
corporations  and  a  woman.  He 
hoped  they  would  not  allow  their 
sympathy  to  be  played  upon  at  the 
expense  of  equal  and  exact  justice. 

Argument  by  Charles  S.  Glecd. — 
A  man's  acts  must  be  construed 
by  the  light  of  his  motives.  In  con- 
sidering what  he  does  it  is  necessary 
to  look  further  —  for  his  motive 
in  doing  it.  And,  conversely,  in 
assuming  a  motive  we  must  look 
further  to  see  that  the  resulting  act 
is  in  accordance  with  it.  No  test 
will  more  surely  crush  the  body  of 
any  friend  than  this  test  of  motive. 
Now  let  us  see  briefly  what  effect 
this  test  has  on  the  case  in  hand. 

What  was  Hillmon's  motive  in 
settling  on  his  life  an  insurance  of 
twenty-five  thousand  dollars  ?  He 
was  little  beyond  '  passing  rich  with 
forty  pounds  a  year.'  Sixty  dollars 
a  month  for  insurance  was  beyond 
his  depth.  Could  he  have  had  the 
slightest  expectation  of  dying  im- 
mediately ?  Could  he  have  had 
the  slightest  expectation  of  keeping 
up  his  payments  ?  And  here  let 
me  call  your  attention 'to  the  fact 
that  this  insurance  was  effected  on 
what  is  known  as  the  "Tontine" 
system  —  b}'  all  odds  the  worst 
system  for  a  poor  man,  as  by  the 
failure  to  pay  any  given  premium 
when  due,  the  whole  policy  lapses, 
and  the  payments  are  forfeited.  I 
ask  you,  Can  you  ascribe  any  motive 
to  this  extraordinary  proceeding 
other  than  the  motive  of  fraud  ? 

What  was  Hilhnon's  motive  in 
going,  in  the  deafl  of  what  he  has 
himself  descril)ed  as  an  unusually 
cold  winter,  into  the  empty  spaces 
of  western  Kansas  ?  He  says  he 
went  to  look  for  a  stock  ranch. 
Have  you  any  such  belief?  Would 
you  do  the  same  thing  ^  Would 
you  drive  day  after  day  over  the 
bleak  prairies  of  western  Kansas  next 
January  looking  for  a  stock  ranch, 
having  no  money  to  buy  with  if  you 
found  one  ?  If  you  were  looking  for 
a  stock  ranch,  would  you  travel  miles 


and  miles  along  the  Santa  Fe  road  ? 
I  ask  you  can  you  ascribe  any  motive 
for  tliis  unusual  proceeding  other 
than  the  motive  of  fraud  ? 

What  was  Hillmon's  motive  in 
writing  this  peculiar  diary  which 
has  been  read  in  your  presence  ?  It 
takes  this  man  thirty  odd  years 
to  discover  tliat  he  needs  a  diary. 
He  begins  suddenly,  writes  briefly, 
ends  suddenly,  and  with  great  for- 
mality signs  his  name  to  the  docu- 
ment, and  then  carries  the  book  for 
a  considerable  time  without  ap- 
parent reason.  Was  not  this  book 
written  to  be  found  on  the  body 
of  the  murdered  man  ?  Can  you 
discover  any  motive  in  this  unusual 
proceeding  other  than  the  motive 
of  fraud  ? 

What  is  Hillmon's  motive,  if  he 
is  alive,  in  keeping  out  of  sight  ? 
The  instinct  of  self-preservation  will 
keep  him  hidden  fore\er.  An  out- 
raged public  yearns  for  him,  and 
those  whom  he  has  attempted  to  de- 
fraud have  set  a  price  upon  his  head. 

What  was  Brown's  motive  in  so 
precipitately  burying  the  body  of 
his  friend  at  Medicine  Lodge  ? 
The  weather  was  cold,  the  distance 
was  comparatively  short,  the  team 
was  in  his  possession,  the  young  bride 
and  younger  widow%  was  supposed  to 
be  mourning  at  her  home  in  Law- 
rence, and  all  the  instincts  of  a  man 
and  a  friend  would  naturally  have 
prompted  him  to  do  the  direct  re- 
verse of  what  he  did.  Can  you 
ascribe  any  other  motive  to  this 
unnatural  proceeding  than  the  mo- 
tive of  fraud  ? 

What  motive  have  John  Brown 
and  Ah'a  Baldwin  for  staying  away 
from  this  court  ?  The  first,  although 
he  knew  Hillmon  well,  and  was  pres- 
ent at  Medicine  Lodge  when  the 
coffin  was  opened,  has  never  been 
called  upon  to  testify.  The  second 
prefers  the  jungles  of  Arkansas  to 
the  witness  stand  in  Kansas.  He 
makes  a  better  appearance  in  the 
pages  of  a  tediously-taken  deposi- 
tion than  he  would  on  the  witness 
stand  under    the  scrutiny  of    your 


No.  389. 


HILLMON    V.    INSURANCE   CO. 


8S5 


eyes.  Alva  Baldwin  knows  that 
the  body  he  saw  at  Medicine  Lodge 
was  not  that  of  Hillmon,  and  John 
Brown  knows  that  he  is  party  to  a 
conspiracy  —  accessory  to  a  murder. 

What  was  Brown's  motive  in 
making  the  confession  which  I  have 
read  to  you  ?  The  counsel  for  the 
plaintiff  insults  your  intelligence 
by  saying  that  this  man  who  had 
braved  the  dangers  of  prairie  and 
desert  and  mountain,  this  man  who 
had  his  liberty,  this  man  who  knew 
ten  thousand  avenues  for  the  cow- 
ard's escape  —  they  insult  you,  I 
say,  in  saying  that  this  man  made 
this  statement  contrary  to  the  facts 
in  the  case  because  the  man  whom 
he  had  employed  as  his  attorney 
told  him  there  was,  somewhere  in 
the  vague  vicinity,  a  warrant  for 
his  arrest.  Do  you  imagine  for  one 
moment  that  if  that  man  had  killed 
Hillmon  as  he  said  he  had,  if  he 
knew  that  Hillmon  was  dead  and 
innocently  dead,  if  he  knew  that 
his  confession  meant  to  brand  his 
friend  as  a  murderer  and  rob  his 
friend's  wife  of  twenty-five  thousand 
dollars,  he  would  have  made  it  and 
sworn  to  it,  just  because  somebody 
said  that  somewhere  was  a  warrant 
for  his  arrest  ?  If  he  had  been  in- 
nocent, have  you  any  doubt  that  he 
would  ha\e  defied  all  the  sheriffs 
and  all  the  jails  and  all  the  courts  of 
justice  on  the  face  of  the  earth  ? 
Can  you  discover  in  this  remarkable 
proceeding  any  other  motive  than 
the  motive  of  fraud  ? 

What  was  Mrs.  Hillmon's  motive 
in  attempting  to  return  to  the  in- 
surance companies  the  policies  which 
they  had  issued  to  her  husband  ? 
She  had  seen  her  dead  husband  in 
his  coffin  ;  she  knew  the  insurance 
money  had  been  earned ;  she  knew 
that  she  was  a  widow ;  she  knew 
that  she  was  poor ;  and  yet,  in  un- 
conditional surrender,  without  con- 
fiding to  her  attorneys,  or  her  friends, 
without  receiving  consideration,  she 
does  all  in  her  power  to  abandon  her 
rights.  You,  gentlemen,  have  seen 
this  woman,  and  you  know  that  she 


knows  her  business  too  well  to  be 
thus  hoodwinked.  What  motive 
can  you  discover  in  this  strange 
proceeding  other  than  the  motive 
of  fraud  ? 

What  was  Mrs.  Hillmon's  motive 
in  her  treatment  of  Senator  Buchan  ? 
She  swears  here  to  you  that  she  be- 
lieved Buchan  was  tr^nng  to  brand 
her  husband  as  a  murderer,  and  to 
rob  her  of  twenty-five  thousand 
dollars ;  and  yet  she  complies  with 
all  his  wishes,  she  stays  at  his  house 
as  his  guest,  and  then  she  writes 
to  him  such  letters  as  those  which 
have  been  read  to  you.  Can  you, 
gentlemen,  explain  the  horrible  in- 
consistency of  this  business  ?  Can 
you  explain  it  on  any  other  ground 
than  that  of  a  guilty  conscience  ? 
Can  you  discover  in  it  any  motive 
other  than  the  motive  of  retreat 
from  fraud  ? 

What  motive  had  Baldwin  in 
not  restraining  Mrs.  Hillmon  from 
the  step  which  she  proposed  to  take  ? 
Ought  he  not  as  a  friend  to  have  in- 
sisted on  her  keeping  away  from 
Buchan,  or  at  least  should  he  not 
have  insisted  on  her  consulting  her 
attorneys  ?  W^hat  motive  can  you 
ascribe  for  his  apparent  indifference 
other  than  the  motive  of  avoiding 
the  consequences  of  his  share  in  the 
fraud  ? 

What  were  the  motives  which 
induced  the  parents,  brother,  and 
sisters  of  Frederick  Adolph  Walters 
to  solemnly  swear  to  their  brother's 
death  ?  W^ould  they  not  gladly 
believe  him  alive  ?  You  saw  them 
on  the  stand.  Did  you  ever  hear 
truth  more  clearly  spoken  ?  Did 
you  ever  see  sincerity  more  clearly 
stamped  on  people's  faces  ?  Can 
you  believe  that  these  people  were 
swearing  for  money  ?  Can  you 
ascribe  to  their  statements  any 
motives  other  than  the  motives  of 
conviction  ? 

What  motives  do  you  ascribe  to 
Dr.  Miller,  Dr.  Mottram,  Dr.  Stuart, 
Dr.  INIorse,  to  Colonel  Sam'l  Walker 
and  his  son,  to  Hon.  J.  W.  Green, 
Dean    of    your    State's    University 


886 


PART   III.       PROBLEMS    OF   PROOF 


No.  389. 


Law  School,  the  then  County  At- 
torney of  Douglas  county  —  what 
motive  do  you  ascribe,  I  say,  in 
their  conduct  of  the  coroner's  in- 
quest, their  treatment  of  the  cadaver, 
and  their  sul)sequent  efforts  and  evi- 
dence on  behalf  of  the  defense? 
These  .men  are  above  reproach  in 
their  private  characters  ;  they  are 
leading  churchmen,  leaders  in 
society,  honorable  soldiers,  and  good 
men  by  whatever  test  they  are  ex- 
amined. Dare  you,  by  giving  a  ver- 
dict for  the  plaintiff,  brand  these  men 
as  perjurers  and  conspirators  ?  Dare 
you  say  that  for  thirty  pieces  of 
silver,  by  the  sum  more  or  less,  which 
they  might  receive  from  the  insur- 
ance companies,  they  would  blacken 
the  whole  record  of  their  lives  by  an 
infamous  proceeding  like  this  ?  Dare 
you  ascribe  to  them  as  a  motive  for 
all  they  have  done,  avarice  and 
cupidity  ? 

What  motive  has  Frederick 
Adolph  Walters  for  remaining  hid- 
den ?  Father,  mother,  brother,  these 
sweet  sisters  whom  you  have  seen 
here,  a  lover  —  these  call  him,  if  he 
be  alive,  from  his  hiding  place,  and 
demand  his  appearance. 

What  motive  had  William  J. 
Buchan  in  his  connection  with  the 
matter  ?  This  man  who  has  been 
twelve  or  fifteen  years  in  the  State 
Senate,  and  who  has  made  more  of 
the  laws  of  this  State  than  perhaps 
any  other  man  in  it ;  who  has  for 
his  friends  and  admirers  the  leading 
men  in  the  State ;  whose  money  and 
business  are  ample ;  whose  public 
and  private  life  have  never  been  im- 
peached —  this  man  could  not  have 
had  the  motive  ascribed  to  him  by 
the  counsel  for  the  plaintiff",  the 
motive  of  getting  a  small  fee  in 
return  for  r()bl)ing  a  widow  and  ex- 
tracting perjury  from  his  client. 
The  idea  is  an  insult  to  your  in- 
tclli^rciice. 

Wiiat  motive  have  the  insurance 
companies  in  beginning  and  con- 
tinuing this  contest?  None,  I  sub- 
mit, but  that  of  a  desire  to  defeat 
an  attempted  fraud.     A  reputation 


for  being  poor  pay  is  a  thing  which 
no  insurance  company  can  stand. 
To  advertise  to  the  world  that  it  will 
always  contest  a  claim  where  it  has 
a  shadow  of  ground  on  which  to 
make  such  contest,  is  to  drive  any 
insurance  company  out  of  business. 
The  trouble  and  expense  of  this 
litigation,  added  to  the  undesirable 
advertisement  which  such  litigation 
gives,  far  overbalance  the  amount 
directly  involved.  The  only  motive 
which  the  companies  can  have  in 
prosecuting  this  case  is  that  of  dis- 
couraging the  sort  of  crime  of  which 
this  is  a  sample,  and  which  to-day 
is  one  of  the  most  prevalent  of  all 
forms  of  fraud.  In  both  life  and 
fire  business  the  gravest  frauds  are 
attempted  daily.  In  Kansas,  the 
fraud  on  life  insurance  companies 
(including  the  Hillmon  cases)  are 
best  exemplified  perhaps  by  the 
Winner  and  McXutt  case,  these  two 
men  being  now  in  the  penitentiary 
for  burning  one  Seiver  in  a  house 
at  Wichita,  the  body  being  passed 
off  as  that  of  McXutt,  who  was  in- 
sured. It  is  a  notable  fact  that  this 
affair  was  invented  in  Lea\enworth 
county,  only  a  few  miles  from  the 
home  of  Hillmon  and  Baldwin. 
Near  Leavenworth  lived  a  man  at 
least  up  to  three  years  ago,  who  was 
supposed  to  have  jumped  from  a  boat 
on  the  Hudson  river  and  drowned, 
and  to  whose  widow  the  insurance 
money  due  on  his  life  was  paid  ;  for 
fourteen  years  that  man  lived  quietly 
and  securely  within  a  few  miles  of 
the  city.  The  case  of  Jacob  Smith, 
of  Atchison,  who  set  fire  to  his  pack- 
ing houses  for  the  insurance,  is  re- 
membered by  all.  In  the  little  town 
of  Pandora,  Douglas  county,  some 
five  years  ago,  a  Dr.  Clause  insured 
his  house  and  its  contents  for  three 
thousand  dollars.  The  property  was 
burned  and  heavy  insurance  was 
paid  over,  but  tlie  finding  of  a  watch, 
which  was  scheduled  as  lost,  aroused 
the  suspicion  of  interested  parties, 
and  enabled  George  J.  Barker  to 
force  from  the  doctor  a  confession 
and    a    complete    restoration.     The 


No.  380. 


HILLMON    V.    INSURANCE    CO. 


887 


whole  property  insured  was  worth 
four  hundred  doHars.  Not  long  ago 
the  Travelers'  Insurance  Company, 
of  Hartford,  Connecticut,  had  a 
case  where  a  man  secured  heavy  in- 
surance on  his  life,  built  him  a  small 
workshop  or  laboratory  in  the  vicinity 
of  Baltimore,  where  he  was  one  day, 
so  the  papers  said,  elaborately  and 
completely  cremated.  From  a  cer- 
tain suspicious  circumstance  the 
company  contested  the  case,  and  for 
three  or  four  years  braved  the  in- 
dignation of  honest  people  generally, 
who  believed  the  death  to  have 
actually  occurred.  Finally,  as  a 
result  of  a  quarrel  between  the  sup- 
posed dead  man  on  the  one  hand  and 
the  wife  of  a  mutual  friend  on  the 
other,  the  man  put  in  an  appearance 
and  all  parties  were  punished.  Dur- 
ing all  the  time  of  this  conspiracy 
the  supposed  dead  man  was  but  a 
few  miles'  distance  away.  These 
very  brief  illustrations  are  sufficient 
to  clearly  point  out  the  fact,  for 
fact  it  is,  that  no  one  interest  in 
our  country  to-day  is  so  persistently 
beset    by     plots    and    conspiracies 

as  the  insurance  interest 

Judge  Brewer's  Charge  [at  the 
second  trial]. ^  —  Gentlemen  of  the 
Jury :  I  congratulate  you  that 
this  case  is  drawing  so  near  to  its 
close.  And  I  congratulate  the 
parties  in  this  case  that  they  have 
been  permitted  to  try  their  case 
before  such  a  jury.  I  repeat  no 
idle  compliment  when  I  say  that 
it  has  been  a  common  expression  of 
the  many,  who  from  time  to  time, 
have  visited  this  court  room  during 
this  trial,  that  we  have  an  excep- 
tionally fine,  intelligent  jury  to  try 
this  case.  Some  of  you  are  men  of 
state  reputation  for  character ;  all 
of  you  are  men  of  mature  years. 
Some  of  you  have  got  beyond  the 
meridian  of  life,  and  none  of  you  can 
afford  to  barter  your  own  self- 
'respect,  the  character  which  you 
have  earned  and  well  earned  in  this 
state,  for  the  mere  paltry  desire  to 


please   or   favor   one   party   or   the 
other. 

At  the  outset  I  need  no  more  than 
state  that  this  case  is  one  of  peculiar 
interest.  The  many  who,  from 
time  to  time,  have  gathered  here  to 
listen  to  the  testimony  as  it  has 
fallen  from  the  lips  of  the  witnesses, 
indicate  that  there  is  an  interest 
outside  of  the  mere  question  of 
pecuniary  interest  to  the  parties, 
that  there  is  a  curiosity  and  a  feel- 
ing which  has  brought  them  here  to 
listen,  and  yet  of  them  all  who  have 
been  here  from  time  to  time,  or  who 
may  have  read  in  the  papers  the 
story  detailed  by  these  various  wit- 
nesses, of  council,  witnesses,  and 
parties,  you  anfl  I  are  the  only  ones 
who,  hearing  all  the  testimony  and 
the  arguments  of  council,  the  whole 
detail  of  this  case  from  its  inception 
to  its  close,  have  looked  at  it  or  could 
have  looked  at  it  with  the  single 
thought  that  it  is  for  us  to  settle 
what  is  the  very  truth  of  this  con- 
troversy. It  has  developed  before 
you  that  this  case  has  run  many 
years.  The  amount  of  the  con- 
troversy, the  interest  that  is  felt, 
all  compels,  if  possible,  a  verdict, 
a  decision  at  this  time.  But  while 
it  is  for  the  interest  of  all  that  if 
possible  this  question  should  now 
be  settled,  it  is  far  more  important 
that  each  individual  juror  should 
be  loyal  to  his  own  convictions.  It 
matters  not  what  casual  remarks 
you  may  have  heard  dropped  from 
outside  parties,  or  what  you  may 
have  seen  in  the  papers.  The 
question  comes  home  to  you,  and 
should  come  home  to  each  one  of 
you,  that  "I  and  I  alone  have  lis- 
tened to  this  story  as  told  by  these 
various  witnesses,  and  that  no  man 
but  myself  is  responsible  for  the 
verdict  which  must  be  rendered." 
I  deem  it  not  inappropriate  to  say 
that  I  shall  feel  it  my  duty  to  keep 
you  together  a  reasonable  time  for 
consideration,  deliberation,  and  the 
weighing  of    this    testimony,  but  I 


'  \A  newspaper  report  of  the  charge  was  supplied  for  this  work,  by  courtesy  of  Mr.  Gilbert 
Porter,  of  the  firm  of  Messrs.  Isham,  Lincoln,  and  B:;ale,  of  the  Chicago  Bar.  —  Ed.] 


888 


PART    III.       PROBLEMS    OF    PROOF 


No.  3S0. 


have  never  been  a  judge  to  attempt 
anything  hke  a  thumbscrew  to 
coerce  a  verdict  against  the  will 
and  judgment  of  any  jury.*  This  is 
a  case  wherein  there  can  be  no  com- 
promise. It  is  not  like  an  action 
for  damages,  where  one  juror  may 
say  that,  "Although  I  think  the 
plaintiff  is  entitled  to  so  much,  I  am 
willing  to  throw  oil'  a  little  to  adjust 
my  views  to  the  views  of  my  follows." 
There  is  no  halfway  house  here. 
There  is  no  compromise.  Either 
this  plaintift"s  husband  w^as  killed 
on  the  17th  of  March  at  Crooked 
creek  and  she  is  entitled  to  a  full 
verdict,  or  else  that  body  there 
produced  was  not  the  body  of  her 
husband,  and  she  ought  to  go  out  of 
court,  and  the  verdict  should  be  for 
the  defendants. 

I  deem  it  proper,  in  view  of  the  im- 
portance of  this  case,  to  comment 
at  some  length  upon  the  various 
classes  and  forms  of  testimony  that 
have  been  presented.  I  think  you 
will  accord  to  me  the  belief  that  it 
comes  not  merely  from  an  assump- 
tion by  virtue  of  the  position  that 
I  now  hold,  but  that  out  of  a  some- 
what protracted  experience  in  the 
sifting  and  weighing  of  testimony 
and  in  determining  the  relative  bear- 
ing of  various  forms  of  testimony 
upon  the  matter  in  issue,  I  may  be 
able  to  throw  out  some  suggestions 
which  will  help  to  guide  you  to- 
wards the  truth.  Yet  while  I  feel 
that  it  is  my  duty  to  make  these  sug- 
gestions, I  want  most  emphatically 
at  the  outset  to  say  that  it  is  not  my 
judgment  that  is  to  control ;  it  is 
yours.  I  do  not  want  any  man  on 
this  jury  to  think  that  the  judge  has 
an  opinion  this  way  or  that  upon  the 
final  ultimate  (luestion.  I  have  and 
shall  cautiously  refrain  from  any  dis- 
closure of  any  such  opinion  ;  and 
so  far  as  I  may  express  opinions  upon 
this  and  that  matter  of  testimony, 
if  you  do  not  think  that  my  views 
are  sound  ami  right,  reject  them; 
for  I  want  to  impress  upon  you  that 
it  is  your  judgment  in  this  case  that 
determines    the    verdict.     You    are 


not  bound  in  any  manner  by  the  mere 
say-so  of  a  witness,  or  the  opinion 
of  an  expert  like  a  physician.  You 
ma\-,  and  ought  to,  use  your  own 
common  *  knowledge.  You  come 
froni  various  walks  in  life  ;  you  rep- 
resent diff'erent  pursuits ;  you  are 
gathered  here  from  these  various 
walks  in  life  to  give  the  benefit  of 
\'our  own  general  knowledge  of  facts 
and  things ;  that  by  the  concur- 
rence of  these  varied  opinions  Me 
may  ascertain  .what  is  the  general 
judgment  as  to  the  truth. 

With  the  plaintiff  lies  the  burden 
of  testimony.  It  is  incumbent  upon 
her  to  prove  the  truth  of  the  allega- 
tions she  makes.  As  the  law  phrases 
it,  the  preponderance  of  testimony 
must  be  on  her  side.  But  that  pre- 
ponderance does  not  mean  counting 
up  so  many  w^itnesses  on  the  one  side, 
and  counting  so  many  on  the  other. 
It  does  not  mean  in  this  —  which 
is  a  mere  civil  suit  —  that  she  must 
prove  her  case  beyond  a  reasonable 
doul)t,  as  the  state  would  have  to  do 
if  it  charged  a  person  with  crime. 
It  means  simply  that  the  prepon- 
derance, the  weight  of  the  testimony, 
shall  be  on  her  side ;  that  as  you 
look  upon  any  question,  as  ;\ou 
look  upon  the  ultimate  facts  to  be 
decided  before  you  can  find  a  ver- 
dict in  her  favor,  you  must  say  that 
you  believe  that  that  is  more  prob- 
ably true  than  false ;  that  as  be- 
tween the  two  questions  whether 
this  was  the  body  of  John  W.  Hill- 
mon  that  was  there  found,  or  not 
the  body  of  John  W.  Hillmon,  you 
believe  it  was  the  body  of  John  W. 
Hillmon,  and  that  that  belief  is 
sustained  by  a  preponderance  of 
evidence. 

You  are  the  judges  of  the  cred- 
ihiliti/  of  witnesses.  As  I  said  a 
moment  ago,  you  are  not  boimd  by 
the  mere  fact  of  a  man  coming  on 
this  stand,  and  who  says  a  thing,  to 
believe  it.  You  don't  count  up' 
the  number  of  say-so's  on  one  side 
and  the  number  of  say-so's  on  the 
other  and  .say  that  this  is  or  is  not 
a    fact.     You    judge    an    individual 


No.  3S9. 


HILLMON   V.    INSURANCE    CO. 


889 


here  on  this  stand  just  as  you  do  an 
individual  oft"  the  stanfl.  Do  not 
think  that  there  are  any  cast-iron 
rules  around  your  judgmejit  which 
fetter  and  hamper  it  when  it  would 
be  free  and  untrammeled  outside  the 
jury  box.  As  you  measure  a  man, 
as  you  weigh  his  statement  outside 
the  jury  room,  listening  to  anything 
on  the  street  when  he  tells  you  of 
anything  seen  or  heard,  so  you 
measure  and  weigh  him  here.  y\nd 
if  I  enumerate  some  of  the  things 
which  go  to  aft'ect  the  credibility 
of  witnesses,  I  commend  these 
suggestions  simply  to  your  judgment. 

One's  interest 'directs  his  testimony. 
A  person  who  makes  or  loses  by  this 
or  that  fact,  coming  upon  the  stand 
will  naturally,  although  honest  in 
purpose  and  thought,  color  the  state- 
ment and  the  testimony  which  he 
gives  to  suit  his  own  interest.  And 
that  you  will  find,  I  submit  to  you 
as  your  own  experience,  to  be  true 
of  the  best  men.  When  they  are 
asked  to  tell  their  tale  in  reference 
to  any  fact  which  interests  them, 
by  which  they  make  or  lose  money, 
they  will,  while  they  will  not  insert 
a  thing  which  is  absolutely  false, 
tell  those  things  which  make  for 
their  side  and  omit  those  things 
which  make  against  their  side, 
and  they  will  color  their  narrative 
of  those  things  which  help  them  to 
suit  their  interest.  That,  I  submit 
to  you,  is  a  part  of  human  experi- 
ence. Feeling  has  the  same  effect 
that  interest  has.  It  is  not  always 
a  question  of  dollars  and  cents. 
Ofttimes,  from  one  reason  or  an- 
other, perhaps  unknown  and  undis- 
closed, one  witness  or  another  has 
deep  feeling  for  or  against  this  or 
that  party.  Such  a  witness,  I  sub- 
mit to  you,  despite  the  best  inten- 
tion, will  put  his  views  in  accord  with 
his  feelings  most  strongly. 

Then  you  will  notice,  as  you  have 
noticed  in  this  case,  that  some  wit- 
nesses have  that  peculiar  tempera- 
ment which  compels  them  to  say,  "  I 
know."  Others  come  forward  and 
say  "  My  best  judgment  is  so  and  so," 


"I  think  this  is  so  and  so."  Well, 
I  submit  to  you  whether  the  former 
is  entitled  to  more  credence  than  the 
latter.  Tt  is  a  part  of  common  ex- 
perience that  some  when  they  see 
a  thing  or  believe  a  thing,  believe 
it  absolutely.  They  do  not  rec- 
ognize the  possibility  of  a  doubt  or 
an  opposite  side.  Others,  more 
cautious,  are  simply  willing  to  give 
their  best  judgment ;  and  I  submit 
to  you,  whether  in  your  experience 
through  life,  they  who  speak  cau- 
tiously, they  who  give  to  you  that 
which  they  say  as  simply  their  best 
judgment,  are  not,  in  the  general 
average  of  things,  more  likely  to  be 
true  than  these  positive  natures  who 
are  apt  to  grasp  a  fact  speedily,  be 
positive,  and  recognize  no  possibility 
of  a  doubt. 

Then,  you  measure  the  story  of  the 
witnesses  by  the  probability  of  the 
story.  If  one  comes  before  you  and 
details  facts  which  are  in  accord  with 
human  experience,  which  are  natural 
and  probable,  you  instinctively,  in- 
voluntarily, give  more  credence  to 
that  witness  than  when  one  comes 
before  you  and  tells  something  which 
is  out  of  the  ordinary  course  of 
nature.  You  want  to  have  his  testi- 
mony strengthened ;  you  want  to 
hear  somebody  support  it,  for  you 
say,  "  This,  on  the  face  of  it,  seems 
strange  ;  that,  on  the  face  of  it,  seems 
natural." 

Then,  you  may  measure  anybody, 
on  or  off  the  stand,  by  the  manner 
in  which  they  testify.  Some  carry 
on  their  face  that  impress  of  truth 
which  no  person  can  witness  with- 
out according  belief  to  it.  Others, 
by  their  manner,  show  that  they  are 
either  telling  an  untruth  or  that  they 
are  telling  matters  of  which  they  are 
not  certain,  and  it  is  your  prerogative, 
as  you  have  done  —  and  I  say  it  to 
your  credit  that  I  have  never  seen 
a  jury  during  a  protracted  trial  watch 
more  cautiously  and  carefully  the 
various  witnesses  who  have  been 
before  them  —  it  is  your  prerogative, 
as  it  is  your  duty,  to  weigh  every 
witness  who  has  sat  in  this  box,  and 


890 


PART    III.       PROBLEMS    OF   PROOF 


No.  389. 


determine  for  yourself  whether  that 
witness  was  seeking  to  tell  the  very 
truth  and  whetlier  he  was  talking 
of  things  of  which  he  had  a  clear  and 
distinct  recollection  or  was  simply 
giving  a  \ague  impression,  drawn 
perhaps  from  many  sources. 

Then  there  is  another  question  I 
want  to  call  your  attention  to.  You 
have  doubtless  in  your  life  noticed 
that  men  will  recoiled  fads  when  they 
cannot  recollect  dates.  It  is  often 
thought  by  counsel  that  if  they  can 
catch  a  witness  in  a  misstatement 
as  to  a  date,  they  have  impeached  his 
testimony  as  to  a  fact.  But  I  put 
it  to  your  own  recollection,  to  your 
own  experience,  whether  out  of 
1000  men  you  ever  saw  a  single  one 
that,  unless  there  was  something  to 
impress  the  date,  could  actually 
state  it.  You  have  every  one  of  you 
noticed  that  Judge  Foster,  the  district 
judge,  has  been  in  attendance  since 
this  court  commenced  ;  of  that  fact 
you  are  certain  ;  \ou  have  no  doubt 
of  it,  but  can  one  of  you  tell  the  day, 
would  you  be  certain  as  to  even 
the  week  of  these  four  weeks  of 
trial  as  to  which  he  first  appeared  ? 
And  yet,  if  somebody  cross-examin- 
ing you  in  the  days  to  come  as  to 
that  fact,  should  "  ask  was  it  the 
first  week  ?  was  it  the  second  week  ? 
Was  it  Monday,  Tuesday,  Wednes- 
day, Thursday,  Friday,  or  Saturday  ? 
and  you  should  say  :  "  I  do  not  know  ; 
I  think  it  was  Thursday  or  Monday," 
would  you  think  that  thereby  your 
certainty,  your  recollection  was 
thereby  impeached  ?  Indeed,  a  wit- 
ness, unless  there  is  something  to 
impress  the  date,  or  some  memoran- 
dum, or  unless  he  can  put  the  fact 
alongside  of  some  certain  date  about 
which  there  can  be  no  (luestion, 
is  seldom  able  to  positively  assert 
the  date.  So  I  submit  to  you 
whether  your  general  experience  does 
not  tell  you  that  a  date  is  of  all 
things  the  most  uncertain  to  rec- 
ollect, the  most  impossible  for  a 
witness  to  tell.  And  while  he  may 
be  certain  as  to  this  or  that  fact 
which  he  sees,  the  time  at  which  he 


sees  it  is  a  matter  which  is  past  his 
certain  statement. 

There  is  another  matter.  If  you 
and  I  are  witnesses  of  any  transac- 
tion, you  may  see  one  circumstance, 
I  another ;  one  series  of  facts  may 
impress  you,  another  series  of  facts 
may  impress  me.  I  go  on  the  stand 
and  tell  what  I  remembei* ;  you  go 
on  the  stand  and  tell  what  you  re- 
member; each  of  us  may  be  per- 
fectly truthful,  each  of  us  may  en- 
deavor to  give  the  whole  truth  and 
each  of  us  may  honestly  forget  things 
which   the  other  has  remembered. 

These  are  rules  of  evidence  born 
of  the  experience  of  many  genera- 
tions, and  I  submit  to  you,  whether 
they  do  not  concur  with  your  own 
experience  and  judgment.  There 
has  been  thrown  out  in  the  argument 
here  suggestions  on  the  one  side  and 
the  other  of  the  conduct  of  the  parties, 
charges  of  conspiracy ;  and  reflec- 
tions have  been  on  both  sides  cast 
upon  the  conduct  of  various  agents 
and  parties  in  respect  to  this  trans- 
action. It  matters  not  to  you  and 
this  case,  whether  either  side  has  in 
all  things  conducted  itself  according 
to  the  strictest  rules  of  decorum  and 
projjriety.  It  may  be  that  it  was  an 
imusuul  thing  and  a  weak  thing  for 
this  plaintiff  to  leave  the  home  of  her 
friends  and  come  to  Leavenworth  and 
sign  those  releases.  It  may  be  that 
it  was  an  ungentlemanly  thing  for 
the  agents  of  the  insurance  com- 
panies before  the  body  had  reached 
Lawrence  to  write  to  Mrs.  Hillmon, 
seek  an  interview,  and  strive  to 
elicit  facts.  Be  that  as  it  may,  that 
is  not  the  question  for  you  to  settle. 
All  these  things  come  in  and  are 
properly  let  in  evidence  only  as 
bearing  upon  the  ultimate  fact,  the 
single  fact  which  you  have  to  de- 
termine. 

The  amount  in  controversy  is 
large.  On  the  one  side  you  are  told 
that  there  is  a  poor  woman ;  on 
the  other  side  rich  corporations  to 
whom  a  mere  matter  of  $30,000  or 
so  is  trivial.  While  counsel  on 
both   sides   disclaim   any   desire    to 


No.  389. 


HILLMON   V.    INSURANCE    CO. 


891 


influence  by  outside  matters,  yet 
you  see  that  there  comes  to  every 
man  the  thought  that  on  the  one 
side  there  is  a  poor  woman,  upon  the 
other  side  wealthy  corporations. 
You  see  also  the  thought  which  has 
been  suggested  that  these  are  foreign 
corporations,  living  and  residing  in 
the  distant  States,  contesting  with 
a  citizen  of  your  own  State,  and  ap- 
pealing to  jurors  of  this  State,  whose 
sympathy  may  naturally  be  with 
their  fellow  citizens,  for  justice. 
I  speak  of  this  because  these  mat- 
ters, while  not  pressed  upon  your 
attention,  are  incidentally  thrown 
out.  I  trust  you  are  true  men,  who 
sympathize  with  a  poor  woman.  I 
would  despise  a  man,  and  I  would 
not  let  him  sit  on  a  jury  that  I  con- 
trolled, if  I  did  not  believe  he  had 
much  sympathy  for  any  woman  in 
poverty  or  distress.  I  believe  you 
are  proud  of  this  State,  and  would 
not  have  the  good  name  of  this  State 
or  the  good  name  of  its  jurors 
sullied  by  any  act  of  yours.  I  would 
not  have  a  juror  sit  on  a  case  tried 
before  me,  if  I  could  help  it,  whom 
I  did  not  belie\e  had  that  loyalty 
to  his  own  State.  But  above  all 
these  questions,  beyond  all  these 
considerations,  is  that  loyalty  which 
every  one  of  you  ought  to  feel,  and 
I  do  not  doubt  does  feel,  to  his  own 
convictions  ;  and  whether  your  ver- 
dict shall  be  for  this  poor  woman  or 
in  favor  of  these  rich  corporations, 
or,  as  some  may  say,  for  the  good 
name  of  the  State  or  against  it,  I 
believe,  I  trust,  I  am  talking  to  men 
who  respond  to  that  feeling,  that  you 
are  each  one  going  to  do  that  which 
shall  be  the  true  answer  to  your  own 
convictions,  whichsoever  way  they 
may  lead  you. 

Now,  u'hat  is  the  question  f  The 
plaintiff  in  this  case  says  that  prior 
to  March,  1879,  her  husband  took 
out  policies  of  insurance  to  the 
amount  of  $25,000  in  these  three 
several  companies  defendant ;  that 
on  the  17th  day  of  March  that  hus- 
band was  killed  on  Crooked  creek, 
near    Medicine    Lodge ;     that    that 


body  was  brought  from  Crooked 
creek  to  Medicine  Lodge,  and  from 
Medicine  Lodge  to  Lawrence,  and 
there  buried.  And  the  question  in 
the  case,  and  as  I  have  had  occasion 
to  say  to  you  several  times  during 
the  progress  of  this  trial,  the  single, 
paramount,  ultimate  question  is : 
"Was  that  body  thus  brought  from 
Crooked  creek  to  Medicine  Lodge 
and  to  Lawrence  the  body  of  John 
W.  Hillmon?"  That  is  the  ques- 
tion which  you  must  answer,  and 
that  is  the  single,  ultimate  question 
which  you  must  answer.  It  is  not 
a  question  as  between  two  bodies. 
It  is  not  a  question  whether  this 
is  the  body  of  John  W.  Hillmon  or 
Frederick  Adolph  Walters.  This 
is  not  like  the  case  told  in  Scrip- 
ture of  the  woman  claiming  one 
body,  one  child.  It  is  not  a  ques- 
tion for  you  to  settle  whether  the 
preponderance  of  testimony  shows 
that  it  is  the  body  of  Walters  or 
the  body  of  John  W.  Hillmon.  The 
question  is  :  "  Is  this  the  body  of 
John  W.  Hillmon  ?  "  And  if  such  a 
thing  as  this  shoidd  happen,  that 
any  one  of  you  jurors  sifting  and 
weighing  this  testimony  should  come 
to  the  conclusion  that  you  are  not 
satisfied  that  it  is  either  the  body 
of  Hillmon  or  the  body  of  Walters, 
then  your  verdict  must  be  against 
the  plaintiff,  for  with  her  rests  the 
assertion  that  it  is  the  body  of  John 
W.  Hillmon.  .  .  . 

At  the  outset  we  have  this  fact : 
That  John  W.  Hillmon,  prior  to  the 
17th  of  March  took  out  S25,000  in- 
surance. It  is  claimed  by  the  in- 
surance companies  that  this  is  a 
significant  fact.  They  have  said 
to  you  that  that  is  an  enormous 
amount  for  a  man  circumstanced  as 
he  was,  to  take  out ;  that  on  the 
face  of  it,  it  indicates  in  the  incep- 
tion, a  wrong  purpose,  and  coupling 
that  with  the  fact  that  immediately 
after  taking  it  out,  he  goes  into  an 
unfrequented  and  lonesome  country 
and  meets  his  death,  presents  a  com- 
bination of  suspicious  circumstances, 
which,  in  the  inception,  characterize 


892 


PART    III.       PROBLEMS    OF   PROOF 


No.  3S9. 


the  transaction.  On  the  other  hand, 
the  phiintiff  says  that  her  luisl)and 
was  recently  married  ;  that  within 
three  months  of  their  wedding  start- 
ing out  upon  a  legitimate  business 
transaction,  and  going  into  a  country 
but  recently  visited  by  hostile  In- 
dians, a  country  in  whose  locality 
might  be  expected  danger  and  risk, 
he  simply  did  that  which  the  prompt- 
ings of  conjugal  love  recjuired.  I'n- 
certain  whether  from  the  country 
he  would  return  alive,  fearing  acci- 
dent to  himself  there,  and  unwilling 
that  the  woman  to  whom  he  had  so 
recently  pledged  his  loyalty  and 
faith  for  life,  should  be  unprovided 
for,  he  had  taken  this  simple  and 
reasonable  precaution  for  her  future 
benefit.  Now,  this  is  a  matter  for 
you  to  pass  upon.  You  have  heard 
the  arguments  of  counsel  as  to  one 
thing  and  another,  whether  a  man 
would  ordinarily  take  such  a  trip  at 
such  a  time,  whether  that  was  the 
best  time  to  make  the  investigation 
contemplated,  and  all  the  circum- 
stances of  his  pecuniary  condition,  his 
past  life,  his  present  surroundings ; 
and  the  question  for  you  in  that 
respect  is  to  say  whether  in  the  in- 
ception of  this  matter  there  appears 
that  which  impels  you  to  say  that  it 
indicates  wrong,  or  was  the  simple  and 
natural  action  of  a  loving  husband. 

We  pass  from  the  inception  of  this 
case  to  what  I  may  call  the  direct 
testimony. 

One  John  H.  Brown  testifies  before 
you  that  he  was  the  sole  companion 
of  John  W.  Hillinon  ;  that  on  the 
ITtli  day  of  March,  1S70,  by  accident, 
the  gun  in  his  hands  went  off  and 
John  W.  Hillmon  was  killed.  He 
says  he  was  the  only  person  there 
present,  the  only  witness  to  that 
transaction,  and  there  is  no  other 
witness  that  pretends  to  have  been 
there.  His  testimony  therefore 
comes  before  you  as  what  we  call 
"direct  testimony."  If  his  state- 
ment is  true,  there  can  be  no  cjues- 
tion  but  what  it  was  the  body  of 
John  W.  Hillmon  and  this  plaintiff 
is  entitled    to  recover.     As   against 


that,  first,  as  to  the  man  himself  it 
appears  that  sometime  in  Septeml)er 
thereafter  he  signed  and  swore  to  a 
statement  contradicting  the  testi- 
mony which  he  gives.  Naturally, 
one  who  tells  two  stories  is  entitled 
to  little  credence.  If  I  come  before 
\'ou  to-day  and  tell  you  that  I  saw 
a  thing  take  place  so  and  so,  and 
to-morrow  I  come  before  you  and 
say  that  it  is  not  so,  it  took  place  in 
a  dift'erent  way,  the  thing  was  en- 
tirely opposite  to  that  which  I  told 
you  yesterday ;  involuntarily  you 
would  say:  "Well,  I  do  not  know 
that  either  story  is  true.  You  have 
no  regard  for  truth  if  you  can  thus 
tell  one  thing  one  day  and  the  oppo- 
site to-morrow."  If  I  heap  upon 
that  an  oath  to-day  and  swear  that 
this  thing  took  place  so  and  so,  and 
to-morrow  I  heap  upon  that  state- 
ment another  oath  exactly  the  re- 
verse, stronger  would  be  the  feeling, 
because  I  neither  have  any  regard 
for  truth  nor  feel  the  obligation  of 
an  oath.  If  this  statement  of  John 
Brown's  stood  simply  alone  opposed 
to  his  testimony  here,  with  no  ex- 
planations, nothing  indicating  how 
it  was  obtained  or  why  he  tells 
different  stories,  I  would  unhesitat- 
ingly say  to  you  that  you  ought  to 
reject  every  vestige  of  what  he  says, 
and  that  no  verdict  ought  to  be  sus- 
tained for  a  moment  which  rested 
upon  the  solitary  testimony  of  a 
man  who  swears  one  thing  to-day 
and  the  opposite  to-morrow.  In  his 
testimony  he  tells  how  and  why  he 
made  that  statement,  and  you  have 
the  testimony  of  Reuben  Brown  and 
of  W.  J.  Buchan  as  to  the  circum- 
stances under  which  that  statement 
was  made. 

The  next  matter  of  testimony  to 
which  I  draw  your  attention  is  that 
which  runs  along  the  line  of  general 
resemblances,  general  recognition. 
That  really  is  divided  into  two  classes 
here.  There  is  the  general  recog- 
nition of  the  body,  and  the  other 
that  recognition  which  comes  from 
seeing  photographs  thereof.  There 
is  a  vast  amount  of  this  testimony. 


J\o.  389. 


HILLMON    V.    INSURANCE    CO. 


893 


Many  witnesses  have  come  before 
you  here  who  say  that  the  body 
lying  there  in  the  coffin  was  the 
body  of  John  W.  Hillmon.  Others 
have  come  before  you  and  say  tliat 
it  was  not  the  body  of  John  W.  Hill- 
mon ;  that  it  was  the  body  of  a 
stranger,  and  that  they  were  ac- 
quainted with  Hillmon  in  his  life. 
Other  witnesses,  by  deposition  or  in 
person,  have  come  before  you  and 
looked  at  the  photographs  taken  of 
that  corpse,  and  say  "those  are 
photographs  of  the  body  of  Adolph 
Walters."  All  the  testimony  which 
runs  along  that  line,  whether  given 
at  Medicine  Lodge,  Lawrence,  or  in 
Fort  Madison,  is  a  mere  matter  of 
general  resemblance  and  general 
identification.  As  to  that  I  submit 
to  you  whether  that  testimony  is  not 
of  a  weak  character  ?  It  is  true 
that  if  one  of  you  was  called  upon 
to  describe  a  face  which  you  had 
seen  here,  you  might  not  be  able  to 
pick  out  every  feature  and  describe 
it  so  that  somebody  else  could 
thereby  identify  it.  And  it  is  at 
the  same  time  doubtless  true  that 
you  would  know  the  face.  I  think 
some  of  the  counsel  have  said  in  their 
argument,  and  I  think  well  said, 
you  go  away  from  this  court  room  ; 
you  have  been  here  trying  this  case 
sixteen  days ;  you  and  I  have  met 
day  after  day ;  you  have  seen  my 
features  and  my  face ;  and  I  doubt 
not  if  you  should  meet  me  any\\-here 
in  the  months  and  years  to  come,  you 
would  remember  me ;  but  yet,  if 
next  week  even,  somebody  should 
call  upon  you  to  describe  the  fea- 
tures, the  face  of  Judge  Brewer,  so 
that  he  could  identify  me,  I  think 
you  would  be  puzzled  to  do  it.  I 
think  when  you  came  to  describe 
my  eyelids,  my  nose,  my  face,  my 
mouth,  you  would  make  a  descrip- 
tion which  would,  perhaps,  answer 
for  half  the  people  in  this  room,  and 
yet  the  certainty  of  your  knowing 
me  cannot  be  questioned.  Those 
who  saw  Hillmon  in  life,  and  those 
who  saw  Walters  in  life,  doubtless 
have  a  distinct  recollection  of  their 


features  and  their  faces ;  but  a 
dead  body  is  not  a  live  one.  All  of 
you  have  looked  upon  the  dead 
doubtless  many  times.  There  is  a 
change  which  conies  at  death.  That 
voiceless  and  at  the  same  time  per- 
fectly intelligible  reply,  which  comes 
from  the  living  face  to  any  inquiring 
gaze,  and  which,  for  lack  of  any 
better  term,  we  call  expression,  is 
gone.  It  is  motionless,  silent.  The 
features  may  be  there;  and  if  you 
were  so  familiar  with  the  person  in 
lifetime  that  the  features,  the  form 
as  distinguished  from  the  expression, 
that  which  lights  up  the  face  of  the 
living  one,  was  clearly  imprinted 
upon  your  memory,  you  might  dis- 
tinguish. And  when  you  see  the 
photograph,  it  is  not  even  the  cold 
form  that  you  look  upon,  but  it  is 
simply  a  picture,  a  representation. 
The  form  of  the  features  may  be 
there.  If  there  is  any  mark,  if 
there  is  any  particular  feature  which 
is  significant,  you  may  identify  it 
thereby ;  but  that  testimony  which 
comes  from  a  mere  recognition  of  a 
resemblance,  a  general  resemblance 
of  a  dead  body,  is  very  unsatis- 
factory. And  that  is  true  whether 
you  see  the  body  one  day  or  more. 
It  is  true  under  all  circumstances ; 
becomes  more  true  as  the  features 
change  by  decay.  I  do  not  mean  to 
say  that  these  witnesses  are  not 
honest ;  I  do  not  mean  to  say  that 
they  do  not  belie\-e  what  they 
testify  to. 

And  \et  there  are  one  or  two 
things  which  ought  to  be  borne  in 
mind.  If  you  go  to  look  upon  a 
corpse  expecting  to  see  a  friend  or 
one  you  have  known  in  lifetime,  un- 
less there  be  something  which  at  the 
instant  arrests  your  attention  so  as 
to  satisfy  you  that  it  is  not  the  body 
of  that  friend  or  the  person  that  you 
expected  to  see,  almost  involuntarily 
you  say,  "Yes,  I  have  .seen  his 
body."  You  have  been  many  times, 
doubtless,  beside  the  coffin  of  some 
friend.  You  expected  to  see  his 
form.  You  give  it  a  glance  and 
turn  away,  "Yes,  I  have  seen  his 


894 


PART   III.       PROBLEMS   OF   PROOF 


No.  389. 


body."  Or  it  may  be  a  stranger 
you  have  seen  but  a  few  days  before. 
You  glance  at  it,  and  unless  there  is 
something  which  arrests  your  atten- 
tion, something  which  at  the  moment 
satisfies  you  that  that  is  not  the 
body,  with  the  expectation  of  seeing 
such  a  body  there,  and  there  being 
nothing  to  challenge  the  resem- 
blance, you  pass  away  and  say, 
"  Yes,  that  is  the  body."  The  same 
way,  on  the  other  hand,  if  some  one 
tells  you  that  there  is  a  body  that 
is  not  the  body  of  a  person  you 
knew,  you  naturally  would  go  look- 
ing for  matters  of  dissimilarity, 
points  which  will  distinguish  that 
face  from  the  face  of  the  one  you 
knew.  Looking  for  such  things, 
you  will  often  find  little  trouble  in 
seeing  marks  of  dissimilarity.  And 
yet  while  I  say  this  in  criticism  upon 
this  testimony  as  to  general  resem- 
blances, it  is  fair  to  say  that  in  the 
concurrence  of  many  voices  there  is 
often  force  which  does  not  come  from 
one  alone.  You  glance  around  the 
room  here  to-day  and  let  your  eye 
rest  upon  any  individual.  You 
recognize  him  partially,  casually. 
There  is  nothing  to  make  a  definite 
impression  in  your  mind.  You  are 
called  down  the  street  to  see  a  dead 
body.  One  of  you  is  called  and 
asked,  "Is  that  his  dead  body?" 
"Yes."  Well,  that  is  faint  testi- 
mony. And  yet  if  you  twelve  men, 
one  by  one,  separately,  come  and 
say,  "  Yes,  that  is  his  body,"  there 
is  a  strengthening.  Even  this  weak 
testimony  is  thus  entitled  to  con- 
sideration. So  here  in  the  multitude 
of  witnes.ses  who  think  they  see  and 
say  they  recognize  a  resemblance, 
there  is  that  which  is  entitled  to 
consideration.  But  I  do  not  tarry 
upon  that  ))ecause  other  matters,  I 
think,  are  of  more  moment. 

And  here  let  me  call  your  atten- 
tion to  this  distinction.  There  may 
be  what  you  call  resemblances,  and 
what  on  the  other  hand  you  call  dis- 
similarities, the  one  being  affirmative 
and  the  other  negative.  Now,  mere 
resemblances  may  not  be  very  sig- 


nificant, or  indeed  of  any  conse- 
quence. There  is  testimony'  on  the 
part  of  one  of  the  doctors  that  Mr. 
Hillmon  had  a  wound  on  his  nose. 
You  heard  his  testimony.  You 
heard  the  testimony  of  the  witnesses 
as  to  the  condition  of  this  corpse. 
Now,  if  you  should  find  that  upon 
Hillmon's  face  during  his  lifetime 
there  was  such  a  scar  and  that  such 
scar  was  also  found  upon  the  body 
of  this  corpse,  that  is  something  not 
very  common.  You  would  feel  as 
though  there  was  something  there 
to  l)ind  the  two  together.  So  on 
the  other  hand  you  heard  the  testi- 
mony that  upon  the  back  of  the 
body  of  Adolph  Walters  there  was  a 
mole,  and  it  is  the  testimony  of  the 
doctors  that  there  was  a  mole  on  the 
back  of  the  corpse.  This  is  some- 
thing which  is  not  so  common  as  a 
ring  mark.  This  similarity  of  marks 
tends  to  bind  the  two  bodies  to- 
gether. All  these  matters,  which 
are  mere  matters  of  similarity,  re- 
semblance, they  become  more  and 
more  strong  as  they  become  more 
and  more  rare  in  the  common  experi- 
ence of  men.  But  the  other  branch 
of  this  testimony  is  identification  by 
dissimilarities.  There  if  the  dissim- 
ilarities are  proved,  the  testimony 
becomes  strong.  If  the  body  in  that 
coffin  was  free  from  a  certain  mark 
which  it  is  proved  existed  upon  the 
body  of  Hillmon  or  upon  the  body 
of  Walters,  and  you  are  satisfied  of 
the  truth  of  that,  there  can  be  but 
one  conclusion  —  that  that  is  not 
the  body  of  either.  Dissimilarities 
cannot  'be  covered  over  —  cannot 
be  set  aside.  If  they  are  proven  to 
exist,  they  compel  belief.  Now,  I 
do  not  feel  called  upon  to  go  through 
in  detail  all  these  various  dissimi- 
larities which  are  spoken  of  by  the 
testimony  or  discussed  by  counsel 
—  the  height,  the  teeth,  the  mark  on 
the  heel,  the  mark  on  the  nose,  the 
mole  on  the  back,  the  vaccination. 
All  I  can  say  in  reference  to  them  is 
that  if  as  between  this  dead  body 
and  either  Hillmon  or  Walters  you 
are    satisfied     that     tiie     testimony 


No.  3S9. 


HILLMON    V.    IXSURANCE    CO. 


895 


shows  that  anj^  dissiinihirities  exist, 
anything  which  could  not  in  the 
ortlinary  course  of  e\ents  l)e  covered 
o\er  by  time  and  years,  why,  you 
are  inevitably  driven  to  the  conclu- 
sion that  it  is  not  the  body  of  either. 
The  defendants  say  that  Hilhnon 
had  a  tooth  gone ;  black  in  earlier 
life,  and  finally  disappearing.  The 
plaintiff  sa^s  that  he  had  a  perfect 
set  of  teeth.  If  it  be  true  that  one 
of  his  teeth  was  gone,  why,  there 
can  be  but  one  conclusion.  If  you 
believe  the  plaintiff's  testimony  and 
the  testimony  of  her  witnesses  that 
these  teeth  of  Hilhnon 's  were  per- 
fect, then  this  mark  of  dissimilarity 
vanishes.  If  on  the  other  hand  you 
believe  the  testimony  the  defendant 
introduces,  that  John  W.  .Hillmon 
did  have  a  missing  tooth,  that  is 
one  of  those  things  that  there  is  no 
way  of  getting  around.  So  as  to 
all  these  matters  on  the  one  side  or 
the  other,  of  alleged  dissimilarity. 
Whenever  you  come  to  a  conclusion 
that  dissimilarity  is  proved,  that 
the  body  as  it  lay  there  in  the  coffin 
was  destitute  of  marks  which  were 
on  the  body  of  either  Walters  or 
Hillmon,  just  so  soon  as  you  come 
to  such  a  conclusion  so  must  your 
conclusion  inevitably  be  that  that 
body  was  not  the  body  of  either  one. 
Now,  I  come  to  another  branch  in 
this  case,  and  that  is  the  expert 
testimony.  Doctors  have  been  intro- 
duced before  you  to  testify  to  three 
matters  :  First,  as  to  the  course  of 
vaccination ;  second,  as  to  the 
effect  of  such  a  wound  as  is  described 
in  the  head  of  this  body ;  and  third, 
as  to  the  process  of  digestion  and  the 
probabilities  of  food  remaining  in  the 
stomach  and  being  found  there  after 
death.  Now,  in  reference  to  these, 
which  are  matters  of  scientific  tes- 
tiraonj',  if  as  to  any  of  them  there 
is  absolute  certainty,  if  you  are 
satisfied  from  the  testimony,  for 
instance,  as  to  the  wound,  that 
such  a  wound  in  the  head  would 
drop  a  man  with  instant  paralysis, 
that  there  would  be  no  staggering 
backwards  or  forwards,  no  motion, 


but  that  he  would  drop  paralyzed 
instantaneously,  and  that  it  was  an 
absolute  certainty,  then  such  testi- 
mony as  that  would  come  right 
against  the  account  which  is  given 
by  the  witness  Brown.  If  you 
should  be  satisfied  that  the  food  of 
the  character  named  and  taken  in 
the  stomach  of  the  body  at  the 
time  named  would  remain  there  for 
days  and  weeks,  and  that  as  a 
matter  of  absolute  certainty,  why 
of  course  you  would  say,  "It  can- 
not be  that  the  testimony  which 
Brown  has  given  is  true."  And  so 
with  reference  to  the  vaccination. 
If  a  doctor  can,  from  looking  at  a 
vaccination  sore,  tell  within  a  day 
or  two,  or  two  or  three  days,  of  the 
time  that  vaccination  sore  has  been 
running,  and  it  is  shown  that  the 
time  was  less  than  elapsed  between 
the  time  that  Hillmon  was  vaccinated 
and  the  death,  you  would  instantly 
say  :  "  Brown's  testimony  cannot 
be  true ;  that  cannot  be  the  body 
of  Hillmon  ;  the  testimony  of  Brown 
cannot  be  true,  because  here  is  this 
physiological  fact ;  this  will  not 
deceive ;  it  never  deviates  from  the 
truth  for  anything."  But  if  on  the 
other  hand  you  are  not  convinced 
that  this  claim  of  some  of  the  doc- 
tors is  M'ell  founded,  if  you  are  not 
satisfied  that  the  inevitable,  the 
universal  effect  of  such  a  wound  in 
the  head  would  be  instantaneous 
paralysis  of  the  body,  if  you  are 
ready  to  believe  that  it  might  or 
might  not  depend  upon  the  many 
circumstances  of  which  the  phy- 
sicians cannot  positively  speak,  why 
then,  simply  all  you  can  say  —  and 
so  in  reference  to  these  other  matters 
of  scientific  testimony  —  if  the  doc- 
tors' testimony  satisfies  you  that 
the  probabilities  are  against  the 
facts,  then  all  you  can  say  is  that 
the  probabilities  are  against  the 
story  told  to  you.  That  is  all  you 
can  say  about  it. 

Now  I  will  pass  to  one  other  fact, 
and  that  is  the  letter  which  was 
written  by  Adolph  Walters,  from 
Wichita,  in  the  carl>-  part  of  March. 


896 


PART   III.       PROBLEMS    OF    PROOF 


No.  38y. 


1879.  In  all  questions  of  conflict- 
ing testimony  upon  a  certain  fact, 
we  reach  instinctively  hack  of  any 
dispute,  hack  of  any  controversy,  to 
the  written  messages  that  come  to 
us  antedated  —  anything  l)cfore  the 
trouhle.  Mr.  Hutchings,  I  helieve, 
one  of  the  counsel  for  the  plaintiff, 
said  if  that  letter  was  stripped  from 
the  case,  there  would  be  nothing  on 
which  to  hang  a  suspicion.  That 
letter  comes  to  us  certainly  before 
this  dead  l)ody  was  found.  It  tells 
its  story  from  the  fingers  and  mind 
of  Walters,  sixteen  or  seventeen  days 
before  this  body  was  found.  Does 
it  prove  that  that  body  was  the  body 
of  Walters  ?  Whatsoever  it  tells, 
and  whatsoever  significance  might 
fairly  come  from  it,  it  is  something 
which  it  seems  to  me  no  human 
mind  can  resist.  In  it  he  says  —  I 
do  not  mean  to  be  understood  as 
quoting  the  exact  words :  "  I  am 
going  away  for  some  months.  I 
have  hired  to  a  man  named  Hillmon. 
We  are  going  out  to  hunt  a  sheep 
ranch,  through  Kansas,  New  Mexico, 
and  Colorado.  He  promises  me 
l)etter  wages  than  I  can  get  else- 
where. Otherwise  I  might  join  the 
crowd  that  is  going  to  Leadville." 
What  does  he  mean  ?  What  infer- 
ence may  we  fairly  draw  from  it  ?  . 
Was  it  a  truthful  statement  on  his 


part  as  to  his  having  made  such  a 
contract  ?  of  his  intentions  for  the 
future  ?  or  was  it  mere  excuse  and 
cover  for  an  intended  disappearance  ? 
If  it  was  a  mere  cover  for  an  intended 
disappearance,  it  signifies  nothing. 
If  it  was  a  statement  of  the  actual 
fact,  who  was  this  Hillmon  ?  Was 
he  John  W.  Hillmon,  the  assured, 
the  husband  of  the  plaintiff  in  this 
case  ?  or  was  it  somebody  else  ? 
If  it  was  this  Hillmon,  was  this  con- 
tract carried  out  or  abandoned  ? 
Did  he  go  with  him,  or  did  he  not  ? 
If  he  did  not,  where  did  he  go  ?  If 
he  did,  was  he  the  one  John  Brown 
speaks  of  ?  And  I  believe  he  speaks 
of  some  one  in  both  his  statement 
and  his  testimony  previously. 
These  are  questions  for  you  to 
consider.  Is  this  one  of  those 
mysterious  and  inexplicable  coin- 
cidences which  sometimes  happen 
in  life  ?  or  is  it  a  sort  of  a  guide 
board  at  the  corner  where  two  ways 
meet,  pointing  in  the  line  of  truth  ? 
That  is  a  question  of  fact  which 
comes  home  to  each  of  you. 

Consider  all  the  facts  in  the  case. 
Fear  not.  Be  just ;  and  may  that 
infinite  Being,  who  from  His  unseen 
throne  in  the  center  of  this  mystic 
universe,  who  sees  and  knows  the 
very  fact,  help  you  to  be  strong  and 
guide  you  to  truth. 


iz^.,jrrE<^__ 


1  y^T-^    y 


'^?*?tv. 


D.C. 


d 


No.  390. 


THROCKMORTON    V.    HOLT 


897 


390.    THROCKMORTON  v.  HOLT. 

Post.) 

Probably  no  case  in  the  history  of 
the  local  bar  has  excited  a  more 
widespread  interest  than  the  con- 
test over  the  alleged  will  of  Judge 
Holt,  which  has  been  on  trial  in 
Judge  Bradley's  court  for  the  past 
five  days.  This  interest  is  in  a 
large  measure  due  to  the  high  stand- 
ing of  the  alleged  testator,  who  was 
Judge  Advocate  General  of  the 
United  States  and  Postmaster  Gen- 
eral, and  in  his  first  capacity  was 
closely  identified  with  the  trial  of 
the  conspirators  who  plotted  the 
death  of  President  Lincoln.  And  it 
is  in  an  equal  measure  ascribable  to 
the  mystery  which  surrounded  the 
appearance  of  the  will  and  its 
mutilated  condition,  the  paper  being 
charred  and  torn  and  without  a  seal, 
and  the  further  fact  that  the  wit- 
nesses to  the  instrument  were  Presi- 
dent Grant,  Gen.  Sherman,  and 
Mrs.  Sherman.  The  will  is  dated 
Feb.  7,  1873.  It  bequeaths  every- 
thing to  Miss  Elizabeth  Hynes,  a 
niece  and  ward  of  Judge  Holt's 
first  wife,  and  a  person  of  whom  he  is 
known  to  have  been  very  fond,  and 
to  the  daughter  of  Maj.  Charles  B. 
Throckmorton,  who  was  named  for 
him,  Josephine  Holt  Throckmorton, 
and  whose  godfather  the  testator 
was  ;  Mrs.  Throckmoi'ton  was  cousin 
to  Judge  Holt's  second  wife.  Judge 
Holt  died  on  Aug.  1,  1894,  at 
the  age  of  87,  leaving  an  estate  of 
some  $180,000.  His  first  wife,  Mary 
L.  Harrison,  had  died  in  1846 ;  his 
second  wife,  Fannie  L.  Wickliffe,  in 
1860 ;  and  he  was  childless.  The 
surviving  next  of  kin,  who  would 
inherit,  were  nine  in  all,  the  children 
of  one  sister  and  two  brothers ;  one 
of  them  Wm.  G.  Sterett,  lived  in 
Washington ;  another,  Washington 
Holt,  lived  out  of  town.  Nearly  a 
year  elapsed  after  the  death  of 
Judge  Holt.  No  will  being  found 
in  the  meantime,  the  estate  was 
being  administered  in  the  interest 
of  certain  blood  relatives,  including 


(Reported  by  the  Washington 


Washington  Holt,  his  nephew,  and 
about  S9000  had  been  divided 
among  the  heirs-at-law,  when  un- 
expectedly, within  a  few  days  of  the 
legally  constituted  limit,  the  myste- 
rious will  of  1873,  naming  Luke 
Devlin,  a  clerk  in  the  War  Depart- 
ment, executor,  made  its  appearance 
in  the  office  of  the  Register  of  W'ills 
in  a  large  white  envelope  addressed 
in  a  disguised  hand. 

The  will  had  been  burned  in  places, 
but  not  so  as  to  destroy  any  vital 
part  of  the  writing  ;  the  place  where 
the  seal  is  usually  affixed  had  been 
torn  off,  and  the  part  bearing  the 
signatures  apparently  separated 
from  the  body  by  long  wear,  the 
whole  having  been  pasted  on  a  new 
sheet  of  paper  to  hold  it  together. 
The  peculiarity  of  the  fire  marks  is 
that  the  edges  were  burned  while  the 
document  was  folded,  while  the  fire 
marks  on  the  face  of  the  will  were 
made  while  the  paper  was  face  open 
or  only  partly  folded.  If  the  paper 
on  which  the  will  was  written  was  :.t 
one  time  what  is  known  as  a  sheet  of 
legal  cap,  with  presumably  a  red 
line  running  down  the  left  margin 
of  the  paper,  the  margin  was  burned 
off,  and  in  that  event  the  mysterious 
sender  of  the  document  presumably 
destroyed  the  words  of  revocation 
which  may  have  been  written  there. 
This  is  a  subtle  theory,  based  on  the 
presumption  that  there  is  a  serious 
irregularity  about  the  presentation 
of  the  will  for  probate. 

The  letter  containing  the  docu- 
ment was  put  in  the  mail  some  time 
Saturday  afternoon,  August  24,  1895. 
It  bears  the  post-office  stamp  at 
6  P.M.,  and  remained  in  the  office 
until  Monday  morning,  when  it  was 
delivered.  It  was  inclosed  in  a  large 
white  envelope,  inside  of  which  was 
fitted  a  piece  of  cardboard  to  pro- 
tect the  will.  It  bore  two  2-cent 
stamps,  apparently  carelessly  or 
hurriedly  attached,  which  are  can- 
celed with  the  letter  L. 


89S 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


Mr.  Devlin,  the  e.xecutor  of  the 
will  of  1873,  is  a  short,  stout  man 
of  middle  age,  who  was  Judge  Holt's 
private  secretary  from  1862  until 
some  time  in  the  seventies,  during 
the  period  of  his  term  as  Judge  Ad- 
vocate of  the  I'nited  States.  He 
is  by  all  regarded  as  a  man  of  high 
integrity.  He  is  at  present  em- 
ployed in  the  record  and  pension 
division  of  the  War  Department  in  a 
responsible  position. 

Judge  Holt  lived  in  a  fine  old 
mansion  at  the  corner  of  New 
Jersey  avenue  and  C  street  southeast, 
opposite  the  Varnum  Hotel.  It  is  a 
fine  piece  of  property,  where  the 
weeds  are  now  ranking  in  blissful 
innocence  of  scythe  or  mower,  with 
ivies  creeping  over  the  front  steps. 
Here  he  lived  for  many  years  with 
his  servants  after  the  death  of  his 
second  wife,  a  Miss  Hynes,  and  he 
died  on  the  24th  of  August,  1894. 
The  property  is  now  in  charge  of 
two  servants,  man  and  wife,  Charles 
and  Frances  Strother,  colored,  who 
occupy  the  rear  and  show  strangers 
through  the  house  who  are  sent  up 
by  the  real  estate  agent,  for  the 
mansion  is  for  sale.  Frances 
Strother  is  an  intelligent  and  buxom 
colored  woman  of  about  thirty. 
Her  mother  was  for  fifteen  years 
cook  in  the  house.  Her  name  is 
Ellen  Christian.  There  was  a  house- 
keeper, Martha  Thomas,  who  served 
Judge  Holt  for  fourteen  years. 
Both  Mrs.  Christian  and  Mrs. 
Thomas  are  at  present  at  Hampton, 
Va.  Strother  was  the  coachman  for 
eight  years,  and  two  years  ago 
married  Mrs.  Christian's  daughter 
Frances.  These,  with  the  Judge, 
constituted  the  household  for  many 
years. 

The  trial  of  the  will  contest  began 
on  Monday,  May  IS,  1896.  The 
two  tables  in  front  of  the  bench  were 
occupied  by  the  parties  to  the  suit, 
their  attorneys,  and  members  of  the 
press.  At  the  long  tal)le  to  the 
right  of  Judge  liradley  sat  Maj. 
Throckmorton ;  next  to  him  his 
wife,    and    between   the   latter   and 


]\Iiss  Lizzie  Hynes,  sat  Miss  Jo- 
sephine Throckmorton,  who  forms 
the  central  figure  of  this  interesting 
group.  She  and  Miss  Hynes  are 
the  direct  beneficiaries  under  the 
provisions  of  the  will.  Major 
Throckmorton  is  a  tall,  military 
looking  man,  dressed  in  a  gray  suit, 
light  spats,  and  black  shoes.  He 
has  a  florid  face,  gray  hair,  and  a 
gray  mustache,  twisted  into  sharp 
points  at  the  ends.  Mrs.  Throck- 
morton is  a  handsome  woman  who 
dresses  becomingly  in  black  and 
wears  her  gray  hair  brushed  back 
from  her  forehead.  Her  face  is 
very  fair,  and  betrays  the  keen  in- 
terest she  takes  in  the  proceedings. 
Miss  Hynes  is  upward  of  forty, 
dressed  neatly  in  subdued  colors, 
and  never  manifests  more  than  a 
passive  interest  in  the  testimony  or 
the  arguments  of  the  lawyers. 

The  cynosure  of  all  eyes  in  the 
court  room  is  Miss  Throckmorton. 
She  is  a  tall,  unusually  attractive 
girl,  with  a  benevolent  expression  of 
countenance  which  may  be  termed 
beautiful ;  bright,  dark  eyes,  and 
light  brown  hair.  She  dresses 
plainly  in  dark  colors,  but  with 
marked  good  taste,  and  evidences 
in  her  manner  the  grace  and  re- 
finement of  good  society.  At  the 
other  table  yesterday  sat  Washing- 
ton Holt,  the  nephew  of  the  de- 
ceased, and  principal  heir-at-law, 
with  a  suggestion  of  Speaker  Reed 
in  the  side  view  which  the  casual 
observer  is  able  to  obtain  of  him  as 
he  sits  facing  the  Judge.  Next  to 
him  sat  his  daughter,  about  eighteen 
years  of  age,  and  Mrs.  Holt,  a  hand- 
some woman  with  Imght  eyes, 
liack  of  these,  the  principal  figures 
in  the  case,  were  seated  a  number  of 
persons  who  are  interested,  remotely 
or  otherwise,  in  the  case.  Mr. 
Devlin,  the  executor  of  the  will,  sat 
for  the  greater  part  of  the  day  behind 
Maj.  Throckmorton,  and  manifested 
a  sharp,  nervous  interest  in  the 
proceedings.  He  was  repeatedly 
called  to  the  stand,  and  underwent  a 
searching  inquiry  into  certain  state- 


No.  390. 


THROCKMORTON   V.    HOLT 


899 


ments  made  hy  him  to  a  representa- 
tive of  The  Post,  which  he  answered 
in  his  short,  brusque  way,  for  that  is 
one  of  the  characteristics  of  the 
executor.  He  is  a  short,  dumpy 
man  of  about  forty-five  years,  with 
a  fat,  smooth  face,  and  Hght  eyes 
and  hair.  He  wears  gold  glasses, 
and  seldom  changes  the  firm,  set 
expression  of  his  countenance.  Mr. 
Devlin  is  not  a  nervous  person,  and 
the  deep  interest  he  takes  in  the  case 
is  not  manifested  by  ordinary  phys- 
ical symptoms,  but  the  intensity 
of  his  expression. 

On  both  sides  distinguished  legal 
talent  is  engaged,  the  attorneys  for 
the  legatees  under  the  will  being 
J.  J.  Darlington,  ex-Congressman 
Ben.  Butterworth,  and  Blair  Lee. 
For  the  other  side  are  A.  S.  Worth- 
ington,  Jere  M.  ^Yilson,  J.  C.  Heald, 
James  C.  Boston,  of  Louisville,  and 
Attorney  McChord,  of  Kentucky, 
the  personal  representative  of  Miss 
Hynes. 

^Mondmj,  May  18,  1896. 

The  first  witness  called  by  the 
attorneys  for  the  legatees  was  Sen- 
ator Sherman,  who  identified  the 
signatures  of  Gen.  Sherman  and 
Mrs.  Sherman  as  genuine.  They 
then  put  on  the  stand  Col.  Fred.  D. 
Grant,  who  identified  the  signature 
of  his  father,  President  Grant. 
Judge  Henry  L.  Burnett  declared 
that,  in  his  opinion,  the  signature  of 
Judge  Holt  attached  to  the  paper 
was  that  of  the  deceased.  The 
caveators  so  early  in  the  proceedings 
gave  an  indication  of  their  line  of 
attack  by  trying  to  establish  the  fact 
that  Judge  Holt  was  too  careful  a 
lawyer  to  draw  a  will  in  the  language 
of  the  contested  instrument.  On 
cross-examination  Judge  Burnett, 
however,  stated  his  opinion  that 
while  the  deceased  was  well  grounded 
in  the  principles  of  the  law,  he 
was  not  so  well  informed  in  the 
technical  rules.  He  was  rather  an 
eloquent  jury  lawyer,  witness  said. 
Tecumseh  Sherman,  of  New  York, 
identified  the  signature  of  his 
mother  as  genuine. 


The  will  was  then  offered  in  evi- 
dence. The  caveators  objected. 
The  very  condition  of  the  paper, 
Mr.  Worthington  argued,  showed 
that  it  had  been  revoked.  He  asked 
where  was  the  signature  and  the 
seal  spoken  of.  After  a  spirited 
argument  Judge  Bradley  ruled  in 
favor  of  its  admission,  and  the 
caveators  gave  notice  that  they 
reserved  an  exception  to  the  ruling. 

Luke  Devlin,  the  executor  of  the 
will,  was  then  put  on  the  stand.  He 
testified  to  his  employment  in  the 
office  of  Judge  Holt  during  the  lat- 
ter's  incumbency  of  the  office  of  Judge 
Advocate.  Became  acquainted 
with  him  in  1862,  and  compared 
the  decisions  that  left  the  Judge 
Advocate  until  1869.  From  1869 
until  1876  he  was  a  clerk,  and  had 
charge  of  correspondence.  His  re- 
lations were  not  wholly  official  in 
character,  but  at  times  social.  He 
met  Judge  Holt  several  times  at  the 
residence  of  Mrs.  Throckmorton. 
Met  him  once  in  two  or  three  months 
up  to  1878. 

These  cjuestions  were  objected  to. 
Mr.  Darlington  said  that  the  op- 
posing counsel,  it  would  seem, 
were  trying  to  adduce  that  the  will 
was  in  the  custody  of  the  witness. 
"Your  honor,"  said  Mr.  Wilson, 
"we  propose  to  show  that  he  did 
have  the  will  in  his  custody." 

^Yitness  then  testified  as  to  his 
further  relations  with  the  deceased. 
He  saw  him  once  or  twice  after 
1875  —  the  year  of  his  retirement 
from  the  office  of  Judge  Advocate 
—  in  his  parlor,  when  he  called 
socially.  In  1878  the  servants  on 
one  occasion"  when  he  called  at  the 
house  told  him  that  the  Judge  had 
company.  In  the  year  in  which  the 
will  is  dated  he  was  a  clerk  in  his 
office  and  private  secretarv  to  Gen. 
Blair. 

Tuesday,  May  19. 

Mr.  Luke  Devlin,  executor  un- 
der the  alleged  will,  took  the  witness 
chair  in  the  morning. 

"Mr.  Devlin,"  asked  Judge  Wil- 
son,   "is    this   your   handwriting?" 


900 


PART   III.       PROBLEMS    OF    PROOF 


No.  300. 


handing  the  witness  a  paper.  Upon 
receiving  an  affirmative  answer,  "I 
wish  to  ofl'er  t-liis  in  evidence,"  an- 
nounced the  attorney. 

"I  object,"  interjected  Mr. 
DarHngton. 

"This,"  said  INfr.  Wilson,  ad- 
dressing the  court,  "  is  an  application 
for  letters  of  administration  on  the 
estate  of  the  late  "Billy"  Mc- 
Garrahan.  There  is  a  certain 
phraseology  in  it  strikingly  similar 
to  that  in  the  contested  paper  ;  also 
marked  similarities  in  the  hand- 
writing." 

But  Justice  Bradley  ruled  that 
the  paper  could  not  be  admitted 
on  cross-examination,  although  it 
might  properly  come  in  later,  if 
competent.  Judge  Wilson  noted  an 
exception,  then  asked  Mr.  Devlin  if 
he  had  called  at  Judge  Holt's  resi- 
dence after  his  death,  or  attended 
the  funeral.  Mr.  Devlin  replied  to 
the  first  question  that  he  did  not, 
and  did  not  go  to  the  funeral,  be- 
cause he  could  not  learn  the  hour 
when  it  was  to  be  held. 

]Mr.  Wilson's  questions  were  the 
most  interesting  because  their  trend 
was  clearly  evident.  There  was 
breathless  silence  when  he  asked  Mr. 
Devlin  if  there  were  any  envelopes 
like  the  one  received  in  which  the 
will  was  inclosed,  at  the  same  time 
handing  him  the  identical  wrapper 
on  which  was  crudely  printed  the 
address  to  the  register. 

"They  are  not  in  use  in  the 
Bureau  in  which  I  am  employed," 
replied  Mr.  Devlin.  "Of  course,  I 
cannot  say  as  to  other  offices." 

Mr.  Blair  Lee  asked  Mr.  Devlin  as 
to  his  relations  with  Judge  Holt, 
and  received  a  reply  to  the  effect 
that  he  always  took  care  of  the 
Judge's  mail,  while  in  his  office 
when  the  Judge  was  out  of  town. 
He  spoke  of  an  estrangement  be- 
tween Gen.  Blair  and  Judge  Holt, 
and  said  also  that  he  had  been  ad- 
vanced in  office  by  Judge  Holt,  after 
Gen.  Blair  had  asked  Mr.  Devlin  to 
become  his  private  secretary.  A 
letter    recommending    Mr.     Devlin 


"to  whom  it  may  concern,"  and 
written  by  Judge  Holt,  was  oft'ered 
in  evidence. 

At  the  close  of  Mr.  De\lin's 
testimony,  Miss  Josephine  Holt 
Throckmorton,  one  of  the  bene- 
ficiaries under  the  testament,  took 
the  stand.  The  witness  is  about 
thirty  years  of  age,  with  brown  hair, 
A\ell-cut  features,  and  handsomely 
formed.  She  was  gowned  taste- 
fully in  a  figured  costume,  and  wore 
a  jaunty  hat  with  purple  flowers. 
She  corroborated  Mr.  Devlin's  testi- 
mony, practically,  when  she  said 
she  had  not  heard  of  the  contested 
will  until  Mr.  Devlin  sent  her  a  tele- 
gram, announcing  its  appearance  in 
the  Register's  office.  There  also 
she  first  saw  it.  Miss  Throck- 
morton testified  that  her  father  was 
Maj.  Charles  B.  Throckmorton, 
U.S.A.  She  lived  at  various  army 
posts  with  her  parents,  but  was  born 
in  Washington.  She  spent  the  ye^^r 
from  May,  1876,  to  May,  1877,  in 
this  city.  She  was  one  of  the  per- 
sons named  in  the  will. 

When  Mr.  Darlington  at  this  point 
suggested  that  no  more  witnesses 
were  then  ready,  Mr.  Worthing- 
ton  said  he  wanted  all  the  witnesses 
on  the  other  side  to  be  presented 
before  the  counsel  for  the  caveators 
placed  any  on  the  stand.  If  Mr. 
Darlington's  prima  facie  case  was 
aynounced  as  concluded,  he  would 
oppose  any  future  attempt  to  in- 
troduce direct  evidence  in  support 
of  the  validity  of  the  will.  The 
caveat  had  claimed  that  the  whole 
paper  was  a  forgery ;  the  other  side 
must  prove  it  genuine.  They  had 
already  gone  beyond  the  bounds  of 
this  part  of  the  case,  for  opportunity 
had  practically  been  given  Mr. 
De\lin  to  testify  that  he  had  not 
written  the  will.  "And  yet,"  Mr. 
Worthington  said,  "there  is  more 
reason  now  to  Ijelieve  that  Mr. 
Devlin  wrote  the  will  than  that 
Judge  Holt  did  so." 

The  court  decided  that  the  counsel 
for  the  beneficiaries  must  produce 
full    evidence    in     support    of     the 


No.  390. 


THROCKMORTON   V.    HOLT 


901 


validity  of  the  will.  So  Miss  Lizzie 
Hynes  was  recalled,  having  testified 
the  day  before.  She  told  in  a 
lengthy  examination  that  she  was 
well  acquainted  with  the  alleged 
testator,  had  corresponded  with  him 
for  forty  years,  and  knew  his  hand- 
writing from  having  seen  him  write. 
She  identified  the  paper  as  having 
been  written  by  Judge  Holt.  He 
had  not  written  to  her  himself  in 
the  latter  part  of  their  correspond- 
ence, but  had  always  signed  the 
letters  dictated   to  others. 

Mrs.  Mary  McC.  Ray,  a  niece  of 
Miss  Hynes,  who  said  she  had  also 
been  in  frequent  correspondence 
with  the  Judge,  identified  the  hand- 
writing in  the  will.  Mr.  ^Yorthing- 
ton  closely  cjuestioned  the  witness 
as  to  alleged  disagreement  between 
her  husband  and  j\Ir.  Washington 
D.  Holt  on  account  of  money,  the 
apparent  purpose  being  to  suggest 
unbiased  testimony. 

]\Irs.  Throckmorton  was  then  put 
upon  the  stand  to  identify  the  hand- 
writing and  signature.  She  said 
she  was  a  cousin  of  the  first  wife  of 
Judge  Holt.  She  had  corresponded 
W'ith  the  alleged  testator,  having 
heard  from  him  last  in  1881.  She 
had  destroyed  some  of  the  letters. 
Just  here,  because  Mrs.  Throck- 
morton attempted  to  tell  why  Judge 
Holt  had  not  answ'ered  two  letters 
written  by  her  in  the  early  '90s, 
counsel  had  a  tilt.  Mr.  Darlington 
wished  the  evidence  to  go  in  to  foil 
the  intention  of  the  caveators' 
attorneys  to  let  it  be  inferred  that 
there  were  strained  relations  be- 
tween Judge  Holt  and  the  Throck- 
mortons.  The  explanation  was  not 
made. 

Maj.  Throckmorton  also  identified 
the  handwriting  of  Judge  Holt,  Mr. 
Butterworth  conducting  the  brief 
direct  examination.  He  .said  he 
had  last  heard  from  Judge  Holt  in 
1870.  \Yith  a  view  to  showing  the 
credibility  of  the  witness,  the  ISIajor 
was  sharply  cross-examined  as  to 
the  court-martial  of  1892,  when, 
according  to  his  statement,  he  was 


convicted  of  conduct  unbecoming  an 
ofKcer.  Sentence  of  dismissal  was 
commuted  to  suspension  and  later 
set  aside.  Mr.  Worthington's  ques- 
tions were  not  to  Mr.  Darlington's 
liking,  and  another  tilt  resulted. 
Mr.  Worthington  was  allowed,  de- 
spite the  protest  of  the  other  side 
that  it  was  incomplete,  to  put  in 
evidence  the  findings  of  the  court- 
martial.  Duplicating  pay  ac- 
counts constituted  the  burden  of  the 
findings.  But  under  the  redirect 
examination  of  the  caveatees'  at- 
torney, the  Major  related  in  full 
his  side  of  the  case,  although 
Mr.  Worthington  objected.  Maj. 
Throckmorton  said  that  he  was  owed 
$300  by  some  one  at  David's  Island, 
N.Y.,  who  had  pledged  himself  to 
deposit  that  amount  subject  to  the 
Major's  order  in  a  New  York  bank 
before  June,  1891.  It  was  not  done, 
but  he  did  not  know  it  until  after  he 
had  drawn  against  the  bank.  Soon 
afterward,  however,  he  paid  the 
checks.  As  to  the  alleged  duplica- 
tion of  pay  accounts,  the  Major 
declared  that  he  held  the  accounts  as 
security,  and  they  were  presented 
by  mistake,  but  no  one  lost  by  the 
transaction. 

Additional  cumulative  testimony 
was  here  gi\en  by  Mr.  Devlin  as  to 
the  signature  of  Judge  Holt.  An- 
other witness,  in  the  person  of  John 
C.  Hesse,  who  was  in  the  War  De- 
partment in  1S()2,  testified  to  the 
handwriting. 

Miss  Throckmorton  was  again  re- 
called, and  said  :  "  This  is  my  god- 
father's handwriting  ;  it  is  his  signa- 
ture." 

Cross-examined,  ^Sliss  Throck- 
morton said  she  saw  Judge  Holt  in 
1885  and  in  1876  in  his  room.  She 
received  letters  from  him  before 
1876.  So  did  her  parents.  Miss 
Throckmorton  said  she  had  seen  him 
write  letters. 

"  When  did  you  ever  see  him  sign 
his  name?"  asked  Mr.  Wilson. 
"In  1881  and  at  other  times,"  re- 
plied the  witness. 

The  Judge  used  sand  to  blot  his 


902 


PART  III.   PROBLEMS  OF  PROOF 


No.  39a 


letters,  Miss  Throckmorton  said, 
and  once  or  twice  she  had  done  this 
for  him.  She  thought  she  had  de- 
stroyed all  the  letters  received  from 
her  godfather  from  time  to  time. 
She  had  never  turned  any  of  them 
over  to  other  people. 

Mr.  Wilson's  pressing  cpiestions 
seemed  rather  to  weary  the  witness, 
and  when  the  attorney  asked, 
"  Now,  did  Judge  Holt  always  re- 
spond to  your  letters?"  she  replied, 
"Most  certainly  he  did,"  with  some- 
thing of  triumph  in  her  voice. 

"  When  you  speak  of  your  god- 
father," asked  Judge  Wilson,  re- 
ferring to  the  witness'  fre(|uent  char- 
acterization of  the  alleged  testator 
hv  that  term,  "do  vou  mean  Judge 
Holt?" 

"Of  course,"  returned  the  young 
lady.  "Would  you  prefer  to  have 
me  speak  of  him  onlv  as  Judge 
Holt?" 

"Oh,  no,  please  yourself,"  replied 
Judge  Wilson,  hlandly. 

Maj.  Thcophihis  Ciaines,  who  was 
associated  with  Judge  Holt  during 
the  war,  identified  the  handwriting 
in  the  alleged  will.  The  Major 
could  not  exactly  tell  when  he  had 
last  seen  Judge  Holt's  writing  or 
seen  him  write.  He  received  no 
written  communication  from  him 
after  lS(i().  Witness  then  recalled 
that  a  few  days  ago  he  had  seen  a 
paper  in  the  Judge's  handwriting  in 
possession  of  Gen.  Huttcrworth. 

"Then,"  interposed  Mr.  Worth- 
ington  significantly,  "3'ou  had  not 
seen  any  of  the  Judge's  writing  for 
thirty  years  ?" 

Wednesday,  May  20. 

The  greater  part  of  the  day  was 
consumed  hy  Messrs.  Darlington, 
Butterworth,  and  Lee  in  trying  to 
establish  the  genuineness  of  the 
writing. 

Rev.  Biifler  thought  the  will  was 
in  Judge  Hf)lt's  handwriting.  He 
had  seen  a  sample  of  his  writing  that 
morning  in  a  letter  written  hy  Judge 
Holt  to  Mrs.  Hutler.  He  admitted 
having  no  distinct  recollection  of 
receiving   any   letter   from    the   de- 


ceased at  any  time,  but  he  had 
written  one  to  him  about  1805, 
referring  to  the  Surratt  trial.  Mr. 
Wilson  objected  to  '  the  testimony 
as  incompetent.  Mr.  Worthington 
offered  Mr.  Butler  a  letter  —  one 
written  by  Judge  Holt  to  Mrs.  Ray, 
referring  to  Lizzie  Hynes  —  and 
asked  him  to  identify  that.  The 
witness  said  he  was  not  an  expert 
in  handwriting  and  would  give  no 
opinion.  There  was  some  wran- 
gling among  the  attorneys  over  the 
propriety  of  offering  the  letter,  but 
^Ir.  Darlington  waived  objection. 

"Why  are  you  so  positive  in  say- 
ing that  the  writing  in  the  body  of 
the  will  is  in  Judge  Holt's  hand- 
writing," incjuired  Mr.  Worthing- 
ton in  a  tone  of  mild  astonishment 
"and  then  say  you  are  not  an  ex- 
pert?"    Mr.   Butler  was  dismissed. 

Then  Representative//?// was  sum- 
moned, and  he  was  taken  in  hand  by 
his  old  colleague  of  the  House,  ex- 
Congressman  Ben  Butterworth. 
Mr.  Hitt  delivered  his  testimony 
with  almost  elocutionary  distinct- 
ness. He  knew  Judge  Holt  for 
more  than  thirty  years ;  often  saw 
him  write  documents  during  his 
term  as  Judge  Advocate  General ; 
often  received  notes  and  letters 
from  him.  He  was,  therefore,  some- 
what familiar  with  his  writing.  Mr. 
Hitt  was  handed  the  will.  He 
looked  at  it  a  long  time,  with  his 
hand  raised  to  his  spectacles.  Then 
he  said  very  gra\'ely  : 

"  That  is  the  writing  of  Judge  Holt 
as  I  remember  it.  I  speak  merely  of 
the  writing,  not  the  signature." 

"How  long  since  you  saw  him 
write?"  asked  Mr.  Wilson,  sharply. 
A  long  pause  ensued.  "It  is 
fully  ten  years  —  since  I  saw  him 
write,"  said  the  member  from  Illi- 
nois, though,  he  added,  he  had  re- 
ceived letters  from  him  subsequently. 
"I  have  one  of  his  notes  now." 

"  Wluit  flate  ?"  asked  Mr.  Wilson. 

"July  25,  1800,"  promptly  re- 
sponded Mr.  Hitt. 

"  You  confined  yourself  carefully 
to  expressing   your   opinion  regard- 


No.  390. 


THROCKMORTON   V.   HOLT 


903 


ing  the  body  of  the  writing,"  re- 
sumed Mr.  Wilson  ;  he  wanted  to 
know  if  the  will  had  any  of  the 
characteristics  of  Judge  Holt.  But 
this  was  promptly  objected  to  by 
Mr.  Darlington,  in  arguing  the 
point  Mr.  Worthington  said  it  was 
not  a  question  whether  the  hand- 
writing was  Judge  Holt's,  but 
whether  this  paper  was  his  last  will 
and  testament,  and  to  prove  that 
they  might  have  to  go  deeper  than 
the  handwriting.  On  their  part,  Mr. 
Butterworth  argued,  the  attempt 
was  made  merely  to  show  that  it 
was  Judge  Holt's  mechanical  ])er- 
formance,  and  for  that  purpose  the 
witnesses  had  been  brought  here  to 
testify.  INIr.  Darlington  held  that 
it  was  not  necessary  for  them  to 
show  that  certain  phraseology  in  the 
will  was  not  characteristic  of  Judge 
Holt.  The  point  was  argued  by 
Mr.  Wilson  for  the  opposition,  but 
the  court  sustained  the  objection, 
and  the  attorneys  for  the  heirs-at- 
law  reserved  an  exception  to  the 
ruling, 

Mr.  Hitt  testified,  in  reply  to  a 
question  Iw  Mr.  Wilson,  that  he 
used  to  be  familiar  with  Judge 
Holt's  handwriting  in  official  docu- 
ments thirty  years  ago. 

"His  writing  was  variable,"  he 
continued,  "it  was  characteristic, 
but  so  variable  that  I  would  not 
know,  and  do  not  now  know,  that 
he  wrote  it,"  pointing  to  the  docu- 
ment in   his  hand. 

"That's  all,"  exclaimed  Judge 
Wilson,  with  self-satisfied  emphasis. 

"The  last  note,"  continued  Mr. 
Hitt,  in  answer  to  a  question  from 
Mr.  Butterworth,  "  I  received  in 
1890.  As  he  advanced  in  years 
his  writing  showed  the  signs  of 
age,"  ad(l(>d  in  reply  to  Mr.  Wilson. 

The  next  witness  was  .S.  M.  Yraf- 
vian,  who  testified  to  his  familiarity 
with  Judge  Holt's  handwriting  from 
the  frequent  examination  of  old 
documents  in  the  War  Department, 
where  he  was  employed. 

"That  signature,"  he  .said,  closely 
looking  at  the  will,  "seems  to  have 


been  written  by  Judge  Holt.  In 
my  opinion  it  was  written  by  Judge 
Holt."  He  spoke  of  several  styles 
of  signatures.  This  seemed  more 
upright. 

"Those  you  speak  of  lean  to  the 
right?"  asked  Mr.  Worthington. 

"  Precisely,"  said  the  witness,  "  but 
there  is  a  similarity  in  all  his  signa- 
tures. I  think  I  have  a  signature  up 
there  just  like  this." 

"Think  you  can  find  one?"  came 
from  Mr.  Wilson ;  "  we  will  be 
obliged  to  you  if  you  will  have  one 
ready." 

"If  you  will  make  a  recpiisition 
on  the  Secretary  of  War,"  said  the 
witness,  "  I  will  l)e  glad  to  accom- 
modate you." 

Mr.  Yeatman  was  allowed  to  step 
down,  and  Mr.  Frank  T.  JIoicc,  of 
the  Washington  Star,  testified  to 
the  handwriting  briefly,  after  which 
Mr.  A.  E.  II.  Johnson,  a  solicitor  of 
patents,  was  called.  He  had  been 
confidential  clerk  to  the  Secretary 
of  War  during  Judge  Holt's  in- 
cuml)ency  of  the  ofiice  of  Judge 
Ad\'ocate  General,  and  from  his 
familiarity  with  his  writing  judged 
the  will  to  be  his.  On  cross-exam- 
ination, he  admitted  that  he 
identified  the  document  by  writing 
which  he  knew  before  1869. 

Clarence  F.  Cobb,  for  thirty-two 
years  a  clerk  in  the  War  Depart- 
ment, testified  that  he  compiled  the 
C()rres])()ndence  between  Gen.  Brice 
and  Judge  Holt  for  the  former  in 
Baltimore.  The  two,  he  said,  had  a 
nuitual  admiration  society  and  used 
to  write  to  each  other  a  great  deal, 
both  being  extremely  proud  of  their 
diction.  He  examined  the  will  last 
February  for  about  an  hour  and  be- 
lieved Judge  Holt  had  written  it. 
On  cross-examination  he  said  he  had 
known  Devlin  about  town  for  some 
twenty-five  years,  but  he  was  not 
employed  as  an  expert  in  hand- 
writing to  examine  the  will. 

Mr.  Devlin  was  recalled  and  took 
his  seat  with  a  demure  air.  In  reply 
to  questions  from  iNIr.  Worthington 
he  said  that  he  telegraphed  to  Miss 


904 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


Throckmorton  in  New  York  of  the 
finding  of  the  will.  The  same  day 
he  called  on  Mrs.  Throckmorton, 
the  grandmother,  who  resides  at 
52  B  street  northeast,  in  this  city. 
He  was  asked  where  he  secured  Miss 
Throckmorton's  address  in  New 
York.  He  replied  that  he  had  gone 
to  the  War  Department  and  there 
obtained  Maj.  Throckmorton's  ad- 
dress. After  a  close  cross-examina- 
tion as  to  his  movements  on  that 
day,  which  elicited  no  features  of 
special  interest,  the  court  took  a  re- 
cess until  1  o'clock. 

After  dinner  Mr.  Devlin  was  again 
put  on  the  witness  stand.  He  was 
asked  by  the  attorneys  for  the  heirs- 
at-law  if  he  knew  the  reporter  of  The 
Post  who  had  interviewed  him. 
Witness  remembered  a  young  man 
calling  on  him. 

"Did  you  say  to  him,"  dsked  the 
attorney,  "'I  have  formed  two 
ideas  in  explanation  of  it  (the  where- 
abouts of  the  will),  and  I  think  one 
of  these  is  correct.  I  think  I  know 
where  the  will  has  been  all  this  time 
and  why  it  was  not  produced  sooner, 
but  I  intend  to  keep  the  information 
to  myself.  In  fact,  I  had  reason  to 
believe  that  such  a  will  was  in  exist- 
ence, and  I  wrote  to  Maj.  Throck- 
morton before  it  was  found,  telling 
him  my  idea  about  it'  ?" 

"  I  may  have  had  some  theory 
about  it,"  said  Mr.  Devlin,  "and 
expressefl  myself  to  that  effect. 
But  I  deny  having  said  to  him  that 
I  wrote  to  Maj.  Throckmorton 
about  it."  This  was  delivered  with 
marked  emphasis.  "  I  have  never 
read  the  article  from  which  that  is  a 
quotation,"  he  added. 

The  remainder  of  his  cross-exam- 
ination was  devoted  to  developing 
information  of  his  movements  on 
August  2S,  189.5,  and  the  time  he 
sent  the  telegram  to  Miss  Throck- 
morton. Mr.  Devlin  was  finally 
allowed  to  step  down,  but  in  passing 
by  the  table  occupied  by  the  attor- 
neys, Mr.  Darlington  whispered  a 
few  words  to  him,  and  he  resumed 
the  stand    to    correct  a  statement. 


He  had  not  written  to  Maj.  Throck- 
morton al)Out  the  will,  as  alleged 
in  The  Post  interview,  he  said,  but 
had  written  to  Miss  Throckmorton. 
That  was  about  Christmas,  1894. 

"So  you  wrote  to  Miss  Throck- 
morton about  it  before  the  will  was 
found?"  asked  Mr.  Wilson  sharply. 
"  Yes,"  said  Mr.  Devlin. 

"  You  say  you  never  read  the  in- 
terview in  The  Postf"  asked  Mr. 
Darlington.  "That  is  correct,"  said 
Mr.  Devlin  brusquely;  "I  wrote  to 
Miss  Throckmorton  in  reply  to  a 
letter  from  her." 

A  question  from  Mr.  Darlington 
as  to  the  nature  of  that  correspond- 
ence was  objected  to  by  Mr.  Wilson 
and  sustained. 

Register  of  Wills  McGill  hrwHy 
testified  to  the  condition  of  the  will. 

This  ended  the  testimony  in  chief 
on  behalf  of  the  will. 

Then  the  attorneys  for  the  heirs- 
at-law  put  on  the  stand  the  most 
important  witness  of  the  day.  Col. 
Thomas  S.  Barr,  from  Governor's 
Island,  N.Y.,  Assistant  Judge  Ad- 
vocate General.  He  testified  in  a 
fine  sonorous  voice,  with  studied 
enunciation  and  a  deliberate  man- 
ner. In  reply  to  a  question  he  said 
he  had  studied  law  and  was  a  mem- 
ber of  the  bar.  He  had  known 
Judge  Holt  well.  He  had  reported 
to  him  a  few  days  after  the  assa.ssi- 
nation  of  Lincoln  and  was  on  duty 
until  April  1,  1870,  with  the  ex- 
ception of  three  short  details.  He 
had  had  frequent,  almost  daily, 
opportunity  to  see  his  handwriting 
and  his  signature.  His  style  and 
manner  of  composition  were  familiar. 

The  will  was  then  handed  to  the 
witness  and  he  examined  it  long  and 
carefully. 

"My  impression  is,"  he  said  at 
last,  in  a  deliberate  manner,  "that 
Judge  Holt  never  wrote  that  paper. 
It  is  similar  in  some  respects,  but 
taken  as  a  whole  it  is  altogether 
unlike  anything  I  ever  saw  of 
his." 

He  was  asked  if  there  were  any 
characteristics   which    distinguished 


No.  390. 


THROCKMORTON   V.    HOLT 


905 


the    document,    and    replied    that 
there  were. 

"What  are  they?"  asked  Mr. 
AYilson.  But  Mr.  Darhngton  ob- 
jected, and  the  question  was  tem- 
porarily withdrawn. 

Witness  continued  that  Judge 
Holt's  manner  of  punctuation  was 
very  correct.  "I  think  he  used  a 
full  share  of  commas,"  he  said. 

Mr.  Wilson  then  asked  him  if 
Judge  Holt  would  have  been  likely 
to  use  the  expression  in  the  will : 
"Lizzie  Hynes  is  to  inherit  hers  at 
my  death." 

Col.  Barr  was  unfamiliar  with 
such  expression  in  wills  as  drawn  by 
lawyers,  but  was  stopped  from  pur- 
suing the  subject  further  by  an 
objection  from  the  other  side. 

The  intention  was  to  show  that 
the  phraseology  of  the  will  was  not 
such  as  would  be  employed  l^y  ex- 
perienced lawyers  like  Judge  Holt, 
and  Mr.  Worthington  asked  for  an 
immediate  ruling  on  this  point 
because  of  the  importance  of  the 
question  involved.  He  thought 
phraseology  and  other  character- 
istics of  a  testator  were  material 
questions,  but  Judge  Bradley  sus- 
tained the  objection,  and  several 
technical  points  made  by  the  heirs- 
at-law  were  also  overruled. 

In  reply  to  a  question  Col.  Barr 
said  that  Judge  Holt  had  the  clearest 
power  of  expression  he  had  ever 
known,  and  he  was  the  finest 
rhetorician  he  had  ever  met.  As  to 
accuracy,  he  said,  he  exercised  very 
great  care  in  regard  to  reports 
prepared  by  him,  often  suggesting  a 
change  of  phrase.  He  had  never 
read  an  incorrect  expression  from 
him. 

Thursday,  May  21. 

The  heirs-at-law  in  the  Holt  will 
case  scored  a  strong  point  in  their 
favor  yesterday  when  Judge  Bradley 
ruled  that  testimony  showing  the 
character  of  the  relationship  exist- 
ing between  Judge  Holt  and  the 
Throckmortons  toward  the  close 
of  the  testator's  life,  was  admissible 
as  evidence. 


This  ruling  affords  the  attorneys 
who  are  assailing  the  will  a  full 
opportunity  to  prove  that  the  rela- 
tionship existing  in  1S73,  the  year  in 
which  the  will  in  evidence  is  alleged 
to  ha\'e  l)een  drawn  in  fa\'or  of  Miss 
Josephine  Throckmorton  and  Miss 
Lizzie  H^nes,  no  longer  existed 
during  the  closing  years  of  his  life, 
at  least  as  to  the  first  of  the  two 
beneficiaries,  and  may  be  regarded 
as  the  turning  point  in  the  case. 

The  point  at  issue  was  decided 
when  the  attorneys  for  the  cavea- 
tors put  on  the  witness  stand  Mrs. 
Emma  S.  Briggs,  at  one  time  a  well- 
known  Washington  correspondent, 
writing  under  the  name  of  "Olivia." 
She  testified  that  she  stood  in  close 
and  friendly  relations  to  Judge  Holt 
for  many  years,  and  was  acquainted 
with  Maj.  Throckmorton  and  his 
family  in  times  past.  The  ques- 
tion arose  when  Attorney  Wilson 
asked  her  to  state  what  she  knew 
of  Judge  Holt's  treatment  of  them 
and  with  what  sentiments  he  re- 
garded Miss  Josephine's  mother  and 
grandmother. 

The  examination  of  Col.  Barr  was 
continued  yesterday,  and  he  was 
the  first  witness  on  the  stand.  The 
counsel  for  the  legatees  indirectly 
showed  that  the  witness  has  not 
been  on  an  amicable  footing  with 
Maj.  Throckmorton  since  the  latter's 
court-martial.  Col.  Barr's  recall 
to  the  witness  stand  yesterday  led 
to  a  spirited  contention  between 
counsel  as  to  the  admissibility  of 
evidence  tending  to  show  whether 
Judge  Holt  would  ha^'e  asked  the 
President  of  the  United  States  and 
Gen.  and  JVIrs.  Sherman  to  attest 
his  will,  thus  subjecting  them  to  the 
embarrassment  of  testifying  before 
the  Probate  Court.  The  decency  of 
the  District  bar,  Mr.  Worthington 
argued,  had  always  held  it  a  ques- 
tion whether  a  subpoena  was  com- 
petent to  issue  from  a  local  court 
summoning  the  President  to  testify 
in  a  case.  He  held  to  the  theory 
that  the  slip  of  paper  containing  the 
names  of  President  Grant  and  the 


906 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


other  witnesses  to  the  will  was  a 
separate  slip  of  paper  over  which  the 
will  of  Judge  Holt  had  been  forged. 

]Mr.  Worthington  asked  the  wit- 
ness what  were  the  characteristics 
of  Judge  Holt  when  he  was  as- 
sociated with  him  in  1S70  in  his  de- 
portment toward  his  superior  officers. 

He  was  a  man  of  retiring  manner 
and  great  modesty  toward  his  su- 
periors, said  the  witness,  and  he 
saw  him  but  seldom  with  the  Presi- 
dent. The  C{uestion  whether  his 
relations  were  such  that  he  would 
probably  have  asked  them  to  be 
witnesses  to  a  will  was  objected  to 
as  involving  a  question,  not  of  fact, 
but  opinion.  01)jection  sustained. 
The  wiiness  was  then  taken  in  hand 
bj'  Mr.  Darlington,  who  asked  the 
witness  what  a  caveator  and  a 
caveatee  was,  to  which  he  made 
reply  which  he  afterward  corrected 
of  his  own  accord. 

Witness  said  he  was  admitted  to 
the  bar  in  1859.  He  had  no  ani- 
mosity for  ]Maj.  Throckmorton,  but 
did  not  speak  to  him.  He  did  not 
know  the  heirs-at-law. 

He  was  then  cross-examined  as  to 
business  movements  earl}'  in  life, 
and  said  he  came  to  Washington 
from  ^Massachusetts,  giving  up  his 
law  practice  there,  and  entered  the 
Treasury  Department  as  a  clerk  at 
S1200  a  year.  He  was  asked  when 
his  relations  witli  Maj.  Throckmor- 
ton ceased.  He  replied  that  it  was 
at  the  time  of  Maj.  Throckmorton's 
court-martial,  in  which  he  figured  as 
an  official. 

Mr.  Darlington  then  asked  him 
if  he  had  not  called  on  Maj.  Throck- 
morton, as  a  friend,  and  conversed 
with  him,  about  the  time  of  the  court- 
martial,  and  then  gone  on  the  stand 
to  testify  against  him.  The  wit- 
ness replied  that  he  had  done  so,  but 
not  until  after  he  learned  that  Maj. 
Throckmorton  had  destroyed  cer- 
tain documents. 

"Did  you  not  offer  him  your 
hand?"  asked  the  cross-examining 
attorney. 

The  witness  replied  that  lie  simply 


ceased  to  speak  to  him  after  that. 
He  Avas  asked  if  he  had  not  written 
him  friendly  letters.  "No  friendly 
letters,"  said  the  witness.  "I  may 
have  written  him  official  letters." 
He  was  asked  with  whom  he  had 
conversed  regarding  Luke  Devlin. 
With  the  counsel  and  the  Assistant 
Secretary  of  War,  replied  Col.  Barr. 
He  had  talked  to  Devlin  on  Wednes- 
day, and  De\lin  had  said  :  " This 
is  an  unpleasant  case." 

"Have  yoti  any  letters  written 
you  by  Judge  Holt?"  asked  Mr. 
Darlington.  The  witness  replied 
that  he  had.  He  remembered  one 
dated  187"),  and  was  asked  if  he  had 
any  correspondence  with  the  testa- 
tor since  that  time.  He  remem- 
bered receiving  a  communication 
from  Judge  Holt  in  1889,  while  in 
Washington,  but  it  was  only  a  short 
note. 

"With  that  exception,  did  you 
receiA'e  any  letters  after  1875  ? " 
asked   Mr.   Darlington. 

"Possibly  —  a  few,"  said  the  wit- 
ness. He  was  asked  if  he  had  prac- 
ticed law  in  late  years.  He  had 
practiced  in  the  Supreme  Court 
in  a  few  official  cases,  he  said. 

"  Have  you  tried  any  civil  case 
in  the  past  thirty-six  years?"  asked 
the  attorney.  The  witness  replied 
that  he  had  not. 

On  re-examining  the  will  he  said 
he  would  not  swear  that  it  was  not 
Judge  Holt's'  handwriting,  but  he 
would  say  that  the  signature  was 
not,  in  his  opinion,  that  of  Judge 
Holt.  He  had  great  doubt  of  its 
regularity.  The  body  of  the  writing 
was  ragged  and  unlike  the  testator's 
as  a  whole.  It  had  an  luifamiliar 
appearance,  its  character  being  un- 
symmetrical.  He  pointed  out  some 
of  the  details,  and  the  will  was 
closely  examined  by  the  jury,  Mr. 
Darlington  passing  it  along.  The 
attorney  tried  to  induce  the  witness 
to  particularize,  but  he  declined 
to  l)e  led,  confining  his  criticism 
in  the  main  to  the  appearance  of  the 
writing  in  general.  He  specified 
the    unfamiliar    apiJcarance    of    the 


No.  390. 


THROCKMORTON   V.    HOLT 


907 


letter  "T"  and  said  he  never  saw 
Judge  Holt  write  a  "  W"  as  in  this 
will.  The  paper  was  again  shown 
to  the  jury.  He  also  criticized  the 
use  of  the  abbreviation  "Majr." 
for  Major.  He  criticized  the  phrase- 
ology of  the  will  as  wholly  unlike 
such  as  Judge  Holt  would  have  em- 
ployed. 

Mr.  Darlington  handed  the  wit- 
ness a  letter  dated  September  29, 
1873,  addressed  "My  Dear  Cousin," 
purporting  to  be  signed  by  Judge 
Holt,  but  Mr.  Wilson  quietly  arose 
and  asked  that  it  be  handed  to  him. 
He  examined  it  and  then  objected, 
but  Mr.  Worthington  explained 
that  there  was  an  agreement  to  sub- 
mit Judge  Holt's  handwriting  on 
both  sides,  with  reservations,  and 
withdrew  the  objection.  Mr.  Dar- 
lington tried  to  induce  the  witness 
to  draw  comparisons  between  the 
will  and  the  letter,  but  voluntarily 
abandoned  the  effort  out  of  defer- 
ence to  his  agreement,  and  submitted 
the  Holt  will  of  1848.  He  asked 
no  questions,  however,  and  soon 
after  allowed  the  witness  to  step 
down. 

Ex-Postmaster  General  Horatio 
King  was  then  put  on  the  stand. 
He  said  he  would  be  eighty-five 
next  June  if  he  lived.  He  came  to 
AVashington  to  find  an  opening  in 
the  newspaper  business,  and  not 
finding  anything,  he  entered  the 
Post-office  Department  in  March, 
1829,  at  SIOOO  a  year.  He  gradu- 
ated to  First  Assistant  Postmaster 
General,  and  as  such  was  Acting 
Postmaster  General,  until  1801, 
when  he  was  appointed  Postmaster 
General,  serving  from  March  7  that 
year  until  he  resigned  with  the 
Cabinet.  He  was  first  assistant 
under  Judge  Holt,  when  the  latter 
was  Postmaster  General.  He  was 
often  in  conference  with  him  on 
official  matters  on  which  there  was 
any  doubt.  Became  perfectly  famil- 
iar with  his  handwriting  and  was 
very  intimate  with  him  until  near 
his  death.  During  his  illness,  four 
or    five    years     before    his    death, 


hardly  a  day  passed  that  he  was  not 
a  caller  at  his  house  and  chatted 
with  him.  Had  much  correspond- 
ence with  him,  and  has  now  some 
twenty  letters  signed  by  Judge 
Holt,  the  first  being  written  in  1863 
and  the  last  in  1888.  Would  not 
say  that  he  had  ever  seen  Judge 
Holt  write. 

Mr.  Wilson  then  handed  him  the 
will  for  examination.  He  asked 
him  if  it  was  Judge  Holt's  writing. 

"Unquestionably,  it  is  not,"  fell 
from  the  venerable  witness'  lips. 

"Now,  tell  the  jury  if  this  is 
Judge  Holt's  signature,"  said  Mr. 
Wilson. 

The  witness  said  he  would  not 
say,  but  in  his  opinion  it  was  not, 
"because,"  he  said,  "the  whole 
thing  is  a  gross  bungling  fraud  !" 

There  was  a  buzz  and  commotion 
in  the  crowd  of  spectators  and  the 
court  officer  rapped  for  silence. 
The  witness  had  examined  the  will 
last  year  with  Washington  Holt  and 
had  then  made  up  his  mind  that  the 
will  was  a  forgery.  He  said  there 
were  fifteen  places  where  Judge 
Holt  would  have  made  commas  and 
four  or  five  places  where  he  would 
have  made  full  stops.  He  remarked 
upon  the  failure  of  the  writer  to  use 
a  capital  letter  in  "will,"  when  he 
did  so  in  "Testament."  He  also 
criticized  the  long  pauses  between 
words.  The  general  appearance  in- 
dicated that  the  will  was  a  forgery. 
Witness  spoke  of  the  high  attain- 
ments of  the  testator  and  spoke  in 
glowing  terms  of  his  accomplish- 
ments. He  was  a  finished  orator, 
he  said,  and  a  man  of  great  intel- 
lectual force. 

The  venerable  witness  spoke  in  a 
broken  voice  and  in  a  manner  indicat- 
ing  that  he  had  formed  an  opinion, 
and  was  not  to  be  budged  in  his 
conclusions.  He  spoke  of  the  testa- 
tor as  Gen.  Holt;  "for,"  said  he, 
"he  never  was  a  Judge,"  and  raised 
a  laugh  in  concluding  his  testimony 
by  referring  to  him  as  "Judge  Holt, 
that  never  was  a  Judge." 

Before    the    witness    was    turned 


908 


PART   III.       PROBLEMS    OF   PROOF 


No.  390. 


over  to  the  tender  mercies  of  Mr. 
Darlington,  j\Ir.  Wilson  moved  to 
strike  out  the  testimony  of  the  wit- 
ness in  reference  to  the  signature. 
Mr.  Darlington  objected,  hut  was 
overruled  after  a  sharp  tilt  with  the 
opposing  counsel.  The  witness  was 
then  sul)jected  to  a  searching  cross- 
examination  by  Mr.  Darlington 
touching  an  interview  which  the 
attorney  had  with  him  regarding 
the  will  three  or  four  months  ago. 
IMr.  Darlington  tried  to  establish 
the  fact  that  the  witness  had  then 
pronounced  the  will  genuine  from  a 
photographic  copy  of  it.  Witness 
did  not  specifically  deny  it,  saying 
that  he  thought  it  to  be  genuine  for 
a  while,  but  did  not  think  so  now. 
He  was  asked  if  he  did  not  tell 
Charles  Jones  that  the  will  was  un- 
doubtedly Judge  Holt's. 

"  If  I  did,"  said  the  witness, 
gravely,  "I  made  a  terrible  mis- 
take." 

He  was  also  shown  the  letter  ad- 
dressed "My  Dear  Cousin,"  which 
Mr.  King  said  appeared  to  be  in 
Judge  Holt's  handwriting.  When 
shown  the  will  of  1848  he  said  he 
would  not  inferentially  swear  that  it 
was  Judge  Holt's  writing. 

Emma  S.  Briggs,  who  has  been  a 
resident  of  Washington  since  1859, 
said  her  acquaintance  with  Judge 
Holt  began  when  Andrew  Johnson 
was  inaugurated.  She  was  a  cor- 
respondent, a  journalist,  during  her 
acquaintance  with  Judge  Holt,  and 
had  exchanged  letters  with  him ; 
he  had  also  visited  her  home.  She 
was  a  great  admirer  of  his  style,  and 
her  relations  were  those  of  "a  very 
ignorant  woman  who  was  anxious 
to  learn  something"  to  such  a  very 
able  man  as  Judge  Holt.  She 
thought  she  had  some  letters  written 
her  by  Judge  Holt  dating  to  1885. 
He  wrote  a  letter  of  introduction  for 
her  in  her  presence  in  his  house. 

She  was  then  shown  the  will,  and 
asked  if,  in  her  opinion,  it  was  in  the 
handwriting  of  Judge  Holt. 

Mrs.  liriggs  studied  the  document 
a  long  time.     Then  she  said  : 


"I  do  not  think  that  it  is."  She 
did  not  believe  that  the  signature 
was   Judge   Holt's. 

"Were  you  acquainted  with  any 
of  the  Throckmortons  ?"  asked  Mr. 
Wilson. 

"  I  was  in  years  past,"  said  the  wit- 
ness. She  was  then  asked  what  she 
knew  of  the  treatment  by  Judge 
Holt  of  the  members  of  the  family, 
or  what  he  had  said  of  Mrs.  Throck- 
morton, the  elder  and  younger. 
This  was  objected  to  by  Mr.  Dar- 
lington as  inadmissible  evidence,  and 
an  hom"  was  consumed  in  techni- 
cal arguments  by  counsel,  touching 
the  admissibility  of  parole  declara- 
tions of  Judge  Holt,  showing  his 
intention  to  revoke  the  will. 

In  an  exhaustive  explanation 
the  Court  ruled  that  the  evidence 
was  admissible,  and  on  motion  of 
Mr.  Wilson  court  adjourned  until 
to-day. 

Friday,  May  22. 

The  feature  of  the  examination 
was  the  e\idence  given  by  Mrs. 
Briggs  under  the  ruling  of  the  court, 
made  on  Thursday,  that  testimony 
showing  the  nature  of  the  relation- 
ship subsisting  between  Judge  Holt 
and  the  members  of  the  Throck- 
morton family  might  be  offered. 
Mrs.  Briggs  is  said  to  be  the  first 
woman  who  engaged  in  newspaper 
work  as  a  Washington  correspondent. 
Her  connection  with  the  press  dates 
back  to  the  period  of  the  war.  She 
was  for  a  short  time  editor  of  the 
Washington  Chronicle,  and  enjoyed 
the  acquaintance  of  the  public  men 
of  those  stirring  times.  She  was 
particularly  well  acquainted  with 
Judge  Holt.  Her  husband  pointed 
out  the  printcfl  report  of  a  speech  of 
Judge  Holt  and  advised  her  to  study 
it  if  she  wished  to  acquire  a  pure 
p]nglish  style.  She  became  ac- 
quainted with  him,  and,  according 
to  her  testimony,  became  a  frequent 
visitor  at  his  house  for  the  purpose 
of  drinking  in  the  beauties  of  his 
rhetoric  and  laving  herself  in  the 
fountain  of  his  diction.  From  this 
association,  she  declared,  she  came  to 


iVo.  300. 


THROCKMORTON    ('.    HOLT 


909 


be  known  as  a  great  writer.  This 
relationship  dated  back  to  1865. 

Mrs.  Briggs,  who  is.  an  old  lady, 
was  dressed  in  black  silk,  as  she 
resumed  the  stand  to  testify  yester- 
day moi'ning.  The  attorney  for 
the  legatees  objected  to  any  testi- 
mony which  did  not  confine  itself 
to  Miss  Josephine  Throckmorton, 
the  beneficiary,  so  long  as  the  in- 
quiry was  to  extend  to  Judge  Holt's 
relationship  with  the  Throckmor- 
tons  ;  but  the  court  ruled  that  the 
testimony  might  extend  to  the 
other  members  of  the  family  as 
tending  remotely  to  show  his  inten- 
tions with  regard  to  the  beneficiary. 
Accordingly  witness  was  allowed  to 
testify  that  she  had  a  conversation 
with  Judge  Holt  regarding  the 
Throckmortons  about  1881.  In 
reply  to  the  question  what  was  said, 
witness  related  that  she  was  at 
Judge  Holt's  house  on  one  occasion 
and  inquired  about  the  health  and 
whereabouts  of  Mrs.  Throckmorton. 

"  I  do  not  know  the  Throckmor- 
tons," was  Judge  Holt's  reply ; 
"and  that,"  added  the  witness,  "is 
the  only  time  I  heard  him  mention 
the  Throckmortons." 

She  then  related  the  White  House 
episode  and  the  incident  of  Judge 
Holt  turning  his  back  upon  Maj. 
Throckmorton. 

"  I  was  so  surprised,  so  astounded," 
said  the  witness,  with  considerable 
declamatory  effect,  "  that  I  had  to 
sit  down." 

"  Did  you  have  any  talk  with 
Judge  Holt  respecting  the  will?" 
asked  Attorney  Wilson. 

"  I  did,"  said  the  witness ;  "  it 
was  at  his  own  house."  She  had 
just  read  the  press  accounts  of  the 
breaking  of  Tilden's  will,  she  said, 
and  she  suggested  to  him  to  be  care- 
ful to  adjust  his  affairs  so  as  not  to 
place  them  in  a  similar  jeopardy, 
whereupon  Judge  Holt  counseled 
her  to  exercise  a  like  care. 

"In  my  own  case,"  he  said,  "my 
nephew,  my  brother's  son,  Washing- 
ton Holt,  will  attend  to  my  affairs, 
and  I  know  it  will  be  done  all  right." 


Mr.  Darlington  objected  to  this 
testimony  as  not  admissible.  Such 
declarations,  he  said,  were  easily 
obtainable  and  difficult  to  disprove. 
Judge  Bradley,  however,  overruled 
the  objection  because  of  the  unique 
circumstances  environing  the  whole 
case.  Soon  after  Mr.  Darlington 
took  the  witness  in  hand. 

On  cross-examination,  she  testified 
that  she  had  lived  in  Washington 
since  1859.  Before  that  she  lived 
in  Iowa. 

"When  did  you  live  in  Chicago  ?" 
suddenly  asked  the  attorney.  The 
witness  answered  that  it  might  have 
been  during  the  latter  j^ears  of  the 
fifties. 

"Where  were  you  born?"  asked 
Mr.    Darlington    abruptly. 

"In  Cuyahoga  County,  Ohio," 
said   the   witness. 

"When?"  asked  the  counsel. 

"I  have  no  remembrance,"  was 
the  reply.  The  attorney  tried  to 
jog  her  memory,  but  witness  de- 
clared that  she  had  no  information 
on  the  subject.  Her  father  or 
mother  never  had  told  her,  and  she 
had  no  other  data.  The  testimony 
created  a  good  deal  of  amusement, 
which  was  promptly  suppressed  by 
the  Court. 

"You  spoke  of  your  husband," 
resumed    the    counsel. 

"I  did,"  said  the  witness. 

"  When  did  he  die  ? " 

Witness  said  in  1873.  She  was 
asked  when  she  became  a  corre- 
spondent. Did  not  remember,  but 
it  was  during  the  time  of  the  war. 
She  mentioned  the  Philadelphia 
Press  and  the  Burlington  Hawkeye 
among  the  papers  for  which  she  had 
written.  She  really  could  not  call 
it  a  business,  that  in  which  she  had 
been  engaged  while  writing.  It  was 
during  the  time  of  Andy  Johnson's 
trial  or  a  little  before  that.  She 
also  worked  for  the  Washington 
Chronicle,  she  said. 

"As  what?"  asked  the  attorney. 
She  started  as  a  book  reviewer,  and 
said  she  wrote  occasional  editorials, 
and  for  a  short  time  had  complete 


910 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


editorial  control  of  the  paper.  She 
thus  gained  access  to  public  men, 
and  became  acquainted  with  Judge 
Holt. 

"  You  knew  the  Throckmortons  ?  " 
asked   Mr.    Darlington. 

"Certainly,  and  real  good,  lovely 
people  they  were,"  said  the  witness. 

"Where  did  you  meet  them?" 

She  thought  several  minutes.  "I 
can  tell  where  I  didn't  meet  them," 
she  answered  with  sudden  emphasis. 

"Where?"  asked  Mr.  Darlington. 

"I  never  met  them  at  Judge 
Holt's,"  declared  the  witness  forcibly. 

She  could  not  recollect  how  long 
ago  she  knew  them,  but  in  the  cross- 
examination  she  fixed  the  date 
when  she  first  called  at  Judge  Holt's 
at  about  1865.  From  that  time 
to  the  last  time  she  called  there  she 
never  saw  the  Throckmortons  at 
his  house. 

Counsel  asked  how,  under  these 
circumstances,  she  came  to  inquire 
about  the  whereabouts  and  the 
health  of  Mrs.  Throckmorton,  ref- 
erence being  had  here  to  the  mother 
of   Major   Throckmorton. 

"  If  you  were  a  newspaper  corre- 
spondent, Mr.  Darlington,"  sagely 
replied  the  witness,  "you  would  not 
inquire."  She  told  the  counsel  that 
newspaper  people  were  likely  to 
make  incjuiries  of  such  a  nature,  and 
explained  that  her  knowledge  of  the 
acquaintance  l)etween  Judge  Holt 
and  the  Throckmorton  family  came 
to  her  from  Mrs.  Throckmorton, 
the  elder. 

Mr.  Darlington  here  changed  the 
direction  of  his  inquiries  by  asking 
witness  : 

"Was  not  Judge  Holt  a  widower 
when  you  met  him?"      "He  was." 

"  And  continued  so  long  as  you 
knew  him?"  pursued  the  counsel. 
"He  did,"  replied  the  witness,  add- 
ing, guardedly,  "to  the  best  of  my 
knowledge,"  which  created  a  ripple 
of  merriment  in  the  crowd. 

"How  did  you  go  to  the  W^hite 
House  on  the  occasion  of  the  recep- 
tion of  which  you  speak?"  asked 
Mr.  Darlington. 


W'itness  said  they  went  in  a  car- 
riage. 

"  Who  dro\e  you  ? "  asked  the 
attorney. 

"  How  should  1  know  or  remember 
the  colored  man  who  drove  us?" 
asked  the  witness,  in  a  mildly  re- 
monstrative  tone. 

"What?"  asked  the  attorney,  in 
surprise,  "you  did  not  know  Judge 
Holt's  servants  ?" 

W'itness  protested  that  her  rela- 
tions to  Judge  Holt  were  not  of  so 
close  a  character  that  she  knew  all 
the  details  of  his  household,  but 
rested  solely  upon  a  mutual  admira- 
tion and  worship  of  the  beauties  of 
English  literature.  She  could  not 
tell  under  whose  administration 
this  occurred.  Did  not  know 
whether  it  was  under  that  of  Presi- 
dent Hayes.  Never  told  Julius 
Truesdell,  a  reporter,  that  it  was 
during  the  Hayes  administration. 
Never  told  jMiss  Josephine  so.  She 
related  an  interview  which  she  and 
the  latter  had,  when  Miss  Josephine 
had  complained  of  a  statement  in 
the  paper  that  Judge  Holt  had 
turned  his  back  upon  her  papa. 

"  It  is  true,"  witness  had  declared, 
"for  I  was  on  Judge  Holt's  arm  at 
the  time." 

"  Did  you  see  Major  Throckmorton 
after  that?"  asked  the  attorney. 

Witness  thought  she  called  on  the 
]\Iajor  at  Governor's  Island  once 
after  that.  She  saw  Mrs.  and  Miss 
Throckmorton,  but  was  told  that 
the  Major  was  in  New  York. 

"  How  long  did  you  visit  at  Judge 
Holt's  house?" 

"There  never  was  a  time,"  wit- 
ness said,  "that  I  didn't  go  there 
when  I  could."  She  emphasized 
that  her  visits  there  were  i)ronij)ted 
by  her  admiration  for  English  litera- 
ture. 

"Any  interruption  to  your 
visits?"  asked  Mr.  Darlington. 
W'itness  grew  dramatic,  and  ex- 
claimed with  great  emphasis,  rising 
in  her  seat :  "  Never  —  never  — 
never  !" 

"  Ever  have  any  trouble  with  the 


No.  390. 


THROCKMORTON    C.    HOLT 


911 


servants?"     "Never  —  that  I    rec- 
ollect." 

"  You  say  you  visited  Maj.  Throck- 
morton's wife  and  daughter  at 
Governor's  Island?"     "Yes." 

"  When  was  that  ?  " 

A  long  pause  ensued.  "It  was 
during  the  time  that  Maj.  Throck- 
morton was  stationed  there,"  wit- 
ness finally  said  ;  but  she  did  not 
recollect  clearly. 

"You  took  lunch  there?"  "I 
did." 

"  Did  you  not  ask  Miss  .Josephine, 
in  the  presence  of  her  mother  and  a 
servant  (naming  the  same),  when 
she  had  last  seen  Mr.  Holt?" 

Witness  said  she  did  not  think 
so.  Thought  they  had  asked  her 
when  she  had  last  seen  him. 

"I  know  I  did  not,"  witness 
added,  "and  would  not  have  done 
so,  from  moti\'es  of  delicacy." 

"You  did  not  say  that  you  had 
ceased  visiting  the  home  of  Judge 
Holt  because  the  servants  were 
impertinent  ?" 

Again  the  witness  waxed  dramatic, 
arising  to  her  feet  and  in  a  ludicrously 
solemn  tone,  exclaiming  :  "  Never  — 
never  —  never  !" 

The  attorneys  for  the  heirs-at-law 
then  submitted  a  deposition  from 
Mrs.  Barnni  B.  Rkkctts,  of  Cali- 
fornia, touching  statements  alleged 
to  have  been  made  by  Judge  Holt 
regarding  Mrs.  .Throckmorton,  the 
elder.  About  four  years  after  1873 
—  the  date  of  the  will  —  she  heard 
him  express  himself  with  great 
bitterness  regarding  her,  and  again 
on  the  occasion  of  the  Yorktown 
centennial. 

]\Irs.  Briggs  was  put  on  the  stand 
again  by  Mr.  Darlington  and  shown 
the  will.  The  general  look,  the 
whole  thing,  the  "W^"  and  other 
signs  were  unlike  his,  she  said. 
They  were  entirely  unlike  the  letters 
she  had  of  his.  She  said  there  was  a 
"something"  about  it  that  was  as 
unlike  as  two  faces.  She  admitted 
she  couldn't  swear  to  her  own  writing. 
There  was  a  difference  in  the  "t's" 
used  in  the  will,  and  witness  pointed 


out  a  number  of  seeming  discrep- 
ancies. 

She  was  handed  several  letters 
signed  by  Judge  Holt  for  identifica- 
tion, but  declined  to  express  positive 
opinions.  On  reexamination,  she 
stated  that  she  had  cultivated  Judge 
Holt,  to  acquire  his  style,  and  had 
studied  English  literature  under  his 
instructions.  Witness  thought  the 
testator  was  a  very  careful  writer, 
and  very  exact  in  his  punctuation 
and  capitalization,  and  through  her 
study  of  his  style  she  declared  she 
had  acquired  the  reputation  of 
being  a  great  writer. 

She  was  asked  as  to  the  hand- 
writing and  composition  of  the  will, 
which  she  said  were  not  those  of 
Judge  Holt.  This  was  objected 
to  by  Mr.  Darlington,  and  a  long 
technical  argument  ensued,  which 
was  not  finished  when  the  court  ad- 
journed for  the  noon  recess.  After 
dinner  Judge  Bradley  overruled  the 
objection. 

Witness  was  shown  the  will,  and 
asked  by  Mr.  Darlington  to  point 
out  the  absence  of  commas  and 
other  punctuation  marks.  After 
some  study  she  pointed  out  the 
absence  of  a  period  and  a  comma. 
She  thought  she  had  thus  pointed 
out  all  the  peculiarities  of  punctua- 
tion, except  that  the  employment 
of  a  dash  for  a  comma  struck  her 
as  different  from  anything  she  had 
ever  seen  of  his  writing.  She 
pointed  out  a  "t"  which  was  drawn 
like  an  "1"  as  anomalous  in  his 
handwriting.  Witness  did  not  mean 
to  say  that  she  had  received  letters 
from  Judge  Holt  every  year  for 
thirty  years,  but  "off  and  on" 
within  those  years.  The  testator's 
writing  she  said,  was  not  so  slanting 
as  in  letters  of  Judge  Holt's  in  her 
possession.  The  chief  characteris- 
tic of  Holt's  style  was  forcibleness. 
He  was  not  a  verbose  man,  and  used 
no  superfluous  words.  Never  used 
a  word  which  could  be  omitted. 

Samuel  Hodgkins  was  employed 
in  the  W^ar  Department  after  1863 
in  the  Secretary's  office,   and  had 


912 


PART   III.       PROBLEMS   OF    PROOF 


No.  390. 


excellent  opportunities  for  becoming 
well  acquainted  with  the  hand- 
writing of  Judge  Holt.  Handled 
many  of  his  official  papers  after  1870, 
some  letters,  but  mostly  indorse- 
ments in  his  handwriting,  and  bear- 
ing his  signature.  Thought  he  could 
find  papers  in  the  War  Department 
indorsed  in  Judge  Holt's  handwrit- 
ing.    ShowTi  the  will,  witness  said  : 

"In  my  mind  it  is  not  Judge 
Holt's."  Witness  had  no  doubt 
that  the  body  of  the  writing  was 
not  his ;  he  had  doubt  as  to  the 
genuineness  of  one  of  the  signatures, 
and  thought  it  was  not  Judge  Holt's. 
Witness  formed  his  opinion  from 
the  general  appearance  of  the  writ- 
ing. "Judge  Holt,"  said  he,  "wrote 
what  I  call  a  cramped,  scratchy 
hand,  while  this  is  written  in  an  easy, 
flowing  style." 

Witness  then  pointed  out  particu- 
lars which  he  thought  differed  from 
the  writing  of  the  deceased.  He 
thought  every  word  showed  an 
effort.  He  covdd  not  analyze  his 
meaning  letter  l)y  letter,  but  to  his 
mind  the  writing  looked  like  an 
imitation,  and  showed  relaxation  at 
irregular  periods.  Mr.  Darlington 
offered  other  writing  of  the  testator, 
and  attempted  to  show  by  the  wit- 
ness that  the  same  freedom  of  hand 
was  evident  in  other  writing  of  his. 
The  witness  thought  some  words 
were  written  by  the  same  hand  that 
wrote  the  will,  but  Mr.  Worthing- 
ton  objected  to  these  questions. 
Mr.  Darlington  said  he  proposed  to 
introduce  evidence  of  this  kind  to 
prove  that  the  testator  wrote  a  free 
hand.  The  court  allowed  the  ques- 
tions to  be  asked,  and  witness  gave 
his  opinion  on  se\eral  papers  pur- 
porting to  be  in  Judge  Holt's  writing. 
Shown  the  will  of  1848,  with  the 
words :  "  This  will  is  wholly  re- 
voked —  J.  Holt,"  indorsed  on  the 
wrapper,  witness  saifl  the  writing 
was  not  in  Judge  Holt's  writing, 
but  the  signature  was. 

On  redirect  examination  witness 
saifl  he  had  no  familiarity  with  the 
handwriting  of  Judge  Holt  in  1848. 


Col.  Patterson  A.  Hosmer,  of 
Washington,  became  acquainted 
with  Judge  Holt,  October  2,  1862. 
while  Judge-Advocate-General ;  was 
mider  his  orders  till  latter  part 
of  1865 ;  had  niunerous  opportuni- 
ties to  become  acquainted  with  his 
writing ;  had  correspondence  with 
him  on  official  l)usiness  as  late  as 
1876,  and  has  a  note  of  January, 
1876.  His  characteristics  in  respect 
to  his  composition,  his  accuracy, 
and  style  of  expression,  he  said,  were 
marked  by  great  care,  both  in  speech 
and  writing.  Witness  was  shown 
the  wall,  and  said  he  was  unable  to 
believe  that  it  was  Judge  Holt's 
handwriting,  either  in  body  or 
signature.  He  did  not  think  it 
was.  Witness  had  renewed  his 
knowledge  of  Judge  Holt's  hand- 
writing from  a  note  addressed  to  his 
wife,  bearing  date  of  1876.  He  did 
not  believe  the  will  was  his  composi- 
tion. 

He  pointed  out  alleged  discrepan- 
cies in  the  writing  of  the  will  and 
noted  three  ^'ariations  in  the  signa- 
ture of  the  will  different  from  the 
signature  attached  to  the  letter 
w^hich  his  w^fe  had  received  in  1876. 

Court  then  adjourned  until  Mon- 
day morning. 

Mondcui,  May  26. 

Mr.  Worthington  began  the  pro- 
ceedings when  court  opened  by 
placing  in  evidence  the  envelope 
in  which  the  will  was  received  at 
the  Register's  office,  the  piece  of 
pasteboard  contained  in  the  enve- 
lope, and  the  order  of  the  court 
issued  in  September,  1894,  stating 
that  the  heirs-at-law  had  applied 
for  letters  of  administration,  and 
commanding  all  persons  having  ob- 
jections to  lodge  to  appear  l)efore 
the  Orphan's  Court.  An  inventory 
of  the  property,  exclusive  of  real 
estate,  of  Judge  Holt,  amounting  to 
$130,664.90,  was  also  submitted. 

Mr.  Worthington  then  read  the 
deposition  of  Consul  General  John 
J.  Barclay,  of  Tangier,  Morocco, 
stating  that  the  deponent  last  saw 
Judge  Holt  at  his  home  in  this  city 


No.  390. 


THROCKMORTON   V,   HOLT 


913 


in  November,  1893,  upon  which 
occasion  Judge  Holt  haci  stated  that 
he  had  made  a  will  leaving  certain 
pictures  to  Mrs.  Barclay. 

The  first  witness  who  took  the 
stand  was  Col.  William  Winthrop, 
U.S.A.,  retired,  who  was  ordered  to 
report  for  duty  under  Judge  Holt  in 
1864,  when  he  was  Judge- Advocate- 
General.  He  remained  in  his  office 
as  senior  assistant  until  Judge  Holt's 
retirement  in  1875.  Col.  Winthrop 
told  a  good  deal  about  the  nature 
of  the  work  in  his  office  ;  how  he  had 
become  thoroughly  familiar  with 
the  handwriting  of  Judge  Holt,  and 
wnth  his  characteristics  and  ability 
as  a  lawyer.  In  reply  to  questions 
by  Mr.  Worthington,  he  also  stated 
that  Judge  Holt's  relations  with 
Luke  Devlin,  who  was  appointed  a 
messenger  and  afterward  promoted 
to  a  clerkship,  were  as  friendly  as 
possible  under  the  circumstances, 
but  that  he  was  never  aware  of  any 
business  or  social  relations  between 
them. 

When  the  alleged  will  was  handed 
to  Col.  Winthrop,  and  he  was  asked 
whether,  in  his  opinion,  it  was  in 
the  handwriting  of  Judge  Holt,  he 
replied  : 

"There  is  a  certain  resemblance 
between  this  and  the  handwriting 
of  Judge  Holt,  but  I  am  inclined  to 
believe  he  never  wrote  this  paper." 
He  went  on  to  point  out  details 
upon  which  he  based  his  opinion. 
In  four  cases,  a  letter  was  made  to 
resemble  a  capital,  when  it  was  not, 
and  the  word  "will"  was  spelled 
with  a  small  "  w,"  and  the  word 
"testament"  with  a  capital  "  T." 
This  was  at  variance  with  Judge 
Holt's  precise  methods. 

Under  a  rigid  cross-examination 
by  Mr.  Darlington,  witness  said  his 
interest  in  the  case  was  due  to  his 
having  been  a  personal  friend  of 
Judge  Holt,  and,  though  he  had  been 
in  consultation  with  Messrs.  Jere 
Wilson  and  Washington  Holt,  he 
expected  no  fee  for  his  services. 

Asked  as  to  the  chief  characteris- 
tics of  Judge  Holt's  style  of  composi- 


tion, he  said  it  was  a  little  formal 
and  a  little  florid.  It  could  not  be 
called  verbose,  although  he  illus- 
trated a  good  deal.  Mr.  Darling- 
ton then  handed  witness  a  letter, 
dated  December  9,  1876,  addressed 
to  U.  S.  Grant,  which  Col.  W'inthrop 
thought  was  in  Judge  Holt's  hand- 
writing. Mr.  Darlington  pointed 
out  a  superfluous  comma,  and  ques- 
tioned witness  concerning  it,  where- 
upon Mr.  W^orthington  objected, 
and  was  sustained  by  the  court. 
Witness  identified  another  document, 
dated  September  29,  1873,  as  being 
the  handwriting  of  Judge  Holt,  and 
then  Mr.  Darlington  asked  : 

"Do  you  wish  to  be  understood 
as  asserting  that  Judge  Holt  never 
omitted  commas?"  "No,  but  his 
style  was  based  on  the  old  school, 
and  he  seldom  omitted  them,"  re- 
plied   Col.    Winthrop. 

Witness  expressed  the  belief  that 
four  or  five  lines  on  the  bottom  of 
Luke  Devlin's  discharge  from  the 
army  were  in  Judge  Holt's  writing. 

The  will  of  1848,  subsequently 
revoked,  was  then  shown  him.  He 
said  that,  while  it  was  written  fifteen 
N'cars  before  he  ever  met  Judge  Holt, 
it  appeared  to  be  in  his  writing. 
Mr.  Worthington  objected  to  Mr. 
Darlington  cross-examining  the  wit- 
ness concerning  the  will,  until  it 
was  placed  in  evidence,  which  Mr. 
Darlington  proceeded  to  do  by  read- 
ing it  to  the  jury.  It  was  rather  a 
lengthy  document,  prepared  with 
great  precision,  making  express  pro- 
vision for-  his  various  relatives  and 
dwelling  at  length  upon  the  disposi- 
tion of  the  slaves  which  were  to  be 
emancipated.  It  also  left  SIOOO  to 
the  American  Tract  Society.  The 
testator  also  recommended  Ken- 
tucky State  bonds,  in  which  some  of 
the  legacies  were  to  be  paid,  as  "  a 
safe  and  most  convenient  form  of 
investment."  His  brother  was  ap- 
pointed executor  and  the  will  bore 
date  of  April  9,   1848. 

Mr.  Darlington  then  proceeded 
to  cross-examine  the  witness  as  to 
the  chirography  in  the  will  of  184S 


914 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


and  tlie  alleged  will  of  1S73,  pointing 
out  all  sorts  of  dots,  dashes,  and  com- 
nias,  which  the  witness  attempted  to 
explain,  and  which  resulted  in  open- 
ing up  a  l)roa(l  field  for  speculation 
as  to  whether  Judge  Holt  would  have 
used  a  small  w  for  will  and  a  capital 
T  for  testament,  or  a  small  c  for 
city  and  a  capital  W  for  Washing- 
ton, or  a  small  e  for  P]piscopal  and 
a  capital  c  for  church. 

Col.  Winthrop,  on  redirect  ex- 
amination by  Mr.  Worthington, 
testified  regarding  his  last  interview 
with  Judge  Holt,  and  the  fall  which 
resulted  in  his  death,  and  after  the 
wrapper  on  the  will  of  1848  had  been 
placed   in   evidence. 

He  resumed  the  stand  as  soon  as 
court  reconvened  at  1  o'clock,  but 
]Mr.  Worthington  introduced  a  con- 
veyance of  a  farm  in  Kentucky 
from  himself  to  his  niece,  Amanda 
Holt,  and  Col.  Winthrop  was  re- 
leased. The  document  was  dated 
subsequent  to  the  date  of  the  alleged 
will,  and  in  connection  with  it,  a  let- 
ter from  Judge  Holt,  to  his  nephew, 
dated  May  31,  1884,  was  read. 
The  letter  was  one  of  instructions 
as  to  filling  out  of  the  conveyance, 
and  went  very  carefully  into  the 
most  minute  details,  showing  that 
the  writer  had  the  utmost  regard  for 
the  technicality  of  the  law. 

The  greatest  interest  had  been 
manifested  in  Col.  Winthrop's  testi- 
mony at  the  beginning,  especially 
by  Miss  Throckmorton,  who  oc- 
casionally raised  her  eyebrows  in 
surprise,  but  it  became  monotonous 
in  its  sameness  after  a  time,  and 
there  was  a  general  sigh  of  relief 
when  Francis  G.  Saxtoti  was  called. 
His  testimony,  however,  was  sub- 
stantially a  reiteration  of  what  Col. 
Winthrop  had  testified  to.  He  has 
been  a  clerk  in  the  Judge-Advocate- 
General 's  office  since  September  2, 
1809.  Luke  Devlin  was  there  at 
that  time,  and  went  out,  according 
to  witness'  recollection,  l)efore  Judge 
Holt's  retirement.  The  witness  told 
al)out  his  duties  and  his  familiarity 
with  the  handwriting  of  Judge  Holt. 


He  showed  the  jury  the  position 
in  which  the  Judge  held  his  pen  in 
writing,  and  added  :  "  He  almost 
invariably  began  by  putting  the 
pen  down  squarely  on  the  paper,  an(' 
wrote  altogether  with  his  fingers, 
without  any  arm  movement."  The 
witness  stated  that  he  had  hunted 
with  Mr.  Dobson,  another  clerk  in 
the  office,  for  some  of  Judge  Holt's 
indorsements  on  reports,  and  these 
indor.sements  were  offered  in  evi- 
dence by  j\Ir.  Worthington.  Se\'- 
eral  of  them  were  datetl  during 
the  month  of  February,  1873,  the 
date  of  the  alleged  will. 

Upon  the  alleged  will  being 
handed  to  him,  and  in  reply  to  the 
usual  question,  witness  said:  "At 
the  first  glance  there  is  something 
about  this  paper  that  is  very  like 
Judge  Holt's  writing,  but  on  looking 
at  it  more  closely  the  similarity  dis- 
appears. In  my  opinion  it  is  not 
Judge  Holt's  writing  or  signature." 
further  on  he  said  he  did  not  think 
it  was  Judge  Holt's  language,  and 
the  differences  in  detail  were  brought 
out  under  close  examination  by  Mr. 
Darlington. 

Replying  to  a  question  by  Mr. 
Darlington,  the  witness  said  :  "  In 
the  writings  of  Judge  Holt,  about 
the  date  of  the  alleged  will,  he  com- 
menced the  J  in  his  signature  with  a 
dot,  made  by  putting  his  pen  down 
on  the  paper  before  he  began  to 
write.  Then  the  mark  running 
across  the  foot  of  the  J  to  the  top 
of  the  H  in  the  will  is  quite  dift'erent 
from  any  of  his  writings  about  that 
time.  In  all  that  I  have  been  able 
to  find  about  that  time,  this  line 
starts  down  and  then  comes  up 
again,  almost  making  a  D  out  of  the 
J.  This  line  (pointing  to  the  will) 
is  almost  straight." 

]\Ir.  Saxton  proved  a  most  val- 
uable witness  for  the  heirs-at-law. 
Just  as  Mr.  Darlington  was  preparing 
to  confront  him  with  the  will  of 
1848,  in  which  these  characteristic 
"jabs,"  as  he  called  them,  were 
lacking,  he  went  on  to  explain  that 
there  was  a  great  difference  in  the 


No.  390. 


THROCKMORTON   V.    HOLT 


915 


handwriting  between  the  two  peri- 
ods. Mr.  Darhngton  then  handed 
him  Luke  DevHn's  discharge,  antl 
asked  : 

"Do  you  find  these  jabs  here?" 
"Yes,  sir,  you  will  find  it  there  very 
distinctly,"  was  the  reply. 

Various  other  writings  of  Judge 
Holt  were  shown  the  witness,  all 
of  which  he  was  inclined  to  think 
were  written  by  the  Judge.  He 
stated  in  answer  to  Mr.  Darlington's 
question  that  he  searched  the  files 
for  Judge  Holt's  writings  at  the  re- 
quest of  some  of  the  attorneys  on 
each  side,  including  Gen.  Butter- 
worth. 

Mr.  Darlington  wanted  to  know 
if  it  was  not  true  that  Gen.  Butter- 
worth  had  found  signatures  of  Judge 
Holt  in  the  Judge-Advocate-Gen- 
eral's  office,  in  which  the  mark  on  the 
J  was  different,  but  the  witness  did 
not  remember.  Years  ago  he  said 
the  loop  of  the  J  was  different,  but 
at  the  time  of  the  alleged  will  that 
peculiar  feature  was  there. 

The  next  witness  called  was  a  Miss 
Willie  Greene  Sterett,  a  dainty  little 
miss  of  thirteen.  She  replied  to  all 
questions  without  the  slightest  re- 
serve, and  sometimes  the  innocence 
of  her  answers  brought  smiles  even 
to  the  faces  of  the  litigants  on  either 
side,  who  had  been  sitting  there  all 
day  absorbed  in  the  evidence,  mak- 
ing an  occasional  sarcastic  com- 
ment when  it  did  not  meet  with  their 
approbation. 

She  first  told  about  her  brothers 
and  sisters,  and  then  what  she  knew 
about  the  relations  of  her  own  family 
with  Judge  Holt. 

"  Did  you  live  near  Judge  Holt  ?  " 
asked  Mr.  Worthington. 

"Well,  he  lived  on  New  Jersey 
avenue  and  we  lived  on  H  street ; 
I  don't  know  whether  you  call  that 
near." 

"Did  you  go  to  see  him  often  ?" 

"  Not  so  very  often ;  we  were 
afraid  we  might  bother  him." 

"How  did  he  treat  you  and  your 
sister  ?  " 

"Oh,  very  nicely,  always." 


"Can  you  tell  us  anything  he 
ever  did  to  show  he  was  nice  ?" 

"Well,  he  used  to  take  us  on  his 
knee,  and  he  always  gave  us  some- 
thing to  eat.  Yes,  and  he  gave  us 
money,  too ;  sometimes  50  cents, 
sometimes  a  dollar,  and  once  he 
gave  us  $2.50  apiece." 

She  then  told  how  Judge  Holt 
used  to  come  to  her  parents'  house 
in  his  carriage  and  take  herself  and 
her  mother  and  her  sister  driving. 

"  How  did  he  treat  your  mother  ?  " 
asked  Mr.  Worthington. 

"Well,  of  course,  he  didn't  treat 
her  like  he  did  us,  but  he  was  very 
nice." 

Judge  Holt,  she  said,  had  always 
treated  the  different  members  of 
her  family  with  the  same  kindness, 
and  she  had  never  observed  any 
coolness  between  them.  She  was  at 
the  Judge's  house  a  few  days  after 
his  death,  and  while  there  she  had 
found  a  piece  of  paper  in  one  of  the 
closets  in  the  Judge's  room,  while 
she  was  looking  for  postage  stamps. 

"Oh,  you  are  a  stamp  fiend,  are 
you?" 

"No,  not  now,"  hastily  explained 
the  child,  as  if  she  had  been  accused 
of  a  dreadful  crime. 

"How  large  was  the  paper?" 

The  little  witness  indicated  with 
her  hands  that  it  was  about  2^ 
inches  square. 

"  Could  you  read  what  was  on  the 
paper  ?" 

"W'hy,  of  course,"  with  a  rising 
reflection  and  an  injured  air. 

Mr.  W^orthington  here  explained, 
in  view  of  anticipated  objection, 
that  this  particular  piece  of  paper 
had  been  placed  in  a  valise  belong- 
ing to  one  of  the  heirs,  and  the  valise 
was  stolen,  while  he  was  on  his  way 
from  the  South  to  W'ashington. 
The  papers  were  burned  by  the  thief. 

The  little  girl  then  added  that  the 
paper  was  inscribed  :  "  Will,  Jan- 
uary 1,  1886,"  and  that  there  were 
two  names  on  it,  one  of  which  was 
Roundtree,  without  any  initials, 
while  the  other  could  not  be  deciph- 
ered. 


916 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


Cross-examined  by  Mr.  Darling- 
ton, witness  said  she  did  not  re- 
member whether  she  was  hving  at 
Judge  Holt's  at  the  time  she  found 
the  paper. 

"  I  know  I  was  looking  for  stamps," 
slie  said,  "and  I  knew  he  had 
plenty  of  them.  They  all  looked 
the  papers  o\'er  and  Avere  through 
with    them." 

"  Who  had  looked  them  over  ?  " 

"  Why,  the  heirs,  I  suppose ; 
they  were  all  trying  to  find  the  will." 

"Where  did  Judge  Holt  keep  his 
papers  when  he  was  alive?" 

"  I  couldn't  tell  vou  to  save  my 
life." 

Little  Miss  Sterett  bore  up  well 
until  the  ordeal  was  OAer,  but  when 
she  got  back  to  her  mother's  side, 
she  began  to  cry.  She  is  attending 
school  at  Staunton,  Virginia,  and  was 
put  on  the  stand  yesterday  in  order 
to  allow  her  to  go  back  to  her  studies. 

Emma  Board,  who  had  been  a  ser- 
vant in  the  family  of  Washington 
Holt,  at  Holt's  Bottom,  Kentucky, 
next  testified.  She  said  that  Judge 
Holt  visited  his  nephew  every  spring 
and  fall  until  his  health  got  bad.  He 
had  always  treated  the  members  of 
the  family  very  kindly,  and  frequently 
sent  the  two  daughters  presents. 

At  one  time,  when  she  w^as  fastening 
the  Judge's  collar,  he  had  told  her  he 
would  not  live  long,  and  advised 
her  to  remain  in  the  family  of  his 
nephew,  and  she  would  be  taken 
care  of,  as  he  had  provided  for 
them  in  his  will. 

She  did  not  remember  the  date 
when  she  had  last  seen  Judge  Holt, 
l)ut  it  was  not  long  before  she  left 
the  family  of  Washington  Holt,  a 
little  more  than  three  years  ago. 
Her  testimony  was  not  affected  by 
cro.ss-examination.   . 

William  II.  Dobson,  another 
clerk  from  the  office  of  the  Judge 
Aflvocate-General,  did  not  think 
the  will  was  written  or  signed 
by  Judge  Holt.  Cross-examination 
brought  out  that  he  had  never  seen 
Judge  Holt  write,  and  could  only 
base  his  opinion  from  the  fact  that 


he  frecpiently  came  in  contact  with 
his  signature.  Mr.  Dobson  fell  upon 
the  absence  of  the  dot  before  the  J 
and  the  wrong  direction  of  the  loop, 
as  promptly  as  had  his  pi'edecessors. 
But  he  had  the  additional  honor  of 
discovering  a  new  distinction.  The 
o  and  the  1  in  Holt  were  not  con- 
nected, and  in  all  of  the  Judge's 
signatures  he  had  e\'er  seen  these 
two  letters  were  joined.  The  same 
array  of  authenticated  writings  of 
Judge  Holt  were  shown  him,  which 
he  duly  identified  as  genuine.  He 
swore  there  were  no  signatures  in  the 
Judge  Advocate's  office  in  which  the 
o  and  1  were  not  connectefl. 

But  there  were  more  clerks  in  the 
Judge-Advocate-General 's  office,  and 
the  next  one  to  appear  was  Mr. 
Albert  L.  Smith.  He  did  not  think 
it  was  Judge  Holt's  writing,  either. 
The  authenticated  documents  were 
Judge  Holt's.  He  knew  Luke  Dev- 
lin, but  had  never  observed  any 
relations  between  him  and  Judge 
Holt,  except  such  as  would  naturally 
arise  from  the  association  of  Judge 
Advocate  and  messenger. 

"  Have  you  any  recollection  of 
Devlin's  keeping  an  autograph  al- 
bum?" asked  Mr.  Worthington,  as 
the  occupants  of  the  court  room 
craned  their  necks  in  anticipation. 

"What  use  did  he  make  of  it?" 
"He  Avas  getting  the  signatures  of 
people  of  note." 

"  Do  you  remember  anything  con- 
cerning any  of  the  signatures  in 
particular?"  "I  do  remember  his 
coming  to  me  with  a  signature 
on  a  piece  of  paper  and  asking 
whether  it  was  not  pretty  good  for 
President  Lincoln." 

"What  else  did  he  say?"  Mr. 
Darlington  here  lodged  an  objection, 
which  was  promptly  sustained  by 
the  court.  After  Mr.  Darlington 
had  cross-examined  the  witness 
briefly  regarding  the  characteristics 
of  Judge  Holt's  signature,  court  ad- 
journed for  the  day. 

Tiic.s-flai/,  May  26. 

The  deposition  of  Robert  S.  Holt, 


No.  390. 


THROCKMORTON   V.    HOLT 


917 


of  Tacoma,  Washington,  a  nephew 
of  Jiulge  Holt,  was  first  submitted 
by  Mr.  Worthington  for  the  heirs- 
at-law.  The  deponent  simply  testi- 
fied to  the  warm  relations  existing 
between  his  father  and  Judge  Holt, 
while  a  large  number  of  letters  from 
Judge  Holt  to  deponent  accom- 
panied the  deposition,  to  show  that 
these  friendly  relations  were  con- 
tinued with  the  son.  The  letters 
were  all  read  after  Mr.  Darlington's 
objections  had  been  overruled,  and 
they  evinced  the  most  affectionate 
regard  for  the  nephew,  and  the 
deepest  interest  in  all  that  con- 
cerned him. 

After  the  reading  of  these 
letters,  Mrs.  Iglchart,  sister  of 
the  deponent,  Robert  S.  Holt,  was 
sworn.  She  testified  to  her  first 
meeting  with  her  uncle.  Judge 
Holt,  while  she  was  on  her  wedding 
trip  in  this  city  in  1874.  She  was 
here  again  ten  years  later,  and  was 
entertained  at  Judge  Holt's  house. 
She  had  corresponded  with  Judge 
Holt  both  before  and  after  her 
marriage,  and  the  correspondence 
was  placed  in  evidence.  There  was 
a  large  number  of  letters,  extending 
over  a  period  from  early  '  in  the 
seventies  until  as  late  as  1887,  and 
the  reading  of  them  occupied  con- 
siderable time.  All  were  couched 
in  the  most  affectionate  terms,  and 
those  written  about  the  time  of  her 
marriage  contained  advice  as  to  how 
to  make  her  husband  happy.  All 
of  them  were  precise,  going  into 
the  most  minute  details  even  down 
to  seemingly  trivial  subjects.  They 
sounded  like  the  outpourings  of  a 
lonely  old  man  of  refined  and  delicate 
nature,  weary  of  life,  yet  anxious 
to  strew  happiness  in  the  pathway 
of  those  in  whom  he  took  an  interest. 
One  which  he  wrote  in  reply  to 
the  announcement  of  the  arrival  of 
a  young  stranger  in  the  Iglehart 
family,  was  especially  touching. 
In  another  letter  he  said  :  "  There 
is  no  prospect  of  my  years  of  isola- 
tion terminating  short  of  the  grave." 

As  Mr.  AVorthington  came  to  the 


close  of  each  letter,  after  "your 
affectionate  uncle,  J.  Holt,"  he 
would  add  :  "With  a  jab  to  the  J." 
At  last  he  omitted  the  final  clause, 
and  Mr.  Darlington  said  : 

"Wait  a  moment,  Mr.  Worthing- 
ton,  you  haven't  told  us  about  the 
jab  to  the  J." 

"No,  sir,"  thundered  Mr.  Worth- 
ington,  "because  there  is  no  jab. 
That  letter  was  written  about  the 
time  he  stopped  making  jabs,  and 
the  man  who  forged  that  will  did 
not  know  it." 

He  then  proceeded  with  the  read- 
ing of  the  letters.  In  congratulating 
the  Igleharts  upon  the  arrival  of  a 
second  son,  and  referring  to  the 
announcement  that  the  boy  had 
been  named  Joseph  Holt,  the  writer 
said  he  hoped  he  had  been  named 
after  Judge  Holt's  grandfather,  the 
head  of  the  house.  "His  record 
is  complete,"  the  letter  read,  "and 
can  never  be  changed.  I  do  not 
think  it  wise  to  name  children  after 
the  living,  whose  records  are  un- 
finished. In  this  respect  man  is 
like  a  snake ;  he  can  never  be 
accurately  measured  until  he  is 
dead." 

Upon  learning  that  the  child 
had  been  named  after  himself, 
Judge  Holt  Avrote  entreating  its 
mother  not  to  burden  him  with  the 
name  of  Joe.  He  thought  nick- 
names were  coarse  vulgarisms.  He 
finished  by  telling  the  parents  to 
teach  their  children  to  love  nature, 
to  regard  life  as  something  sacred, 
and  to  love  flowers  as  the  smiles  of 
God. 

In  concluding  his  examination, 
Mr.  Worthington  handed  Mrs.  Igle- 
hart the  alleged  will,  and  asked 
whether,  in  her  opinion,  it  was  the 
writing  of  Judge  Holt. 

"  I  shouldn't  think  it  was ;  it 
doesn't  look  familiar  at  all." 

Mr.  Darlington  began  his  cross- 
examination  by  asking  :  "  Are  you 
prepared  to  point  out  any  particular 
dissimilarity?"  at  the  same  time 
handing  her  the  will  of  1848. 

"  I  cannot  say  anything  about  the 


918 


PART   III.      PROBLEMS   OF   PROOF 


No.  390. 


details,"  responded  the  witness. 
"  You  are  trying  to  confuse  me,  and 
I  am  not  going  to  have  it."  All 
effort  to  get  the  witness  to  indicate 
any  points  of  dissimilarity  failed. 

After  recess  Mr.  Darlington  read 
a  number  of  letters  from  Mrs.  Igle- 
hart  to  Judge  Holt,  complaining 
that  he  had  never  been  to  visit  her, 
and  also  another  letter  unfler  date 
of  April  3,  1887,  in  which  she  told 
him  she  was  grieving  because  of  a 
piece  of  property  near  her  home  in 
Kentucky  which  was  Avorth  .'52(),000, 
and  which  could  be  bought  for 
S10,00(),  that  amount  being  S3000 
more  than  they  could  raise.  The 
letter  added  that  the  place  would  be 
nice  for  the  children. 

"Did  you  get  a  reply  to  that 
letter,  or  did  you  ever  hear  from 
Judge  Holt  afterward  ? "  asked  Mr. 
Darlington. 

"  I  never  wrote  with  any  inten- 
tion of  his  getting  the  property  for 
us,"  replied  the  witness,  "and  I 
don't  remember  whether  I  received 
any  more  letters  from  Judge  Holt." 
On  redirect  examination,  however, 
Mr.  Worthington  placed  in  evidence 
correspondence  during  the  year  1888. 

The  next  witness  called  was 
Martha  Scoff,  a  colored  woman  who 
was  a  servant  in  Judge  Holt's  house 
from  1881  until  the  time  of  his 
death.  After  she  had  told  about 
the  other  servants  employed  at  the 
house,  and  described  the  arrange- 
ment of  the  rooms,  Mr.  Worthington 
asked  : 

"Are  you  acquainted  with  the 
elder  Mrs.  Throckmorton,  Maj. 
Throckmorton's  mother?"     "Yes." 

"  Did  she  ever  call  at  Judge  Holt's 
ouse  f  Yes. 

"  What  happonefl  when  .she  called 
there?"  "He  always  refused  to 
see  her." 

"How  often  did  she  call?" 
"Sometimes  about  once  a  week.  She 
uscfl  to  give  me  her  name,  and  when 
I  went  up  and  told  the  Judge  he 
always  told  me  to  say  he  wouldn't 
see  her.  She  was  an  old  lady  and  T 
tried  to  treat  her  as  nice  as  I  could. 


so  I  used  to  tell  her  the  Judge  couldn't 
see  her ;  then  she  used  to  say  '  poor 
thing,'  and  go  away." 

"  Did  you  keep  on  taking  her 
name  up  after  the  Judge  told  you 
he  wouldn't  see  her  ?  "  "  Well,  after 
a  while,  when  the  Judge  told  me  not 
to  bring  her  name  up  any  more, 
and  she  used  to  insist  on  my  taking 
it  up,  I  used  to  pretend  to  go  up, 
and  then  go  back  and  tell  her  he 
wouldn't  see  her."  • 

"Did  you  ever  see  IVIaj.  Throck- 
morton or  his  wife?"  "Maj. 
Throckmorton  came  there  once,  but 
I  did  n't  know  him  ;  he  called  there 
afterward  with  a  stout  lady.  The 
Judge  sent  word  down  he  wouldn't 
see  them." 

The  witness  testified  that  this 
M^as  about  four  years  before  Judge 
Holt's  death.  She  stated  that  Miss 
Josie  Throckmorton,  the  Major's 
daughter,  and  one  of  the  legatees, 
also  called  to  see  Judge  Holt.  The 
latter  saw  her  the  first  time  in  the 
parlor.  She  called  again  one  even- 
ing when  Mrs.  Washington  Holt 
and  her  family  were  visiting  the 
house  and  Judge  Holt  saw  her  in 
the  dining  room. 

"I  did  not  see  her  again,"  con- 
tinued the  witness,  "until  after  her 
father  got  into  trouble.  When  she 
called  again  Judge  Holt  wouldn't  see 
her,  but  she  asked  for  Ellen,  the 
cook,  and  Pollen  went  up  and 
persuaded  Judge  Holt  to  see  her. 
Some  time  after  that  a  lady  called 
when  Judge  Holt  had  gone  to  Wil- 
lard  Hall  to  see  a  doctor,  and  when 
Judge  Holt  came  back  he  said  it  was 
Miss  Josie  Throckmorton." 

"  Did  Judge  Holt  ever  give  you 
any  instructions  regarding  the  family 
besides  the  elder  Mrs.  Throck- 
morton ?" 

"Yes;  he  said  he  didn't  want  to 
see  any  of  them ;  they  were  all 
enemies  of  his." 

Witness,  in  response  to  questions, 
said  Miss  Lizzie  Hynes,  the  other 
heiress  under  the  will,  hafl  frequently 
visitefl  Judge  Holt's  house,  once 
with   Mrs.    Ray,   and   that   the   re- 


No.  390. 


THROCKMORTON   V.    HOLT 


919 


lations  between  them  were  very 
cordial.  She  had  never  seen  Luke 
Devhn,  the  person  named  as  execu- 
tor in  the  alleged  will.  Judge  Holt's 
nephew,  Washington  Holt,  and  his 
wife  and  daughters  also  frequently 
visited  the  house,  and  the  mosi 
cordial  relations  had  always  existed. 
Judge  Holt  could  not  have  treated 
the  daughters  any  better  if  they 
had  been  his  own  children.  He 
always  greeted  them  most  heartily 
when  they  arrived  and  showed 
evidences  of  grief  when  they  went 
away. 

Judge  Holt  had  always  told  wit- 
ness that  if  anything  happened  to 
him,  she  was  to  at  once  telegraph 
Washington  Holt,  whose  address 
he  gave  her  on  a  card.  In  response 
to  Mr.  Worthington's  question  the 
witness  said  that  once  when  Miss 
3Iary  Holt  was  visiting  this  city  and 
was  not  stopping  at  Judge  Holt's 
house,  she  used  to  call  to  see  him 
about  every  other  day  and  remain 
as  long  as  two  hours.  At  the  time 
of  one  of  these  visits  she  was  caught 
in  a  rainstorm  with  no  wraps  or 
overshoes,  and  Judge  Holt  was  so 
much  worried  that  he  sent  witness  to 
where  Miss  Holt  was  stopping  to 
find  out  whether  she  had  reached 
home  safely  without  taking  cold. 
The  members  of  Washington  Holt's 
family  were  equally  affectionate  in 
their  treatment  of  Judge  Holt. 
Witness  had  also  seen  Mrs.  Iglehart 
at  Judge  Holt's  house,  and  the 
Sterett  family  had  begun  to  come 
there  as  soon  as  they  moved  to 
this  city.  Among  all  of  them  the 
most  friendly  and  cordial  relations 
existed. 

]\Ir.  Worthington's  examination 
took  a  mysterious  turn  at  this  point 
and  gave  the  audience  reason  to 
hope  for  sensational  developments, 
which,  however,  di:l  not  materialize 
yesterday. 

"Where  did  Judge  Holt  do  his 
writing?"     "In  his  room." 

"  Do  you  know  how  many  ink- 
stands he  had  on  his  desk  ?  "     "  Only 


"What  color  was  the  ink?" 
"Black." 

"  Did  he  do  his  own  writing  up 
to  the  last  ?  "  "  No,  he  had  one  of 
the  servants  do  it  after  his  eves  got 
bad." 

Witness  then  testified  to  the  fact 
that  at  the  time  of  the  fall  which 
resulted  in  Judge  Holt's  death  she 
was  away  on  a  vacation.  The 
fall  was  on  a  Wednesday  and  she 
returned  in  response  to  a  sum- 
mons. Judge  Holt  died  on  Satur- 
day. Judge  Holt  had  told  her  often 
to  take  charge  of  his  watch  and 
bunch  of  keys  as  soon  as  he  died, 
and  keep  them  imtil  the  arrival  of 
Washington  Holt,  for  whom  she 
was  to  telegraph  immediately,  as 
his  business  was  all  in  W^ashington 
Holt's  nands.  One  day  in  the 
month  of  May  before  his  death 
he  rang  the  bell  and  told  her  to  go 
upstairs  and  see  if  a  flag  in  a  certain 
trunk  was  moth-eaten.  He  said 
he  wanted  the  flag  wrapped  around 
his  body  after  death,  and  at  the 
same  time  told  witness  that  arrange- 
ments for  his  funeral  were  in  his  will, 
which  would  not  appear  until  after 
his  death.  Judge  Holt  had  often 
told  her  not  to  get  impatient  at 
being  obliged  to  wait  on  him  day 
and  night,  as  she  would  be  well 
rewarded  in  the  end. 

"  Do  you  remember  any  conversa- 
tion vou  had  with  him  about  a 
ladder?" 

"Yes,  he  always  used  to  lock  the 
door  on  the  inside,  and  he  said  that 
if  he  should  die  when  we  were  not  in 
the  room,  we  were  to  get  a  ladder  and 
get  in  his  window,  and  I  was  to 
secure  his  watch  and  bunch  of  keys 
and  keep  them  until  Washington 
Holt  arrived." 

"During  the  last  year  of  his  life 
do  you  recall  his  being  disturbed  at 
any  time  during  the  night,  and 
calling  for  the  servants?"  "No; 
except  when  he  was  sick  he  used  to 
ring  the  bell." 

"  What  keys  were  they  which  he 
kept  referring  to?"  "A  bunch  of 
keys  which  he  carried  in  his  pockets. 


920 


PART    III.       PROBLEMS    OF    PROOF 


No.  300. 


He  always  kept  the  closets  in  the 
lil)rary  and  his  desk  locked." 

"When  he  died,  who  got  those 
keys?"  "I  took  them  and  put 
them  in  my  trunk  and  gave  them 
to  Mr.  Washington  Holt  when  he 
arrived." 

"  Did  those  keys  ever  pass  out  of 
your  custody  before  that ;  or  did 
you  yourself  approach  the  closets  or 
desk  to  unlock  them?"     "No,  sir." 

"  Was  the  flag  wrapped  around  his 
body  as  he  requested  ?  "     "  Yes,  sir." 

"  Did  you  tell  his  relatives  that  he 
had  left  a  will  in  which  arrangements 
for  his  funeral  were  mentioned?" 
"  Yes  ;  I  told  Washington  Holt,  and 
gave  him  the  kej's  as  soon  as  he 
arrived.  They  searched  all  over  the 
house  for  the  will." 

On  being  questioned  further  as 
to  people  who  had  visited  the  house, 
witness  named  a  number  of  persons, 
and  also  told  about  Mrs.  Throck- 
morton having  sent  Judge  Holt  some 
strawberries  and  cream,  which  the 
Judge  had  promptly  sent  back. 
No  papers  had  been  burned  in  the 
house  after  the  death  except  some 
pamphlets.  She  saw  the  small  piece 
of  paper  which  Col.  Sterett's  little 
daughter  had  found,  and  had  a  copy 
of  it  made  which  she  sent  to  Wash- 
ington Holt. 

]\Ir.  Darlington  then  began  his 
cross-examination.  He  was  very 
particular  about  the  exact  location  of 
the  closets  in  Judge  Holt's  room, 
although  he  developed  nothing  im- 
portant. He  had  the  witness  go 
over  the  list  of  visitors  at  the  house 
again.  This  brought  Mrs.  Throck- 
morton up  again.  This  time  the 
witness  said  Mrs.  Throckmorton 
came  with  a  bunch  of  flowers,  but 
Judge  Holt  sent  word  that  he  did 
not  want  them  ;  that  he  had  flowers 
in  his  own  yard.  The  cross-examina- 
tion brought  out  no  new  features. 
Mr.  Darlington,  too,  a.sked  the 
witness  whether  at  any  time  there 
had  been  vmusual  noises  in  Judge 
Holt's  room  on  any  night,  but  the 
witness  could  not  remember  any. 
He  also  brought  up  the  ladder  inci- 


dent, and  wanted  to  know  whether  at 
Judge  Holt's  death  they  had  to  get 
into  his  room  by  means  of  a  ladder. 
The  witness  replied  that  they  had 
not.  During  the  closing  days  of  the 
Judge's  illness  she  had  remained  in 
the  room  nearly  all  the  time,  and 
at  his  request  had  kept  the  door 
locked.  Before  that  he  used  to 
lock  the  door  himself. 

Wednesday,  May  27. 

There  was  the  usual  large  audience 
a.ssembled  when  Mr.  Darlington 
resumed  his  cross-examination  of 
the  colored  servant,  Martha  Scott. 
After  questioning  her  as  to  her  duties 
at  Judge  Holt's  house  and  her 
whereabouts  both  before  and  since 
her  residence  there,  Mr.  Darlington 
recurred  to  her  statement  that 
Judge  Holt  had  issued  orders  that 
he  would  not  receive  members  of 
the  Throckmorton  family,  and 
asked  : 

"  Did  he  not  decline  to  see  other 
persons  besides  the  Throckmor- 
tons  ?"  "Oh,  yes;  sometimes  when 
he  was  not  feeling  well  he  would 
not  see  his  best  friends." 

Mr.  Darlington  then  questioned 
the  witness  closely  as  to  the  ^•isits 
of  Miss  Throckmorton,  and  in 
connection  with  one  of  her  visits, 
said  : 

"How  did  you  know  that  Maj. 
Throckmorton  was  in  trouble  at 
the  time  of  one  of  her  calls,  as  you 
say  ? "  "  The  Judge  said  so  after^ 
ward." 

"Now,  did  you  e\'er  hear  him  say 
Mrs.  Throckmorton  was  his  enemy  ?" 
"Yes,  sir;  I  don't  know  how  many 
times.  He  said  they  bedeviled  him 
and  he  didn't  want  to  see  them." 

"Did  you  ever  hear  him  speak 
unkindly  of  Miss  Throckmorton?" 
"No,  sir." 

"You  never  saw  him  kiss  her?" 
"Oh,  no,  sir,"  replied  the  witness  in 
a  surprised  tone,  amid  a  general 
titter,  while  Miss  Throckmorton 
blushed  a  trifle. 

Replying  to  further  questioning 
concerning  events  about  the  time 
of    Judge     Holt's     death,     witness 


No.  390. 


THROCKMORTON   V.    HOLT 


921 


testified  that  the  Throckmorton  s 
were  the  only  people  that  Judge  Holt 
had  given  a  general  order  not  to 
admit.  She  had  never  heard  Judge 
Holt  say  he  Avould  not  allow  Mr. 
Sterett  in  his  room.  Mr.  Sterett 
had  said  his  wife  wanted  to  come  and 
stay  with  the  Judge  constantly,  but 
the  latter  had  said  he  did  not  want 
her  all  the  time.  Judge  Holt,  she 
stated,  was  a  most  methodical  man, 
and  when  he  sent  her  to  either  of  the 
closets  for  anything  he  was  always 
able  to  tell  her  exactly  where  to  find  it. 
He  had  never  sent  her  for  papers  of 
any  sort.  Asked  concerning  the 
fimeral  of  Judge  Holt,  witness  said 
she  did  not  remember  that  any  person 
who  was  present  had  to  go  back  to 
his  house  and  put  on  his  ministerial 
robes,  because  no  minister  had 
been  provided. 

Mr.  Darlington  then  came  back 
to  the  visits  of  Miss  Throckmorton, 
and  it  appeared  that  the  witness  had 
become  somewhat  confused  con- 
cerning her  last  call.  "A  week  or 
two  before  that,"  she  said,  "a 
young  woman  who  was  disguised 
called  on  the  Judge.  She  wore  an 
old  waterproof,  an  old  lady's  bonnet, 
and  a  thick  veil.  She  did  not  ring 
the  bell,  but  knocked  at  the  front 
door.  She  told  me  Judge  Holt 
used  to  know  her  when  she  was  a 
child,  and  when  I  told  her  he  was 
out  she  stepped  into  the  parlor  and 
waited  an  hour  and  a  half.  I 
watched  her  close,  because  I  thought 
it  was  queer,  but  she  kept  her  veil 
on  all  the  time,  and  I  only  saw  as 
far  as  her  nose  as  she  was  leaving. 
The  next  time  a  young  lady  called 
who  looked  something  like  the  one 
that  was  disguised  I  asked  her  if 
she  was  not  Mrs.  Throckmorton's 
granddaughter.  She  said  she  was 
not,  but  she  would  not  give  her 
name." 

Replying  to  Mr.  Darlington,  the 
witness  said  she  did  not  know  Ann 
Tully,  who  used  to  be  Miss  Throck- 
morton's maid.  Mr.  Worth ington 
then  proceeded  to  reexamine  the 
witness,    asking    her    whether    she 


knew  Luke  Devlin.  The  witness 
had  testified  on  Tuesday  that  she 
did  not,  but  yesterday  Devlin  was 
in  court,  and  as  Mr.  Worthington 
pointed  to  him  and  asked  the  witness 
whether  she  had  ever  seen  him,  he 
stood  up,  and  the  witness  answered 
that  she  had  not.  She  added  that 
she  had  never  refused  him  admission 
at  Judge  Holt's  house,  although  he 
might  have  called  there  without 
her  knowing  it. 

Mr.  Worthington  also  brought  out 
the  additional  fact  that  the  elder 
Mrs.  Throckmorton  called  at  the 
house  after  Judge  Holt's  death  and 
asked  to  see  the  body.  "I  wouldn't 
let  her  in,"  said  the  witness,  "  and  I 
told  her  Judge  Holt  had  never 
wanted  to  see  her  when  he  was 
alive,  so  I  was  not  going  to  take  the 
responsibility  of  letting  her  see  him 
without  the  consent  of  his  relatives." 

Dr.  F.  R.  Frazier,  of  Philadelphia, 
a  professor  of  chemistry  and  a 
well-known  expert  on  handwriting, 
was  then  called.  His  testimony 
occupied  the  rest  of  the  day,  and 
was  mainly  technical.  He  had  been 
professor  of  chemistry  in  the  Uni- 
versity of  Pennsylvania  and  for 
twelve  years  professor  of  chemistry 
in  Franklin  Institute.  He  began 
investigating  the  question  of  dis- 
puted documents  in  1878  in  the 
Whittaker  will  case,  and  the  f'llow- 
ing  year  took  up  the  application  of 
composite  photography  to  the  study 
of  documents.  He  had  written  a 
number  of  pamphlets  on  the  sub- 
jects. ... 

Dr.  Frazier  stated  that  he  had  had 
in  his  custody  certain  letters  written 
by  Judge  Holt  to  his  niece,  Mrs. 
Iglehart,  and  had  made  the  most  care- 
ful comparisons  between  them  and 
the  disputed  will.  He  proceeded  to 
tell  all  about  these  comparisons,  and 
nobody  who  heard  him  will  dispute 
the  assertion  that  they  were  thorough 
and  in  detail.  He  stated  that  he 
had  taken  certain  lengths  between 
salient  points  in  twenty-four  signa- 
tures, and  measured  them  for  com- 
parison  with    the  signature  to    the 


922 


PART   III.       PROBLEMS   OF   PROOF 


No.  390. 


alleged  will.  The  results  he  had 
tabulated  on  a  large  sheet  of  paper, 
which  he  subsequently  read,  and  the 
measurements  emliraced  apparently 
every  possible  point  of  distinction. 

The  witness  answered  .some  pre- 
liminary questions  by  Mr.  Darling- 
ton, which  threw  some  light  upon 
his  method  of  procedure. 

"In  simulating  writing,"  he  said, 
"the  pictorial  effect  appeals  at  once 
to  the  eye,  and  if  a  person  is  ex- 
perienced, he  can  make  a  very  good 
imitation  which,  to  the  general  eye, 
would  seem  a  good  reproduction  of  a 
signature.  Consequently  the  points 
on  which  to  test  the  genuineness  of 
a  signature  are  not  open  to  the  eye 
and  cannot  be  easily  seen." 

A  full  description  of  the  method 
of  taking  composite  photographs 
of  a  number  of  similar  objects  was 
then  given  for  the  benefit  of  the  jury. 
Dr.  Frazier  explaining  that  he  had  so 
photographed  the  twenty-four  sig- 
natures to  Judge  Holt's  letters. 

By  the  time  the  witness  had 
finished  his  description  of  the 
method  of  taking  composite  photo- 
graphs, which  method  he  had  ap- 
plied to  handwriting,  a  recess  was 
taken,  anil  when  court  reconvened, 
he  began  to  give  the  results  of  his 
work.  The  average  length  from 
the  stem  of  the  "J"  to  the  stem  of 
tJie  "t,"  in  the  twenty-four  signa- 
tures to  the  letter,  he  found  to  be 
seventeen  and  five  tenths  milli- 
meters. In  the  composite  photo- 
graph of  these  twenty-four  signa- 
tures the  distance  was  seventeen 
millimeters,  while  the  distance  in 
the  signature  to  the  alleged  will  was 
.seventeen  and  five  tenths  millimeters. 
He  gave  at  great  length  the  results 
of  other  measurements,  in  some  of 
which  the  flifTerences  were  almost 
imperceptible,  while  in  others  they 
were  considerable.  While  all  this 
was  going  on  Judge  Bradley  closed 
his  eyes  and  apparently  took  more 
than  forty  winks,  while  the  specta- 
tors yawned,  and  some  of  them  took 
their  departure.   .   .   . 

When  all  the  measurements  had 


been  gone  over,  Mr.  Worth ington 
asked  :  "  Now,  from  these  measure- 
ments which  you  have  made  of 
different  parts  and  angles  of  these 
twenty-four  signatures  and  of  the 
signature  to  the  disputed  will,  what 
do  you  say  as  to  whetlier  or  not 
the  hand  which  wrote  these  twenty- 
four  signatures  wrote  the  signature  to 
the  disputed  document?"  A.  "I 
believe  that  the  signature  to  the  docu- 
ment is  not  by  the  hand  which  WTote 
the  twenty-four  signatures  to  the  let- 
ters of  Judge  Holt." 

Q.  "Why?"  A.  "I  believe  it  be- 
cause, although  the  resemblance  in 
measurement  was  great  in  such 
portions  as  could  be  determined  by 
the  eye,  in  those  parts  which  could 
not  be  easily  determined  by  the 
eye  the  differences  are  greater  than 
I  have  hitherto  found  compatible 
with  genuineness  of  a  document." 

"  In  your  experience  what  have 
you  foimd  to  be  the  value  of  such 
comparisons  as  you  have  made  of 
things  not  to  be  seen  by  the  eye  ?" 

"In  the  few  cases  in  which  the 
matter  has  b?en  placed  beyond  all 
dispute  by  the  final  determining 
with  certainty  of  the  case,  I  have 
found  in  all  cases  that  I  can  recall 
where  such  comparison  was  made 
that  the  characteristics  observed  of 
ratio  and  angles  which  are  not  visible 
to  the  e\'e  are  those  which  remain 
most  constant,  and  I  may  say  that 
the  same  thing  is  true  in  regard  to 
changes  in  the  handwriting  of  a 
man  from  youth  to  old  age,  or 
from  sickness  to  health." 

Dr.  Frazier  testified  to  various 
general  differences  which  he  had 
obser\ed  in  the  writing  in  the  will 
and  the  authenticated  writing  of 
Judge  Holt.  He  then  said,  referring 
to  the  will :  "  In  my  opinion  the 
pen  M'^hich  wrote  this  document  was 
a  steel  pen,  held  in  .such  manner  that 
the  hollow  of  the  pen  was  inclined  to 
the  right  rather  than  toward  the 
person  ;  that  the  stroke  was  heavy 
and  the  pen  under  greater  cimtrol 
than  in  the  case  of  the  undisputed 
writings  of  Judge  Holt." 


No.  390. 


THROCKMORTON    l\    HOLT 


923 


Mr.  Worthington  asked  whether 
in  the  opinion  of  the  witness  the 
body  of  the  will  was  written  by  the 
same  hand  as  that  which  wrote  the 
letters,  and  the  reply  was:  A.  "I 
believe  that  the  body  of  the  alleged 
will  was  not  written  by  the  hand 
which  wrote  the  genuine  letters.  I 
have  personally  no  doubt  about 
it." 

The  cross-examination  was  under- 
taken by  Gen.  Butterworth. 

Quite  a  lengthy  discussion  resulted 
as  to  the  statement  of  the  witness 
that  the  will  was  in  two  fragments 
when  he  first  saw  it,  and  Gen. 
Butterworth  tried  to  get  his  opinion 
as  to  whether  it  had  been  cut  or 
worn  into  two  pieces,  calling  his 
attention  to  a  letter  J  which  crossed 
the  line  of  separation.  Witness 
said  the  J  could  not  have  been  more 
perfect  if  it  had  been  written  when 
the  paper  was  whole.  In  reply 
to  a  direct  question  as  to  whether 
the  document  coidd  possibly  have 
been  prepared  on  two  separate 
pieces  of  paper,  he  replied  : 

"  I  can  only  say  that  I  believe  it 
to  be  possible  that  this  was, done. 
The  fact  that  the  tail  of  the  J  crosses 
the  line  is  strong  evidence  that 
it  was  not  done,  but  the  fact  that 
the  ink  stains  extend  below  the 
line  and  not  above  the  t  is  strong 
evidence  that  it  was."  He  went  on 
to  explain  that  there  was  slight 
evidence  of  stains  above  the  "t"  in 
Holt,  but  it  seemed  to  be  too  high  to 
have  come  from  the  ink  in  the  signa- 
ture. 

Gen.  Butterworth  wanted  to  know 
whether  scorching-  the  paper  would 
not  have  had  a  tendency  to  make  it 
break,  particularly  upon  folding  it, 
and  the  witness  replied  that  the 
paper  would  probably  have  broken, 
but  not  in  so  straight  a  line.  Judge 
Bradley  asked  whether  his  micro- 
scopical examination  had  disclosed 
whether  the  paper  was  cut  or  worn 
in  two,  but  witness  was  not  able  to 
answer  positively.  He  said  it  looked 
to  him  too  smooth  for  a  break,  and 
proceeded  to  examine  it  again  under 


the  microscope,  but  without  further 
developments. 

The  witness  rather  resented  some 
of  Mr.  Butterworth's  questions,  and 
said  very  emphatically  that  it  was 
not  his  desire  to  make  Judge  Holt's 
signature  out  to  be  twenty-three 
millimeters  long  when  it  was  only 
twenty-two ;  that  he  didn't  care  a 
straw  which  side  won  the  case,  and 
only  wanted  to  present  the  facts  as 
he  found  them. 

"Then   you    would    be   surprised 
to   find   another  expert  going  over 
the  same  ground  and  differing  with 
you  entirely?"     A.    "Not  at  all." 
Thursday,  May  28. 

When  the  case  was  resumed 
yesterday  morning  Gen.  Butter- 
worth continued  his  cross-examina- 
tion of  Dr.  Frazicr,  and  tried  hard  to 
upset  all  his  scientific  theories  and 
explanations  by  a  series  of  questions. 
Time  and  time  again  he  seemed  to 
have  the  witness  concerned,  but 
every  time  the  latter  came  up 
smiling  with  a  new  theory,  opening 
up  still  another  broad  field  for 
scientific  investigation.  Nobody 
understood  what  was  going  on, 
with  the  possible  exception  of  the 
witness,  but  Gen.  Butterworth  stood 
his  ground,  and  looked  wise  until  the 
last  moment. 

At  one  time,  after  propounding  a 
question  to  which  the  suave  witness 
replied  in  the  negative.  Gen.  Butter- 
worth ventured  the  remark : 

"  But  that  is  certainly  the  logic  of 
your  position."  "  I  beg  your  pardon, 
but  it  is  neither  logic  nor  is  it  my 
position."  And  then  came  another 
theory  which  made  the  preceding 
ones  appear  like  simple  addition. 

The  cjuestion  whether  the  will  was 
written  on  two  separate  and  distinct 
pieces  of  paper  was  brought  up 
again,  and  after  it  had  been  dis- 
cussed at  considerable  length  again, 
Judge  Bradley  asked  the  witness : 

"I  wish  you  would  state,  from 
your  examination  of  the  line  between 
the  upper  and  lower  sections  of  the 
paper,  whether  the  paper  was  sepa- 
rated before  it  was  pasted  on  the 


924 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


hacking  or  otherwise."  "I  heheve 
there  were  two  pieces  before  it  was 
pa.sted  on  the  backing." 

"  Have  you  any  reasons  for  this 
statement?"  asked  Gen.  Butter- 
worth. 

Had  he  ?  Well  does  Gen.  Butter- 
worth  know  it  now.  He  had  fifty, 
and  every  one  of  them  involved 
fifty  minor  ones.  They  all  hinged 
on  the  fibers  of  the  paper,  which 
did  not  seem  to  interlock.  There 
were  all  sorts  of  theories  about  the 
effect  of  moisture,  and  heat,  and 
paste,  and  folding,  and  handling 
upon  these  fibers,  and  after  going 
over  them  the  witness  looked  calmly 
at  Gen.  Butterworth  as  if  to  bid 
him  bring  on  his  next  interrogation. 

The  General  mildly  suggested 
some  slight  possible'  discrepancy, 
and  after  disposing  of  it  in  about 
three  columns  of  agate,  Dr.  Frazier 
added  : 

"  I  will  just  state  one  thing 
which  I  think  will  explain  what  you 
are  trying  to  get  at."  "  But  I 
know  what  I  am  trying  to  get  at," 
gasped  Gen.  Butterworth  in  frantic 
despair. 

Tlien  followed  a  long  argument, 
in  which  Judge  Bradley  took  a  hand, 
as  to  whether  Judge  Bradley  meant 
that  paste  was  to  be  "put"  on  the 
paper  or  "dropped"  on  it,  and  when 
it  was  finally  straightened  out, 
Gen.  Butterworth  groaned  :  "That's 
all,  doctor,"  and  sank  helplessly  into 
a   chair  as  the  court  took  a  recess. 

Mr.  Worthington  brought  up  the 
deposition  of  Robert  S.  Ilolt,  a 
nephew  of  Judge  Holt,  after  recess, 
and  read  such  portions  as  were  not 
touched  upon  when  it  was  first 
presented.  Deponent  related  all  his 
personal  history,  and  told  how  he 
began  to  correspond  with  Judge 
Holt.  He  hafl  at  first  felt  a  trifle 
bitter  toward  him  for  allowing  feel- 
ings concerning  the  Civil  War  to 
interfere  with  his  regard  for  the 
nine  children  of  his  l)rother,  but 
felt  more  kindly  disposed  toward 
him  after  they  began  to  correspond. 
He  had  no  reason  to  cultivate  his 


uncle's  friendship,  and  the  latter 
made  all  the  advances.  Replying 
to  cross  interrogatories,  deponent 
stated  that  in  1S73  he  was  a  boy  liv- 
ing at  Evansville,  Indiana,  and  had 
never  met  his  uncle.  He  felt  that 
if  his  uncle's  indifference  grew  out 
of  his  feelings  over  the  war,  he  had 
no  concessions  to  make  himself. 
He  had  always  felt  that  his  mother 
shovdd  ha\e  received  counsel  and 
advice  from  her  husband's  brother, 
being  left  a  widow  with  nine  chil- 
dren, eight  of  them  under  twenty- 
one.  Deponent  had  always  been 
entirely  able  to  take  care  of  himself, 
and  while  he  may  have  written  to 
his  uncle  regarding  his  material 
welfare,  it  was  with  no  idea  of 
receiving  assistance,  as  there  would 
never  ha^■e  l)een  any  excuse  for  its 
being  offered.  If  any  such  inter- 
pretation was  put  on  any  of  his 
letters,  it  was  unjust  and  im- 
proper. 

After  the  reading  of  the  deposition 
George  H.  Johnson,  a  negro.  Secre- 
tary Carlisle's  butler,  and  apparently 
the  product  of  the  "old  school" 
himself,  was  called.  He  was  coach- 
man and  general  servant  at  the  Holt 
residence  from  1878  until  1884. 
His  testimony  gave  a  slight  hint  as 
to  the  difficulty  between  Judge  Holt 
and  Mrs.  Throckmorton,  the  elder. 
He  knew  Mrs.  Throckmorton,  and 
until  about  1880  Judge  Holt,  he  said, 
used  to  go  and  see  her,  but  about 
that  time  they  had  a  falling  out. 

Q.  "  Did  it  have  any  relation  to  a 
visit  Jiidge  Holt  ma<le  away  from 
home?"  asked  Mr.  Worthington. 

A.  "Yes;  he  had  been  away  in 
Kentucky,  and  when  he  came  back 
he  went  over  to  ,see  Mrs.  Throck- 
morton. When  he  came  back  he 
asked  me  if  I  had  been  waiting  on 
Mrs.  Throckmorton  during  his  ab- 
sence. I  told  him  yes,  and  he  said, 
'Well,  I  never  want  you  to  wait  on 
her  any  more,  and  never  do  I  want 
you  to  allow  her  to  come  on  my 
premises.'" 

Q.  "Was  he  in  his  ordinary  frame 
of  mind?"     A.    "He  wasn't  a  man 


No.  390. 


THROCKMORTON   V.    HOLT 


925 


to  be  out  of  his  mind,  but  he  seemed 
to  be  quite  angry." 

The  witness  explained  that  (hiring 
Judge  Holt's  absence  from  home 
Mrs.  Throckmorton  used  to  have 
the  use  of  the  carriage.  Mrs. 
Throckmorton  used  to  call  at  the 
house  afterward,  but  Judge  Holt 
would  never  see  her. 

The  witness  knew  i\Iaj.  Throck- 
morton by  sight,  but  did  not  know 
his  wife.  He  saw  the  Major  at 
the  house  once  after  the  difficulty 
between  the  Judge  and  Mrs.  Throck- 
morton. He  had  also  seen  Miss  Josie 
Throckmorton  and  her  brother  at  the 
house  when  she  was  quite  small  and 
about  a  year  after  the  quarrel. 

Q.  "What  happened  when  they 
came  to  see  the  Judge  ?  " 

A.  "I  went  up  and  told  him  they 
were  there,  and  he  told  me  to  tell 
them  to  get  away  from  there,  that 
he  would  not  see  them.  When  I  told 
them  what  he  said  they  would 
sometimes  play  around  the  house  for 
two  hours  afterward.  Judge  Holt 
told  me  afterward  that  they  were 
enemies  of  his  and  he  didn't  want  to 
see  any  of  them." 

The  witness  stated  that  Mrs. 
Throckmorton  used  to  come  about 
once  a  week  after  the  trial  for  six  or 
eight  months,  and  after  that  only 
once  in  a  while.  The  rest  of  his 
testimony  was  practically  the  same 
as  that  given  by  Martha  Scott.  He 
knew  Miss  Hynes,  Washington  Holt 
and  his  family,  and  Mrs.  Iglehart. 
They  had  all  stopped  at  Judge  Holt's 
house  and  were  treated  with  every 
possible  consideration.  He  had 
never  seen  or  heard  of  Luke  Devlin. 
Judge  Holt  used  to  visit  his  nephew, 
Washington  Holt,  and  when  his 
relatives  visited  him  he  took  his 
meals  with  them  in  the  dining  room, 
though  at  other  times  he  took  them 
in  his  bedroom.  He  also  knew  ]\Irs. 
Briggs.  He  had  driven  her  and 
Judge  Holt  to  the  White  House  once 
while  Mr.  Arthur  was  President. 

Mr.  Darlington  subjected  the 
witness  to  a  rigid  cross-examination, 
drying  hard  to  ascertain  the  dates 


of  the  different  events  which  the  old 
servant  testified  to,  but  without 
success.  He  could  only  trace  one 
event  from  its  connection  with 
another,  and  nothing  could  shake 
him.  Mr.  Hayes  was  present  when 
he  first  went  to  work  for  Judge  Holt, 
and  he  used  to  drive  the  Judge 
around  to  see  Mrs.  Briggs. 

Mr.  Darlington  proceeded  to  ques- 
tion Johnson  about  an  alleged  inter- 
view he  had  with  a  reporter  in 
Franklin  Square. 

Q.  "  Didn't  you  tell  this  reporter 
that  Judge  Holt  had  found  out 
while  he  was  in  Kentucky  that  Mrs. 
Throckmorton  had  abused  Mrs. 
Washington  Holt?"  A.  "I  told 
him  it  was  reported  that  was  the 
case." 

Q.  "  How  did  you  find  that  out  ?  " 
A.    "At  the  house." 

Q.  "In  this  Franklin  Park  inter- 
view did  you  not  say  that  the  Judge 
had  said  that  not  a  dollar  of  his 
money  should  go  to  any  of  his 
people  who  had  abused  him  for 
his  loyalty  in  the  war?"  A.  "No, 
sir ;  I  don't  remember  Judge  Holt 
making  such  a  remark." 

Q.  "Did  you  tell  the  reporter 
that  you  did  not  know  of  any  heirs 
except  Washington  Holt?"  A. 
"  Yes,  sir  ;  I  had  never  heard  of  any 
others." 

He  went  on  to  state  that  he  did 
not  tell  a  reporter  that  he  knew 
something  would  be  left  to  Miss 
H;vniPS,  and  that  he  first  knew  of  the 
Sterett  family  during  the  latter  part 
of  Judge  Holt's  life. 

0.  "After  the  Judge's  death  how 
long  was  it  before  the  Holt  heirs  got 
into  communication  with  you?" 
A.  "I  never  heard  or  saw  anything 
of  them  until  about  two  weeks  ago." 

Q.  "  Did  you  tell  the  reporter 
thev  were  surprised  not  to  find  a 
will?"     A.    "Yes." 

Johnson  denied  having  said  that 
the  house  had  been  ransacked  by 
any  one,  however.  He  did  not 
remember  having  had  a  conversation 
with  a  Post  reporter,  and  did  not 
remember  saying  that  he  was  sent 


926 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


for  by  Mrs.  AVashington  Holt,  who 
expressed  surprise  at  not  findinji;  a 
will.  This  concluded  the  cross- 
examination,  and  in  response  to  Mr. 
Worthington  witness  said  that  while 
Mrs.  Washington  Holt  was  ill  at 
Judge  Holt's  house  he  had  taken 
money  to  the  physician  who  at- 
tended her,  and  that  the  money 
came  from  Judge  Holt. 

Another  of  Judge  Holt's  servants, 
F.Uin  Foster,  an  elderly  colored 
woman,  concluded  the  testimony  for 
the  day.  She  was  in  his  employ 
from  1881  until  the  -  time  of  his 
death.  Her  testimony  was  the  same 
as  that  given  by  the  other  servants, 
differing  only  in  detail.  She  told 
of  the  elder  Mrs.  Throckmorton's 
visits  to  the  house,  and  stated 
that  upon  one  occasion  she  had 
got  into  trouble  for  letting  her 
in. 

Q.  "  Will  you  tell  us  whether  Mrs. 
Throckmorton  ever  saw  Judge  Holt 
when  she  called?"  asked  Mr. 
Worthington.  A.  "No,  he  told  me 
several  times  not  to  bring  her  name 
to  him  any  more,  but  I  always 
carried  it." 

The  witness  did  not  know  Maj. 
Throckmorton  and  failed  to  recog- 
nize him  when  he  stood  up  in  court. 
She  remembered  Miss  Throckmor- 
ton's visits  and  repeated  the  story 
of  her  visit  there  when  Judge  Holt 
refused  to  see  her.  After  Martha 
Scott  had  brought  the  message  back 
Miss  Throckmorton  had  asked  the 
witness  to  go  to  Judge  Holt  and  tell 
him  she  only  wanted  to  see  him 
five  niinutes,  and  he  had  then 
consented  to  see  her.  ]\Iiss  Throck- 
morton looked  distracted  and  when 
she  came  down  she  looked  as  if 
she  had  been  crying.  The  witness 
had  hearfl  that  it  was  some  trouble 
about  her  father. 

The  story  of  the  veiled  lady  was 
also  told  by  the  witness,  l)ut  she 
threw  no  more  light  on  her  identity, 
than  did  Martha  Scf>tt.  She  also 
knew  Washington  Holt  and  his 
family,  Miss  Hynes,  Mrs.  Iglehart, 
and  the  Steretts,  who  were  all  well 


treated  when  they  visited  Judge 
Holt's  house,  but  Luke  Devlin  still 
remained  imidentified  and  unheard 
of.  She  stated  that  Judge  Holt 
was  very  much  worried  at  the  time 
Washington  Holt  received  his  second 
stroke  of  paralysis,  but  he  had 
remarked  that  the  family  was  well 
provided  for.  Col.  Sterett,  she  said, 
used  to  come  into  the  house  without 
ringing  the  bell,  walking  through 
the  kitchen.  She  used  to  see 
him  and  Judge  Holt  sitting  in  the 
yard  talking  and  laughing,  but 
whether  they  were  laughing  at 
Col.  Sterett's  jokes  or  Judge  Holt's 
she  did  not  know. 

The  direct  examination  of  the 
witness  had  not  been  concluded 
when  the  case  was  adjourned  until 
Monday  morning,  owing  to  the  fact 
that  Saturday  is  a  holiday.  Judge 
Bradley  cautioned  the  jury  not  to 
discuss  the  case  or  to  permit  others 
to  discuss  it  in  their  presence. 

Monday,  June  1. 

Unless  the  jury  in  the  Holt  will 
case  are  the  most  skeptical  twelve 
men  on  the  face  of  the  earth  they 
must  be  pretty  well  convinced  by 
this  time  that  Judge  Holt  enter- 
tained the  most  affectionate  regard 
for  his  relatives  from  about  the  time 
he  is  supposed  to  have  made  the 
mysterious  will  disinheriting  them 
one  and  all  up  to  the  hour  of  his 
death.  There  is  not  a  shadow  of 
doubt  about  it  in  the  minds  of  any 
of  the  spectators  who  have  been 
watching  the  progress  of  the  trial, 
because,  outside  of  the  testimony  of 
Dr.  Frazier,  the  expert  in  hand- 
writing, the  entire  efforts  of  counsel 
for  the  heirs-at-law  ha\e  been 
directed  toward  proving  this  fact. 
A  dozen  witnesses  have  sworn  to  it, 
anfl  scores  of  letters  written  by 
Judge  Holt  to  his  nephews  and 
nieces  and  their  children  have  been 
read,  all  breathing  love  and  affection. 
In  fact,  from  tlie  tone  of  these 
letters  it  would  appear  that  the  old 
gentleman  devoted  the  greater  part 
of  his  life  during  the  later  years  to 
making  his  relatives  happy. 


No.  390. 


THROCKMORTON    V.    HOLT 


927 


The  examination  of  Ellen  Fos- 
ter, who  was  one  of  Judge  Holt's 
servants,  was  conchided  yesterchiy. 
Ellen  Foster  went  over  in  detail  the 
same  old  story  regarding  the  visits  of 
Judge  Holt  to  Kentucky,  the  visits 
of  the  family  of  Washington  Holt 
to  this  city,  and  of  the  alTectionate 
relations  existing  between  Judge 
Holt  and  his  family.  She  remem- 
bered the  finding  of  the  piece  of 
paper  i)y  Willie  Sterett  containing 
the  words  :  "  date  of  will,  January  1 , 
ISSb,"  and  the  name  Iloundtree. 
She  had  never  heard  of  any  one  by 
that  name,  and  had  never  seen  the 
alleged  will. 

Mr.  Darlington  cross-examined 
the  witness,  questioning  her  par- 
ticularly regarding  the  people  who 
were  admitted  to  Judge  Holt's  room 
during  his  final  illness.  Nothing  of 
importance  was  developed,  how- 
ever She  stated  on  redirect  exam- 
ination that  from  what  she  saw 
she  was  sure  Judge  Holt  thought 
more  of  the  members  of  Washington 
Holt's  family  than  any  one  else  in 
the  Avorld.  He  had  special  cups  and 
saucers  reserved  for  them,  which  no- 
body else  was  permitted  to  use. 

Mrs.  Margaret  E.  Boivmer,  a 
daughter  of  Judge  Holt's  sister,  Mrs. 
William  Sterett,  and  sister  of  Col. 
Bill  Sterett,  was  next  called.  She 
had  known  Judge  Holt  since  she 
was  a  child,  as  he  frequently  visited 
at  her  mother's  house.  With  the 
exception  of  Judge  Holt  all  the  mem- 
bers of  her  family  were  Southern 
sympathizers  in  the  late  war.  No 
unpleasant  feelings  resulted,  how- 
ever. In  1S78  or  1879  she  had  a 
misunderstanding  with  Judge  Holt 
jmd  did  not  see  him  afterwards.  A 
number  of  letters  which  she  received 
from  Judge  Holt  prior  to  that  time 
were  introduced.  Mr.  Darlington 
lodged  an  objection,  but  it  was  over- 
ruled. The  letters  were  written 
in  an  affectionate  tone,  evincing  a 
tender  interest  in  all  the  members  of 
the  family.  Mrs.  Bowmer  stated 
that  in  1876,  while  on  her  way  to 
the  Centennial  celebration  she  had 


stopped  at  Judge  Holt's  house. 
Mr.  and  Mrs.  Washington  Holt  were 
in  the  party,  and  while  the  ladies 
stopped  at  Judge  Holt's  house  Mr. 
Holt  and  her  husband  stopped  at  a 
hotel.  She  was  shown  the  alleged 
will,  but  did  not  think  Judge  Holt 
wrote  it. 

On  cross-examination  the  witness 
was  asked  by  Mr.  Darlington  the 
cause  of  the  difference  between  her 
and  Judge  Holt,  and  she  replied  that 
it  was  owing  to  some  criticism  which 
he  understood  she  hafl  made  con- 
cerning him.  Mr.  Darlington  then 
produced  a  letter  in  Mrs.  Bowmer's 
handwriting  addressefl  to  Judge 
Holt,  and  dated  subsequent  to 
the  misunderstanding.  The  writer 
sought  a  reconciliation  with  Judge 
Holt,  but  in  response  to  a  question 
she  stated  that  she  had  received  no 
reply. 

The  next  witness  examined  was 
Miss  Mary  Holt,  a  daughter  of 
Washington  Holt.  She  was  born  in 
1871,  and  first  saw  Judge  Holt  in 
1876,  when  he  visited  her  father's 
house.  In  1879  she  came  to  Wash- 
ington with  her  parents,  and  stayed 
at  Judge  Holt's  house  for  several 
months.  She  felt  just  as  much  at 
home  here  as  she  did  in  her  own 
house.  Judge  Holt  frequently  took 
her  out  driving,  and  also  to  the 
theater.  He  gave  her  fruit  and 
candy  ;  in  fact,  he  never  went  out 
without  buying  her  something. 
She  visited  Judge  Holt  with  her 
parents  in  1881  and  1882.  While 
here  her  mother  was  too  ill  to  walk, 
and  was  carried  up  and  down  stairs 
every  day.  Dr.  Busey  attended 
her.  Again,  in  1886,  while  on  her 
way  to  Philadelphia  to  school,  she 
stopped  at  Judge  Holt's  house. 
He  was  ^■ery  kind  to  her,  and  told  her 
that  if  ever  she  wanted  money,  not 
to  write  to  her  parents,  but  to  ask 
him  for  it.  She  never  thought  of 
asking  him  for  money,  however. 
While  at  school  Judge  Holt  wrote  to 
her  about  every  two  weeks,  and 
she  spent  the  following  Christmas 
at  his  house  with  her  parents.     She 


928 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


saw  him  every  year  after  that,  but 
when  she  was  here  in  1893,  he  was 
very  ill,  and  she  did  not  stop  at  his 
house,  hut  visited  him  every  other 
day  at  10  o'clock,  remaining  until  1. 

Replying  to  Mr.  Wilson's  ques- 
tion, the  witness  said  Judge  Holt 
used  to  supply  her  with  what  money 
she  needed,  and  added  :  "  He  used 
to  beg  me  to  go  down  town  and  buy 
things  I  liked,  but  I  did  not  do  so 
until  he  insisted  on  my  buying  a 
ring  or  a  pin.  He  was  not  very 
much  pleased  with  it  because  he 
said  it  was  not  such  a  pin  as  he 
wanted  me  to  have ;  I  only  bought 
a  small  one." 

Q.  "  What  connection  did  he  have 
with  your  going  to  school?"  A. 
"Well,  Uncle  always  paid  my  school 
bills;  he  said  I  could  either  study 
here  or  in  Europe,  but  my  parents 
did  not  want  me  to  go  to  Europe." 

After  the  witness  had  stated  that 
Judge  Holt  had  visited  her  father's 
house  in  Kentucky  twice  a  year  as 
far  back  as  she  could  remember,  Mr. 
Wilson  asked  : 

Q.  "What  did  Judge  Holt  do  to 
beautify  the  place  when  he  came 
there  ? ''  A.  " Oh,  he  had  the  house 
built,  besides  summer  houses  and 
carriage  houses  and  other  things." 

Q.  "What,  if  anything,  did  he 
say  he  wanted  done  with  the  old 
homestead?"  A.  "I  heard  him 
say  many  times  that  he  never 
wanted  it  to  pass  out  of  the  family  ; 
that  it  was  the  only  place  he  loved, 
and  the  only  place  that  was  home  to 
him." 

The  witness  then  identified  a  num- 
ber of  letters  written  by  Judge  Holt 
to  her  father,  and  after  Mr.  Darling- 
ton's objection  had  been  overruled 
they  were  read.  One  of  them  in- 
closed a  draft  for  $50,  which  Judge 
Holt  asked  to  have  distributed 
among  the  .servants  as  his  Christmas 
present.  Another  contained  8200 
toward  a  monument  which  had  l)een 
erectefl  in  the  family  burying  ground. 

Judge  Holt's  letters  to  the  witness 
were  also  read.  She  was  only  a 
child  when   the  first  wei1»  written, 


and  they  were  such  letters  as  would 
interest  a  child,  telling  her  about  his 
cats  and  dogs,  and  about  his  pear 
tree,  which  was  loaded  with  fruit. 
In  one  he  told  her  she  ought  to 
clear  a  place  in  the  snow  every 
morning  and  feed  the  birds.  Later 
on  the  letters  were  in  a  more  serious 
tone,  congratulating  her  on  her  prog- 
ress at  school.  One  was  in  answer 
to  a  letter  in  which  the  witness  had 
told  him  about  a  heron  her  father 
had  shot,  and  over  which  the  Judge 
seemed  to  have  grieved.  He  said  : 
"  Do  not  you  think  it  would  have 
been  far  more  beautiful  skimming 
over  the  lake  or  wading  with  its 
long  legs  in  the  water,  than  lying 
bloody  and  dead  ?  Beg  your  father 
not  to  u.se  his  gun  tigain  in  that  way." 
In  still  another  he  referred  to  sending 
them  various  articles,  among  others 
a  brick  from  Mount  Vernon.  He 
added :  "  It  is  undoubtedly  an 
English  brick,  for  at  that  time 
bricks  were  not  made  in  this  coun- 
try." 

A  letter  he  wrote  to  her  upon  the 
occasion  of  her  visiting  Niagara 
asked  her  to  purchase  souvenirs  of 
the  visit  to  "the  value  of  the  in- 
closed bill." 

Q.  "  How  much  was  that  ?  "  asked 
Mr.  Worthington.  A.  "Twenty- 
five  dollars." 

There  was  a  general  titter,  and 
Gen.  Butterworth  made  notes  on  a 
tablet  in  front  of  him. 

Q.  "  He  sent  you  more  than  one 
bill,  then?"  suggested  Mr.  Worth- 
ington. A.  "Yes,  I  presume  he 
did." 

In  another  communication  he 
called  his  grandniece's  attention  to 
the  fact  that  while  her  composition 
and  spelling  was  generally  very 
accurate  in  her  last  letter  in  speaking 
of  "losing  tinM'"  she  had  spelled  the 
word  "loosing."  He  advised  her 
to  refer  to  the  dictionary  and  she 
would  find  that  the  two  words  were 
entirely  distinct.  He  also  called 
her  attention  to  the  fact  that  she 
spelled  "stopped"  with  only  one 
p.     Again,  he  said,  referring  to  the 


No.  390. 


THROCKMORTON   V.    HOLT 


929 


general  tone  of  the  letters  he  re- 
ceived :  "  I  have  a  great  fondness 
for  details ;  generalities,  however 
glittering,  do  not  satisfy  me." 

After  all  the  letters  to' Miss  Mary 
Holt  had  been  read  she  was  asked 
to  identify  a  big  batch  of  them  ad- 
dressed to  her  mother,  and  at  this 
proceeding  the  spectators  began  to 
depart,  leaving  those  interested  the 
only  occupants  of  the  court  room. 

The  various  lawyers  for  the  heirs- 
at-law  took  turns  at  reading  the 
letters,  hesitating  and  stumbling 
over  the  different  phrases  and  mak-- 
ing  the  operation  doubly  tedious, 
while  Gen.  Butterworth  engaged  him- 
self in  comparing  the  chirography  of 
the  will  with  that  of  some  of  Judge 
Holt's  letters.  The  letters  to  Mrs. 
Holt  began  in  1876,  and  were  af- 
fectionate in  tone  as  the  most  tender 
and  loving  father  could  have  written 
to  his  daughter.  The  writer  evinced 
the  deepest  interest  in  the  most 
trifling  details  concerning  her  wel- 
fare, and  seemed  particularly  con- 
cerned regarding  the  health  of  his 
niece.  A  reference  to  a  newl}^ 
painted  fence  was  rather  amusing. 
He  wanted  to  know  how  it  looked, 
and  added  :  "  If  it  gratified  you,  it 
seems  to  me  that  you  would  have 
been  likely  to  mention  it  in  order  that 
I  might  share  your  gratification." 
His  love  for  his  niece  was  forcibly 
illustrated  in  a  letter  which  he  wrote 
after  being  informed  of  her  improved 
health.  "My  heart  is  singing  a 
new  song,"  said  he,  "and  clapping 
its  hands.  Hallelujah  in  the  highest 
is  the  only  thing  that  will  express  it." 

About  this  time  Judge  Bradley 
asked  :  "  How  many  more  letters 
have  you  there?"  "About  twenty 
or  more." 

"  Do  you  propose  to  read  them 
all?"  "We  appreciate,  in  intro- 
ducing these  letters  to  show  the 
fc'eling  Judge  Holt  entertained  to- 
ward his  relatives,  the  embarrass- 
ments which  might  result  in  leaving 
portions  of  them  out,  but  we  do  not 
wish  to  consume  moie  time  than 
is  necessary." 


"There  is  a  great  deal  in  them," 
replied  Judge  liradley,  .  "  that  is 
neither  important  nor  interesting, 
and  I  think  you  might  read  the  pas- 
sages bearing  upon  the  subject, 
and  give  the  other  side  an  oppor- 
tunity to  look  them  over."  An 
adjournment  was  then  taken  until 
10  o'clock  this  morning. 

Tuesday,  June  2. 

Most  of  the  session  was  devoted 
to  corroborating  the  testimony  of 
previous  witnesses  concerning  the 
afl'ectionate  relations  existing  be- 
tween Judge  Holt  and  the  members 
of  the  family  of  his  nephew,  Washing- 
ton Holt.  It  is  possible  that  there 
may  be  a  few  more  people  in  the 
w^orld  who  were  aware  of  the  fact 
that  Judge  Holt  loved  his  nephew 
and  niece  and  grandnieces,  and  the 
utmost  confidence  is  reposed  in  the 
ability  of  counsel  for  the  heirs-at- 
law  to  ferret  them  out  and  place 
them  on  the  stand  to  give  the  same 
testimony  that  has  been  given 
before  at  least  a  score  of  times.  The 
reading  of  Judge  Holt's  letters 
occupied  all  of  the  morning  session. 

The  letters  were  those  written 
to  Mrs.  W^ashington  Holt  and  her 
husband,  and,  like  those  which  have 
preceded  them,  gave  quite  an  in- 
sight into  the  character  of  the 
writer.  In  one  of  them  he  said : 
"The  great  desire  of  my  life  is  that 
the  dear  old  place  shall  be  kept  in 
our  family  from  generation  to  genera- 
tion. I  hope  that  in  1911  you  will 
celebrate  the  centennial  of  the  settle- 
ment of  our  family  in  the  Bottom." 
This  referred  to  the  old  homestead 
at  Holt's  Bottom,  the  residence  of 
Washington  Holt.  Many  of  the 
letters  referred  to  drafts  for  various 
sums  inclosed  to  defray  the  expenses 
of  improvements.  In  one  of  Judge 
Holt's  letters  the  significant  sen- 
tence appears  :  "  I  am  glad  you  are 
keeping  your  eye  turned  in  the 
direction  of  that  swindler,  Ray,  and 
trust  that  you  will  pursue  him  un- 
sparingly now  and  always."  Mr. 
Worthington  was  not  disposed  to 
read  this  passage,  but,  in  consulta- 


930 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


tion  with  Mr.  Wilson,  the  hitter 
insisted  upon  it.  It  had  been  pre- 
viously stated  by  some  of  the 
witnesses  that  Miss  Hynes  had 
visited  Judjie  Holt's  house  in  com- 
pany with  a  Mrs.  Ray.  The  reading; 
of  the  letters  was  concluded  before 
recess,  and  immediately  afterward 
the  examination  of  Miss  Mary  Ilolf, 
daughter  of  Washington  Holt,  who 
had  been  on  the  stand  throughout 
the  reading,  was  resumed.  She  was 
asked  by  Mr.  Wilson  : 

Q.  "  Did  you  ever  hear  Judge 
Holt  say  anything  regarding  the 
distribution  of  his  property?"  A. 
"He  told  me,  not  once  but  a  great 
many  times,  that  his  business  was 
all  in  papa's  hands,  and  that  when  he 
died  we  would  have  a  great  deal  more 
than  at  any  time." 

The  witness  added  that  when  her 
father  was  an  invalid  Judge  Holt 
was  constantly  suggesting  remedies 
and  said  to  her  that  he  did  not  know 
what  he  should  do  if  anything  should 
happen  to  her  father,  as  all  his 
business  was  in  his  hands. 

After  he  had  finisherl  his  examina- 
tion, Mr.  Wilson  handed  witness  the 
alleged  will,  and  asked  her  the 
time-honored  question,  to  which 
she  replied  :  "  I  certainly  feel  very 
sure  that  uncle  did  not  write  this 
paper." 

Gen.  Butterworth  at  once  took 
up  the  cross-examination.  He  en- 
deavored to  get  the  witness  to 
specify  the  points  in  which  she 
thought  the  handwriting  differed 
from  that  of  her  uncle,  but  she  was 
very  emphatic,  almost  vehement, 
in  her  replies.  She  thought  the 
writing  resembled  that  of  her  uncle 
in  the  latei  years  of  her  life,  but 
that  considering  the  time  at  which 
it  was  supposefl  to  haA'e  Ijeen  written 
it  was  not  e\'en  a  good  forgery.  In 
all  of  his  signatures  she  had  ex- 
amined she  had  never  found  one 
like  that  to  the  alleged  will.  The 
general  appearance  and  the  shape  of 
the  j  were  different. 

"The  only  signature  that  I  found 
that  looked  at   all   like   that,"   the 


witness  declared,  "was  written 
when  uncle  was  dying,  and  he  was 
hardly  al)le  to  write  his  name." 

Proceeding  with  his  cross-exam- 
ination, Gen.  Butterworth  said : 
"  Now,  I  understand  that  you  were 
born   in    18(35." 

"What?  Oh,  no;  in  1871," 
replied  the  witness,  amid  a  general 
smile. 

Gen.  Butterworth  continued  to 
question  her,  asking  almost  exactly 
the  same  questions  which  Mr.  Wil- 
son had  propounded  to  his  witness 
■Monday,  the  result  being  simply 
a  repetition  of  her  statements  made 
on  Monday.  Gen.  Butterworth 
dwelt  particularly  upon  the  many 
valuable  gifts  Judge  Holt  had  made 
to  witness'  family,  as  if  he  wanted 
them  to  be  particularly  borne  in 
mind,  and  asked  : 

Q.  "  I  understand  that  Judge  Holt 
gave  your  mother  .S25,000  in  Mis- 
souri bonds ;  do  you  know  any- 
thing about  that?"  A.  "I  knew 
he  gave  mamma  bonds,  but  I  did 
not  know  how  much." 

Q.  "  Did  you  ever  hear  Judge  Holt 
talk  about  other  members  of  the 
family  ?  Did  you  ever  hear  him 
say  anything  about  Mr.  Sterett?" 
A.  The  young  lady  stammered  a 
moment  and  Mr.  Worthington  ex- 
claimed:  "I  object!"  He  stated 
that  his  grounds  were  that  other 
members  had  not  been  mentioned 
in  examination  in  chief.  Mr.  But- 
terworth claimed  that  they  were, 
and  Mr.  Wilson  said,  with  emphasis  : 
"You  were  not  asleep,  of  course." 
The  ol)jection  was  sustained  by  the 
court.  There  was  e\idently  some 
point  here  which  counsel  for  the 
legatees  were  anxious  to  bring  out, 
but  without  avail.  During  nearly 
tlie  whole  cross-examination  Messrs. 
Wilson  and  Worthington  sat  with 
their  heads  close  together,  smiling 
contentedly. 

Continuing,  Gen.  Butterworth 
asked  witness  further  concerning  her 
conversation  with  Judge  Holt,  and  in 
reply  she  stated  :  "  Once  he  said  we 
would  have  a  great  deal  more  after 


No.  390. 


THROCKMORTON   V.    HOLT 


931 


he  died,  and  I  knew  by  that  that 
uncle  was  going  to  leave  us  a  great 
deal." 

Q.  "He  did  not  say  anything 
about  how  you  were  going  to  get  it  ?  " 
A.  "There  was  no  other  way  in 
which  we  could  get  it ;  my  father 
was  too  ill  to  engage  in  business." 

Frances  Strothcrft,  who  was  a 
servant  in  Judge  Holt's  house,  was 
the  next  witness  called,  and  the 
same  old  set  of  stereotyped  questions 
to  which  a  dozen  witnesses  have 
already  given  similar  replies  were 
put  to  her.  She  knew  all  about 
the  visits  of  the  elder  Mi's. 
Throckmorton,  the  visits  of  the 
family  of  Washington  Holt,  and  the 
manner  in  which  they  were  recei\'ed, 
and  her  testimony  was  exactly  the 
same  as  that  of  numerous  preceding 
witnesses.  She  testified  that  she 
had  written  letters  at  Judge  Holt's 
dictation  when  the  latter  was  too 
ill  to  write  himself.  She  wrote 
letters  to  Washington  Holt's  family 
and  to  Miss  Hynes.  They  were  all 
affectionate  in  tone.  She  had  never 
written  to  anybody  named  Throck- 
morton, nor  had  she  ever  heard  or 
seen  anything  of  a  person  named 
Luke  Devlin.  She  had  noticed  a 
lot  of  papers  burning  in  a  hod  in 
the  back  yard  after  Judge  Holt's 
body  had  been  removed,  but  saw 
nobody  near  it.  She  had  also  seen 
the  piece  of  paper  found  by  Willie 
Sterett.  Besides  the  words  "  Date 
of  will,  January  1,  LSSG,"  and  the 
name  "Roundtree"  she  said  it 
contained  another  name  something 
like  "Knott." 

After  first  denying  to  having 
talked  to  any  reporters  after  the 
alleged  will  had  been  sent  to  the 
Register's  office,  she  saw  some 
things  in  an  evening  paper  which 
she  dirl  not  tell  the  reporter.  She 
did  tell  another  reporter  that  Judge 
Holt  had  said  to  her  mother,  who 
was  his  cook,  that  if  she  would  get 
Washington  Holt  there,  he  would 
give  her  enough  to  live  on  all  her 
life.  She  had  never  heard  Judge 
Holt  refer  to  anybody  by  the  name  of 


Roundtree.  She  identified  a  num- 
ber of  the  letters  received  by  the 
family  of  Washington  Holt  as 
written  by  herself  for  Judge  Holt, 
and  a  number  of  others  written  by 
her  husband  Charles  Strothers. 

Charles'  Strothers  was  then  called 
to  the  stand.  He  is  rather  a  natty- 
looking  colored  man,  wearing  a 
pink  necktie.  He  gave  his  age  as 
twenty-seven.  He  entered  Judge 
Holt's  employ  in  1888,  and  had 
frequently  seen  Mrs.  Throckmorton, 
the  elder,  at  Judge  Holt's  house. 
When  he  first  went  there  he  said 
the  law  was  laid  down  to  him  that 
Mrs.  Throckmorton  was  not  to  be 
admitted.  He  saw  Judge  Holt  meet 
Mrs.  Throckmorton  near  his  own 
house  and  absolutely  ignore  her. 
"Then,"  he  continued,  "Judge  Holt 
said  to  me :  '  Charles,  what  do  you 
think  of  her;  do  you  think  she's 
crazy  ?  As  often  as  I  have  refused 
to  see  her  and  sent  things  back  to 
her,  she  persists  in  coming  to  see  me. 
I  cannot  understand  it.'" 

The  witness  went  on  to  state 
that  he  had  often,  at  Judge  Holt's 
request,  carried  back  flowers  and 
fruit  which  Mis.  Throckmorton 
had  left  for  him.  He  was  the 
very  man  who  had  taken  back  the 
peace  offering  of  strawberries  and 
cream  which  previous  witnesses  had 
testified  Mrs.  Throckmorton  had 
left  at  Judge  Holt's  house.  He 
knew  about  the  visits  of  Miss 
Josephine  Throckmorton  also,  and 
went  on  to  state  that  once  a  number 
of  ladies  were  passing  Judge  Holt's 
house,  and  one  of  them  had  stopped 
and  inquired  after  Judge  Holt's 
health.  He  had  asked  who  he 
should  tell  the  Judge  had  inquired 
for  him,  and  the  lady  had  replied 
that  she  was  Miss  Throckmorton, 
but  that  she  did  not  suppose  Judge 
Holt  would  care  to  know  it. 

When  the  usual  question  was  put 
to  the  witness  as  to  whether  he  knew 
Luke  Devlin,  to  the  surprise  of 
everybody  he  answered  that  he  did. 
He  was  the  first  in  all  the  long  list  of 
witnesses   brought  forward   by   the 


932 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


counsel  for  the  heirs-of-law  who  Imtl 
ever  heard  of  the  man  named  as 
executor  in  the  allejjed  will.  Asked 
where  he  met  Devlin,  witness  re- 
plied that  he  used  to  run  a  pool  room 
near  the  Baltimore  and  Ohio  depot 
after  Judge  Holt's  death,  and  that 
Devlin  had  come  there  to  see  liim. 

Q.  "Did  he  come  there  to  see 
you  or  to  play  pool?"  .1.  "I 
suppose  he  came  to  see  me ;  he 
asked  for  me." 

Q.  "Was  that  before  the  publica- 
tion in  the  newspapers  of  this 
paper  called  the  will,  or  afterward  ?  " 
A.    "It  was  after." 

Q.  "  Do  you  remember  seeing 
Luke  Devlin  about  Judge  Holt's 
house  at  any  time?"  A.  "No,  I 
ne\er  heard  or  saw  anything  of 
him  at  Judge  Holt's." 

The  interest  of  the  spectators  had 
been  aroused  to  the  highest  pitch 
upon  the  appearance  of  the  first 
witness  who  had  ever  seen  or  heard 
of  Luke  Devlin,  but  just  at  this 
point  Mr.  Worthington  suggested  : 

"  Your  honor,  I  think  this  is  a 
good  place  to  suspend  for  the  day." 

Court  at  once  adjourned. 

Wednesday,  June  3. 

Charles  Strothers,  who  was  being 
examined  when  court  adjourned  on 
Tuesday,  resinned  the  stand.  He 
described  the  desk  and  closets  in 
which  Judge  Holt  kept  his  private 
papers,  gave  more  testimony  as  to 
the  cordial  relations  existing  be- 
tween Judge  Holt  and  Washington 
Holt  and  his  family,  and  related  a 
conversation  which  he  heard  while  he 
was  driving  Judge  Holt  and  Wash- 
ington Holt  to  the  depot.  Judge 
Holt  had  remarkcfl  to  his  nephew  : 
"  I  am  very  glad  the  law  regarding 
administrators  has  been  modified,  so 
that  when  I  die  you  can  come  right 
up  anrl  take  charge  of  affairs  with- 
out any  troul)le." 

He  spoke  also  of  the  pleasant 
relations  between  Judge  Holt  and 
Col.  William  Sterett.  The  latter 
used  to  stop  at  Judge  Holt's  house 
and  sit  out  in  the  yard  with  him, 
telling  stories  which  made  the  Judge 


laligh  heartily.  The  witness  said 
Col.  Sterett  used  to  burlesque  the 
nation's  legislators,  and  he  had 
heard  them  having  no  end  of  fun 
o\er Senator Peff er's whiskers.  Judge 
Holt  had  also  said  to  the  witness : 
"  Don't  get  impatient  at  waiting  on 
an  old  man,  Charles,  and  later  on 
you  will  see  that  I  appreciate  it." 

Strothers  also  identified  the  copy 
he  had  made  of  the  piece  of  paper 
Willie  Sterett  had  found  after  Judge 
Holt's  death. 

Q.  "Can  you  tell  us  whose  writ- 
ing it  is?" 

A.  "I  take  it  to  be  the  Judge's 
writing ;   it  is  similar  to  his." 

Q.  "  Do  you  remember  any  papers 
being  destroyed  after  Judge  Holt's 
death?" 

A.  "I  remember  a  few  letters 
being  destroyed  in  the  kitchen  yard. 
I  burned  them  in  a  coal  scuttle.  I 
received  them  from  Washington 
Holt  and  Col.  Sterett.  There  were 
about  twenty-five  of  them,  letters 
from  Judge  Holt's  family  which 
came  out  of  the  closet  in  the  lil)rary." 
The  witness  did  not  think  Judge 
Holt  ever  destroyed  any  papers 
with  writing  on  them.  He  used  to 
take  all  the  letters  he  received, 
write  across  the  top  of  them  from 
whom  he  received  them,  and  put 
them  away  in  bundles.  Strothers  ex- 
amined the  will,  and  said  he  did  not 
think  it  was  Judge  Holt's  writing. 

Q.  "  Tell  us  now  al)out  your  meet- 
ing with  Luke  Devlin." 

A.  "Well,  he  came  down  to  my 
pool  room  and  asked  for  me.  He 
asked  me  whether  I  knew  him,  and 
T  replied  that  I  couldn't  say  I  did. 
He  said  his  name  was  Devlin,  and 
saifl  he  was  the  man  named  in  the 
will.  I  asked  him  if  he  thought  it 
was  all  right.  He  replied  that  he 
did  not  know.  Then  he  said,  'The 
Judge  gave  me  a  pretty  good  send  off 
in  it,  and  if  it  goes  through,  there  is  a 
whole  pile  in  it  for  me.'  After  I 
told  him  I  didn't  know  him,  he  said 
he  didn't  think  I  was  the  man  who 
was  there  when  he  used  to  call, 
that  it  was  a  darker  man." 


No.  390. 


THROCKMORTON    V.    HOLT 


933 


Strothers  said  Juflge  Holt  useti 
to  preserve  the  cards  of  people  who 
called  on  him,  and  that  he  (Strothers) 
had  looked  through  about  a  bushel 
of  them  without  finding  one  of 
Luke  Devlin's. 

]Mr.  Darlington  subjected  the 
witness  to  a  rigid  cross-examination. 
He  wanted  to  know  if  he  had  not 
looked  Luke  Devlin  all  over  upon 
the  occasion  of  his  visit  to  the  pool 
room,  and  then  asked  him  if  he  was 
Mr.  Washington  Holt.  The  witness 
replied  that  he  had  ;  that  the  idea 
had  occurred  to  him  that  it  was  Mr. 
Washington  Holt  very  much  im- 
proved in  health,  and  with  more 
hair  on  his  head. 

Q.  "  Did  you  make  a  copy  of 
Judge  Holt's  diary?"  continued 
Mr.  Worthington.  A.  "Yes,  sir; 
about  six  months  after  he  died." 

Q.  "  Did  not  the  Register  of  Wills 
go  to  Holt's  house  and  stop  the 
burning  of  papers  by  putting  them 
all  under  seal  ? "  A.  "I  thought  it 
was  iSIr.  Wilson,  of  the  Loan  and 
Trust  Company,  who  did  that." 

Mr.  Darlington  then  brought  out 
the  fact  that  Strothers  was  living 
at  the  Holt  house,  and  that  he 
rented  out  a  portion  of  the  stable  to 
ex-Detective  Block  and  another 
portion  to  a  colored  man.  They 
paid  Strothers  the  rent,  and  he 
spent  it.  The  witness  also  identified 
three  large  pictures  of  the  house  and 
stable.  Block  paid  $4  a  month  for 
his  part  of  the  stable  and  the  other 
man,  who  was  a  friend  of  Strothers, 
was  to  pay  him  S3  a  month,  but  he 
did  not  pay  it  regularly. 

Strothers  was  asked  how  he  made 
his  living,  and  replied  that  he  had  no 
permanent  occupation.  He  kept 
the  pool  room  part  of  the  time,  and 
after  that  did  whitewa,shing,  put 
down  carpets,  carried  baggage,  and 
did  all  sorts  of  odd  jobs.  He  had 
had  some  connection  with  a  policy 
scheme  at  one  time.  He  also  sold 
coal,  wood,  and  ice  at  Judge  Holt's 
stable,  on  which  he  had  painted  a 
sign  to  that  effect.  Mr.  Darlington 
promptly  produced  the  photograph, 


which  brought  the  sign  out  plainly, 
and  placed  it  in  evidence  for  the 
purpose  of  showing  a  similarity 
between  the  lettering  and  the  letter- 
ing on  the  envelope,  in  which  the 
will  was  received.  The  letters  on 
the  stable  were  rudely  printed,  and 
bore  a  general  resemblance  to  the 
inscription  on  the  envelope. 

Strothers  next  identified  a  num- 
ber of  letters  which  he  had  written 
for  Judge  Holt  to  the  members  of 
Washington  Holt's  family,  and  Mr. 
Worthington  handed  them  around 
to  the  jury,  asking  them  to  observe 
the  peculiar  formation  of  ithe  periods, 
which  he  declared  as  "full  moons, 
only  smaller  sized." 

Upon  redirect  examination  by 
Mr.  Worthington,  Strothers  stated 
that  about  five  months  ago  ex- 
Detective  Block  came  and  rented 
the  stable.  He  used  it  for  storing  a 
crate  of  bottles.  He  seemed  to  be 
greatly  interested  in  the  will  case 
and  frequently-  talked  to  Strothers 
about  it.  On  one  occasion  Block 
told  him  it  would  be  worth  $5000 
to  them  from  the  New  York  papers 
if  they  could  secure  the  first  accurate 
information  regarding  the  will. 
Strothers  then  gave  some  rather 
significant  testimony  regarding 
Block's  connection  with  the  case. 
"  He  told  me,"  continued  the  witness, 
"  that  everybody  thought  I  had  sent 
the  will  in ;  that  he  thought  so 
himself.  He  said  he  knew  I  would 
deny  it  then,  but  that  when  the 
trial  came  up  and  I  was  placed  on 
the  stand  he  knew  that  I  would 
admit  having  sent  it." 

According  to  Strothers'  testimony 
Block  pictured  the  whole  court-room 
scene  to  him,  and  ga^■e  him  an  idea 
of  what  questions  would  be  asked 
him  and  what  his  replies  would  be. 
He  also  stated  that  Block  went  all 
through  the  Holt  house,  taking 
note  of  everything  he  saw.  It  was 
a  peculiarity  of  the  Judge's  that  if 
he  ever  lost  a  key  of  any  sort,  he 
never  had  a  new  one  made,  but 
always  had  the  lock  changed. 
Block  mentions  especially  the  fact 


934 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


that  the  lock  on  a  closet  in  the 
library  looked  as  if  it  had  been 
cluuif^ed,  and  sujjgested  that  it 
would  have  been  a  very  easy  matter 
for  some  one  to  have  taken  things 
out  of  the  closet  and  then  i)Ut  on  a 
new  lock. 

Mr.  Worthington  put  the  direct 
question  to  Strothers  as  to  whether 
he  had  written  the  inscription  on 
the  envelope,  and  whether  he  had 
seen  it  before  it  reached  the  Regis- 
ter's office.  The  witness  replied, 
without  hesitation,  that  he  had  not. 
He  went  on  to  state  that  Detectives 
Flinders  and  Block  had  both  asked 
him  to  make  prints  of  his  fingers 
for  them  by  smearing  them  in 
lampblack  and  pressing  them  on  a 
sheet  of  paper.  Block  had  offered 
him  $5  for  the  operation,  and 
Flinders  had  offered  him  half  the 
price.  It  was  a  go  with  Strothers 
on  both  propositions,  who  seemed 
to  regret  that  he  could  not  have 
continued  in  the  finger-print  business 
for  the  rest  of  his  life  at  the  same 
figure.  He  understood  from  Flin- 
ders that  there  were  some  finger 
marks  on  the  lower  corner  of  the 
will,  and  heard  afterward  that  they 
had  been  enlarged  and  photographed 
but  that  his  own  did  not  tally. 

"Now,  your  honor,"  said  Mr. 
Worthington,  as  Strothers  was  dis- 
missed, "  we  offer  in  evidence  this 
paper  in  the  McGarrahan  case, 
which  Mr.  Devlin  admitted  was  in 
.his  writing." 

"For  what  purpose?"  asked  Mr. 
Darlington 

"  I  offer  it  in  evidence  that  it  may 
be  compared  with  the  writing  in 
the  will.  It  is  for  the  same  purpose 
that  you  offered  the  signs  on  the 
stable  wall."  Mr.  Worthington 
asked  the  jury  to  compare  the  word 
Washington  in  tlie  McGarrahan 
paper  with  the  same  word  where  it 
occurred  in  the  will.  The  jury 
examined  the  papers  carefully,  but 
were  apparently  not  particularly 
struck  with  the  resemblance.  Mr. 
Worthington  handed  tiiem  another 
of  Luke  Devlin's  letters,  and  asked 


them  to  compare  the  name  Luke 
Devlin  with  the  name  in  the  will. 
A  very  serious  charge  was  implied 
against  Mr.  Devlin,  but  he  did  not 
seem  to  mind  it,  although  he  seemed 
a  trifle  restless  and  mo\ed  about 
the  court-room  from  one  seat  to 
another. 

]\Irs.  Altic  II.  Jennings  was  the 
next  witness  called.  She  knew 
Judge  Holt  well  for  five  or  six 
years  before  his  death,  and  visited 
him  fretjuently  with  her  husband. 

Q.  "  Did  you  at  any  time  have 
any  conversation  with  Judge  Holt 
regarding  any  member  of  the  Throck- 
morton family  ?" 

.1.  "  No,  but  was  in  the  room  once 
when  my  husband  asked  Judge 
Holt  about  some  trouble  Maj. 
Throckmorton  was  in,  and  I  dis- 
tinctly heard  Judge  Holt  say :  '  He 
is  an  unmitigated  scoundrel,  and  I 
don't  wish  to  hear  anything  about 
him.'" 

The  rest  of  Mrs.  Jennings'  testi- 
mony was  that  of  the  regulation 
witness  for  the  heirs-at-law,  which 
has  been  heard  so  often  that  the 
court  stenographers  know  it  by 
heart.  She  knew  the  Holts  and 
Steretts.  They  visited  Judge  Holt's 
house,  and  were  most  corflially 
received.  She  had  often  heard 
Judge  Holt  speak  of  them  in  the 
most  affectionate  terms.  The  hand- 
writing of  the  will  looked  a  little 
like  Judge  Holt's,  but  she  did  not 
think  it  was  his  at  all.  She  had 
never  seen  or  heard  of  Luke  Devlin. 
Cross-examination  produced  noth- 
ing. 

A  couple  of  picturesque  before- 
the-war  colored  servants  were  next 
profluced. 

The  first  was  Alfred  Loicery, 
who  was  employed  as  coachman 
and  general  servant  at  Judge  Holt's 
house  from  1809  to  1878.  His 
examination  was  very  brief. 

Q.  "Were  you  acquainted  with 
Luke  Devlin  ?"  A.  "No  !  I  never 
remember  seeing  him  at  Judge 
Holt's  house  or  anywhere  el.se." 

Under  cross-examination  he  stated 


No.  390. 


THROCKMORTON    V.    HOLT 


935 


that  as  a  rule  his  wife  and  a  cook 
used  to  answer  the  door  at  Judge 
Holt's,  and  that  Devlin  might  have 
called  there  without  his  knowing 
it. 

Jane  Lowcry,  Alfred's  wife,  was 
employed  by  Judge  Holt  in  Louisville 
before  the  war.  She  came  here  to 
work  for  him  in  1856,  and  nearly 
always  answered  the  door  bell. 

Q.  "Did  you  know  Luke  Dev- 
lin?"    ^-1.    "I  used  to  know  him." 

Q.  "  How  did  \'ou  g^t  acquainted 
with  him?"  A.  "Well,  you  know, 
he  was  the  Judge's  messenger.  He 
used  to  come  to  the  house  with 
packages  or  messages  and  used  to 
stand  at  the  door  while  I  went  in. 
He  may  have  been  inside  the 
house  sometimes,  but  I  don't  re- 
member it." 

Q.  "Do  you  remember  whether 
he  kept  coming  there  as  messenger 
as  long  as  you  were  there?"  A. 
"It  seems  to  me  there  was  another 
man  came  afterward." 

Mr.  Darlington  developed  the 
fact,  in  cross-examination,  that 
usual'y  when  Devlin  called  at  the 
hou-;e  and  remained  at  the  door 
Judge  Holt  was  not  there,  but  was 
at  his  office.  The  witness  did  not 
remember  whether  Devlin  ever  stood 
at  the  door  when  Judge  Holt  was 
in  the  house  or  not. 

Mrs.  Ann  C.  Holt,  seventy-six 
years  old,  widow  of  Robert  S.  Holt, 
a  brother  of  Judge  Holt  and  mother 
of  Mrs.  Iglehart,  was  then  placed 
on  the  stand.  Her  husband  died  in 
1876,  and  after  his  death  she  moved 
from  Mississippi  to  Evansville,  where 
she  lived  with  Mrs.  Iglehart.  She 
saw  Judge  Holt  in  Mississippi,  in 
Cincinnati,  and  in  p]vansville.  Two 
of  her  sons  fought  in  the  Confeder- 
ate Army,  and  all  her  family  were 
Southern  sympathizers.  The  rela- 
tions between  her  husband  and 
Judge  Holt  had  always  been  kind 
and  friendly.  The  war  had  made 
no  diflferences  between  them.  Judge 
Holt  was  aware  of  the  fact  that  her 
son  had  been  in  the  Confederate 
Army  when  he  wrote  him  the  letter 


which  was  placed  in  evidence  some 
days  ago,  complimenting  him  upon 
his  bravery  in  standing  off  an 
armed  mob  who  wanted  to  kill  a 
Republican.  Her  son  was  Mayor 
of  Yazoo  City  at  the  time.  'The 
man,  however,  was  killed  a  few 
days  afterward.  Gen.  Butterworth 
conducted  the  cross-examination, 
but  failed  to  develop  any  additional 
information. 

A  very  effervescent  witness  was 
Mrs.  Eliza  Stcrett,  who  next  took 
the  stand.  Her  husband  was  Col. 
William  Sterett's  half-brother.  She 
was  bubbling  over  with  nice  things 
that  Judge  Holt  had  said  about 
the  Sterett  family,  and  told  them 
almost  •  without  drawing  breath. 
She  came  to  Washington  in  1891  and 
renewed  her  acquaintance  with  Judge 
Holt.  She  went  driving  with  him, 
and  talked  a  great  deal  about  old 
times  in  Kentucky.  He  seemed 
to  be  extremely  fond  of  Col.  and 
Mrs.  Sterett  and  the  two  little  girls, 
and  remarked  that  his  life  had  been 
much  happier  since  they  came  to 
W^ashington  to  live.  Mrs.  Sterett, 
he  said,  was  a  charming  woman,  and 
as  for  the  Colonel  himself,  he  was 
very  proud  of  him.  The  Judge  even 
went  so  far  as  to  say  that  he  was  a 
Holt,  and  not  a  Sterett,  whereupon 
the  witness  had  replied  that  she  did 
not  feel  particularly  complimented, 
as  she  was  something  of  a  Sterett 
herself.  The  Judge,  however,  had 
promptly  made  some  gallant  remark 
which  smoothed  the  matter  over. 

Replying  to  Mr.  Darlington,  the 
witness  stated  that  Judge  Holt  had 
asked  her  to  go  and  worship  as  often 
as  she  could  at  the  Memorial 
Church,  which  he  had  erected  near 
the  old  Kentucky  homestead,  and 
this  led  Mr.  Darlington  to  inquire 
whether  Judge  Holt  was  a  very 
religious  man.  Mr.  Worthington 
promptly  objected,  although  he  said 
he  had  not  the  slightest  idea  what 
the  answer  would  be.  The  result 
was  that  nothing  was  brought  out 
concerning  the  Judge's  religious 
views,  although  it  was  agreed  that 


936 


PART    III.       PROBLEMS    OF    PROOF 


No.  3G0. 


his  letters  indicated  that  he  was  a 
decidedly  pious  man. 

The  last  witness  of  the  day  was 
Mr.  Rice  ir.  Hoar,  who  is  employed 
as  crier  in  the  Police  Court.  For 
about  two  years  he  lived  next  door 
to  the  Steretts  on  ("apitol  Hill,  and 
frequently  saw  Judge  Holt's  carriage 
drive  up  to  the  door,  and  also  saw 
his  servants  bringing  presents  of 
fruit  and  other  delicacies. 

Thursdaii,  June  4- 

Luke  I  )e  vlin,  the  executor  under  the 
alleged  will  of  the  late  Judge  Joseph 
Holt,  was  the  object  of  the  attack 
of  the  attorneys  for  the  heirs-at-law 
during  most  of  the  proceedings.  No 
witness  so  far  examined  has  given 
any  evidence  to  show  that  relations 
other  than  those  naturally  existing 
between  a  superior  officer  and  his 
subordinates  existed  between  Judge 
Holt  and  Luke  Devlin,  and  yester- 
day some  very  peculiar  statements 
alleged  to  have  been  made  by  Dev- 
lin were  brought  out.  Besides, 
it  was  shown  that  Devlin  was  a  man 
who  took  particular  tlelight  in  imi- 
tating other  people's  signatures,  and 
that  on  certain  occasions  he  signed 
Judge  Holt's  name  to  official  docu- 
ments. At  the  morning  session  a 
number  of  witnesses  testified  to  the 
great  apparent  anxiety  of  Devlin 
to  have  the  receipt  of  the  alleged 
will  made  public,  and  their  testi- 
mony also  tended  to  show  that 
Devlin's  own  account  of  his  move- 
ments on  the  day  the  will  was  re- 
ceived, given  when  he  was  on  the 
stand  early  in  the  trial,  was  not 
altogther  correct. 

Mr.  John  P.  Miller,  of  the  Even- 
ing Star,  was  the  first  witness  called 
yesterday  morning.  He  first  saw 
Devlin  on  the  day  the  will  was  re- 
ceived. Devlin  took  a  typewritten 
copy  of  the  will  to  the  Star  office 
for  publication.  Some  time  after 
that,  Mr.  Miller  stated,  he  met  Dev- 
lin on  F  street,  and  the  latter  told 
him  that  the  first  thought  which 
occurred  to  him  upon  hearing  of 
Judge  Holt's  fleath  was  what  a  fool 
he   (Devlin)   had   iK'en.     Explaining 


his  remark,  Devlin  stated  that  he 
had  been  to  the  house  a  number  of 
times  and  that  the  servants  would 
not  let  him  in.  He  said  he  ought 
to  ha\e  gone  in  anyway ;  that  it 
was  just  a  repetition  of  the  McGar- 
rahan  case.  McGarrahan  and  he 
were  close  friends,  and  if  he  could 
have  reached  ^IcGarrahan's  room 
the  night  before  he  died,  he  would 
ha\e  been  able  to  write  his  name  for 
S50,0()0. 

All  this  testimony  was  objected 
to  by  Mr.  Darlington,  who  quoted 
authorities  on  the  subject.  There 
was  quite  a  little  sparring  between 
IMessrs.  Darlington  and  Worthing- 
ton,  but  the  testimony  was  ad- 
mitted. The  court,  however,  sus- 
tained Mr.  Darlington  when  he 
objected  to  Mr.  Worthington  asking 
the  witness  what  Devlin  said  he 
would  have  done  if  he  had  been  able 
to  get  into  McGarrahan's  room. 
On  cross-examination  the  witness 
said  the  interveiw  with  Devlin  had 
never  been  published,  as  it  might 
have  had  a  tendency  to  prejudice 
the  case. 

The  testimony  of  ]\Ir.  Beriah 
Willcins,  the  next  witness  sum- 
moned, disclosed  the  fact  that  Dev- 
lin went  to  the  office  of  The  Post 
on  the  same  day  with  another  type- 
written copy  of  the  will.  Mr. 
Wilkins,  supposing  that  he  was  re- 
ceiving important  and  exclusive 
news,  thanked  Devlin,  but  when  he 
learned  that  it  had  already  been 
furnished  to  evening  papers  he  re- 
turned the  copy  to  Devlin.  Mr. 
Wilkins  thought  Devlin  appeared 
somewhat  nervous  at  the  time. 

Robert  ]l\  Button,  of  the  Star, 
testified  that  he  first  saw  Devlin  in 
the  Register's  office,  where  he  was 
examining  the  will  the  same  day  it 
was  received.  The  witness'  state- 
ment as  to  the  hour  at  which  he 
saw  Devlin  varied  considerably  with 
Devlin's  own  account  of  his  move- 
ments on  that  day.  Mr.  Dutton 
had  examined  the  will  carefully, 
but  was  unable  to  give  an  opinion 
as  to  whether  the  two  portions  of 


No.  390. 


THROCKMORTON    V.    HOLT 


937 


the  paper  were  parts  of  one  piece, 
or  whether  they  had  been  pasted 
together.  There  was  nothhig  at  all 
remarkable  about  Devlin's  appear- 
ance. 

Perhaps  the  most  important  testi- 
mony of  the  day  was  that  given  by 
Joseph  Fought,  who  was  a  messen- 
ger in  the  Judge-Advocate-General's 
office  from  1869  to  1876,  having 
succeeded  Luke  Devlin  when  the 
latter  was  promoted.  Fought  is 
now  engaged  in  the  dairy  business. 
He  had  never  observed  any  evi- 
dences of  confidential  relations  be- 
tween Judge  Holt  and  Devlin.  He 
did  remember,  howe\er,  that  once 
when  Judge  Holt  learned  that  Dev- 
lin had  been  acting  as  private  secre- 
tary to  Senator  Blair  during  office 
hours  he  summoned  Devlin  before 
him,  and  after  a  warm  interview 
demanded  Devlin's  key  to  the  office. 
Several  other  incidents  were  re- 
lated to  show  that  Judge  Holt  re- 
quired the  same  discipline  in  the 
case  of  Devlin  as  he  did  with  other 
employees. 

Q.  "  Do  you  know  anything  about 
Mr.  Devlin's  proficiency  as  a  pen- 
man ?" 

A.  "He  used  to  collect  auto- 
graphs, and  would  often  sit  and 
amuse  himself  by  trying  to  imitate 
them,  and  so  successfully  that  it 
was  difficult  to  tell  them  from  the 
real  ones." 

Q.  "  Did  he  ever  imitate  Judge 
Holt's  signature  ?  " 

A.  "  Well,  sometimes  when  papers 
had  not  been  signed  by  Judge  Holt, 
owing  to  oversight,  Mr.  Devlin 
would  sign  the  Judge's  name  to 
them,  and  he  did  it  about  as  well 
as  the  Judge  could  have  done." 

The  witness  was  then  shown  the 
alleged  will,  and  gave  the  opinion 
that  it  was  not  written  by  Judge 
Holt.  There  were  portions  of  it,  he 
said,  which  could  not  have  been 
written  by  Judge  Holt.  It  was 
further  developed  that  although  the 
witness  and  Devlin  had  not  been  on 
speaking  terms  for  twenty  years, 
Devlin  had  stopped  him  last  Friday 


and  asked  him  if  he  would  testify  to 
the  reverse  of  what  was  stated  by 
Mr.  Saxton  last  week.  Devlin  told 
him  his  expenses  would  be  paid,  but 
the  witness  refused  to  have  anything 
to  do  with  the  case.  Indeed,  he 
would  not  have  appeared  at  all  if 
he  could  have  kept  out  of  the  way 
of   the   subpoena. 

The  next  witness  was  Arthur' 
Schafz,  who  was  a  copvist  in  Judge 
Holt's  office  from  1872  to  1876. 
He  had  never  seen  Devlin  enter 
Judge  Holt's  room  or  speak  to  him. 
He  was  familiar  with  Judge  Holt's 
handwriting,  and,  did  not  think  he 
wrote  the  alleged  will. 

Mr.  Judson  H.  Jennings,  whose 
wife  was  on  the  stand  on  Wednesday 
afternoon,  gave  substantially  the 
same  evidence  as  she  had  given. 
Judge  Holt  was  a  distant  relative 
of  his,  and  he  renewed  his  acquaint- 
ance with  him  in  1889.  He  de- 
scribed the  interview  in  which  Judge 
Holt  had  been  so  bitter  in  his  de- 
nunciation of  Maj.  Throckmorton. 
Mr.  Schatz  was  recalled  to  testify  to 
Devlin's  penchant  for  copying  signa- 
tures. 

Mr.  Wright,  who  was  Register  of 
Wills  at  the  time  of  Judge  Holt's 
death,  testified  legarding  the  receipt 
of  the  will  through  the  mail.  Dev- 
lin had  evinced  no  surprise  when 
he  first  saw  it.  He  had  spent  half 
a  day  at  the  Holt  residence  after 
the  Judge's  death  searching  for  the 
will.  He  did  so  at  the  request  of 
Washington  Holt  and  Col.  Sterett. 
He  found  no  testamentary  papers 
of  any  sort.  On  cross-examination 
he  said  he  had  telephoned  to  Luke 
Devlin  and  asked  him  to  come  to  his 
office  on  a  matter  of  importance. 
At  Devlin's  request  he  gave  him  a 
copy  of  the  will. 

Q.  "  What  remark  did  ]Mr.  Dev- 
lin make?"  A.  "He  wanted  to 
know  whether  the  Judge  had  left 
him  anything.  I  replied  that  he 
had  left  him  a  valuable  trust." 

Q.  "  Do  you  remember  his  reading 
that  part  of  the  will  leaving  every- 
thing  to   ISIiss   Throckmorton   and 


938 


PART    III.       PROBLEMS   OF    PROOF 


No.  390. 


a\Iis.s  Hynes,  and  remarking  '  I 
don't  see  where  I  come  in.'  "  A. 
"I  don't  remember  it." 

Q.  "Was  any  reward  offered  you 
by  the  heirs  for  fincUng  the  will  at 
the  time  you  went  to  the  house  to 
look  for  one?"  A.  "Yes,  l)y  Mr. 
Washington  Holt." 

Q.  "How  much?"  A.  "Forty 
thousand  dollars."  The  spectators 
took  a  long  breath  and  the  witness 
added:  "I  didn't  expect  anything, 
however;  it  may  have  been  a  care- 
less remark." 

Mrs.  Emily  l\  Miller,  the  next 
witness,  has  lived  in  Washington 
since  1865.  She  knew  Judge  Holt, 
and  had  reeei\'ed  letters  from  him. 
She  did  not  think  the  alleged  will 
was  in  his  handwriting.  The  letter 
"g"  wherever  it  occurred  was  not 
like  Judge  Holt's.  It  was  also 
developed  that  Mr.  Darlington,  for 
the  other  side,  had  called  on  Mrs. 
ISIiller  regarding  the  case,  but  on 
learning  her  opinion  had  not  thought 
it  worth  while  to  subprena  her. 

./.  Xota  McGill,  the  present  Regis- 
ter of  Wills,  was  called.  He  testi- 
fied as  to  the  care  which  had  been 
exercised  in  preserving  the  wall. 

I\Ir.  Thompson,  of  the  Register's 
office,  was  also  examined,  .\sked 
whether  the  lower  corner  of  the  will 
was  separated  from  the  rest  of  the 
paper  when  he  first  saw  it,  he  stated 
that  it  was  his  distinct  recollection 
that  it  was  intact. 

There  was  a  movement  of  expec- 
tation when  Col.  WUliain  G.  Sfcrcff 
was  placed  on  the  stand.  His 
mother  was  a  sister  of  Judge  Holt's. 
The  Colonel  gave  a  l)rief  sketch  of 
his  life,  beginning  with  his  birth  in 
Hancock  County,  Kentucky,  in  1847. 
He  told  of  the  high  regard  he  had 
always  felt  for  Judge  Holt.  His 
mother,  he  said,  thought  the  Judge 
was  the  greatest  man  that  ever 
lived,  and  the  Colonel  would  have 
been  telling  of  Judge  Holt's  good 
qualities  still  if  the  opposition  had 
not  objected.  Col.  Sterett  told  in 
detail  all  at)out  his  relations  with 
Judge  Holt  since  he  came  to  Wash- 


ington. He  remembered  particu- 
larly one  morning  when  he  and  Col. 
Dick  Wintersmith  had  breakfasted 
at  Judge  Holt's  house. 

Q.  "  Do  you  remember  an;\-  partic- 
ular attention  he  paid  you  that 
morning  ?" 

Col.  Sterett 's  face  assumed  a  rap- 
turous expression  as  he  proceeded : 
.1.  "Uncle  Joe  had  no  idea  of  the 
capacity  of  a  man.  He  made  us  a 
couple  of  mint  juleps  about  that 
long,"  and  the  Colonel  measured 
ott'  a  distance  of  about  a  yard  and  a 
half  with  his  hands.  The  descrip- 
tion produced  the  biggest  laugh  of 
the  trial. 

"  He  didn't  ever  overestimate 
your  capacity,  did  he?"  asked  Mr. 
Worthington,  but  Col.  Sterett  was 
non-committal  on  the  subject. 
Asked  as  to  his  own  relations  with 
Judge  Holt,  the  witness  said  they 
were  always  friendly ;  sometimes 
confidential,  and  never  sentimental. 
He  told  of  Judge  Holt's  attentions 
to  his  wife  and  children,  and  stated 
that  besides  paying  his  wife's  ex- 
penses to  the  World's  Fair  and  to 
summer  resorts,  he  gave  her  money 
for  herself  nearly  every  month. 
Not  that  she  needed  the  money,  as 
his  own  salary  of  $60  a  week  was 
sufficient  to  take  care  of  his  family. 

The  witness  did  not  hear  of  the 
fall  which  resulted  in  Judge  Holt's 
death  until  the  Saturday  after  it 
happened.  He  went  to  see  him 
that  morning,  and  went  every  day 
after  that.  The  evening  before  he 
died  he  went  as  usual,  and  met  the 
Judge's  physicians  there.  The 
Jiulge  seemed  to  be  suttering  con- 
siderably, but  he  did  not  think 
there  was  any  immediate  danger ; 
but  the  next  morning  he  learned  of 
his  death.  Pending  the  arrival  of 
Washington  Holt  he  went  to  Riggs' 
Bank  to  .see  if  he  could  find  any 
memorandum  there  containing  the 
Judge's  instructions  as  to  the  funeral. 
He  had  heard  from  the  servants  that 
the  Judge  had  instructed  Martha 
to  give  his  keys,  watch,  etc.,  to 
Washington     Holt.       The    witness 


No.  390. 


THROCKMORTON    V.    HOLT 


939 


remained  at  the  Holt  house  on 
Wednesday  night,  and  was  there 
when  Washington  Holt  arrived. 
He  saw  the  keys  delivered  to  him. 

"As  soon  as  he  got  the  keys," 
continued  the  witness,  "  we  went 
together  to  the  desk  to  look  after 
instructions  about  the  funeral.  We 
found  only  some  in.siu'ance  policies 
and  a  couple  of  keys." 

"Let  me  ask  you,"  said  Mr. 
Worthington,  "whether  you  found 
this  paper,"  holding  up  the  mysteri- 
ous paper. 

Col.  Sterett  looked  amused,  as  he 
answered  that  they  had  not.  "  After 
that,"  he  continued,  "we  went  to 
the  safe  deposit  building,  and  asked 
them  to  look  over  the  papers,  but 
nothing  was  found.  We  were  told 
at  Riggs'  Bank  that  Uncle  Joe  had 
a  little  black  trunk  in  which  he  kept 
valuable  papers.  It  was  not  at 
the  safe  deposit  company's,  so  we 
went  home  again,  and  finally  foimd 
it  in  the  closet  in  the  library.  The 
trunk  was  locked,  but  Washington 
Holt  opened  it  in  my  presence,  and 
found  a  whole  lot  of  bonds.  There 
was  about  860,000  or  $66,000,  I 
don't  remember  which." 

The  witness  then  described  the 
funeral  arrangements  and  the  re- 
moval of  the  body  to  Kentucky. 
He  accompanied  it,  together  with 
Washington  Holt  and  his  wife. 
The  services  were  held  in  the  Me- 
morial Church,  which  Judge  Holt 
had  erected  at  the  old  family 
homestead.  He  also  testified  re- 
garding the  publication  of  a  certain 
death  notice  in  The  Post. 

Asked  concerning  the  removal  of 
any  papers  from  the  house,  the 
witness  said  that  some  papers  re- 
lating to  the  Surratt  case  were  found, 
and  Washington  Holt  had  expressed 
a  desire  for  them.  Witness  replied 
that  he  could  have  them  so  far  as 
he  was  concerned,  and  Washington 
Holt  had  taken  them,  with  the 
understanding  that  he  would  furnish 
copies  if  any  of  the  relatives  cared 
for  them.  They  had  also  discovered 
a  number  of  letters  from  Judge  Holt's 


wife,  and  an  autograph  letter  from 
Gen.  Grant. 

Col.  Sterett  also  testified  concern- 
ing the  paper  which  his  little 
daughter  had  found.  The  Colonel 
was  away  fishing  when  the  paper  was 
found,  but  he  made  a  copy  of  it 
when  he  returned,  and  sent  it  to 
Washington  Holt.  He  had  made 
the  inscription  out  to  be:  "Date 
of  will,  January  1,  1886.  Round- 
tree-J.  M.  Knott."  He  thought  the 
handwriting  was  that  of  Judge  Holt. 

"I  will  ask  you  now,  Colonel, 
whether  you  had  anything  to  do 
with  sending  this  paper  to  the 
Register  of  Wills,"  holding  up  the 
alleged  will  again.  The  idea  was  too 
absurd  for  the  Colonel's  equanim- 
ity, l)ut  he  managed  to  sputter  out 
that  he  was  not  the  person  who  had 
surreptitiously  mailed  the  mutilated 
document,  by  which  he  and  all  the 
rest  of  Judge  Holt's  relations  were 
disinherited.  Neither  did  he  have 
anything  to  do  with  sending  De- 
tectives Block  and  Flinders  to  the 
Holt  house.  In  fact  he  had  never 
heard  of  them  until  Charles  Strothers 
had  mentioned  them  to  him. 

Friday,  June  5. 

Col.  William  G.  Sterett,  who  was 
being  examined  when  court  ad- 
journed on  Thursday,  resumed  the 
stand.  He  first  identified  copies  of 
local  newspapers  containing  the 
death  and  funeral  notice,  which  Mr. 
Worthington  explained  was  for  the 
purpose  of  showing  that  any  one 
having  the  will  in  his  possession 
should  have  been  aware  of  Judge 
Holt's  death,  and  also  to  show  that 
Luke  Devlin's  excuse  that  he  did 
not  attend  the  funeral  because  he 
did  not  know  when  it  was  to  be  held 
was  not  well  founded.  Mr.  Dar- 
lington, however,  objected  to  the 
evidence,  and  was  sustained  by  the 
court. 

A  good  deal  of  Col.  Sterett's 
succeeding  testimony  was  regarding 
the  relations  of  Judge  Holt  to  the 
various  members  of  his  family. 
Cross-examining  him,  Mr.  Darling- 
ton   wanted    to    know    whether,    in 


940 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


1873,  the  year  the  alleged  will  was 
made,  Judge  Holt  knew  whether 
Col.  Sterett  was  alive  or  dead. 
The  witness  could  not  say  whether 
he  did  or  not.  On  one  occasion, 
after  the  appearance  of  the  alleged 
will,  Col.  Sterett  said  he  was  with 
Washington  Holt  at  the  Riggs 
House,  when  Luke  Devlin  ap- 
proached them  and  suggested  that 
somebody  ought  to  look  after  the 
renting  of  the  Holt  residence.  Col. 
Sterett  told  Mr.  Holt  that  an  ad- 
ministrator had  been  appointed, 
and  that  it  was  none  of  Devlin's 
business. 

Q.  "Did  you  tell  a  reporter  last 
August  that  you  intended  to  fight 
this  case  through  to  the  last?" 
A.    "I  did." 

Q.  "In  your  sworn  statement, 
accompanying  your  application  to 
the  court  for  the  appointment  of 
an  administrator,  you  said  Judge 
Holt  died  intestate ;  what  do  you 
think  now  ?  "  A.  "  My  opinion  has 
not  been  changed." 

Mr.  Johu  W.  Holt,  also  a  nephew 
of  Judge  Holt,  was  the  next  witness 
called.  He  met  Judge  Holt  only 
twice,  at  his  home  in  this  city. 
The  Judge  treated  him  with  the 
utmost  kindness  and  hospitality. 
The  scrap  of  paper  found  by  Willie 
Sterett  after  Judge  Holt's  death 
was  delivered '  to  Mr.  John  Holt. 
It  was  in  his  valise  which  was  stolen 
from  a  sleeping  car  while  he  was 
on  his  way  from  Kentucky  to  Wash- 
ington. The  valise  was  subsequently 
recovered,  but  the  papers  had  been 
burned.  The  witness  had  nothing 
to  do  with  sending  the  alleged  will 
to  the  Register's  office,  nor  with  the 
sending  of  the  detectives  to  Judge 
Holt's  residence.  Nothing  addi- 
tional was  developed  by  cross- 
examination. 

Washington  I).  Holt,  the  nephew 
who,  with  his  family,  has  figured 
most  prominently  in  all  the  testi- 
mony given  so  far,  was  next  called 
to  the  stand.  He  has  suffered  three 
mild  strokes  of  paralysis,  and  was 
unable   to   submit   to   the  strain   of 


testifying  for  an  extended  period. 
The  family  came  into  possession 
in  1811  of  the  old  homestead, 
known  as  Holt's  Bottom,  in  Ken- 
tucky, where  his  own  father  and 
Judge  Holt's  father  and  mother 
li\ed  and  died.  He  told  in  detail 
of  his  earliest  recollections  of  Judge 
Holt,  and  of  his  later  visits  there. 
In  fact,  all  of  his  testimony  was 
devoted  to  the  relations  existing 
between  Judge  Holt  and  his  rela- 
tives in  Kentucky. 

Mr.  Lcry,  who  was  formerly 
connected  with  the  office  of  the 
Register  of  Wills,  was  next  ex- 
amined. He  made  a  search  for  a 
will  after  Judge  Holt's  death,  and 
placed  under  seal  all  the  papers 
found  in  the  house  in  August,  1895. 
Under  cross-examination  the  witness 
said  that  Washington  Holt  remarked 
to  him  that  if  he  found  a  will  he 
would  give  him  $5000.  He  said 
he  was  naturally  anxious  to  find  it. 
He  saw  evidences  in  one  of  the  grates 
that  papers  had  been  burned.  He 
and  Mr.  John  Holt  examined  the 
grate,  and  though  they  found  small 
scraps  of  paper,  they  discovered 
nothing  of  importance. 

INIrs.  Iglehart  was  then  recalled 
for  the  purpose  of  stating  that  she 
was  in  Northern  Michigan  at  the 
time  of  Judge  Holt's  death ;  that 
Judge  Holt  took  his  meals  with  her 
when  she  visited  his  house,  as  he 
was  not  confined  to  his  bed  at  that 
time,  and  that  after  his  death,  when 
she  learned  that  none  of  the  relatives 
were  here,  she  telegraphed  to  Miss 
Teller,  daughter  of  Senator  Teller, 
to  go  to  Judge  Holt's  house  and  rep- 
resent her  there. 

The  examination  of  Washhigton 
Holt  was  resumed  at  this  point.  He 
related  the  circumstances  of  his 
visits  to  Judge  Holt's  house  in  this 
city  from  his  first  visit  in  1876  to 
the  last,  in  1893.  In  answer  to  a 
question  as  to  Judge  Holt's  attitude 
toward  him,  he  replied :  "  I  don't 
believe  there  was  a  man  living  who 
was  as  close  to  him.  He  treated  me 
just  as  if  I  was  his  own  son." 


No.  390. 


THROCKMORTON   V.    HOLT 


941 


Q.  "Did  he  say  anything  to  you 
at  any  time  regarding  his  affairs  ?" 

A.  "Yes,  he  said  to  me  often 
that  his  affairs,  more  especially 
after  his  death,  would  be  in  my 
hands.  He  always  spoke  of  his 
affection  for  the  old  homestead, 
and  said  he  never  wanted  it  to  go  out 
of  the  family  if  it  could  be  helped. 
He  said  he  would  make  provision  so 
that  it  would  remain  in  the  family 
always.  I  told  my  uncle  once, 
jocularly,  that  I  would  keep  the 
sheriff  off  as  long  as  possible,  and  he 
replied  that  he  would  arrange  it  so 
that  he  would  always  be  kept  off. 

"Coming  down  to  the  will,  he 
told  me  several  times  that  he  had 
made  his  will,  and  had  appointed 
me  executor,  but  added  that  he 
was  afraid  I  would  have  trouble,  as 
the  laws  were  different  from  those 
in  Kentucky.  He  was  afraid  I 
would  have  difficult}'  in  furnishing 
bond.  He  said  he  would  try  and  get 
such  a  law  passed  as  we  had  in 
Kentucky.  Afterward,  in  Florida, 
in  1890,  he  told  me  that  such  a  law 
had  been  passed,  and  that  it  had 
relieved  him  of  a  great  deal  of  appre- 
hension. On  a  subsequent  occasion 
here  in  Washington  he  told  me  in 
his  carriage  that  the  law  had  been 
passed,  and  said  :  '  All  you  will  have 
to  do  now  will  be  to  come  here  and 
take  possession.'  In  that  con- 
nection, the  last  day  I  ever  saw  him, 
we  were  sitting  together  in  his  yard, 
and  he  said,  'Washington,  I  want 
you  to  know  that  everything  I  have 
is  yours.' 

"  Frequently  he  would  speak  about 
things  that  might  happen  after  his 
death,  but  I  would  invariably  change 
the  subject.  I  felt  as  if  it  was 
holding  up  the  skull  and  crossbones 
before  a  man  who,  by  reason  of 
his  great  age,  had  one  foot  in  the 
grave.  I  will  say  now,  though,  by 
way  of  parenthesis,  that  I  am  very 
sorry  I  did  not  discuss  it  more  fully 
with  him.  When  I  left  him  the 
last  time,  in  spite  of  my  protests, 
he  insisted  on  riding  down  to  the 
depot  with  me  in  his  carriage,  and 


at  the  entrance,  as  I  shook  hands 
with  him,  the  last  words  I  ever 
heard  him  utter  were,  'Good  by, 
Washington,  mv  son ;  God  bless 
you.'" 

In  the  course  of  his  succeeding 
testimony  Washington  Holt  stated 
that  the  Judge  had  told  him  on  one 
occasion  that  after  his  death  Wash- 
ington and  his  family  could  go  to 
Europe  and  stay  as  long  as  they 
wanted  to,  as  they  would  have 
ample  means.  In  the  whole  course 
of  his  connection  with  Judge  Holt 
there  was  never  a  criticism  or  the 
slightest  misunderstanding  between 
any  member  of  his  family  and  the 
Judge. 

The  witness  told  the  circum- 
stances connected  with  his  coming 
to  this  city  after  Judge  Holt's 
death,  and  went  at  length  into  the 
succeeding  events.  After  men- 
tioning the  delivery  of  his  uncle's 
keys  and  watch  to  him  by  Martha, 
the  colored  servant,  Mr.  Wilson 
asked  : 

Q.  "Did  she  give  you  any  in- 
formation regarding  what  your  uncle 
had  said  touching  arrangements 
for  his  funeral  ?" 

A.  "Martha  told  me  that  she 
had  been  instructed  by  Judge  Holt 
to  take  care  of  the  keys  and  deliver 
them  to  me,  and  that  he  wanted 
to  have  a  certain  flag  wrapped 
around  him,  all  of  which  he  told  her 
was  in  his  will,  which  might  not  be 
opened  until  after  his  death.  I 
immediately  proceeded  to  search  for 
further  directions.  Mr.  and  Mrs. 
Sterett  were  with  me  when  I  searched 
the  drawer  to  my  uncle's  desk,  but 
found  no  will  or  directions." 

The  witness  gave  a  detailed 
account  of  the  subsequent  search 
for  the  will,  including  visits  to  the 
safe  deposit  building  and  Riggs' 
Bank,  and  the  finding  of  $66,000 
in  bonds  in  an  old-fashioned  trunk 
or  valise,  mentioned  on  Thursday 
by  Col.  Sterett.  After  he  came 
back  from  Kentuck}^  after  the  funeral 
the  witness  stated  he  found  a  list 
of  Judge   Holt's   taxable   property, 


942 


PART    III.       PROBLEMS    OF   PROOF 


No.  390. 


apparently  made  out  in  readiness 
for  the  assessor.  Continuing,  he 
said  :  "  I  gave  thecloset  in  the  lil)rary 
the  most  thorough  search,  knowing, 
or  believing,  as  I  still  believe,  that 
there  must  have  been  a  will.  I 
worked  until  I  was  completel.\- 
exhausted,  putting  in  fourteen  or 
fifteen  hours  a  day.  If  there  is  any 
doubt  about  that  house  having  been 
ransacked,  I  want  to  relieve  all 
doubt  about  it  now;  because  I 
■•ansacked  that  house." 

Q.  "Did  you  find  paper  of  a 
testamentary  character  ?  " 

A.  "I  found  a  little  slip  of  paper, 
and  on  it  was  written  :  '  I  give  and 
bequeath  to  the  Washington  Hu- 
mane Society,  incorporated  under 
the  laws  of  the  District  of  Columbia 
dollars.'    It  contained  no  date." 

Q.  "What  became  of  that 
paper  ?" 

A.  "I  threw  it  away,  I  think. 
I  don't  remember  whether  I  even 
showed  it  to  anybody.  It  was  in 
my  uncle's  handwriting.  I  thought 
it  was  a  memorandum  he  used  in 
making  a  will." 

"When  did  you  first  hear  of  the 
will  of  1848  ?  "  ' 

"I  don't  think  I  heard  of  it 
until  this  forgery  came  out." 

Mr.  Holt  then  testified  as  to 
the  burning,  under  his  direction,  of 
a  lot  of  pamphlets  and  printed  matter 
of  no  importance,  and  also  a  number 
of  letters  from  members  of  his 
family  to  Judge  Holt.  There  were 
a  large  number  of  other  letters  of  a 
personal  nature  addressed  to  Judge 
Holt,  which  he  wanted  to  have 
})urned,  but  Mr.  John  Holt  ob- 
jected, "and,"  added  the  witness, 
"  it  was  not  done,  very  much  to  my 
regret."  At  this  point  Mr.  Holt  was 
unable  to  continue,  owing  to  extreme 
fatigue. 

The  last  witness  examined  was 
Air.  John  C.  Wilso7i,  an  officer  of  the 
safe  deposit  company.  He  testi- 
fied that  he  went  to  Judge  Holt's 
house  and  took  possession  of  all 
personal  projjerty  and  papers.  Some 
of    the    relatives    wanted    to    have 


certain  letters  burned,  but  he  thought 
he  had  no  discretion  in  the  matter, 
so  took  charge  of  all  of  them.  He 
broke  the  seals  of  the  closets  in  the 
lil)rary  and  took  out  the  papers. 
He  found  the  will  of  1848  among  a 
lot  of  old  papers,  but  saw  nothing 
of  the  alleged  will  of  1873.  The 
witness  was  not  cross-examined,  and 
with  his  testimony  the  case  went 
over  until  Monday  morning. 

Mondai/,  June  8. 

The  lawyers  who  are  trying  to 
show  in  Circuit  Court  No.  1  that 
the  document  alleged  to  be  the  will 
of  the  late  Judge  Joseph  Holt  is  a 
forgery  played  their  strongest  card 
yesterday  when  they  placed  upon 
the  stand  Mr.  David  N.  Carvalho, 
a  famous  expert,  not  only  in  hand- 
writing, but  in  inks  and  paper.  For 
sixteen  years  he  has  been  the  official 
expert  for  the  District  Attorney's 
office  in  New  York,  and  during  his 
career  has  testified  in  thousands  of 
cases.  The  entire  day  was  spent 
in  examining  and  cross-examining 
Mr.  Carvalho,  and  court  remained 
in  session  until  a  later  hour  than 
usual  in  order  to  permit  him  to 
return  to  New  York  last  night  to 
testify  in  the  famous  Fleming  mur- 
der case,  now  on  trial.  He  un- 
hesitatingly pronounced  the  alleged 
will  of  1873  to  be  a  clumsy  forgery, 
and  gave  it  as  his  opinion  that  the 
name  Ellen  B.  E.  Sherman,  at- 
tached to  the  document  as  the  name 
of  a  witness,  was  written  by  the 
same  hand  which  wrote  the  body  of 
the  document.  Furthermore,  he  ap- 
plied a  chemical  test  to  the  ink  used 
in  the  document  and  stated  as  a 
result  that  such  ink  was  not  in  use 
in  1873,  and  that  it  could  not 
have  been  written  at  that  time.  Dr. 
Frazier,  the  Philadelphia  expert,  had 
fairly  bewildered  everybody  with 
his  technicalities,  but  after  listening 
to  Mr.  Carvalho  for  a  day,  the 
impression  prevailed  that  the  Phihi- 
delpiiian  had  only  dealt  in  the 
rudiments  of  the  science.  If  Mr. 
Carvalho  had  only  had  time,  he 
would  no  doubt  have  told  whether 


No.  390. 


THROCKMORTON    V.    HOLT 


943 


the  mysterious  document  was  writ- 
ten in  the  daytime  or  at  ni<.!:ht,  in 
Washington  or  in  San  Francisco, 
and  whether  the  man  who  wrote  it 
wore  a  full  beard  or  was  smooth 
shaven. 

Mr.  Carmlho  was  then  called. 
He  is  a  well-built  man,  apparently 
al)out  forty  years  of  age,  wears  a 
full  dark  beard  and  eyeglasses.  He 
has  the  appearance  of  a  scientist, 
and  is  extremely  positive  in  all  his 
statements.  He  placed  his  micro- 
scope and  a  number  of  papers  on  a 
small  table  in  front  of  the  witness 
stand.  He  had  made  a  careful 
study,  he  said,  of  the  various 
authenticated  writings  of  Judge 
Holt  of  date  prior  to  1880,  in 
comparison  with  the  writings  in 
the  alleged  will.  His  most  impor- 
tant observation  had  been  that  in 
the  disputed  document  there  is  an 
excessive  number  of  letters,  such  as 
"t"  and  "1,"  made  with  a  loop  at 
the  top.  The  writing  was  evidently 
that  of  a  person  accustomed  to 
the  forearm  movement,  although 
certain  words  were  written  in  a 
cramped,  studied  hand.  It  also 
struck  him  that  the  names  Josephine 
Holt  Throckmorton  and  ]Maj.  Charles 
B.  Throckmorton  seemed  to  have 
lieen  inserted  after  the  body  of  the 
document  had  been  written. 

In  order  to  enable  him  to  give  a 
practical  demonstration  of  his  mean- 
ing, a  large  blackboard  was  pro- 
vided for  the  witness  and  a  photo- 
graph of  the  alleged  will  was  handed 
to  each  juryman.  i\Ir.  Carvalho 
attached  to  the  blackboard  a  large 
card  bearing  a  copy  of  Judge  Holt's 
genuine  signature  enlarged*  thirty- 
two  times.  He  then  proceeded  to 
point  out  various  ne\er  failing  char- 
acteristics of  the  signature,  which, 
he  said,  were  lacking  in  the  one 
attached  to  the  alleged  will. 

"  My  conclusion  is  that  if  the  letters 
which  were  presented  to  me,  and 
which  I  have  examined  as  the 
genuine  handwriting  of  Judge  Holt, 
are  what  they  purport  to  be, 
Judge  Holt  did  not  write  the  will  or 


the  signature  attached  to  it.  It  is 
nothing  but  a  forgery,  pure  and 
simple." 

Proceeding  to  the  signatures  of 
the  witnesses  to  the  alleged  will, 
Mr.  Carvalho  said  his  examination 
of  them  had  V)ecn  confined  to  the 
namc'of  Pollen  B.  E.  Sherman,  which 
he  was  satisfied  was  written  by 
the  hand  which  wrote  the  body  of 
the  will.  After  that  discovery  he 
had  not  examined  the  other  signa- 
tures. 

Regarding  the  probable  age  of  the 
paper,  the  witness  explained  that 
while  it  might  be  of  the  purported 
age  it  was  very  easily  simulated  by 
holding  a  paper  over  the  spout  of  a 
coffee  pot  and  afterward  going  over 
the  paper  with  a  hot  iron.  He  was 
certain  that  the  paper  in  question 
had  been  ironed. 

Mr.  Worthington  then  directed 
the  witness'  attentioij  to  the  ink  in 
the  alleged  will,  which  resulted  in  a 
lengthy  technical  description  of  the 
various  inks  in  common  use.  He 
had  made  chemical  examinations 
of  the  ink  used  in  the  genuine  letters 
written  by  Judge  Holt  in  1873,  and 
of  that  used  in  the  will,  and  found 
them  apparently  not  the  same. 
The  ink  used  in  the  will,  he  stated, 
was  a  "loaded"  ink,  and  an  ink  that 
was  not  in  ordinary  use  in  1873. 
One  of  Judge  Holt's  letters  which  he 
had  examined,  he  said,  was  written 
with  an  "iron"  ink.  This  letter 
he  had  partially  burned,  and  found 
the  effect  to  be  entirely  different 
from  the  effect  of  fire  on  the  alleged 
will. 

After  recess,  Mr.  Worthington 
went  into  the  question  of  the  differ- 
ence in  inks  more  in  detail.  He 
brought  out  the  fact  that  in  the 
case  of  iron  inks,  some  idea  as  to  its 
age  could  be  obtained  by  chemical 
tests,  for  the  reason  that  disinte- 
gration sets  in  between  four  and 
seven  years  after  its  use.  In  the 
case  of  India  ink,  nothing  could  be 
learned,  because  it  was  not  affected 
by  chemicals.  The  witness  explained 
also  that  India  ink  was  not  used  as 


944 


PART    III.       PROBLEMS   OF    PROOF 


No.  390. 


a  general  thing  for  ordinary  writing 
purposes,  either  in  the  present  day 
or  in  1873.  "Now,  your  honor," 
said  ]Mr.  Worthington,  "  I  ask  that 
the  witness  be  allowed  to  make  a 
chemical  test  of  the  ink  used  in 
this  allegcfl  will,  as  by  the  laws  of 
nature  we  may  settle  this  case  right 
here." 

The  proposition  was  agreed  to  on 
all  sides  after  considerable  discussion. 

The  word  "of,"  immediately  fol- 
lowing the  name  of  Luke  Devlin, 
was  then  chosen.  The  witness  ex- 
plained that  the  chemical  he  was 
about  to  apply  was  muriate  of  tin. 
He  then  took  the  tattered  document, 
which  is  causing  so  much  trouble 
and  speculation,  and  standing  before 
the  jury  smeared  the  chosen  word 
over  with  the  liquid.  Blair  Lee  drew 
his  watch  and  at  the  end  of  two  and 
a  half  minutes  the  expert  declared 
in  positive  tones :  "It  is  not  India 
ink." 

He  then  resumed  the  stand,  and 
continued  :  "  In  my  judgment,  this 
is  a  loaded  ink ;  loaded  with  a 
material  we  call  'archil.'  It  is 
characteristic  of  Arnold's  chemical 
writing  fluid,  which  company  is 
using  archil  to  load  inks,  and  has 
been  using  it  for  the  past  ten  years." 

Mr.  Worthington :  "  Mr.  Car- 
valho,  aie  you  al)le  to  state  whether 
archil  was  used  in  inks  more  than 
ten  years  ago?"  A.  "So  far  as 
my  recollection  goes  it  was  not ;  it 
was  introduced  as  an  adulterant 
about  ten  years  ago." 

Q.  "  What  is  your  conclusion  as  to 
whether  that  paper  could  have  been 
written  as  long  ago  as  1873?"  A. 
"That  paper  could  not  have  been 
written  in  1873,  and  certainly  not 
within  a  period  of  ten  or  twelve 
years  afterward." 

Mr.  Carvalho's  statements  created 
a  profound  sensation  in  the  court 
room.  Messrs.  Wilson  and  Worth- 
ington looked  triumphant  as  they 
turned  the  witness  over  to  Gen. 
Butterworth  for  cross-examination, 
while    Luke    Devlin    seemed    ill    at 


In  cross-examining  the  witness 
Gen.  Butterworth  first  asked : 
"  What  is  archil  ?  "  A.  "  It  is  made 
from  seaweed,  and  is  a  bluish  -green 
coloring  matter.  It  is  obtained  by 
burning  the  weed.  I  do  not  know 
what  its  chemical  constituents  are." 

"  If  you  don't  know  what  its  con- 
stituent elements  are,  how  can  you 
tell  what  the  effects  of  chemicals 
will  be  upon  it?"  A.  "Simply 
from  experiment ;  from  the  phenom- 
ena which  result." 

The  witness  went  on  to  explain 
that  there  was  a  certain  something 
which  happened  when  he  applied 
the  chemical  which  at  once  told 
him  that  the  archil  was  there.  He 
could  not  explain  what  this  mysteri- 
ous something  was,  in  spite  of  Gen. 
Butterworth's  repeated  efforts  to 
get  him  to  do  so. 

Under  close  questioning  the  wit- 
ness said  he  found  Judge  Holt's 
writing  full  of  inconsistencies.  That 
of  itself  was  one  of  his  peculiarities. 

"  Did    I   understand   you    to   say 
that  the  slope  of  the  letters  does  not 
harmonize  in  the  will  ? " 
les. 

"  But  did  you  find  that  the  slopes 
in  the  letters  of  Judge  Holt  har- 
monize ?" 

"Much  more  so  than  in  the  will. 
Those  in  the  will  are  a  sort  of  jumble 
compared  with  the  others." 

The  witness  then  pointed  out  a 
number  of  words  in  the  will  which 
were  written  with  a  cramped  pen- 
movement,  and  compared  them  with 
others  written  more  freely.  Another 
thing  the  witness  had  observed  was 
an  unusually  long  space  after  Joseph- 
ine Tlirockmorton's  name.  "The 
person,"  said  he,  "who  wrote  that 
name  knew  he  could  get  it  in  the 
space,  but  he  did  not  know  where 
the  '  n'  was  going  to  end." 

Q.  "  In  your  judgment,  then,  the 
words  Josephine  Holt  Throckmorton 
were  not  written  in  when  the  body 
of  the  will  was  written?"  A.  "It 
certainly  was  put  in  subsequently. " 

Q.  "  Is  that  your  impression  also 
as    to    the  words    Lizzie    Hynes  ? " 


No.  390. 


THROCKMORTON   V.    HOLT 


945 


A.  "I  think  that  Lizzie  Hynes  was 
written  with  the  rest  of  the  docu- 
ment." 

Q.  "What  is  your  impression 
regarding  the  name  Maj.  Charles  B. 
Throckmorton?"  A.  "I  will  an- 
swer the  same  as  in  regard  to  the 
name  Josephine  Holt  Throckmorton. 
In  each  case  the  balance  of  the  line 
had  been  written  before  the  names 
were  put  in.  I  arrive  at  this  con- 
clusion by  the  spaces,  and  also  be- 
cause the  names  do  not  bear  the  same 
relation  to  the  base  line.  There  is 
also  a  different  quality  in  my  mind 
in  the  matter  of  pen  pressure.  The  • 
names  are  written  in  a  cramped 
hand." 

Speaking  of  further  discrepancies 
in  the  alleged  will,  the  witness  said 
that  in  none  of  the  letters  he  had 
examined  did  he  find  the  letter 
"t"  made  with  a  loop  at  the  top 
when  it  was  the  first  letter  of  a 
word.  Neither  did  Judge  Holt  be- 
gin the  first  stroke  of  his  H  in  his 
name  with  a  heavy  stroke,  nor  had 
he  found  any  Js  with  a  heavy  stroke 
at  the  top. 

Replying  to  Gen.  Butterworth's 
question  as  to  what  he  found  in  the 
name  of  Ellen  B.  E.  Sherman  which 
led  him  to  suspect  that  it  was  not 
genuine,  the  witness  specified  cer- 
tain characteristics  in  the  "1," 
"n,"  and  "h"  which  led  him  to 
believe  that  the  name  was  written 
by  the  same  hand  as  that  which  wrote 
the  body  of  the  will.  Regarding  the 
name  of  W.  T.  Sherman,  he  said  he 
had  expressed  no  opinion  as  to  its 
genuineness,  but  he  had  observed 
that  an  erasure  had  been  made  in 
the  vicinity  of  the  burned  hole 
near  the  name.  The  witness  also 
believerl  that  the  lower  portion  of 
the  will  had  been  cut  from  the  upper 
portion,  up  to  a  point  near  the 
right-hand  side,  and  that  it  had  been 
torn  the  rest  of  the  way. 

Mr.  Carvalho,  at  Gen.  Butter- 
worth's  request,  repeated  his  reasons 
for  belie^■ing  that  the  will  could 
not  ha\e  been  written  as  long  ago 
as  1S73,  and  was  then  asked  : 


Q.  "  Are  you  able,  by  looking  al; 
that  ink,  to  tell  when  it  was  made, 
within  say  five  years  ?  "     A.    "  Yes." 

Q.  "  Very  well,  when  was  the 
ink    made?"     A.    "Within    twelve 


Q.    "Why 


.  1 .    "  I    applied    a 


chemical  to  it,  and  obtained  a 
certain  result ;  the  result  is  archil, 
and  prior  to  ten  or  twelve  years  ago 
ink  did  not  contain  it." 

Gen.  Butterworth  then  questioned 
him  concerning  his  experiment  with 
one  of  Judge  Holt's  letters,  and  the 
witness  replied  that  he  was  certain 
there  was  iron  present  in  the  ink 
with  which  it  was  written. 

Q.  "  Do  they  put  iron  in  all  inks  ?  " 
A.    "No,  they  do  not." 

Q.  "  If  you  will  put  that  chemical 
on  any  part  of  this  will,  the  result 
will  be  the  same,  will  it  ?  "  A.  "  Yes, 
and  if  you  will  put  it  on  any  other 
piece  of  paper  containing  Judge 
Holt's  writing  of  February  7,  1873, 
you  will  find  a  different  result." 

The  ink  expert  went  on  tc;  describe 
the  effects  of  the  chemical  on  differ- 
ent varieties  of  ink.  He  said  there 
are  about  forty  different  kinds  of 
ink  manufactured  in  this  country, 
from  which  many  combinations  are 
made. 

Tuesday,  June  9. 

If  it  had  not  been  for  the  refresh- 
ing appearance  of  Mr.  G.  O'Toole 
McCarthy,  in  the  Holt  will  case 
yesterday,  the  proceedings  would 
have  been  more  than  tiresome. 
Upon  the  whole  it  was  a  good  thing 
McCarthy  was  there.  He  burst  sud- 
denly upon  the  scene  just  when 
everybody  was  beginning  to  yawn 
and  threw  so  much  life  into  his  little 
comedy  role  that  he  received  a 
hearty  encore,  which  it  required  the 
united  efforts  of  the  court  officials 
and  Judge  Bradley  himself  to 
squelch.  There  was  nothing  re- 
markaljle  about  his  testimony.  It 
was  not  even  allowed  in  the  record, 
and  it  would  have  been  of  small 
importance  if  it  had  been.  It  was 
the  way  he  gave  it,  or  rather  tried  to 
give  it,  that  made  the  hit  of  the  day. 


946 


PART   III.       PROBLEMS   OF    PROOF 


No.  390. 


When  Washington  Hult  took  the 
stand  at  the  opening  Mr.  Wilson 
conducted  the  examination.  The 
witness  related  a  number  of  inci- 
dents showing  Judge  Holt's  feelings 
toward  his  relatix'es.  Once  Judge 
Holt  spoke  to  him  of  a  gift  of  SIO.OOO 
which  he  had  nuule  to  ^liss  Lizzie 
Hynes.  He  said  that  Miss  Hynes 
was  a  woman  of  simple  tastes,  and 
that  the  amount  would  probably  be 
ample  for  her  needs  for  the  rest  of 
her  life.  Mr.  Wilson  asked  the 
date  of  the  con\ersation,  but  the 
witness  replied  that  his  memory  for 
dates  was  very  bad,  and  that  if  he 
and  jNIr.  Wilson  should  take  a 
buggy  ride  to  San  Francisco  to- 
gether, discussing  all  sorts  of  things 
on  the  way,  it  would  be  just  as 
easy  for  him  to  tell  at  what  par- 
ticular milestone  a  certain  subject 
was  discussed. 

He  had  never  heard  Judge  Holt 
mention  the  Throckmortons  and 
had  never  heard  of  Luke  De^'lin 
until  after  his  uncle's  death.  He 
related  again  the  incident  when  he 
and  Col.  Sterett  had  been  accosted 
by  Devlin  at  the  Riggs  House. 
Mr.  Wilson  tried  to  show  by  the 
witness  that  Judge  Holt  was  not  on 
good  terms  with  the  Rays,  relatives 
of  Miss  Hynes,  in  order  to  show  the 
improbability  of  his  leaving  her  a 
large  sum  of  money  which  would 
eventually  go  to  her  relatives.  Judge 
Bradley,  however,  ruled  such  testi- 
mony out. 

The  witness  had  first  seen  the 
alleged  will  in  the  Register's  office. 
"I  repeat  now,"  he  added,  "what 
I  said  then,  that  it  is  not  only  a 
forgery,  but  a  botch.  The  expert 
made  use  of  this  expression  yester- 
day, but  I  claim  the  copyright,  as 
I  used  it  a  year  ago.  There  are  a 
great  many  things  al)out  the  will 
which  make  me  believe  this.  Uncle 
never  used  a  superfluous  word, 
and  the  will  speaks  of  Luke  Devlin's 
character  as  being  of  the  highest 
standard.  The  word  standard  is 
not  necessary,  and  I  am  sure  he 
would  not  have  used  it.     Where  it 


says  that  Josephine  Throckmorton 
is  to  inherit  her  share  at  the  age  of 
twenty-one,  figures  are  used,  and  I 
remember  oik'c  uncle  sent  a  deed 
back  to  me  for  correction  because 
figures  were  used,  when  he  said  the 
words  should  have  been  spelled  out. 
Mr.  Holt  was  then  excused,  while 
two  or  three  other  witnesses  w'ere 
examined  briefly. 

Mr.  Frederick  F.  Sch racier,  of  The 
Post,  testified  that  he  had  an  inter- 
view with  Luke  Devlin  the  day 
after  the  alleged  will  made  its  ap- 
pearance, and  that  Devlin  told 
•him  that  he  always  had  an  idea 
there  was  a  will  in  existence,  and 
that  he  had  written  to  the  Throck- 
mortons about  it.  When  the  wit- 
ness first  examined  the  alleged  will 
in  the  Register's  oflfice,  two  or  three 
days  after  its  receipt,  the  upper 
and  lower  portions  were  entirely 
separated. 

Cross-examined,  ]\Ir.  Schrader 
told  of  his  examination  in  detail, 
and  added  that  the  paper  was  not 
folded  when  he  first  saw  it.  He 
thought  its  general  appearance  yes- 
terday was  the  same  as  when  he 
saw  it  first.  During  his  conversa- 
tion with  Devlin  the  latter  had 
said  that  while  he  had  always 
suspected  the  existence  of  a  will,  he 
had  no  idea  he  was  named  as  exec- 
utor. On  redirect  examination  the 
witness  said  Devlin  had  told  him 
that  he  had  an  idea  where  the  will 
was  all  the  time,  but  refused  fur- 
ther information.  Devlin  had  also 
stated  that  he  was  on  intimate  terms 
with  the  Throckmortons,  and  that 
Maj.  Throckmorton  visited  him 
whenever  he  was  in  town. 

The  next  witness  was  Mr.  John 
B.  Randolph,  for  thirty  years  a 
clerk  in  the  War  Department.  He 
had  become  familiar  with  the  signa- 
tures of  Gen.  Grant  and  Gen. 
Sherman,  and  was  confident  that 
the  signatures  attached  to  the  al- 
leged will  were  not  genuine.  He 
pointed  out  a  number  of  peculiari- 
ties in  the  two  signatures  which 
inclined  him  to  this  belief. 


No.  390. 


THROCKMORTON   V.    HOLT 


947 


A  bald-headed  gentleman,  with 
an  iron  gray  beard  and  spectacles, 
Avho  said  he  was  G.  0'  T.  McCarthy, 
an  "artist  in  penmanship,"  next 
took  the  stand.  He  had  had  oc- 
casion to  become  familiar  with  the 
signature  of  Mrs.  Sherman,  and 
when  he  was  shown  the  alleged  will 
and  asked  as  to  the  genuineness  of 
the  signature  attached,  he  thrust  his 
hand  into  his  inside  pocket  and  pro- 
duced a  bundle  of  papers,  as  he  said 
with  a  decided  brogue  :  "  I  have  to 
compare  these  signatures  to  show 
radical  differences." 

Gen.  Butterworth  at  once  took 
advantage  of  the  situation,  and 
asked  :  "  And  you  cannot  show  any 
differences  without  comparing 
them  ? ' ' 

"  No,  but  I  can  show  you  many 
differences  when  I  look  at  them 
together." 

All  the  lawyers  on  the  other  side 
interposed  strenuous  objections,  but 
the  witness  was  rattling  on  at  a 
great  rate,  utterly  oblivious  to 
what  was  going  on  around  him, 
and  talking  as  if  he  had  a  hot 
biscuit  in  his  mouth.  He  seemed 
to  have  an  idea  that  he  was  about 
to  clear  up  the  whole  mystery  of 
the  will,  and  could  not  for  a  moment 
understand  that  there  could  be  any 
objection.  Judge  Bradley  looked 
down  on  him  in  helpless  amazement 
for  a  moment,  while  everybody 
laughed,  and  the  attendants  rapped 
for  order.  Then  the  court  said : 
"  Is  there  any  way  of  stopping  you 
when  you  get  started?" 

"Oh,  yes,  sir;  I  was  only  going 
to—" 

"Well,  you  had  better  stop  when 
you  are  asked.  Put  those  signa- 
tures in  your  pocket." 

"  If  you  will  allow  me  to  make 
comparisons,  I  will  show  you  some 
radical  differences,"  and  the  witness 
was  off  again  at  a  .two-minute  lick. 

"Well,  you  cannot  do  that," 
said  the  court. 

"  Very  well,  then,  I  have  nothing 
more  to  say,"  said  the  crest-fallen 
Mr.    McCarthy,    as   he   reluctantly 


pocketed  his  documents.  Under  Mr. 
Worthington's  subsequent  question- 
ing, he  said  he  did  not  think  the 
signature  was  genuine,  but  his 
testimony  was  ruled  out,  and  after 
several  requests,  he  was  finally  in- 
duced to  leave  the  stand. 

//.  ^1.  Wallon,  who  is  also  a  clerk 
in  the  War  Department,  having 
been  there  since  1863,  was  next 
called.  He  frequently  came  across 
documents  bearing  Judge  Holt's 
signature,  and  had  two  papers  with 
him,  dated  in  March  and  July,  1873. 
He  thought  the  signature  to  the 
will  was  not  Judge  Holt's,  but  it  was 
developed  by  Gen.  Butterworth 
that  he  only  spoke  after  a  com- 
parison, and  his  evidence  followed 
that  of  jNIr.  McCarthy. 

After  recess  Washimjton  Holt  was 
recalled  and  cross-examined  at  length 
by  Gen.  Butterworth.  The  ques- 
tions put  to  him  for  the  first  hour 
were  all  concerning  early  family 
history.  He  was  asked  concerning 
the  number  of  acres  in  the  old 
family  estate,  and  the  cost  of  the 
improvements  which  Judge  Holt 
had  paid  for,  but  the  witness' 
memory  was  bad,  and  he  protested 
repeatedh^  that  he  was  being  asked 
questions  which  it  would  be  im- 
possible for  any  human  being  to 
answer.  Gen.  Butterworth  then 
cjuestioned  him  closely  as  to  the 
value  of  the  bonds  Judge  Holt  had 
given  Mrs.  Holt,  and  the  amount 
he  had  spent  in  paying  the  expenses 
of  various  trips  which  Mrs.  Holt  and 
her  daughter  had  taken.  The  witness 
simply  told  over  again  what  he  and 
Col.  Sterett  had  both  related  in  detail 
last  week.  Counsel  for  the  legatees 
seemed  to  be  at  a  loss  for  a  theory,  and 
Gen.  Butterworth's  interrogations 
apparently  had  no  significance  until 
he  began  to  dwell  particularly  upon 
the  large  sums  of  money  Judge  Holt 
expended  during  his  lifetime  upon 
Washington  Holt's  family.  Then 
it  began  to  be  suspected  that  he  was 
attempting  to  intimate  that  Judge 
Holt  had  done  so  much  for  them 
during  his   life   that   it   would   not 


948 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


have  been  surprising  if  he  had  left 
them  out  of  his  wilh  He  also 
questioned  him  regarding  the  eon- 
versations  he  had  with  Judge  Holt 
regarding  the  disposition  of  his 
estate.  He  brought  out  the  fact 
that  the  witness'  mental  faculties 
were  impaired  as  the  result  of 
paralysis  in  1893,  and  then  asked 
whether  it  was  in  that  year  that  all 
the  conversations  were  held  with 
Judge  Holt.  A.  "Xot  at  all;  not 
at  all,"  was  the  reply. 

Q.  "  What  was  the  peculiar  men- 
tal trouble  .you  were  suffering  from  ?" 
A.  "Mv  mind  seemed  to  act 
slowly.'' 

Q.  "Was  it  at  that  time  he  told 
you  all  he  had  was  vours?"  A. 
"Yes." 

Q.  "  And  you  inferred  from  that 
that  he  had  made  provision  to  leave 
you  something?"  A.  "Not  only 
from  that,  but  from  other  conver- 
sations." 

The  search  for  the  will  was  gone 
over  again,  and  Mr.  Holt  repeated 
his  statement  that  he  had  ne\Tr 
wavered  for  an  instant  in  his  belief 
that  a  will  existed.  A  slight  sen- 
sation followed  this  statement,  as 
Gen.  Butterworth  said  : 

Q.  "  You  joined  with  Mr.  Sterett, 
I  believe,  in  making  application  for 
letters  of  administration?"  .1. 
"Yes,  sir." 

Q.  "Is  that  your  signature?" 
(showing  him  the  application).  A. 
"  Yes,  sir." 

Q.  "Did  you  swear  to  this  pa- 
per?"    A.    "Yes,  sir." 

Gen.  Butterworth  then  read  that 
portion  of  the  application  which 
stated  that  Judge  Holt  had  died 
intestate,  and  looked  inquiringly 
at  the  witness,  who  replied  :■  A.  "I 
swore  to  it  at  the  instigation  of  my 
counsel,  Mr.  Wilson,  as  the  only 
way  out  of  the  difficulty,  and  with  no 
intention  of  committing  perjury. 
Suppose  I  had  been  your  client, 
what  would  you  have  advised  me  ?" 

Q.  "Wait  until  you  become  my 
client,  and  then  I  will  advise  you. 
You  would  not  swear  to  anything 


which  was  not  true  at  the  instiga- 
tion of  counsel,  would  you?"  A. 
"  It  seems  that  I  did  ;  that  was  the 
only  way  out  of  the  difficulty." 

Gen.  Butterworth  attempted  to 
ascertain  facts  as  to  dates  of  oc- 
currences from  the  witness,  but 
without  success,  as  the  witness 
replied  :  A.  "  I  have  given  the  facts, 
but  I  cannot  make  my  memory  do 
that  which  it  will  not  do.  I  know 
some  things  as  well  as  I  know 
London  is  in  England,  but  I  cannot 
swear  to  that,  as  I  never  saw 
either  London  or  England." 

Q.  "  I  understand,"  said  Gen. 
Butterworth,  "that  you  and  other 
members  of  the  family  have  built  a 
monument  to  Judge  Holt.  When 
did  you  do  that?"  A.  "It  was 
built  last  year,  in  June ;  I  have  a 
reason  for  fixing  that  date." 

Q.  "  Before  the  discoverv  of  this 
alleged  will?"     A.    "Yes."' 

At  this  point  court  adjourned  for 
the  day. 

Wcdncsdaii,  June  10. 

When  court  opened,  counsel  for 
the  heirs-at-law  recalled  J\Ir.  John 
C  IJllson,  who  was  an  officer  of 
the  safe  deposit  company'.  He  testi- 
fied simply  that  in  the  examination 
of  Judge  Holt's  safe  deposit  box  no 
testamentary  papers  or  documents 
of  especial  value  were  found. 

JVashinc/fon  Holt  then  took  the 
stand  again.  Gen.  Butterworth 
created  something  of  a  stir  by 
asking  him  whether  he  had  not  said 
to  Representative  Hitt  that  he  was 
convinced  that  Judge  Holt's  papers 
had  been  gone  over,  and  that  he 
believed  Col.  Sterett  had  found  a 
will  and  destroyed  it.  A.  "I  do 
not  remember  saying  such  a  thing." 

Q.  "  Did  you  not  say,  further, 
that  you  thought  if  Col.  Sterett 
was  in  his  cups  he  might  confess  to 
having  done  so?"  A.  "I  do  not 
remember.  I  wjis  very  much  worried 
at  the  time  and  I  do  not  know  what 
I  might  have  said.  I  remember  a 
conversation  I  had  with  Mr.  Hitt, 
but  cannot  say  what  it  was  about." 

(l-    "  Did  you  offer  Col.  Wright, 


No.  390. 


THROCKMORTON    V.    HOLT 


949 


who  was  at  that  time  Register  of 
Wills,  $40,000  if  he  found  a  will?" 
A.    "I  did." 

Q.  "Did  you  offer  his  assistant 
S5000  if  he  could  find  a  will  ?"  A. 
"Yes.  I  told  Col.  Wright  I  was 
willing  to  give  S40,000  for  the  dis- 
covery of  such  a  will  as  I  believed 
was  in  existence,  making  me  execu- 
tor. W^hen  I  offered  the  assistant 
$5000  I  remember  he  said  such  a 
sum  was  not  to  be  picked  up  every 
day,  and  I  replied  that  I  did  not 
think  it  was  to  be  picked  up  that  day, 
because  I  was  convinced  that  the 
will  was  either  lost  or  destroyed." 

Mr.  Holt  stated  further  on  that  he 
thought  the  estate  was  worth  about 
$180,000,  but  Mr.  Worthington  sug- 
gested that  it  was  worth  close  to 
$250,000  at  one  time. 

Gen.  Butterworth  handed  the 
witness  the  alleged  will  and  said  : 
"  Examine  this  paper,  which  is  called 
a  will." 

"You  may  call  it  a  will,  but  I 
don't,"  replied  the  witness. 

"W^ell,  the  paper  which  we  call  a 
will.  Now  tell  us  why  you  say  it 
is  not  only  a  forgery,  but  a  botch." 

Mr.  Holt  proceeded  to  indicate 
various  points  in  the  document 
which  had  led  to  his  opinion.  In 
legal  documents  his  uncle  always 
referred  to  himself  as  Joseph  Holt, 
of  the  City  of  W^ashington,  District 
of  Columl3ia,  while  in  the  alleged 
will  he  was  called  J.  Holt,  of  the 
City  of  W'^ashington,  D.C. 

Mr.  Butterworth  wanted  to  know 
whether  the  disposition  made  of 
the  property  did  not  have  its  effect 
on  the  witness'  opinion.  Mr.  Holt 
said  he  was  unable  to  answer  such  a 
question,  and  Mr.  W'orthington  ob- 
jected on  behalf  of  his  client,  and 
said  that  if  Gen.  Butterworth 
wanted  a  lecture  on  the  working  of 
the  human  mind,  he  had  better  wait 
until  after  the  trial. 

Nothing  more  of  importance  was 
developed,  and  at  this  point,  by 
an  iniderstanding  with  the  other  side, 
Mr.  Darlington  called  Mr.  Willi  am 
Tccumsch  Sherman,   of  New  York, 


and  asked  him  as  to  certain  charac- 
teristics of  his  father's  signature. 
Mr.  W'orthington  at  once  objected, 
which  precipitated  there  and  then 
the  question  as  to  whether  counsel 
for  the  legatees  would  be  permitted 
to  introduce  evidence  as  to  hand- 
writing in  the  alleged  will.  After 
considerable  argument  the  court 
held  that  whate^'er  testimony  Mr. 
Sherman  might  give  upon  the  point 
could  not  be  held  as  rebutting  the 
testimony  given  on  Tuesday  by 
Mr.  John  Randolph  regarding  the 
signature  of  Gen.  Sherman.  The 
lawyers  made  several  attempts  to 
introduce  the  desired  testimony  by 
other  forms  of  questions,  but  they 
were  all  ruled  out. 

Mr.  Worthington  offered  to  call 
Mrs.  IV.  G.  Stcrctt  as  a  witness,  but 
Mr.  Darlington's  objection  that  she 
w^as  the  wife  of  one  of  the  inter- 
ested parties  was  sustained.  His 
attempt  to  call  Mrs.  Washington 
Holt  was  also  thwarted,  whereupon 
the  counsel  for  the  heirs-at-law 
rested  their  case.  After  more  argu- 
ment Mr.  Darlington  craved  a 
recess  for  an  hour,  which  the  court 
granted. 

It  will  be  remembered  that  several 
days  ago,  when  IVIiss  Mary  Holt 
was  being  cross-examined,  she  was 
asked  as  to  a  certain  remark  she  had 
heard  Judge  Holt  make  regarding 
Col.  William  Sterett.  Mr.  Worth- 
ington objected  to  her  answering, 
and  was  sustained  by  the  court. 
Immediately  after  recess  yesterday 
Miss  Holt  was  placed  on  the  stand 
for  the  legatees. 

"Will  you  tell  us,  now,"  said  Mr. 
Darlington,  "  what  remark  you 
heard  Judge  Holt  make  about  Col. 
Sterett?" 

Again  Mr.  Worthington  objected, 
but  subsequently  withdrew  it,  and 
the  witness  replied  : 

"  I  cannot  tell  you  his  exact  words, 
but  the  idea  Judge  Holt  conveyed 
was  that  according  to  the  statement 
of  Col.  Sterett's  wife  he  was  always 
broke,  and  according  to  his  own 
statement,  he  made  plenty  of  money, 


950 


PART    III.       PROBLEMS   OF    PROOF 


No.  390. 


and  the  Judge  wondered  what  he 
did  with  it."  The  witness  was 
promptly  excused. 

Mr.  Darhngton  secured  per- 
mission to  read  the  depositions  of 
Mrs.  Fannie  Rickctts,  widows  of 
Gen.  Ricketts,  now  hving  in  Cah- 
fornia.  In  1873  she  Hved  at  1829 
G  street,  in  this  city,  and  was  in- 
timately acquainted  with  Judge 
Holt.  In  February,  1873,  she  was 
a  guest  at  a  dinner  party  given  by 
Judge  Holt,  and  among  the  other 
guests  were  President  and  Mrs. 
Grant,  Hamilton  Fish  and  Mrs. 
Fish,  and  Gen.  and  Mrs.  Sherman. 
Deponent  stated  in  reply  to  cross- 
interrogatories  that  within  three  or 
four  years  after  1873  she  heard 
Judge  Holt  express  himself  with 
great  bitterness  against  Mrs.  Throck- 
morton, senior.  Mr.  Darlington  ex- 
plained that  the  deposition  was 
introduced  in  orfler  to  show  that 
the  relations  between  Judge  Holt 
and  Gen.  Grant  and  Gen.  Sherman 
were  such  that  it  would  have  been 
possible  for  them  to  have  withessed 
the  making  of  the  will. 

This  having  been  disposed  of, 
Luke  Devlin  was  called  to  the 
stand,  and  Mr.  Darlington  asked 
him  how  he  came  to  make  applica- 
tion for  the  office  of  executor  of  the 
McGarrahan  estate,  to  which  ref- 
erences had  previously  been  made. 
Objections  were  promptly  interposed 
by  the  other  side,  and  there  was 
anotlier  long  legal  argument,  Mr. 
Worthington  holding  that  if  Mr. 
Devlin  were  allowed  to  testify,  there 
was  no  reason  why  his  side  should 
not  l)e  given  an  opportunity  to 
reopen  the  question,  so  that  there 
would  be  "no  end  to  this  thing." 
The  court,  however,  admitted  the 
question,  and  Mr.  Devlin  replied : 
"  I  had  been  McGarrahan's  com- 
panion from  1871  until  April,  1894, 
and  I  loaned  him  sums  of  money 
from  .S25  to  SIOO.  I  hold  his  note 
now  for  S3100.  I  became  adminis- 
trator of  his  estate  at  the  third 
request  of  his  counsel." 

Mr.  Worthington  then  asked  the 


witness  concerning  a  statement  at- 
tributed to  him  by  a  newspaper 
reporter  regarding  his  not  having 
been  able  to  see  McGarrahan  on 
the  night  before  his  death.  "  I  did 
not  say  that,"  replied  Mr.  Devlin. 
"On  the  contrary,  I  told  him  I  had 
sickness  in  my  family  and  could  not 
go  to  see  McGarrahan.  I  saw 
him  the  last  time  I  called  and  gave 
him  some  money." 

Questioned  concerning  his  letter 
to  Miss  Throckmorton  regarding 
the  possibility  of  Judge  Holt  having 
left  a  will,  the  witness  stated  that 
he  had  written  to  Miss  Throck- 
morton in  answer  to  a  letter  from 
her.  He  had  destroj-ed  the  letter 
in  August,  1895.  As  nearly  as  he 
remembered  Miss  Throckmorton  had 
asked  whether  Judge  Holt's  will 
had  been  found.  The  witness  iden- 
tified his  reply  to  the  letter,  which 
was  read  in  court.  It  began,  "My 
Dear  Miss  Josephine,"  and  the 
writer  expressed  the  opinion  that 
Ju<lge  Holt  had  made  no  will,  for 
had  he  done  so  the  witnesses  to  it, 
three  in  number,  would  have  come 
forward.  The  letter  also  referred 
to  a  theory  of  a  gentleman  living 
near  the  Holt  residence  that  the  will 
might  have  been  purloined  from  the 
house  with  numerous  other  articles. 

Mr.  Darlington  then  continued : 
"  Some  testimony  was  offered  to  the 
effect  that  you  told  Mr.  Schrader,  of 
The  Post,  that  you  had  an  idea 
where  the  will  was.  Did  you  so  tell 
him?"  A.  "I  believe  that  was 
correct.  I  formed  it  immediately 
after  my  interview  with  the  Register 
of  Wills  ;  after  the  will  was  turned 
into  the  Register's  office." 

Q.  "Something  was  also  said 
about  your  having  an  autograph 
album  and  getting  signatures  of 
prominent  people?"  A.  "That  is 
true  ;  I  had  one  up  to  1867.  I  gave 
it  to  Mr.  O.  L.  Pruden  during  the 
summer  of  1867.  I  next  saw  it 
after  Mr.  Smith's  testimoiiy,  when 
I  went  to  the  White  House  and  got 
it." 

Q.    "  In  Charles  Strothcrs'   testi- 


No.  390. 


THROCKMORTON    V.    HOLT 


951 


raony  regarding  an  interview  with 
you  at  his  pool  room,  speaking 
of  the  will,  he  stated  that  you 
remarked  there  would  be  a  pile 
in  it  for  you?"  .1.  "I  did  not 
use  such  language ;  I  simply  said 
there  was  a  high  compliment  in  it 
for  me." 

Mr.  Darlington  then  asked  the 
witness  regarding  interviews  which 
Mr.  John  Miller,  of  the  Star,  had 
testified  to.  Mr.  Devlin  denied 
positively  that  he  had  said  there 
ought  to  have  been  a  will  in  favor 
of  the  Throckmortons.  His  con- 
versation in  the  Star  office  had  been 
addressed  to  Dr.  Howe,  who  had 
known  the  Throckmortons  as  long 
as  he  had.  Mr.  Miller's  statement 
that  he  had  said  he  was  a  fool  to  let 
another  opportunity  go  by,  and 
that  he  should  have  gone  into  Judge 
Holt's  room  in  spite  of  the  servants 
was  also  a  mistake ;  it  was  highly 
improbable  that  he  would  have 
used  such  language.  In  regard  to 
the  statement  of  Mr.  Wilkins,  of 
The  Post,  that  witness  had  offered 
him  a  typewritten  copy  of  the  will, 
Mr.  Devlin  stated  that  he  had 
offered  him  the  official  copy  of  the 
document  to  make  a  copy  from. 
Dr.  Howe,  of  the  Star,  had  previously 
made  a  copy  of  it,  and  the  document 
was  in  a  Star  envelope. 

The  statement  of  Witness  Fought 
to  the  effect  that  Devlin  had  had 
trouble  with  Judge  Holt  over  the 
fact  that  he  (Devlin)  was  acting 
as  Senator  Blair's  private  secretary 
was  next  brought  up,  and  Mr. 
Devlin  denied  that  Judge  Holt  had 
ever  spoken  to  him  on  the  subject. 
At  this  point  a  document  was 
intro'luced,  signed  by  Judge  Holt, 
testifying  regarding  Luke  Devlin, 
that  "  his  conduct  throughout  his 
long  service  has  been  most  excellent ; 
thoroughly  qualified  for  his  duties, 
he  has  performed  them  at  all  times 
with  fidelity  and  zeal."  Mr.  Devlin 
also  characterized  Fought's  state- 
ment that  he  had  been  required  to 
surrender  his  key  to  the  office  as 
absolutelv  false.     At  that  ver\-  time 


Judge  Holt  had  promoted  him  from 
a  salarv  of  $1100  per  annum  to 
SI 600.  ^ 

At  this  point  Mr.  Devlin  was 
excused,  in  order  to  place  Judge 
John  A.  Bingham,  of  Ohio,  on  the 
stand.  He  testified  that  he  was 
eighty-one  years  of  age,  and  was 
in  Congress  for  eighteen  years.  He 
first  met  Judge  Holt  in  1864  and 
had  become  familiar  with  his  hand- 
writing, having  been  associated  with 
him  at  the  time  of  the  trial  of  the 
assassins  of  President  Lincoln.  He 
met  Judge  Holt  constantly  until 
1S73,  when  he  left  the  country  as 
Minister  to  Japan,  being  gone  twelve 
years.  When  it  became  apparent 
that  it  was  the  intention  of  the 
attorneys  for  the  legatees  to  have 
Judge  Bingham  testify'  regarding 
the  genuineness  of  the  alleged  will, 
the  lawyers  on  the  other  side  raised 
strenuous  objections  again,  and  the 
battle  as  to  what  was  rebuttal  testi- 
mony and  what  was  not  was  on  again 
as  fiercely  as  at  first.  After  a  long 
argument  Judge  Bradley  held  that 
it  was  clearly  not  rebuttal,  and 
sustained  the  objection  of  counsel 
for  the  heirs-at-law.  Even  then  the 
opposition  did  not  give  up,  and 
Messrs.  Butterworth,  Darlington, 
and  Lee  all  submitted  additional 
arguments,  but  without  avail. 

The  court  added,  however,  that 
he  did  not  want  his  decision  under- 
stood as  prohibiting  testimony  as 
to  the  attainments  and  qualifica- 
tions of  Judge  Holt  as  a  lawyer, 
without  reference  to  the  genuineness 
of  the  document  in  question,  and 
Gen.  Butterworth  immediately  took 
the  cue  and  asked  : 

Q.  "  Judge  Bingham,  do  you  know 
anything  as  to  the  legal  attainments 
of  Judge  Holt  ?  Are  you  able  to 
state,  from  your  knowledge  of  him, 
whether,  in  the  preparation  of  legal 
documents,  he  was  an  accurate, 
technical  lawyer?"  A.  "I  re- 
garded Judge  Holt,"  replied  the 
witness,  "  as  a  strong,  sensible  man  ; 
a  careful,  painstaking  man  ;  a  very 
faithful  man  in  the  discharge  of  his 


952 


PART    III.       PROBLEMS   OF    PROOF 


No.  300. 


official  duties.  At  no  time  during 
my  intercourse  with  him  did  I  see 
any  indication  that  he  was  a 
technical  lawyer.  He  was  simply  a 
broad-minded,  intellis^ent  man.  He 
tried  to  ascertain  his  duty  and  did 
it.  I  saw  no  sign  of  his  being  a 
technical  lawyer;  he  dealt  with 
facts." 

The  lawyers  for  the  other  side 
refused  to  cross-examine  the  witness, 
and  Mr.  Devliu  resumed  the  stand. 
Mr.  Darlington  said:  Q.  "Mr. 
Schrader  testified  that  you  told 
him  ]\Iaj.  Throckmorton  was  on 
very  friendly  terms  with  you,  and 
visited  you  every  time  he  came  to 
town?"  A.  "I  did  not  say  that; 
he  asked  me  when  Maj.  Throck- 
morton would  be  in  town,  and  where 
he  would  stop.  I  said  he  would 
probably  stop  with  me,  as  I  visit 
at  his  house." 

Q.  "  It  was  also  stated  during  the 
proceedings  that  you  were  very 
fond  of  signatures  of  prominent 
people,  and  would  tear  them  off 
papers  in  the  office."  ^4.  "It  is 
undoubtedly  false ;    absolutely." 

Q.  "  It  was  further  stated  that 
when  Judge  Holt  inadvertently 
omitted  signing  his  name  to  official 
papers  you  wrote  his  name  to  them." 
A.  "That  is  absolutely  false.  I 
never  signed  Judge  Holt's  name  to 
a  document  in  my  life ;    not  one." 

Q.  "  Mr.  Schrader  stated  that  you 
said  you  believed  that  Miss  Hynes 
would  be  well  provided  for  in  the 
will."  A.  " That  is  correct.  From 
18()2  to  1869  I  sent  checks  quarterly 
from  Judge  Holt  to  Miss  Hynes.  I 
knew  she  was  supported  by  Judge 
Holt,  as  she  was  his  ward." 

The  examination  of  Luke  Devlin 
will  be  resumed. 

Thursday,  June  //. 

Nearly  all  of  the  morning  session 
was  occupied  by  Luke  Devlin's 
testimony.  His  own  version  of  the 
various  interviews  which  he  had 
with  newspaper  men  after  the  dis- 
covery of  the  alleged  will  differed 
materially  from  that  of  tlie  scril)es 
and   made  Mr.   Devlin   appear  like 


a  much-misrepresented  man.  The 
balance  of  the  testimony  tended  to 
show  that  Judge  Holt  entertained 
the  highest  regard  for  Miss  Hynes 
and  to  discredit  previous  statements 
that  Judge  Holt  had  not  intended 
to  provide  for  her  in  his  will. 

In  reference  to  his  having  sug- 
gested to  Washington  Holt  and  Col. 
Sterett  at  the  Riggs  House  that  the 
Holt  residence  ought  to  be  rented, 
the  witness  stated  that  Mr.  Holt 
had  expressed  his  willingness  pro- 
vided the  other  heirs  were  agreeable. 
He  then  identified  a  letter  written  by 
Judge  Holt  recommending  his  ap- 
pointment as  a  Second  Lieutenant 
in  the  army.  The  letter  referred 
to  Mr.  Devlin  in  the  highest  terms. 

Mr.  Darlington  asked  the  witness 
whether  he  had  anything  to  do  with 
the  writing  of  the  alleged  will  and 
the  sending  of  it  to  the  Register  of 
Wills,  and  Mr.  Devlin  replied : 
A.  "  I  knew  absolutely  nothing  of  it 
until  I  saw  it  at  the  Register's  office." 

Cross-examined  as  to  his  relations 
with  the  Throckmortons,  the  witness 
stated  that  they  began  in  1860,  and 
he  had  known  Miss  Josephine  since 
her  father  was  stationed  at  Fort 
Myer.  He  repeated  his  statement 
made  yesterday  as  to  receiving 
a  letter  from  ^liss  Throckmorton 
regarding  the  probaI)ility  of  Judge 
Holt  having  left  a  will,  and  also 
identified  a  copy  of  a  telegram  which 
he  had  sent  Miss  Throckmorton 
after  the  alleged  will  made  its 
appearance.  It  was  dated  August 
26,  1895,  and  read:  "Will  found. 
You  and  Miss  Hynes  get  all ;  share 
alike." 

Mr.  Devlin  was  then  asked  how 
he  was  so  well  informed  as  to  affairs 
at  the  Holt  residence  after  the 
Judge's  death,  as  appeared  from 
his  interviews  with  newspaper  re- 
porters. Mr.  Devlin  said  he  got 
his  information  from  a  Mr.  Olds, 
living  in  the  suburl)s.  Mr.  Worth- 
ington  read  from  the  Star  of  August 
26,  1895,  a  number  of  statements 
credited  to  Mr.  Devlin,  which  the 
latter  denied  most  strenuously.     He 


No.  390. 


THROCKMORTON   V.   HOLT 


953 


particularly  denied  a  statement  at- 
tributed to  him  that  he  believed  the 
alleged  will  had  been  hidden  by 
some  of  Judge  Holt's  colored  ser- 
vants, who  afterward  became  con- 
science stricken  and  mailed  it  to 
the  Register. 

The  several  statements  regarding 
Mr.  Devlin's  movements  after  leav- 
ing the  Register's  office  on  the  day 
the  will  was  found  have  been  very 
conflicting,  and  yesterday  he  reiter- 
ated his  statement  that  he  went 
first  to  a  drug  store,  then  to  the 
War  Department  for  Maj.  Throck- 
morton's address,  then  to  the  tele- 
graph office,  and  then  to  the  Star 
office.  He  was  to  meet  his  sister- 
in-law,  Miss  Emily  Carrico,  at  the 
drug  store.  He  insisted  that  it  must 
have  been  after  2  o'clock  when  he 
reached  the  Star  office. 

The  examination  of  Mr.  Devlin 
was  suspended  to  allow  Mr.  C.  A. 
Johnson,  who,  from  1890  to  1894,  was 
postmaster  at  Lebanon,  Kentucky, 
tlie  home  of  Miss  Hynes,  to  testify. 
After  Mr.  Worthington's  objection 
was  partially  overruled,  and  he  had 
withdrawn  it,  the  witness  stated 
that  while  he  held  the  office  Miss 
Hynes  received  money  orders  about 
once  a  month  from  Judge  Holt. 
They  were  always  for  $50  each. 

When  Mr.  Devlin  took  the  stand 
again,  the  fact  was  brought  out 
that  after  the  finding  of  the  alleged 
will  Maj.  Throckmorton's  son  dined 
at  Devlin's  house  and  left  with  him  a 
number  of  letters  from  Judge  Holt. 
He  had  turned  the  letters  over  to 
Mr.  Blair  Lee,  one  of  the  attorneys 
for  the  legatees. 

Q.  "Did  you  tell  Mr.  Schrader 
that  you  were  satisfied  that  the  will 
and  the  attestations  were  genuine  ?" 
A.  "I  may  have  said  so  with  ref- 
erence to  all  the  signatures  except 
Mrs.  Sherman's." 

Q.  "  Did  you  tell  him  that  you 
thought  probably  the  will  was 
written  and  attested  upon  some 
occasion  when  all  the  witnesses 
were  at  Judge  Holt's  house  ? "  A. 
"I  did  not." 


The  witness  further  stated  that  he 
is  at  present  employed  in  the  record 
and  pension  division  of  the  War 
Department,  and  that  it  is  a  part 
of  his  duty  to  have  tracings  of 
signatures  made.  He  usually  got 
Mr.  Harry  Fellows,  another  clerk, 
to  do  it.  Mr.  Devlin  named  a 
number  of  army  officers  whom  he 
met  at  IVIaj.  Throckmorton's  house. 
All  of  them  are  dead  or  stationed  at 
posts  outside  of  the  city. 

This  concluded  the  cross-examina- 
tion of  Mr.  Devlin,  and  after  recess, 
Judge  Miller,  of  the  Police  Court, 
was  called.  He  was  asked  what  he 
knew  about  the  general  reputation 
of  Luke  Devlin,  but  Mr.  Worthing- 
ton  objected  vigorously  before  he 
had  a  chance  to  reply.  "Your 
honor,"  said  Mr.  Lee,  "I  think  this 
is  competent ;  Mr.  Devlin  has  been 
accused  of  a  very  serious  offense." 
Mr.  W^orthington,  however,  argued 
that  evidence  as  to  a  man's  reputa- 
tion could  not  be  introduced  imtil 
that  reputation  had  been  attacked. 
He  was  promptly  sustained  by  the 
court,  and  the  police  court  Judge  as 
promptly  vacated  the  stand. 

Mr.  H.  P.  Godwin,  city  editor  of 
the  Star,  was  then  called.  He 
testified  that  he  and  Mr.  John  P. 
Miller  were  present  at  the  interview 
which  Devlin  had  with  Dr.  Howe  in 
the  Star  office  on  the  day  the  will 
was  found.  He  had  no  recollection 
of  Devlin  having  made  a  statement 
to  the  effect  that  he  had  a  theory 
that  there  was  a  will  in  existence 
before  it  was  discovered,  nor  did  he 
remember  his  saying  that  he  had 
written  to  the  Throckmortons  con- 
cerning it.  Mr.  Devlin  had  with 
him  at  the  time  a  typewritten 
copy  of  the  will.  Cross-examined, 
he  thought  the  interview  occurred 
about  12.30. 

Q.  "  Did  Devlin  say  anything 
about  the  life  Judge  Holt  had  l^een 
living?"  A.  "  I  remember  him  say- 
ing that  the  Judge  had  lived  alone 
for  a  great  many  years  and  had  no 
one  with  him  except  the  servants." 

The  witness  identified  a  portion  of 


954 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


a  parap;raph  in  the  Star  of  the  (hiy 
the  will  was  found,  which  he  thought 
he  had  written,  and  was  then  asked  : 
"Have  you  any  recollection  as  to 
whether  Mr.  Devlin  made  any 
suggestion  to  the  effect  that  the  will 
had  been  held  l^ack  by  some  of  the 
servants,  and  afterward  being  sent 
in  when  conscience  pricked  them?" 
A.  "I  don't  recollect  that  Mr. 
Devlin  said  that." 

Dr.  Frank  T.  Howe,  of  the  Star, 
testified  that  he  did  not  remember 
Mr.  Devlin  saying  he  thought  there 
was  a  will  before  it  turned  up, 
and  did  not  hear  him  say  anything 
about  writing  to  the  Throckmortons. 
Dr.  Howe  stated  that  he  was  em- 
ploved  in  the  Judge  Advocate's 
office  from  1864  to  1869.  Devlin 
was  at  that  time  a  messenger  there. 
He  was  always  very  attentive,  and 
when  the  Judge's  bell  rang  he  was 
very  prompt  to  answer  it.  He 
thought  Judge  Holt  entertained 
kindly  feelings  toward  him. 

Under  cross-examination  Dr.  Howe 
was  asked  :  "  Did  Mr.  Devlin  say 
to  you  in  substance  that  he  believed 
the  will  had  been  put  away  either 
by  accident  or  design  by  some  of 
Judge  Holt's  colored  servants,  who 
who  were  his  sole  companions  in 
his  later  days?"  A.  "I  do  not 
remember  that  he  said  just  that. 
It  has  never  l)een  determined  just 
who  wrote  the  interview  with  Mr. 
Devlin.  I  think,  however,  that 
Mr.  Devlin  conveyed  that  im- 
pression." 

The  next  witness  was  Mrs.  Frank 
Evans.  She  was  employed  as  a 
typewriter  in  the  Register's  office  at 
the  time  the  alleged  will  made  its 
appearance.  The  document  was 
handed  to  her  soon  after  its  receipt 
for  the  purpose  of  making  a  copy  of  it. 
She  was  asked  wiiethcr  the  will  was 
in  two  pieces  at  that  time,  and  after 
Mr.  Worth ington's  objections  were 
overruled  she  testified  that  it  was  in 
one  piece,  showing  the  jury  just 
how  it  was  joined. 

Maj.  T.  Gaines,  who  has  already 
figured  as  a  witness  in  the  case,  was 


then  recalled.  He  was  questioned 
as  to  his  visits  to  Judge  Holt's 
house,  he  having  been  associated 
with  him  since  1862.  Mr.  Lee 
explained  that  this  was  for  the 
purpose  of  rebutting  the  statement 
of  Charles  Strothers  that  he  had 
examined  a  bushel  of  visiting  cards 
at  Judge  Holt's  house,  and  had  never 
found  cards  bearing  the  name  either 
of  Luke  Devlin  or  Maj.  Gaines. 

"  The  last  time  I  called,"  said  the 
Major,  "the  servants  brought  word 
that  the  Judge  was  very  ill,  and  to 
please  call  again.  I  didn't  know 
any    of    the    servants,    they    were 

strangers   to   me.     I   didn't  believe 

jt 

There  was  a  storm  of  objection, 
and  Mr.  Worthington  remarked : 
"  Let  us  permit  what  he  didn't 
believe  to  remain  a  mystery."  This 
was  unanimously  agreed  to,  and 
Maj.  Gaines  proceeded  to  testify 
regarding  Luke  Devlin's  relations 
with  Judge  Holt.  "Judge  Holt," 
said  he,  "was  very  fond  of  Luke 
Devlin,  as  I  learned  as  soon  as  I 
entered  the  office.  In  conversation 
with  the  Judge  while  riding  with  him 
about  the  city,  he  spoke  frequently 
about  Luke  Devlin.  I  remember 
one  occasion  in  particular.  The 
chief  clerk  of  the  office  had  become 
offended  at  Luke,  and  there  was  a 
good  deal  of  personal  feeling  between 
them.  The  Judge  had  expressed 
himself  as  sorry  that  Wright  had 
allowed  his  temper  to  influence  him. 
He  thought  that  Devlin  would  not 
do  anything  except  what  was  right, 
and  that  it  would  all  pass  over  again." 

He  did  not  remember  anything 
Luke  Devlin  did  for  the  Judge 
except  attend  to  errands  and  similar 
work.  The  witness  was  not  ac- 
quainted with  any  other  of  the  parties 
to  the  suit,  although  he  had  seen 
Maj.  Throckmorton.  He  did  not 
remember  who  answered  the  door 
upon  the  occasion  of  his  last  visit 
to  Judge  Holt's  house.  That  visit, 
he  thought,  was  later  than  1880, 
though  he  did  not  remember  whether 
it  was  subsequent  to  1885. 


No.  390. 


THROCKMORTON   V.    HOLT 


955 


When  the  name  of  Mrs.  Ray  was 
called  a  little  woman  in  black,  who 
has  sat  just  behind  Miss  Hynes  and 
the  Throckmortons  throughout  the 
trial,  took  the  stand.  She  comes 
from  Kentucky,  and  is  a  niece  of 
Miss  Hynes.  She  first  saw  Judge 
Holt  in  1862,  when  he  came  to 
Kentucky  to  take  her  aunt,  Miss 
Hynes,  on  a  long  trip.  He  did  this 
almost  every  year.  In  April,  1884, 
when  Judge  Holt  was  visiting  Miss 
Hynes,  he  took  a  lot  of  bonds  from 
a  valise  and  gave  them  to  Miss 
Hynes. 

Q.  "Tell  us  just  what  he  said 
upon    that    occasion."  A.    "He 

said :  '  Lizzie,  here  is  something  I 
have  for  you.  I  have  forgotten 
to  send  you  money  lately,  and  I  will 
give  you  these  bonds,  so  you  will 
always  have  a  little  money.'  He 
said  he  did  not  want  her  to  think 
that  was  all  he  was  going  to  give 
her.  He  told  her  to  write  to  him 
whenever  she  wanted  money,  for 
when  he  was  dead  she  would  be 
independent  of  everybody.  She 
could  take  $10,000  and  spend  it  just 
as  she  wished.  He  said  he  had 
always  intended  to  support  her,  as 
he  had  promised  his  wife  to  do  so." 

The  witness  then  spoke  of  the 
visits  she  had  made  to  Judge  Holt's 
house  in  this  city  in  company  with 
her  aunt.  In  1882  Judge  Holt  had 
spoken  to  her  in  this  city,  in  regard 
to  Miss  Hynes.  He  said  he  had 
promised  his  wife,  whom  he  re- 
ferred to  as  "Cousin  Mary,"  on  her 
deathbed  to  take  care  of  "  Poor 
Lizzie,"  as  she  called  Miss  Hynes. 

Mrs.  Ray  remembered  on  another 
occasion  when  Judge  Holt  was  not 
feeling  well  he  told  Miss  Hynes  that 
he  might  never  see  her  .again,  and 
that  he  did  not  want  her  to  think 
that  $10,000  was  all  he  intended  to 
give  her. 

At  this  point  Mr.  Worthington 
objected  if  the  testimony  was  in- 
tended to  prove  that  Judge  Holt  had 
spoken  of  providing  for  Miss  Hynes 
in  a  will.  He  claimed  that  such  evi- 
dence should  all  have  been   intro- 


duced by  the  other  side  in  the  first 
place ;  that  even  if  they  should  now 
offer  to  produce  a  man  who  saw 
Judge  Holt  write  and  sign  the 
alleged  will,  it  would  not  be  com- 
petent. Mr.  Darlington  named 
three  grounds  upon  which  he 
thought  they  had  a  right  to  intro- 
duce Mrs.  Ray's  testimony,  the  most 
important  being  that  it  was  rebuttal 
to  Washington  Holt's  statement 
that  Judge  Holt  had  said  that  the 
$10,000  he  had  given  Miss  Hynes 
would  be  enough  for  her  needs  for 
the  rest  of  her  life.  The  court 
thereupon  overruled  the  objection, 
and  the  witness  continued  as  fol- 
lows : 

"Judge  Holt  said  he  wanted  Miss 
Hynes  to  know  that  he  would  fix  his 
business  affairs  in  such  a  way  that 
she  could  have  all  she  wished  while 
he  lived,  and  after  he  was  gone  she 
would  be  amply  provided  for.  Miss 
Hynes  then  asked  him  what  his 
relations  would  say,  and  he  replied 
that  his  relations  had  nothing  to 
do  with  his  affairs,  that  they  had 
never  given  him  a  dollar,  and  that 
he  had  made  all  his  money  himself. 
They  would  have  nothing  to  say 
about  it." 

The  witness  was  then  questioned 
as  to  her  own  family,  for  the  purpose 
of  introducing  further  facts  regard- 
ing Judge  Holt's  attitude  toward 
Miss  Hynes,  but  the  court  sus- 
tained Mr.  Worthington's  objec- 
tion. A  number  of  letters  from 
Judge  Holt  to  Mrs.  Ray  were  then 
introduced  as  evidence,  most  of 
them,  as  Mr.  Darlington  explained, 
containing  references  to  Miss  Hynes. 
They  were  also  objected  to,  but  the 
court  ruled  in  favor  of  their  ad- 
mission. 

While  Judge  Wilson  was  exam- 
ining them,  preparatory  to  their 
being  read  this  morning,  Mr.  Worth- 
ington began  his  cross-examination 
of  the  witness.  She  stated  that  she 
last  saw  Judge  Holt  in  1885  or  1886. 

Q.  "Why  was  it  that  you  and  he 
ceased  to  correspond?"  A.  "My 
husband  owed  him  a  note ;  that  was 


9.56 


PART   III.       PROBLEMS   OF   PROOF 


No.  390. 


all  it  was ;  I  never  had  any  trouble 
with  him  myself." 

This  answer  explained  the  bitter 
attack  Judge  Holt  made  on  Mr. 
Ray  in  one  of  his  letters  to  Washing- 
ton Holt. 

Q.  "When  Judge  Holt  spoke  of 
his  relations  in  that  conversation 
with  Miss  Hynes,  was  his  tone  that 
of  unkindness?"  A.  "No;  not  at 
all." 

An  adjournment  was  then  taken. 

Friday,  June  12. 

The  testimony  was  confined  to 
attempts  to  prove  the  friendly  re- 
lations existing  betw^een  Judge  Holt 
and  Miss  Hynes  and  between  Judge 
Holt  and  the  family  of  Maj.  Throck- 
morton, and  also  that  the  will  was 
in  one  piece  when  it  was  received  at 
the  Register's  office.  The  latter 
has  all  along  looked  like  a  plain 
proposition,  but  it  did  not  appear 
to  have  been  satisfactorily  proved 
until  yesterday. 

Mrs.  Ray,  Miss  Hynes'  niece, 
resumed  the  stand  as  soon  as  court 
opened,  and  in  regard  to  the  letters 
written  to  her  by  Judge  Holt,  it 
was  decided  to  read  only  those 
containing  references  to  Miss  Hynes. 
Under  cross-examination,  additional 
facts  were  brought  out  regarding 
the  difficulty  between  the  witness' 
husl)and  and  Judge  Holt.  The 
latter  held  her  husband's  note  for 
S4000  which  M^as  not  paid  when 
due.  It  was  afterward  turned  over 
to  Washington  Holt,  and  the  witness 
admitte<I  that  she  became  much  em- 
bittered, when  he  sent  an  officer  to 
levy  on  the  furniture  in  their  house. 
She  stated  that  after  the  note  was 
paid,  with  the  exception  of  -SSf  5,  and 
her  husband  had  asked  for  thirty 
days  in  which  to  pay  the  balance, 
Washington  Holt  had  refused. 

Judge  Holt's  letters  to  Mrs.  Ray 
were  read.  They  all  expressed  deep 
affection  for  Miss  Hynes,  and  Mr. 
Darlington  passed  them  around 
among  the  members  of  the  jury, 
with  the  suggestion  that  they  com- 
pare the  handwriting  with  that  in 
the  alleged   will.      He   called    their 


particular  attention  to  the  absence 
of  the  jab  on  the  J,  which  had  been 
set  forth  as  a  characteristic  of  Judge 
Holt's  signature,  and  in  one  letter 
he  directed  their  attention  to  a 
number  of  t's  made  with  a  loop, 
which  Mr.  Carvalho,  the  expert, 
had  testified  he  had  not  found  in 
Judge  Holt's  writings. 

Under  further  cross-examination, 
Mrs.  Ray  said  she  was  not  sure 
whether  the  amount  was  not  S715 
instead  of  $315,  remaining  unpaid 
on  the  note,  nor  was  she  certain  that 
Mr.  Holt  had  not  granted  her  hus- 
band several  extensions  of  time.  At 
any  rate,  she  was  very  indignant  at 
Mr.  Holt's  action. 

Miss  Sarah  A.  Terry,  who  was  a 
clerk  in  the  Register's  office  when 
the  alleged  will  was  received,  was 
called  to  the  stand.  She  stated 
that  when  she  first  saw  the  document 
it  was  in  one  piece. 

In  the  same  connection  Prof. 
W.  M.  Gray,  microscopist  of  the 
Army  Medical  Museum,  was  sum- 
moned. He  identified  an  immense 
photograph  which  he  made  of  the 
alleged  will,  and  which  Mr.  Blair 
Lee  handed  to  the  jury  with  the 
statement  that  it  showed  that  the 
break  between  the  two  portions 
was  not  complete.  The  witness 
also  identified  several  photographs 
of  letters  which  cross  the  line  of 
alleged  separation  in  the  document, 
including  one  of  the  final  "t's"  in 
the  signature  of  J.  Holt,  and  an- 
other of  the  final  "y"  in  February 
in  the  line  above.  In  reply  to 
questions  by  Mr.  Lee,  Prof.  Gray 
stated  that  the  magnified  photos 
showed  such  an  interlacing  of  the 
fibers  on  the  two  edges  as  to  con- 
vince him.  that  it  was  originally 
one  complete  piece  of  paper.  Efl'orts 
to  get  the  witness  to  testify  to 
details  were  objected  to,  and  in 
spite  of  numerous  methods  of  ques- 
tioning in  order  to  bring  about  the 
desired  result,  the  court  sustained 
the  other  side  in  their  contention 
that  Prof.  Gray  was  not  an  expert 
concerning  the  subject  of  wear  and 


No.  390. 


THROCKMORTON   V.    HOLT 


957 


tear  of  paper.  Mr.  Worthington 
declined  to  cross-examine  tlie  wit- 
ness. 

Maj.  Throckmorton  was  called, 
and  his  examination  occupied  the 
rest  of  the  day.  He  gave  a  fairly 
complete  history  of  his  life  since  his 
first  acquaintance  with  Judge  Holt 
in  1858.  Judge  Holt  was  then 
Commissioner  of  Patents,  and  in 
1859  he  took  Maj.  Throckmorton  to 
the  office  of  the  Postmaster-General 
and  had  him  appointed  to  a  clerk- 
ship. Subsequently  he  was  offered 
a  position  in  Louisville,  Kentucky, 
which  Judge  Holt  advised  him  to  ac- 
cept. Some  time  afterward  he  wrote 
to  Judge  Holt,  saying  he  would  like  a 
position  in  the  army,  and  in  March, 
1861,  the  Judge  wrote  him  that  he 
would  get  him  an  appointment  as 
Second  Lieutenant.  He  came  at 
once  to  Washington,  and  Judge  Holt 
told  him  that  President  Lincoln 
had  made  the  appointment.  Maj. 
Throckmorton's  father  and  cousin 
were  anxious  to  have  him  decline 
the  appointment  and  go  South,  but 
Judge  Holt  told  him  it  was  the  duty 
of  every  young  man  to  serve  his 
country  at  that  time.  He  served 
through  the  war,  and  in  1865  he 
was  brought  to  Washington  with 
his  battery,  and  encamped  near  H 
street  and  Maryland  avenue,  where 
Judge  Holt  came  to  see  him  re- 
peatedly. He  was  sent  to  Detroit 
with  his  battery  in  October,  1865. 
In  1868  he  returned  to  Washington, 
and  was  stationed  at  Fort  Foote 
and  Fort  Washington,  remaining 
until  October,  1872.  Judge  Holt 
visited  him  repeatedly,  and  the  most 
friendly  relations  existed  between 
them.  In  1872  he  went  to  Cali- 
fornia and  engaged  in  the  Modoc 
campa'gn. 

The  Major  referred  to  his  marriage 
in  Kentucky  in  1863,  and  to  the 
l)irth  of  his  daughter,  Josephine  Holt 
Throckmorton,  in  Detroit.  Judge 
Holt  was  informed  of  the  event, 
and  also  of  the  intention  to  name 
her  after  him,  and  to  make  him  her 
godfather.     He    replied,     thanking 


him  for  the  honor,  and  sending  his 
godchild  a  silver  mug,  and  also  a 
bottle  of  water  from  the  River 
Jordan,  which  he  wished  to  be  used 
at  the  baptism.  He  had  procured 
the  water  while  on  a  visit  to  the 
Holy  Land. 

In  1876  Maj.  Throckmorton  was 
quartered  in  Washington  by  tlirec- 
tion  of  President  Grant.  He  brought 
his  family  wath  him,  and  saw  Judge 
Holt  repeatedly  while  he  was  here. 
While  he  w^as  stationed  in  Maine 
he  left  his  wife  and  family  in  Wash- 
ington, and  in  1881  he  came  to 
W^ashington  as  a  member  of  the 
court-martial  Avhich  tried  Sergt. 
Mason  for  his  attempt  to  kill 
Guiteau,  the  assassin  of  President 
Garfield.  He  was  located  at  the 
Washington  Barracks  from  Christ- 
mas, 1883,  until  May,  1884,  and 
frequently  met  Judge  Holt,  their 
friendly  relations  being  continued. 

After  that  he  was  in  New  Orleans 
until  the  yellow  fever  scare  of  1888, 
when  he  was  ordered  to  New  York 
by  sea,  remaining  there  until  June, 
1890.  "  I  saw  very  little  of  Judge 
Holt,"  continued  the  witness,  "after 
my  return  from  New  Orleans,  for 
the  reason  that  I  was  very  rarely 
in  Washington.  On  two  occasions 
after  1888  I  called  at  Judge  Holt's 
house.  Once  I  rang  the  bell,  and 
the  servant  woman,  who  has  been 
here  —  Martha  —  came  to  the  door. 
I  handed  her  my  card,  but  men- 
tioned no  name,  as  I  am  not  in  the 
habit  of  giving  my  card  and  name 
at  the  same  time.  She  said  Judge 
Holt  was  not  in,  and  I  said  I  only 
w^anted  to  pay  my  respects  and  left. 
W^ithin  a  year  I  called  again,  and 
the  same  servant  came  to  the  door. 
I  asked  if  Judge  Holt  was  in,  and 
she  replied  that  he  was  not.  I 
again  left  my  card,  saying  I  had 
called  to  pay  my  respects. 

"The  next  morning  I  met  Judge 
Holt  on  the  corner  of  New  Jersey 
avenue  and  B  street.  He  stopped 
and  spoke  very  kindly,  saying  that 
he  did  not  know  I  was  in  town.  I 
replied  that  I  was  sorry,  as  I  had 


958 


PART    III.       PROBLEMS    OF   PROOF 


No.  390. 


left  my  card  at  his  house  the  day 
before." 

Q.  "What  difficulty  ever  took 
place  between  \ou  and  Judge 
Holt?"  asked  jNIr!  Darlington.  A. 
"No  difficulty  between  Judge  Holt 
and  myself,"  replied  the  witness. 
"There  was  a  misunderstanding 
between  him  and  my  mother,  an 
old  lady  eighty-eight  years  of  age." 

Mr.  Darlington  then  handed  Maj. 
Throckmorton  a  number  of  letters, 
which  he  identified  as  letters  he  or 
members  of  his  family  had  received 
from  Judge  Holt,  and  also  two  writ- 
ten by  Judge  Holt  to  a  third  party. 
The  latter  referred  to  Maj.  Throck- 
morton as  the  "soul  of  honor," 
and  also  referred  to  his  brave 
conduct  at  Bull  Run.  Mr.  Worth- 
ington  wanted  to  know  what  such 
evidence  was  in  rebuttal  of,  as  it 
simply  referred  to  the  friendly 
relations  between  the  two  men 
twenty  years  before  they  had  claimed 
any  breach  occurred.  Mr.  Darling- 
ton replied  that  his  purpose  was  to 
show  relations  which  would  make 
the  writing  of  such  a  will  as  was 
in  question  a  probability,  and  he 
was  finally  given  permission  to 
read  them. 

The  correspondence  brought  out 
the  fact  that  Maj.  Throckmorton's 
father  was  an  officer  in  the  Confeder- 
ate army.  Several  of  the  letters 
referred  to  Judge  Holt's  efforts 
to  have  Maj.  Throckmorton  sent 
into  the  field  with  Gen.  Sherman 
instead  of  doing  mustering  duty. 
One  dated  in  1863  regretted  that 
the  Major  had  "been  disturbed 
by  an  idle  rumor." 

Q.  "To  what  did  that  refer?" 
A.  "My  impression  is  that  some 
one  said  I  hafl  been  drinking.  I 
wrote    back    that    it    was    a    lie." 

Another  of  Judge  Holt's  letters 
stated  that  he  was  glad  Maj.  Throck- 
morton had  met  Miss  Hynes,  who 
was  "in  every  way  a  noble-spirited 
woman,  especially  in  her  love  of 
country."  Other  letters  read  were 
dated  in  1873,  one  being  dated  in 
February    of    that   year,    the   same 


month  in  which  the  alleged  will  was 
written.  At  that  time  Maj.  Throck- 
morton was  located  at  the  lava  beds 
of-  California,  it  being  the  height 
of  the  Modoc  campaign.  One  of 
the  letters  read  was  addressed  to 
Mrs.  Throckmorton, beginning,  "My 
dear  cousin."  It  was  evidently  in 
reply  to  one  from  her  in  which  she 
had  expressed  the  greatest  anxiety 
for  her  husband's  safety'.  The 
Judge's  was  a  very  tender  letter, 
expressing  confidence  that  the  life 
"so  precious  to  us  all"  would  be 
preserved,  and  sending  his  love  to 
the  "dear  little  children."  Both 
Mrs.  Throckmorton  and  Miss 
Throckmorton  shed  tears  while  it 
was  being  read. 

Maj.  Throckmorton  identified  a 
letter,  dated  February  5,  1873,  as 
one  which  he  had  written  to  Judge 
Holt  from  the  lava  beds.  In  it  the 
Major  expressed  sympathy  for  the 
Indians  he  was  warring  against. 
He  said  they  had  been  driven  to 
desperation  by  bad  treatment  and 
broken  promises,  and  had  been 
compelled  to  eat  their  ponies  to 
keep  them  from  starving.  He 
added  :  "  I  hoped  to  be  home  with 
my  wife  and  babies  by  about  March 
15.  If  I  should  be  so  unfortunate 
as  not  to  get  back,  I  know  you  will 
not  let  my  wife  and  little  ones  want." 

Q.  "  Did  you  receive  any  reply 
to  this  letter?"  Maj.  Throckmorton 
was  asked.  A.  "I  have  not  got 
it.  At  the  time  I  received  it  I  was 
in  the  lava  beds  and  could  hardly 
keep  one  shirt." 

Q.  "  In  that  letter  what  response 
did  Judge  Holt  make  to  this  para- 
graph in  your  letter?"  A.  "He 
told  me  to  do  my  duty,  they  should 
not  suffer." 

A  letter  was  read  from  Judge 
Holt  to  President  Grant,  dated 
December  9,  1S7(),  asking  for  the 
appointment  of  Maj.  Throckmorton 
to  a  position  in  the  newly  estal)lished 
signal  corps.  It  referred  particularly 
to  his  bravery  at  the  battle  of 
Bull  Run,  where  he  was  con- 
fronted by  that  part  of  the  Confed- 


No.  S90. 


THROCKMORTON    V.    HOLT 


959 


erate  army  in  which  his  father  was 
an  officer. 

Q.  "Something  has  been  said 
regarding  a  difference  which  sprung 
up  between  Judge  Holt  and  your 
family.  What  do  you  know  of 
that?"  A.  "In  1880,  in  reply  to 
one  of  my  letters,  Judge  Holt  wrote 
me  that  my  mother  had  told  him 
that  my  wife  had  informed  her 
that  Miss  Lizzie  Hynes  had  shown 
to  my  wife  letters  written  by  Judge 
Holt  to  Miss  Hynes.  I  wrote  to  him 
a,t  once,  but  I  could  not  quite  under- 
stand his  letter,  so  I  turned  it  over 
to  my  wife  to  answer  in  full.  He 
made  a  reply  to  that  letter  to  my 
wife." 

Q.  "Tell  us  how  far  that  matter 
affected  your  relations."  A.  "It 
did  not  aft'ect  either  myself,  my 
wife,  or  my  daughter.  He  seemed  to 
be  very  bitter  against  my  mother. 
The  subject  was  never  mentioned 
between  us.  I  always  believed  that 
it  was  brought  about  by  misrepre- 
sentation, but  I  was  placed  in  such 
a  delicate  position  that  I  was  power- 
less to  act.  I  seemed  to  drift  away 
from  him  after  1885.  As  he  would 
not  discuss  it,  I  could  not  discuss  it, 
and  being  absent  from  the  city,  I 
saw  very  little  of  him.  When  we 
did  meet  I  saw  no  change  in  his 
manner  toward  me.  He  re'ceived  me 
as  he  always  did.  He  was  a  very 
dignified  man,  who  rarely  unbent  to 
anybodv.  I  last  saw  him  in  July, 
1891."  ' 

Mr.  Worthington  conducted  the 
cross-examination,  which  resulted  in 
some  lively  tilts  between  him  and 
the  iVIajor.  Mr.  Worthington 
handed  him  a  letter  dated  January 
2,  1892,  and  asked  whether  he  had 
written  it.  The  Major  replied  that 
he  had.  The  letter  read:  "After 
many  years  of  separation,  I  again 
approach  you  for  assistance."  The 
writer  asked  for  a  letter  which  he 
could  lay  before  the  general  court- 
martial,  before  which  he  had  been 
summoned,  adding :  "  You  have 
been  in  the  past  the  best  friend  I 
have  had,  and  I  have  always  loved 


and  respected  you  as  a  benefactor, 
though  a  terrible  misunderstanding 
and  separation  has  come  between 
us."  Later  on  the  witness  said  he 
got  only  a  verbal  reply  to  the  letter 
through  his  daughter. 

Mr.  Worthington  questioned  him 
closely,  for  the  purpose,  he  stated,  of 
trying  to  find  some  reason  why 
Judge  Holt  should  have  made  a 
will  leaving  Miss  Throckmorton 
$80,000  or  $90,000,  and  nothing  to 
the  Major's  son  or  any  of  the 
other  members  of  the  family.  Noth- 
ing important  was  developed  on 
this  point.  Maj.  Throckmorton  ex- 
plained, however,  that  when  he 
wrote  to  Judge  Holt  stating  that  he 
knew  that  the  Judge  would  not  let 
his  family  want,  he  had  just  learned 
of  the  collapse  of  a  life  insurance 
company  in  which  he  carried  a 
policy. 

Some  questions  came  up  as  to 
the  number  of  the  elder  Mrs. 
Throckmorton's  house  on  Capitol 
Hill,  and  Maj.  Throckmorton  said 
to  Mr.  Worthington,  with  a  tinge 
of  sarcasm,  "You  might  know 
yourself ;  your  man  was  up  there 
in  the  kitchen  several  times." 

Q.  "  I  didn't  ask  you  about  that ; 
when  it  has  been  asserted  that  my 
man  was  there  it  will  be  time 
enough  for  you  to  tell  what  you 
know.  I  might  ask  you  whether 
you  had  anything  to  do  with  sending 
the  detectives  up  to  Judge  Holt's 
house." 

A.  "I  did  not,  sir;  I  never 
heard  of  them  until  it  was  brought 
out  here." 

Mr.  Worthington  brought  out 
the  fact  that  Maj.  Throckmorton's 
mother  acted  as  proxy  for  Judge 
Holt  at  the  baptism  of  Miss  Josephine 
in  which  the  water  from  the  River 
Jordan  figured.  The  witness  said 
his  mother  was  a  strong  Union 
woman,  so  far  as  he  ever  heard  her 
express  herself. 

On  redirect  examination,  Maj. 
Throckmorton  stated  that  Judge 
Holt  was  a  very  peculiar  man,  and  it 
made  him  furious  to  hear  of  any  of 


960 


PART   III.       PROBLEMS   OF   PROOF 


No  390. 


his  correspondence  being  shown 
to  a  third  party. 

At  the  conclusion  of  the  examina- 
tion of  Maj.  Throckmorton,  JVIr. 
Darhngton  proceeded  to  read  the 
deposition  of  Robert  S.  Holt,  portions 
of  which  had  been  read  already 
by  Mr.  Worthington.  The  latter, 
however,  objected,  and  rather  than 
argue  the  point  at  that  time,  Mr. 
Darlington  laid  the  deposition  aside, 
and  was  about  to  read  letters  from 
Judge  Holt  to  Robert  S.  Holt  when 
Court  was  adjourned  until  Monday 
morning. 

Monday,  June  13. 

The  first  witness  called  by  coun- 
sel for  the  legatees  was  Mr.  S.  A. 
Manuel,  proprietor  of  the  Hotel 
Varnum,  which  adjoins  the  Holt 
residence  on  Capitol  Hill.  He 
stated  that  in  the  spring  of  1894 
Luke  Devlin  entered  the  hotel  office 
and  asked  for  a  blank  card.  Shortly 
afterward  he  saw  Devlin  going  up 
the  steps  of  Judge  Holt's  house.  He 
did  not  see  him  enter  or  leave. 

Mr.  Charles  Baum,  bookseller, 
identified  an  old  leather-colored 
Bible,-  which  he  stated  he  had  pur- 
chased at  the  auction  sale  of  Judge 
Holt's  library.  The  Bible  was  then 
offered  in  evidence.  It  was  origi- 
nally the  property  of  Judge  Holt's 
first  wife.  It  contained  a  record 
of  their  marriage  and  of  the  wife's 
death  in  the  handwriting  of  Judge 
Holt. 

Maj.  Throckmorton  was  then  re- 
called and  gave  a  running  account 
of  various  incidents  to  which  pre- 
vious witnesses  had  testified.  When 
Mrs.  Olivia  Briggs  was  on  the  stand 
she  stated  that  Judge  Holt  oji  one 
occasion  took  her  to  one  of  Preside^nt 
Arthur's  receptions,  and  that  while 
at  the  White  House  Maj.  Throck- 
morton had  approacherl  Judge  Holt 
to  speak  to  him,  and  that  the  latter 
had  turned  his  back.  Maj.  Throck- 
morton stated  that  he  had  never 
attended  one  of  President  Arthur's 
receptions,  and  that  Mrs.  Briggs' 
statement  was  without    ff)undati()n. 

Regarding  his  acquaintance  with 


Luke  Devlin,  the  Major  said  be  had 
known  him  thirty-one  years,  having 
seen  him  frequently  in  Judge  Holt's 
office.  He  had  only  seen  Mr.  Dev- 
lin three  or  four  times  from  1885 
until  the  alleged  will  was  found. 
]\Iaj.  Throckmorton  was  cross- 
e.xamined  regarding  an  interview  he 
had  with  the  New  York  correspon- 
dent of  The  Post.  He  affirmed  a 
portion  of  the  interview  as  published, 
but  denied  some  of  the  statements 
made.  He  stated  that  he  did  not 
say  that  Judge  and  Mrs.  Holt  had 
introduced  his  daughter  Josephine  to 
Washington  society.  INIrs.  Holt 
died  when  Miss  *  Josephine  was  a 
little  girl. 

Asked  on  redirect  examination  as 
to  what  he  really  did  say  in  the  in- 
terview, Maj.  Throckmorton  re- 
plied :  "  Reporters  have  been  the 
bane  of  my  existence  for  the  past 
four  or  five  years."  Mr.  Worth- 
ington promptly  objected  on  the 
ground  that  the  reporters  were  not 
represented  by  counsel,  and  the 
court  held  that  the  newspaper  men 
were  not  on  trial.  The  remark  was 
ordered  stricken  out  of  the  record. 
Maj.  Throckmorton  continued,  say- 
ing that  The  Post  correspondent  told 
him  a  great  deal  more  about  the 
finding  of  the  will  than  he  knew. 
He  did  tell  the  correspondent  that 
he  had  always  thought  Judge  Holt 
had  made  a  will,  if  for  no  other 
rea.son  than  to  provide  for  Miss 
Hynes,  who  had  always  been  his 
ward. 

The  next  witness  was  Julms  A. 
Truesdell,  a  Star  reporter.  He  gave 
an  account  of  an  interview  he  had 
with  George  Johnson,  who  is  now 
employed  l)y  Secretary  Carlisle, 
but  who  was  formerly  employed  in 
the  Holt  household.  The  reporter 
stated  that  Detective  Lacey  was 
present  at  the  interview,  in  which 
Johnson  told  him  that  he  had  heard 
Judge  Holt  say  that  not  a  dollar 
of  his  money  should  go  to  his  rel- 
atives, who  had  abused  him  for  his 
loyalty,  and  also  that  he  intended 
to  provide  for  Miss  Lizzie  Hynes. 


No.  3^)0. 


THROCKMORTON   V.    HOLT 


961 


Maj.  Throckmorton  was  recalled 
for  the  purpose  of  identifying  a  let- 
ter, dated  January  12,  1880,  which 
Judge  Holt  had  written  to  Maj. 
Throckmorton's  wife,  in  reply  to 
her  letter  regarding  the  trouble  be- 
tween Judge  Holt  and  the  elder  Mrs. 
Throckmorton.  A  piece  of  the  let- 
ter, about  an  inch  wide,  was  missing 
from  the  bottom  of  the  first  page. 
Mr.  Darlington  read  portions  of  it, 
omitting  certain  references  to  a  third 
party,  which  he  said  ought  not 
to  be  produced  in  court.  The  let- 
ter began,  "  Dear  Mrs.  Major  Throck- 
morton." It  dealt  with  the  state- 
ment attributed  to  the  elder  Mrs. 
Throckmorton,  and  referred  to  on 
Friday,  that  Miss  Lizzie  Hynes  had 
shown  some  of  the  letters  Judge  Holt 
had  written  her,  and  called  him  "an 
old  fool"  on  account  of  certain  terms 
of  endearment  which  they  contained. 
Judge  Holt  took  up  the  matter  in 
detail  in  his  letter  to  Maj.  Throck- 
morton's wife,  and  stated  that  from 
investigations  he  had  made  he  was 
satisfied  that  Miss  Hynes  had  not 
read  any  of  his  letters  to  others. 
He  refeiTed  to  his  relations  with 
Miss  Hynes  as  those  of  friend  and 
protector.  The  letter  requested 
Mrs.  Throckmorton  to  express  Judge 
Holt's  warmest  thanks  to  Maj. 
Throckmorton  for  his  course  in  the 
matter,  and  continued  :  "  He  has 
been  my  constant,  true  friend 
through    many    long    years." 

The  elder  Mrs.  Throckmorton  was 
referred  to  indirectly  in  a  condertina- 
tory  tone. 

Expert  Harrison  Blake  Hodges, 
who  is  tall  and  angular,  with  a  par- 
tially bald  headandan  English  accent, 
then  took  the  stand.  He  is  a  chemist 
in  the  office  of  the  Southern  Rail- 
way. He  studied  abroad,  and  was 
for  four  years  professor  of  chemistry 
at  Harvard,  a  position  which  he 
resigned  to  accept  one  as  chemist 
for  the  Carter  Ink  Company. 

There  is  very  little  reliable  litera- 
ture on  the  subject  of  inks,  he  said, 
for  the  reason  that  the  manufac- 
turers   endeavored    to    keep    their 


recipes  secret.  Mr.  Carvalho  had 
testified  that  he  had  obtained  a  great 
deal  of  information  on  the  subject 
through  correspondence  with  ink 
manufacturers.  Mr.  Carvalho  had 
also  stated  that  archil  was  procured 
by  burning  seaweed,  and  that  it  was 
not  used  in  the  manufacture  of  ink 
prior  to  ten  or  twelve  years  ago.  Mr. 
Hodges,  on  the  contrary,  testified 
that  it  is  made  from  lichens,  that  he 
never  heard  of  it  being  used  to 
adulterate  inks.  Archil,  he  said, 
was  supposed  to  have  been  known  to 
the  ancient  Greeks,  but  of  late  years 
anilines  have  almost  completely 
taken  its  place.  Mr.  Carvalho  had 
applied  muriate  of  tin  to  the  al- 
leged will,  and  in  a  few  seconds  had 
declared  that  the  ink  contained 
archil.  Mr.  Hodges  declared  that 
it  was  almost  an  impossibility  to 
detect  its  presence  with  that  chem- 
ical. 

Q.  "What  would  be  your  con- 
clusion," he  was  asked,  "if  in  your 
experiments  with  the  ink  you  should 
discover  archil?"  A.  "It  would 
be  my  opinion  that  the  ink  was  made 
prior  to  the  time  when  the  cheaper 
and  more  effective  aniline  dyes  came 
into  general  use." 

The  witness  was  shown  the  bottle 
containing  the  liquid  with  which 
Mr.  Carvalho  made  his  experiment, 
but  said  he  could  not  tell  positively 
what  it  was.  He  was  then  handed 
the  alleged  will,  and  the  word  on 
which  Mr.  Carvalho  made  his  ex- 
periment was  pointed  out.  He  was 
asked : 

Q.  "Assuming  that  the  word  has 
been  treated  with  pure  muriate  of 
tin,  do  you  believe  that  the  result 
shows  the  presence  of  archil  in  the 
ink  ?  "  A.  "  Muriate  of  tin  bleaches 
archil,  while  this  word  shows  a  brown- 
ish tint  that  could  not  have  been 
brought  about  by  the  action  of 
muriate  of  tin  on  archil.  I  can 
say  positively  and  beyond  question 
that  the  experiment  has  not  dem- 
onstrated the  presence  of  archil  in 
the  ink." 

While  this  statement  appeared  like 


962 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


a  flat  contradiction  of  Mr.  Carvalho's 
statement,  it  was  really  not  so  pro- 
nounced as  some  of  the  witness' 
previous  statements.  Mr.  Carvalho 
had  held  out  that  some  peculiar 
phenomena  occurred  when  he  ap- 
plied his  licjuid,  which  he  could  not 
explain,  but  wliich  he  insisted  dem- 
onstrated to  him  the  presence  of 
archil. 

Gen.  Butterworth  secured  per- 
mission from  the  court  for  Mr. 
Hodges  to  make  an  experiment. 
After  explaining  the  character  of 
his  chemical,  which  he  said  was 
chloride  of  tin,  the  witness  applied 
it  to  a  word  in  the  will  and  quickly 
announced  that  he  found  iron  in  the 
ink.  Upon  examination  he  stated 
that  there  was  nothing  which  led 
him  to  suspect  the  presence  of  archil. 
He  gave  it  as  his  opinion  that  if  the 
alleged  will  had  been  written  within 
the  last  twenty  years,  he  would  have 
discovered  aniline  blue,  which  had 
been  used  in  the  manufacture  of  ink 
for  even  a  longer  period.  In  his 
opinion  a  man  could  not  be  a  chemist 
in  inks  without  being  well  versed 
in  general  chemistry,  which  re- 
flected on  Mr.  Carvalho's  statement 
concerning  his  own  attainments. 

Mr.  Hodges  told  about  the  differ- 
ent works  on  chemistry  of  which  he 
was  the  author,  and  made  more 
experiments.  Replying  to  ques- 
tions by  Gen.  Butterworth,  he  stated 
that  he  did  not  know  whether  archil 
had  been  used  in  Arnold's  inks 
within  the  last  ten  or  twelve  years,  • 
and  he  could  not  tell  by  chemical 
analysis  of  writing  whether  the  ink 
contained  archil.  He  stated  also 
that  it  was  next  to  impossible  to  get 
any  information  from  manufacturers 
as  to  what  their  inks  contained,  as 
it  was  a  secret  very  rigidly  main- 
tained. Mr.  Worthington  promptly 
objected  to  the  statement,  taking 
the  position  that  while  it  might  have 
been  impossible  for  him  to  get  such 
information,  it  was  quite  probable 
that  Mr.  Carvalho  had  been  able 
to  obtain  it. 

Mr.    Hodges   experimented   on   a 


letter  written  by  Judge  Holt  a  short 
time  prior  to  the  date  of  the  alleged 
will,  and  announced:  "This  ink 
is  different  from  that  in  the  other 
paper." 

"  That's  exactly  what  we  expected," 
put  in  Mr.  Worthington,  his  own 
countenance  and  that  of  Jere  Wilson 
being  wreathed  in  smiles.  The 
witness  hastened  to  correct  himself 
by  saying  that  he  would  not  be 
positive  about  it  until  the  paper  had 
dried.  Mr.  Hodges  then  applied 
the  test  to  a  letter  written  by  Judge 
Holt  on  February  7,  1S73,  the  date 
of  the  alleged  will,  and  announced 
that  all  three  tests  produced  the 
same  result. 

Q.  "Can  you  tell,  as  a  chemist 
in  inks,  whether  there  is  archil  in 
one  and  not  in  the  other,  or  in  any 
of  them?"  A.  "I  cannot  tell,  be- 
cause the  effect  of  the  chloride  of  tin 
would  be  to  bleach  out  the  archil  so 
that  it  would  be  entirely  invisible  be- 
side the  reddish  brown  of  the  iron." 

Cross-examining  the  expert,  Mr. 
Worthington  asked  : 

Q.  "Is  not  the  effect  on  the  two 
letters  precisely  the  same,  and  is  it 
not  entirely  distinct  from  the  effect 
on  the  alleged  will?"  A.  "There 
is  not  a  pronounced  difference  in 
the  color." 

"There  is  not,  eh?  Well,  I  will 
ask  permission  of  the  court  to  show 
them  to  the  jury,"  and  having  been 
granted  the  pri\ilege,  Mr.  Worth- 
ington placed  the  two  letters  side 
by  side  with  the  alleged  will,  and 
helfl  them  up  for  the  inspection  of 
each  mem])er  of  the  jury. 

"Now,  Mr.  Hodges,"  he  resumed, 
"whatever  may  be  in  that  bottle, 
if  you  apply  it  to  the  same  ink,  under 
the  same  conditions,  it  will  have  the 
same  effect  ? ' '     .1 .    "  Yf's. ' ' 

Q.  "And  if  you  apply  it  to  two 
inks  and  do  not  get  the  same  effect, 
that  indicates  that  the  inks  are  dif- 
ferent ;   is  not  that  so  ?  " 

The  witness  began  to  explain  that 
it  depended  a  good  deal  upon  how 
much  of  the  liciuiti  was  used,  and 
how  long  it  was  allowed  to  remain. 


No.  390. 


THROCKMORTON    V.   HOLT 


963 


The  witness  was  questioned  re- 
garding the  manufacture  of  archil. 
He  repeated  his  statement  that  it 
was  made  from  hchens,  which  grow 
on  tlie  sides  of  hills.  It  was  not 
the  product  of  a  maritime  plant,  he 
told  Mr.  Worthington. 

Q.  "Let  me  ask  you,"  said  the 
latter,  "whether  you  recognize  the 
Encyclopaedia  Britannica  as  an  au- 
thority on  this  subject."  A.  "Yes, 
I  do."^ 

Mr.  Worthington  promptly  pro- 
duced the  work  in  question  and  read 
the  article  concerning  the  manu- 
facture of  archil  from  lichens,  which 
are  found  on  various  seashores. 
The  Century  Dictionary  said  about 
the  same  thing. 

When  Mr.  Hodges  had  finished 
still  another  problem  confronted  the 
jury.  If  Mr.  Hodges  knew  any- 
thing at  all  about  ink,  it  was  per- 
fectly plain  that  Mr.  Carvalho,  the 
other  expert  who  testified,  knew 
nothing  at  all  about  it,  and  if  Mr. 
Carvalho  did  know  anything,  then 
Mr.  Hodges  was  simply  talking 
nonsense.  Impartially  summed  up, 
these  two  learned  gentlemen  made  a 
draw  of  it,  and  the  effect  is  about 
the  same  as  if  no  expert  evidence 
concerning  ink  had  ever  been  in- 
troduced. Mr.  Carvalho  was  posi- 
tive that  there  was  no  iron  in  the  ink 
with  which  the  alleged  will  was  writ- 
ten, but  that  it  did  contain  archil. 
Mr.  Hodges  was  just  as  certain  that 
there  was  iron  in  the  ink  and  he 
could  not  detect  the  presence  of 
archil.  Mr.  Carvalho  said  archil 
is  made  from  seaweed,  and  Mr. 
Hodges  maintained  that  it  was 
made  from  lichens,  which  grow  on 
hillsides.  The  dictionaries  and  en- 
cyclopedias state  that  it  grows 
near  the  seashore. 

Tuesday,  June  16. 

The  first  witness  called  was  Col. 
Charles  Javies,  who  testified  that 
he  saw  ex-Postmaster-General  Ho- 
ratio King  in  this  city  soon  after 
the  publication  of  a  facsimile  of  the 
alleged  will.  Mr.  King  had  told 
him  that  he  was  satisfied  that  the 


handwriting  was  genuine,  but  that 
he  could  not  imagine  where  it  had 
been  since  Judge  Holt's  death. 
The  court  ruled  out  a  question  as 
to  whether  or  not  during  that  con- 
versation anything  was  said  re- 
garding Judge  Holt  having  been  a 
Spiritualist.  The  witness  was  not 
cross-examined. 

Ann  Tully,  a  domestic  in  the 
Throckmorton  family,  testified  that 
in  1891  she  went  twice  with  Miss 
Josephine  Throckmorton  to  Judge 
Holt's  house.  She  remained  about 
an  hour  the  first  time.  Judge  Holt 
bidding  her  good-by  most  affec- 
tionately, and  telling  her  to  come 
again.  The  second  visit  was  even 
longer,  and  as  Miss  Throckmorton 
started  to  leave  the  Judge  said 
he  had  forgotten  something,  and 
handed  her  something  wrapped  in 
tissue  paper.  Cross-examination 
made  the  witness'  testimony  all  the 
stronger,  as  she  stated  that  the 
colored  servant,  Martha,  answered 
the  door,  and  told  INIiss  Throck- 
morton that  Judge  Holt  was  ex- 
pecting her. 

Miss  Lizzie  Hynes,  one  of  the 
legatees,  then  took  the  stand  again, 
and  gave  a  detailed  account  of  her 
relations  with  Judge  Holt.  She 
said  she  was  a  cousin  of  Mary  Harri- 
son, Judge  Holt's  first  wife,  who 
took  care  of  her  at  the  death  of  her 
parents,  when  she  was  a  child. 
She  first  met  Judge  Holt  when  she 
was  five  or  six  years  old,  and  he 
seemed  very  fond  of  her  from  the 
first.  She  was  then  shown  Judge 
Holt's  family  Bible,  containing  a 
record  of  his  marriage  to  INIiss  Har- 
rison, on  April  22,  1839.  Miss 
Hynes  remembered  the  wedding  dis- 
tinctly. Judge  Holt  having  told  his 
wife  that  he  would  always  take  care 
of  "Little  Lizzie,"  and  treat  her  as 
his  own  daughter. 

Miss  Hynes  testified  that  Judge 
Holt  paid  her  school  bills,  bought 
her  clothing,  and  insisted  on  her 
spending  all  her  vacations  at  his 
home  in  Louisville.  At  the  death 
of  Mrs.  Holt,  Miss  Hynes  said  she 


964 


PART   III.       PROBLEMS    OF    PROOF 


Na  390. 


went  to  live  with  her  nuirried  sister, 
and  Judge  Holt  wanted  to  continue 
paying  her  board,  but  her  brother- 
in-law  would  not  permit  it.  He  did 
pay  her  other  expenses,  however, 
and  kept  her  in  pocket  money. 
The  witness  related  many  incidents 
connected  with  a  number  of  trips 
wiiich  she  made  with  Judge  Holt  to 
Niagara  Falls  and  the  large  cities. 
She  stood  beside  him  on  the  steps 
of  the  Tremont  House,  in  Boston, 
when  he  made  a  famous  speech  there. 
The  last  trip  she  took  with  him  was 
in  1885  or  1886.  During  her  visits 
to  Judge  Holt's  house,  in  this  city, 
she  always  heard  him  speak  in  the 
kindest  terms  of  the  Throckmortons. 
He  was  especially  fond  of  INIiss 
Josephine,  and  had  taught  her  to 
call  him  "Bon  Pere." 

Miss  Hynes  also  gave  her  version 
of  the  misunderstanding  between 
Judge  Holt  and  Mrs.  Throckmorton, 
the  elder.  The  Judge  had  been  in- 
formed that  Mrs.  Throckmorton  had 
said  that  Miss  Hynes  had  read  some 
of  his  letters  to  her  to  a  third  party, 
and  had  called  him  an  old  fool. 
Judge  Holt  had  given  her  the  $10,000 
in  bonds.  Miss  Hynes  stated,  in  1884, 
because  he  sometimes  forgot  to 
send  her  monthly  remittances  and 
he  wanted  her  to  have  a  fund  to 
draw  upon.  He  told  her  that  he 
did  not  wish  her  to  understand  that 
he  would  not  continue  to  provide 
for  her.  She  was  never  dependent 
upon  the  interest  on  the  bonds. 

"I  asked  him  once,"  said  Miss 
Hynes,  "what  his  relatives  would 
think  of  his  generosity,  and  he  re- 
plied that  it  was  none  of  their  busi- 
ness. The  last  time  I  saw  Judge 
Holt  was  in  this  city  in  1891,  and 
when  we  separated  he  said  :  '  Lizzie, 
may  God  l)e  with  you  till  we  meet 
again.'  That  was  the  last  I  ever 
saw  of  tile  truest  friend  I  had  on 
earth  —  a  friend  from  my  earliest 
childhood." 

Miss  Hynes  identified  a  letter  from 
Judge  Holt,  which  Mr.  Darlington 
proceefled  to  read  to  the  jury.  It 
began:   "My  Precious  Cousin,"  and 


went  on  to  say  that  he  rejoiced  in 
her  independence  as  much  as  she 
did,  adding  that  he  would  be  very 
unhappy  to  think  that  she  was  at  the 
merc\-  of  the  world.  The  letter 
added  that  she  was  perfectly  safe 
then,  but  would  l)e  safer  in  due  time. 

Mr.  Worthington  conducted  the 
cross-e.xamination.  Miss  Hynes  said 
she  thought  it  very  strange  that  no 
will  was  found  after  Judge  Holt's 
death,  and  denied  ever  speaking 
to  any  one  about  making  terms  in 
case  a  will  was  found.  She  did  not 
remember  that  Judge  Holt  kept  a 
written  account  of  all  his  expen- 
ditures. Mr.  Worthington  asked 
whether  it  was  not  a  fact  that 
after  the  present  of  bonds  in  1884 
Judge  Holt  only  sent  her  money 
once.  The  witness  replied  that  the 
Judge  continued  to  send  her  money 
as  before,  but  could  not  remember  in 
what  form  it  was  transmitted. 

She  identified  the  writing  in 
Judge  Holt's  expense  book,  which 
Mr.  Worthington  handed  her,  after 
which  he  asked  her :  Q.  "  Miss 
Hynes,  can  you  now  say  positively 
that  after  June,  1884,  when  he  gave 
you  the  bonds,  Judge  Holt  ever  sent 
you  a  cent  until  April,  1885,  when 
he  sent  you  $30?"  A.  "Yes,  I 
think  so ;  I  think  he  sent  me 
money." 

Mr.  Worthington  continued  to 
question  her  closely  on  this  point, 
but  the  witness  could  only  remember 
positively  that  he  gave  her  money 
when  she  visited  him  in  this  city. 

At  this  point  counsel  for  the  cavea- 
tors were  permitted  to  call  as  a 
witness  Mr.  Lee  M.  Lipscomb,  of  the 
money  order  division  of  the  post 
office  in  this  city.  He  had  with  him 
a  number  of  large  volumes  contain- 
ing the  records  of  the  money  order 
division,  which  showed  that  from 
1890  to  1894  only  thirteen  orders 
were  drawn  on  the  office  at  Lel^anon, 
Kentucky,  in  favor  of  Miss  Hynes, 
amounting  in  all  to  $465. 

Miss  Ilynea  took  the  stand  again 
after  recess,  and  in  response  to 
Mr.  Worthington's  question  stated 


No.  390. 


THROCKMORTON    I'.    HOLT 


965 


that  she  had  visited  Florida  since 
Judge  Holt's  death,  accompanied  by 
a  Mrs.  Hardin. 

Q.  "  Do  you  remember  telling 
Mrs.  Hardin,  in  speaking  of  the 
$10,000  in  bonds,  that  Judge  Holt 
had  drawn  a  will  for  you  disposing 
of  it."  A.  "  Yes,  the  will  was  drawn 
in  1886.  I  was  very  sick  at  the  time 
and  wrote  to  Judge  Holt  regarding 
the  disposition  of  what  he  had  given 
nie.  He  sent  me  a  draft  of  a  will, 
which  I  copied." 

Miss  Hynes  stated  that  she  still 
had  the  will,  and  when  Mr.  Worth- 
ington  asked  whether  she  had  any 
objection  to  letting  him  see  it,  said 
sue  did  not  think  it  was  necessary, 
that  a  will  was  a  private  paper, 
and  she  did  not  care  about  the  public 
knowing  its  contents.  Mr.  Worth- 
ington  developed  the  fact  that  Judge 
Holt  had  written  Miss  Hynes  that 
Mrs.  Ray  had  a  husband  and  was 
provided  for,  so  that  Mrs.  Ray  was 
left  out  of  Miss  Hynes'  will.  The 
witness  did  not  remember  telling 
Mrs.  Hardin  that  she  expected  to 
get  something  more  out  of  Judge 
Holt's  will.  She  did  nothing  herself 
toward  finding  a  will,  but  thought 
her  nephew,  Mr.  John  McCord,  had 
written  to  parties  in  Washington 
concerning  it. 

On  redirect  examination  Miss 
Hynes  stated  that  the  date  of  her 
will  was  January  1,  1886,  and  that 
J.  M.  Knott,  cashier  of  a  bank  in 
Kentucky,  and  another  person  named 
Roundtree  were  in  some  manner 
connected  with  it. 

"There  is  one  mystery  explained," 
said  Mr.  Worthington. 

"  I  am  glad,"  rejoined  Mr.  Butter- 
worth,  "  to  have  our  witnesses  con- 
firmed upon  a  point  on  which  they 
were  cross-examined,  as  if  they  were 
not  believed.  I  never  attached  any 
importance  to  the  theory  of  a  will 
by  Judge  Holt  of  that  date." 

Then  the  inimitable  Mr.  Ed.  Hay 
appeared  on  the  stand  as  an  expert 
in  handwriting,  which  was  certainly 
putting  his  popularity  in  the  com- 
munity to  a  severe  test,  for  when  he 


appeared  in  court  with  an  armful 
of  the  familiar  letters  of  Judge  Holt 
to  members  of  his  nephew's  family, 
a  sign  of  anguish  involuntarily 
escaj)ed  the  spectatoi's.  He  made 
a  large  number  of  practical  compari- 
sons, however,  which  evidently  made 
quite  an  impression  on  the  jury. 
He  stated  that  he  had  devoted  many 
years  to  the  study  and  comparison 
of  handwriting,  and  had  testified  in 
courts  in  the  District  of  Columbia, 
Maryland,  Pennsylvania,  Dakota, 
Minnesota,  and  Ohio.  He  had  also 
devoted  considerable  time  to  a  com- 
parison of  the  alleged  will  with  other 
papers  in  the  case.  He  did  not 
attach  any  great  importance  to  the 
use  of  a  microscope.  He  had  first 
seen  the  alleged  will  in  the  Orphans' 
Court.  It  was  in  a  much  smoother 
condition  at  that  time,  and  it  was 
undoubtedly  in  one  piece.  He  had 
never  made  any  especial  study  of 
papers  to  determine  their  age,  al- 
though he  had  examined  papers  to 
see  whether  they  were  "doctored" 
to  simulate  age.  The  effect  was 
produced  by  saturating  them  in  tea 
and  holding  them  over  the  mouth 
of  a  coffee  pot. 

Q.  "  Have  you  examined  this 
paper  with  a  view  of  determin- 
ing whether  it  has  been  ironed?" 
A.  "There  is  no  evidence  to  my 
mind  that  it  has  been  touched  with 
an  iron." 

Mr.  Darlington  then  handed  his 
witness  a  large  number  of  letters 
from  Judge  Holt  to  the  members 
of  the  family  of  Washington  Holt, 
which  Mr.  Hay  identified  as  those 
he  had  examined. 

Q.  "  How  does  the  handwriting 
in  these  letters  compare  with  the 
handwriting  in  the  will?"  .1. 
"  It  compares  most  favorably.  I 
never  use  the  word  natural ;  but 
they  all  appear  like  the  writings  of 
the  same  individual ;  they  contain 
the  same  regularities  and  irregu- 
larities of  slant." 

Mr.  Hay  showed  the  jury  two 
or  three  different  positions  in  which 
Jud";e    Holt    mijjlit    have    held    his 


966 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


pen  in  order  to  produce  the  form 
of  handwritin<j  in  the  will. 

Q.  "  You  .say,  then,  that  this  will 
gives  no  evidence  of  being  written 
in  a  feigned  hand?"  A.  "Oh,  no; 
it  could  not  be." 

The  witness  went  on  to  exi)lain 
that  feigned  handwriting  showed 
evidences  of  nervousness,  caution, 
and  careful  formation  of  letters 
which  were  lacking  in  the  will.  He 
also  explained  the  methods  of  trac- 
ing, but  there  was  no  evidence  of 
this  in  the  document  in  question. 
He  had  found  in  the  letters  nearly 
all  the  characteristics  which  appear 
in  the  will.  There  was  no  evidence 
of  a  cramped  movement  which  Ex- 
pert Carvalho  had  pointed  out,  and 
Mr.  Hay  gave  the  audience  another 
lesson  on  the  blackboard,  showing 
the  three  principal  forms  of  writing, 
the  whole  arm  mo\'ement,  the  fore- 
arm movement,  and  the  finger 
movement.  Judge  Holt  wrote  with 
the  finger  movement. 

Mr.  Hay  took  up  various  points  in 
the  alleged  will  which  previous  expert 
witnesses  have  stated  were  unnatural 
and  proceeded  to  find  corresponding 
peculiarities  in  a  number  of  Judge 
Holt's  authenticated  epistles.  He 
paid  particular  attention  to  the  letter 
k,  which  in  the  Throckmorton  in  the 
alleged  will  has  been  said  to  be  too 
large,  and  found  half  a  dozen  letters 
in  which  the  letter  was  formed  in  the 
same  way.  These  were  passed 
aroimd  among  members  of  the  jury. 

The  unusually  long  space  between 
the  Throckmorton  and  the  follow- 
ing word  in  the  alleged  will  was  then 
referred  to,  and  Mr.  Hay,  after  ad- 
mitting that  this  was  unusual  in 
Judge  Holt's  writings,  neverthe- 
less found  a  number  of  instances 
in  which  it  occurred. 

Q.  "It  has  been  said,"  Mr.  Dar- 
lington remarked,  "that  Throck- 
morton was  interpolated  after  the 
lialance  of  the  document  was  writ- 
ten in  each  instance  where  the  name 
occurs."  A.  "That  is  mere  con- 
jecture on  the  part  of  anybody  who 
said  that," 


The  witness  said  there  was  noth- 
ing except  the  space  to  substantiate 
the  supposition. 

Al)()ut  the  time  for  adjournment 
Mr.  Darlington  and  his  witness  had 
reached  tiie  point  where  they  were 
conversing  knowingly  about  "simi- 
lar dissimilarities"  which  occurred 
in  the  letters  just  as  they  occurred 
in  the  will,  and  it  is  possible  that 
Judge  Bradley  was  doing  them  a 
kindness  when  he  ordered  the  court 
adjourned. 

Wcdncsdaii,  June  17. 

Mr.  Ilacjau  took  the  stand  as  soon 
as  court  con\'ened.  He  is  a  man 
apparently  close  on  to  sixty  years  of 
age,  short  of  stature,  with  white 
hair  and  side  whiskers,  and  wearing 
spectacles.  Besides  being  an  ex- 
aminer of  disputed  handwritings 
he  is  well  versed  in  the  manufacture 
of  inks,  and  has  testified  in  many 
famous  will  contests.  He  said  he 
made  a  thorough  examination  of  the 
alleged  will  of  Judge  Holt  last  Jan- 
uary, and  had  examined  it  again  last 
Tuesday.  When  he  first  saw  the  will 
he  was  satisfied  that  it  was  not  in 
two  separate  pieces.  When  he  was 
shown  the  elaborate  table  of  measure- 
ments, which  Expert  Carvalho  had 
introduced  in  his  testimony,  Mr. 
Hagan  said  he  placed  very  little 
reliance  on  such  comparisons,  and 
had  long  ago  discarded  them.  Mr. 
Hagan's  testimonj^  was  entirely  con- 
tradictory of  that  of  Experts  Frazier 
and  Carvalho,  as  to  various  alleged 
discrepancies  in  the  will  as  com- 
j)ared  with  Judge  Holt's  letters,  and 
in  answer  to  Mr.  Darlington's  ques- 
tion he  said  that  he  was  almost  cer- 
tain that  the  will  and  letters  had 
been  written  by  the  same  hand. 
He  denounced  the  statement  that 
the  name  Throckmorton  had  been 
interpolated  after  the  balance  of  the 
document  was  written,  as  simply 
guesswork.  Judge  Holt,  he  thought, 
wrote  with  a  combination  of  the 
fingerand  forearm  movement.  There 
was  no  evidence  of  imitation  in  the 
will,  and  it  contained  many  char- 
acteristics which  would  hardly  have 


No.  390. 


THROCKMORTON   V.    HOLT 


967 


been  found  in  simulated  writing. 
An  examination  with  the  microscope, 
he  said,  showed  that  it  had  not  been 
traced. 

As  for  the  signatures  of  Mrs. 
Sherman,  which  Mr.  Carvalho  had 
testified  was  written  by  the  same 
hand  as  that  which  wrote  the  balance 
of  the  will,  Mr.  Hagan  said  he  found 
nothing  to  indicate  that.  While 
there  were  slopes  in  the  will  cor- 
responding with  the  slopes  in  the 
name  of  Mrs.  Sherman,  the  latter 
were  more  constant,  resembling  the 
cop,\'-book  style  more  than  the  other 
writing.  The  witness  also  stated 
that  he  had  examined  the  handwrit- 
ing of  Luke  Devlin,  comparing  it 
with  that  in  the  will.  This  com- 
parison had  thoroughly  convinced 
him  that  they  were  written  by  two 
different  individuals,  there  being 
nothing  whatever  to  indicate  that 
the  same  hand  had  written  both. 

Mr.  Darlington  then  reverted  to 
the  theory  he  advanced  some  time 
ago  that  Charles  Strothers,  the 
colored  man  who  was  Judge  Holt's 
coachman,  and  who  has  had  charge 
of  the  Holt  residence  since  the 
Judge's  death,  was  the  person  who 
mailed  the  alleged  will  to  the  Reg- 
ister's office.  At  that  time  a  num- 
ber of  photographs  were  exhibited 
showing  a  sign  which  Strothers  had 
painted  on  the  stable  wall,  stating 
that  he  had  coal,  wood,  and  ice  for 
sale.  These  photographs  were  pro- 
duced again  yesterday  and  handed 
to  members  of  the  jury  while  Mr. 
Hagan  testified  that  he'  had  ex- 
amined a  number  of  the  printed  let- 
ters in  the  sign  in  connection  with 
the  inscription  on  the  envelope  in 
which  the  will  was  mailed  and  a  num- 
l)er  of  letters  which  Strothers  Avrote 
for  Judge  Holt.  In  reply  to  Mr. 
Darlington  Mr.  Hagan  stated  that 
it  was  his  opinion  all  were  the  work 
of  the  same  individual.  The  con- 
struction of  the  punctuation  marks, 
he  said,  was  similar  throughout. 

Mr.  Hagan  had  also  examined  the 
will  with  a  view  of  determining 
whether  artificial  methods  had  been 


used  to  give  it  the  appearance  of 
age,  and  found  nothing  to  indicate 
this,  although  it  had  a  smoky  ap- 
pearance in  places,  due  to  partial 
burning.  He  undertook  to  give  his 
views  as  to  just  how  the  will  was 
burned,  but  Mr.  Worthington  ob- 
jected and  the  court  sustained 
him. 

The  witness  next  took  up  the 
subject  of  archil,  which  Mr.  Carvalho 
had  testified  was  not  used  in  ink  until 
ten  or  twelve  years  ago,  and  which 
since  that  date  had  been  a  character- 
istic of  Arnold's  writing  fluid.  Mr. 
Hagan  stated  that  it  was  not  used 
in  inks  to  any  extent,  although  he 
had  found  it  in  an  English  ink  which 
he  had  analyzed  in  1848.  He  said, 
however,  that  its  j)resence  could 
not  be  detected  by  the  use  of  muriate 
of  tin,  which  chemical  Mr.  Carvalho 
claimed  to  have  used  when  he  made 
his  alleged  discovery  that  there  was 
archil  in  the  ink  with  which  the  will 
was  written. 

The  witness  was  then  turned  over 
to  Mr.  Worthington  for  cross-ex- 
amination, who  produced  a  book 
on  inks,  written  by  the  witness,  in 
which  archil  was  referred  to.  Ex- 
pert Carvalho 's  bottle  of  chemical 
was  also  produced,  but  the  witness 
could  not  tell  from  looking  at  it 
what  it  was.  Mr.  Worthington  read 
extracts  from  the  work  on  inks,  and 
asked  the  author  whether  his  un- 
derstanding of  the  question  was  still 
the  same.  Mr.  Darlington  pro- 
tested that  this  was  not  treating 
the  witness  fairly,  and  Mr.  Worth- 
ington retorted  warmly  that  if  it 
was  not  treating  him  fairly,  he  did 
not  know  how  to  do  it.  In  one 
chapter  of  the  work  it  was  stated 
that  when  competently  executed  a 
chemical  test  would  disclose  whether 
all  the  writing  in  a  document  was 
done  with  the  same  ink.  The  wit- 
ness still  held  the  same  opinion. 

Mr.  Hagan  was  questioned  re- 
garding the  various  points  in  the 
alleged  will  which  have  been  pointed 
out  as  at  variance  with  Judge  Holt's 
style,    but    they    did    not    seem    to 


J68 


PART   III.       PROBLEMS    OF    PROOF 


No.  390. 


strike  Mr.  Hagan  so  forcibly  as  they 
(lid  Mr.  Carvalho. 

Mr.  Worthington  handed  the  wit- 
ness Judge  Holt's  letter  of  the  same 
date  as  the  alleged  will,  of  which 
counsel  for  the  caveators  have  had 
facsimile  copies  made.  Mr.  Hagan 
was  asked  : 

Q.  "How  many  times  does  the 
word  'to'  occur  in  that  letter?" 
A.    "I  find  it  eight  times." 

Q.  "And  how  many  times  is 
the  letter  *t'  made  with  a  loop?" 
A.    "I  don't  find  any  of  them." 

Q.  "And  how  many  do  you  find 
made  with  a  loop  in  the  will  ?  " 

Lawyer  and  witness  counted  them 
together  and  agreed  that  there  were 
six.     Mr.  Worthington  continued  : 

Q.  "  That  \\;ould  not  indicate  any- 
thing to  your  mind,  I  suppose?" 
A.  "  Not  if  I  found  it  to  be  the  habit 
of  the  writer  to  use  both." 

Q.  "Yes,  but  on  the  same  day. 
It  didn't  appear  to  be  his  'loopy' 
day  when  he  wrote  the  letter." 

The  other  "t's"  in  the  letter  of 
February  7,  1873,  were  pointed  out 
to  the  witness  by  Mr.  Worthington, 
who  interjected  "no  loop"  as  he 
came  to  every  "t."  Summing  up 
the  result,  he  announced  that  in  the 
alleged  will  the  "t"  was  only  made 
with  a  loop  when  it  occurred  in  the 
word  "to,"  and  that  there  were  no 
"to's"  with  loops  in  the  letter. 

After  this  question  was  disposed 
of  a  board  about  twelve  feet  long  was 
brought  in  and  placed  before  the  jury 
at  a  height  of  about  five  feet  from 
the  ground.  An  enlarged  photo- 
graph of  the  alleged  signature  of 
Judge  Holt  attached  to  the  will 
was  tacked  on  the  blackboard.  Mr. 
Worthington  explained  that  the 
letters  spread  across  the  board  con- 
tained the  genuine  signatures  of 
Judge  Holt  from  1801  to  1804,  and 
asked  Mr.  Hagan  to  indicate  which 
pile  of  letters  gave  evidence  that 
Judge  Holt  was  beginning  to  make  a 
cro.ss  instead  of  a  curve  across  the  two 
staff's  of  the  "H"  in  his  signature. 

The  enlarged  photograph  was 
abandoned,  however,  anrl   the  jury 


were  handed  the  photographs  of  the 
entire  will.  The  examination  then 
turned  on  the  curve  to  the  J  in  the 
signature  and  the  dot  at  the  begin- 
ning of  the  signature.  Among  the 
various  piles  of  letters  the  witness 
tried  to  find  signatures  without  dots, 
while  Mr.  Worthington  strained  his 
eyesight  in  an  eifort  to  get  dots  on 
the  witness. 

This  portion  of  the  cross-exami- 
nation of  ]\Ir.  Hagan  produced  the 
driest  of  all  the  tedious  expert  testi- 
mony. It  dealt  largely  with  min- 
ute measurements  and  comparisons, 
among  the  lawyers  and  the  witness, 
which  were  not  likely  to  be  com- 
prehended except  by  a  jury  of 
mathematicians.  The  character  of 
the  testimony  is  well  illustrated  by 
the  fact  that  Mr.  Worthington  read 
an  extract  from  Mr.  Hagan's  book  in 
vrhich  the  statement  was  made  that 
only  once  out  of  2,866,000,000,000 
times  would  two  signatures  of  the 
same  individual  agree  exactly  as 
to  size  and  formation  when  ex- 
amined transparently.  At  one  point 
the  court  seemed  impressed  with  the 
idea  that  onl^-  the  witness,  besides 
Mr.  Worthington,  of  course,  had 
the  remotest  idea  of  what  was  going 
on.  He  suggested  that  it  might 
be  a  good  plan  to  make  a  record  of 
dates  and  other  statistics,  to  which 
Mr.  Worthington  made  the  uncon- 
sciously humorous  response  that 
he  thought  everybody  was  listening, 
including  the  stenographer. 

For  purposes  of  exact  comparison, 
]\Ir.  Worthington  produced  some 
photographs,  on  a  transparent  sub- 
stance, of  the  words  "these"  and 
"Washington"  in  Judge  Holt's  let- 
ter of  the  same  date  as  the  will. 
The  transparent  photographs  were 
placed  over  the  same  words  occur- 
ring in  the  alleged  will,  and  the  wit- 
ness invited  to  examine  them.  Mr. 
Hagan  did  not  think  the  words 
corresponded  exactly,  but  Mr. Worth- 
ington, somewhat  in  a  tone  of  tri- 
umph, invited  each  member  of  the 
jury  to  step  up  and  view  the  result 
for  himself. 


No.  390. 


THROCKMORTON    V.    HOLT 


969 


Mr.  Worthington  produced  a  trans- 
parent photograph  of  a  portion  of 
the  will  and  placing  it  over  the  let- 
ter of  February  7,  1873;  asked  the 
witness  to  compare  the  words  "the 
city  of."  Mr.  Hagan  had  pre- 
viously testified  that  where  words 
were  found  to  compare  exactly 
under  such  treatment  it  was  a  good 
in(iication  of  forgery  by  the  tracing 
method.  The  witness  indicated 
several  points  in  which  the  words 
compared  did  not  exactly  agree,  but 
Mr.  Worthington  again  called  on 
members  of  the  jury  to  decide  for 
themselves. 

Mr.  Worthington  continued  his 
efforts  to  convey  the  impression 
that  the  alleged  will  was  forged  by 
tracing  from  Judge  Holt's  letter  of 
the  same  date,  placing  the  name 
"Holt"  where  it  occurred  in  "Jo- 
sephine Holt  Throckmorton"  in  the 
transparencv,  over  the  signature 
"J.  Holt"  iA  the  will  itself. 

Mr.  Worthington  then  summed  up 
all  these  striking  similarities  and 
asked  : 

"Now,  what  do  you  think  the 
chances  are  that  the  writings  of  a 
man  on  the  same  day  would  exhibit 
all  these  similarities?"  A.  "It 
would  be  improbable  even  with  a 
man  writing  under  the  same  nervous 
condition  on  the  same  day ;  but 
it  might  occur.  It  is  not  impossible, 
although  it  looks  as  if  the  chances 
were  against  it." 

"So  it  does  begin  to  look  a  little 
improbable,  even  to  your  mind,"  was 
JNIr.  Worthington's  rejoinder. 

The  court  adjourned  at  this  point, 
and  Mr.  Worthington  will  bestow 
further  attentions  on  ]Mr.  Hagan 
to-morrow.  Originally  ]Mr.  Hagan 
was  the  caveatee's  witness,  but 
people  who  dropped  into  the  court 
room  in  the  afternoon  were  under 
the  impression  that  he  was  the  ex- 
clusive property  of  ]Mr.  Worthington, 
as  that  gentleman  hatl  taken  him 
completely  in  charge  and  had  him 
penned  in  behind  a  big  board  loaded 
down  with  letters  written  by  Judge 
Holt  and  arranged  so  the  dates  were 


not  visible.  Mr.  Worthington 
worked  up  his  tracing  theory  very 
artistically,  and  earlier  in  the  trial 
the  climax  might  have  been  sensa- 
tional, but  yesterday  it  only  created 
a  ripple  of  surprise.  It  was  simply 
the  development  of  a  theory  that 
the  will  might  possibly  have  been 
forged  by  tracing  most  of  the  words 
from  Judge  Holt's  letter  of  February 
7,  1873.  When  opposing  counsel 
are  afforded  their  next  opportunity, 
however,  they  will  produce  other 
letters  in  which  the  similarity  is 
equally  marked.  As  it  is  at  present, 
however,  whenever  they  produce  re- 
buttal testimony  Mr.  Worthington 
manages  to  make  his  cross-examina- 
tion last  about  twice  as  long  as  the 
examination-in-chief. 

Thursday,  June  IS. 

The  cross-examination  of  Expert 
Hagan,  of  Troy,  was  resumed  at  the 
opening,  and  Mr.  Worthington  again 
subjected  him  to  the  most  searching 
examination.  The  witness  stated 
that  he  had  observed  in  Judge  Holt's 
writing  a  tendency  to  write  the 
same  words  almost  identically  alike, 
which  he  thought  accounted  for  the 
fact  that  many  of  the  words  in  the 
letter  and  in  the  will  bore  an  almost 
exact  resemblance. 

Mr.  Darlington  devoted  a  good 
deal  of  his  redirect  examination 
of  Mr.  Hagan  to  an  effort  to  over- 
throw Mr.  Worthington's  theory  of 
tracing.  The  witness  selected  a  let- 
ter written  by  Judge  Holt  on  F'eb- 
ruary  11,  1888,  fifteen  years  sub- 
sequent to  the  date  of  the  will,  and 
pointed  out  that  the  word  \^'ash- 
ington  corresponded  almost  exactly 
with  that  in  the  gelatine  print  of  the 
will.  He  added :  "  There  is  just 
as  much  similarity  between  the 
Washington  in  this  letter  and  the 
Washington  in  the  will  as  there  is 
when  I  compare  the  word  in  the  will 
with  that  in  the  letter  of  Februarv  7, 
1873." 

These  in^■estigations  were  con- 
tinued until  recess,  after  which  Mr. 
Worthington  resumed  his  cross-ex- 
amination.    He    wanted    to    know 


970 


PART   III.      PROBLEMS   OF   PROOF 


No.  390. 


whether  the  witness  liad  found  any 
letters  containing  words  ahnost  a 
fac  simile  of  the  words  in  the  will, 
which  he  had  not  referred  to.  IVIr. 
Hagan  said  he  had  prockiced  all  that 
were  of  any  importance.  Judge 
Holt's  letter  of  September,  1873, 
was  then  taken  up  by  Mr.  Worth- 
ington,  who,  in  his  effort  to  sub- 
stantiate the  tracing  theory,  called 
attention  to  the  words  "standard 
work  of  the  highest  character," 
and  asked  the  witness  to  compare 
them  with  the  words  "character" 
and  "highest  standard"  in  the  will. 
Mr.  Hagan  said  that,  while  there 
were  similar  characteristics  of  spac- 
ing, the  loops  were  different,  and 
many  of  the  letters  were  differently 
formed.  Mr.  Worthington,  how- 
ever, asked  each  member  of  the 
jury  to  observe  the  similarity.  He 
wanted  to  know  whether  the  wit- 
ness was  aware  of  the  fact  that, 
outside  of  letters  which  had  been  in 
possession  of  Maj.  Throckmorton 
and  his  family,  he  had  only  been 
able  to  find  one  word  of  more  than 
a  single  syllable  that  corresponded 
to  any  marked  flegree  with  the  same 
w^ord  in  the  will.  Mr.  Hagan  said 
he  did  not  know  where  the  letters 
came  from. 

There  was  considerable  sparring 
between  Mr.  Worthington  and  the 
witness. 

Q.  "  Now,  Mr.  Hagan,  let  me  ask 
you  to  compare  the  capital  D  in 
Devlin  with  the  D  in  Washington, 
D.C.,  in  the  will.  I  believe  you 
said  yesterday  that  when  letters 
examined  transparently  were  found 
to  correspond  exactly  it  was  a  good 
indication  of  forgery.  I  suppose 
the  resemblance  in  this  case  does 
not  suggest  anything  wrong  to  your 
mind?"  A.  "That  would  depend 
entirely  upon  the  connection  in 
which  I  found  it." 

Q.  "Well,  l)ut  when  you  find  it  in 
connection  with  twenty  or  thirty 
other  similarities,  how  then?" 

Lawyer  /•>/.  1 1  nil,  as  an  expert,  was 
recalled.  He  harl  been  making  com- 
parisons   himself,    and    the    dreary 


grind  of  measurements  and  com- 
parisons began  again  as  soon  as  he 
took  the  stand.  He  testified  that 
of  150  of  Judge  Holt's  signatures  ex- 
amined he  had  not  found  two  alike. 
]Mr.  Hay  compared  the  handwriting 
of  Luke  Devlin  with  the  will,  and 
found  the  only  general  resemblance 
to  be  in  the  "  inclination  to  be  verti- 
cal." There  was  really  no  com- 
parison between  the  handwriting 
of  Mr.  Devlin  and  Judge  Holt. 
The  will  exhibited  none  of  Mr. 
Devlin's  peculiarities. 

After  pointing  out,  in  the  authenti- 
cated writings  of  Judge  Holt,  these 
various  pecuHarities,  the  witness  was 
asked  : 

Q.  "Will  you  tell  us,  from  your 
comparison  of  the  will  with  the 
letters  in  evidence,  what  conclusion 
you  have  reached?"  A.  "My 
opinion  is  that  the  same  hand  that 
wrote  the  letters  in  exhibit  here  wrote 
the  will.  If  Judge  Holt  wrote  the 
letters,  he  wrote  the  will." 

Q.  "With  what  degrees  of  posi- 
tiveness  can  you  state  this?"  A. 
"As  positive  as  one  can  be  from  a 
comparison  of  handwriting.  It  is 
not  so  difficult  to  imitate  a  signature, 
but  it  would  be  impossible  to  get 
up  a  whole  page  of  script  to  present 
all  the  similarities  found  in  this 
document  as  compared  with  the 
other  writings." 

Friday,  June  10. 

Lawyer-expert  Ed.  Hay  resumed 
the  stand  at  the  opening  and  con- 
tinued to  point  out  characteristics 
in  the  will  anrl  writings  of  Judge 
Holt,  on  which  his  belief  as  to  the 
genuineness  of  the  document  was 
founded.  There  was  not  a  letter 
in  the  will,  he  said,  of  which  he  had 
not  been  able  to  find  the  counterpart 
in  Judge  Holt's  letters.  Under  cross- 
examination,  he  was  asked  partic- 
ularly regarding  the  word  "of," 
which  he  stated  on  Thursday  was  one 
of  the  strongest  characteristics  in  the 
flocument.  He  admitted  that  the 
word  was  written,  wherever  it  oc- 
curred in  the  will,  with  greater  reg- 
ularity than  any  other  word. 


No.  390. 


THROCKMORTON    V.    HOLT 


971 


Mr.  Hay  explained  the  method  of 
tracing  writings  by  placing  them  on 
a  barrel  over  a  strong  light. 

Q.  "  Tracing  in  that  way  does  away 
with  the  necessity  of  using  a  pencil 
first,  the  marks  of  which  must  after- 
ward be  erased,  does  it  not?" 

A.    "1  presume  so." 

Q.  "  How  nearly  can  an  expert  pen- 
man, like  yourself,  imitate  the  hand- 
writing of  another  person  ?" 

A.    "  I  can  come  very  close  to  it." 

Q.  "  Close  enough  to  deceive  the 
ordinary  observer,  myself,  for  in- 
stance ?  " 

A.  "Well,  I  think  I  could  deceive 
you,  Mr.  Worthington,"  replied  Mr. 
Hay,  smiling  blandly,  while  the 
audience  laughed,  and  even  Judge 
Bradley  joined  in. 

The  witness  said  it  was  much 
easier  to  imitate  an  odd  or  unusual 
signature  than  a  simple  one.  A  very 
eccentric  signature  could  be  readily 
imitated  for  that  very  reason.  Mr. 
Hay  was  next  questioned  as  to 
space  between  certain  words  in  the 
will,  and  also  the  punctuation. 

In  reply  to  a  question,  he  said  he 
had  not  been  able  to  find  in  any 
of  Judge  Holt's  letters  any  line  in 
which  he  left  such  a  space  between 
two  words  as  occurs  after  the  name 
of  Josephine  Holt  Throckmorton  in 
the  will,  but  that  he  had  found  con- 
siderable space  between  the  end  of 
one  sentence  and  the  beginning  of 
another  on  the  same  line.  This 
answer  was  objected  to,  Mr.  Worth- 
ington complaining  that  Mr.  Hay 
was  taking  advantage  of  oppor- 
tunities to  state  what  he  had  not 
been  asked.  The  court  held  that 
the  witness  must  confine  himself 
to  the  questions  put  to  him.  Mr. 
Hay  said  he  had  found  no  letter 
of  Judge  Holt's  in  which  the  lack 
of  punctuation  marks  was  so  marked 
as  in  the  will. 

During  recess  Mr.  Hay  reproduced 
on  the  blackboard  a  number  of 
Judge  Holt's  signatures,  taken  from 
letteis  of  various  dates,  while  he 
also  made  a  good  imitation  of  the 
signature  attached  to  the  will.     The 


witness  pointed  out  several  points  of 
difference  between  the  signatures, 
the  one  attached  to  the  letter  of 
September  29,  1873,  he  thought, 
being  decidedly  different  from  any 
other  signatures  he  had  found. 
After  efforts  had  been  made  by 
the  opposition  to  discredit  some  of 
Mr.  Hay's  comparisons,  the  long 
board  which  has  figured  in  the  trial 
for  the  last  three  days  was  removed. 

Miss  Hijncs  was  recalled  by  Mr. 
Worthington  to  identify  the  will 
which  Judge  Holt  had  drawn  up  for 
her.  The  will  was  placed  in  evidence. 
It  simply  disposed  of  the  $10,000 
in  District  of  Columbia  bonds, 
bequeathing  them  to  Miss  Hynes' 
two  nieces,  the  Misses  McCord. 
Replying  to  questions,  the  witness 
stated  that  Judge  Holt  never  had  the 
will  in  his  custody  after  it  was  ex- 
ecuted, and  that  she  did  not  remem- 
ber any  correspondence  regarding 
it.  R.  H.  Roundtree  was  the  origi- 
nal executor,  but  after  his  death 
Miss  Hynes,  in  another  paper,  ap- 
pointed W.  M.  Knott  executor. 

Mrs.  Ray  took  the  stand,  also  at 
Mr.  Worthington's  request,  and 
identified  a  letter  which  Judge  Holt 
had  written  her  in  reply  to  a  request 
for  a  loan  of  $4000.  Mr.  Darlington 
objected  to  the  introduction  of  the 
letter  as  evidence,  but  was  over- 
ruled, and  he  noted  an  exception. 
The  letter  was  dated  October  11, 
1884,  and  in  it  Judge  Holt  said  he 
had  sold  four  bonds,  from  the  pro- 
ceeds of  which  he  sent  her  a  draft 
for  S4000,  as  a  loan  to  her  husband. 
Mrs.  Ray  held  in  her  hand  another 
letter  from  Judge  Holt  to  her  hus- 
band, dated  January  11,  1886. 
When  she  referred  to  it  IMr.  Worth- 
ington said  he  would  like  very  much 
to  have  it.  The  witness  promptly 
handed  him  the  epistle.  The  letter 
was  turned  over  to  Mr.  Darlington, 
who  lodged  an  objection  to  its  ad- 
mission upon  the  ground  that  it  con- 
tained matter  of  a  nature  that  had 
already  been  excluded.  The  court, 
however,  decided  to  admit  the  let- 
ter,   and    an    exception    was    again 


972 


PART    III.       PROBLEMS    OF    PROOF 


No.  300. 


noted.  Before  the  letter  was  read 
Mr.  Worthington  read  a  number 
of  Jud^e  Holt'.s  indorsements  on  the 
back  of  Mr.  Ray's  note  for  S4000, 
regarding  non-payment  of  interest. 
The  letter  itself  was  full  of  scathing 
denunciations  of  the  borrower.  The 
Judge  said  he  regarded  his  promises 
to  pay  as  "  little  less  than  mockery." 
The  failure  to  take  up  the  note,  he 
declared,  was  a  deliberate  breach 
of  faith,  for  which  there  was  no 
decent  excuse.  Judge  Holt  also  re- 
ferred to  an  offer  he  had  pre^•iously 
made  to  Mr.  Rav  to  take  up  the 
S4000  note  for  82000. 

Mr.  Worthington  then  introduced 
some  memoranda  found  among 
Judge  Holt's  papers  at  the  safe 
deposit,  in  which  were  a  number  of 
bequests  to  such  institutions  as  the 
Emergency  Hospital,  the  Washing- 
ton Humane  .Society,  and  the  munici- 
pal lodging  house. 

The  feature  of  the  case  yesterday 
was  the  reappearance  on  the  wit- 
ness stand  of  ]Miss  Josephine  Holt 
Throckmorton,  the  most  important 
part  of  her  testimony  being  in  re- 
buttal to  that  of  the  colored  ser- 
vants at  Judge  Holt's  house  re- 
garding her  visits  there.  The 
witness'  first  recollection  of  Judge 
Holt  was  of  his  visiting  her 
father  when  he  was  stationed  at 
Fort  Washington,  and  trying  to  teach 
her  to  call  him  "Bon  Pere."  Her 
father  was  ordered  to  California  in 
1872,  and  when  she  was  seven  years 
old.  Judge  Holt  sent  her  a  ring  set 
with  seven  pearls.  Her  subsequent 
relations  with  Judge  Holt  were  gone 
into,  and  Gen.  Butterworth  asked  : 

Q.  "  Was  there  ever,  from  your 
earliest  recollection,  down  to  the  last 
time  you  saw  Judge  Holt,  any  change 
whatever  in  his  bearing  toward  you  ?  " 
A.    "Never;    not  the  slightest." 

She  corresponded  with  Judge  Holt 
constantly  while  she  was  absent,  and 
called  at  his  home  at  least  twice  a 
week  while  she  was  here.  He  made 
her  presents  of  jewelry  and  books,  and 
treated  her  most  afl'cctionately  on  all 
occasions.  OnceJudgeHolt  expressed 


a  desire  to  see  her  in  evening  dress, 
and  in  1885,  when  she  was  on  her 
way  to  one  of  President  Cleveland's 
receptions  with  her  father,  she 
stopped  at  Judge  Holt's  house.  The 
dress  she  wore  on  that  occasion  was 
her  mother's  wedding  dress. 

().  "  How  did  Judge  Holt  address 
you?"  A.  "He  called  me  Joseph- 
ine ;  I  have  never  been  called  Jo. 
He  alwavs  said  'Josephine,'  or  'my 
child.'"  ' 

On  her  birthday  in  August,  1887, 
Judge  Holt  gave  her  a  diamond  ring. 
Referring  to  one  occasion  when  she 
called  at  Judge  Holt's  house.  Miss 
Throckmorton  said  : 

"  The  servant  who  came  to  the 
door,  the  girl  sitting  over  there  [in- 
dicating Martha  Thomas],  said 
Judge  Holt  had  just  gone  out,  but 
just  then  I  saw  my  godfather  walk 
across  the  porch,  so  I  called  to  him, 
and  told  him  the  girl  had  said  he  was 
out.  He  asked  her  how  it  was,  and 
she  replied:  'The  young  lady  mis- 
understood me  ;  I  said  you  had  just 
come  in.'" 

IMartha,  the  ser^'ant,  had  been  lis- 
tening intently  to  this  testimony, 
and  at  this  point  shook  her  head 
vigorously.  ^liss  Throckmorton  re- 
ferred to  Judge  Holt  as  either  "  Bon 
Pere"  or  "my  godfather"  through- 
out her  testimony.  He  invariably 
kissed  her  when  they  met,  she  said. 

Q.  "When  did  you  first  begin  to 
havedifficulty  in  seeing  Judge  Holt?  " 
A.  "The  first  time  was  in  1887,  of 
which  I  have  just  told  you.  Again 
in  1888  I  went  to  his  house.  Ellen, 
the  cook,  came  to  the  door  and  told 
me  my  godfather  had  gone  to  Ken- 
tucky, and  would  not  be  back  for 
six  months.  The  next  morning  I 
went  to  the  market  and  met  my 
godfather  there.  I  told  him  I 
thought  it  was  queer,  and  he  said : 
'When  you  are  coming  to  see  me, 
just  write  and  let  me  know.'  I 
noticed  after  that  when  I  wrote  to 
Bon  Pere  and  let  him  know  I  never 
had  any  trouble  in  getting  into  the 
house." 

Q.    "  Do  you  remember  his  send* 


THROCKMORTON   V.    HOLT 


973 


ing  word  to  you  and  your  brother 
to  leave  his  premises?"  A.  "It  is 
absohitely  false.  I  never  recei^•e(l 
such  a  message.  I  was  here  on  that 
visit  only  during  the  months  of 
December,  Jamiary,  February, 
March,  and  April,  and  could  not 
possibly  have  been  eating  peaches 
in  his  yard  ;  at  least,  if  there  were 
any  peaches  there,  I  didn't  see  them." 

Miss  Throckmorton  told  of  other 
presents  Judge  Holt  had  given  her, 
and  also  of  his  offer  to  send  her 
abroad  to  study  art.  She  denied 
e\'er  having  spoken  to  Charles 
Strothers,  or  ever  having  visited 
Judge  Holt's  house  heavily  veiled. 
When  she  began  to  relate  the  inci- 
dents connected  with  her  visit  to 
Judge  Holt  in  behalf  of  her  father 
when  he  was  in  trouble.  Miss  Throck- 
morton wept  copiously,  and  her 
testimony  came  slowly.  She  testi- 
fied that  Judge  Holt  was  deeply 
affected  and  ad^'ised  her  to  write  to 
a  Mr.  Huntington  and  get  a  letter 
of  introduction  to  Vice  President 
Morton.  She  referred  frequently 
to  her  father's  army  record  and  to 
the  great  injustice  which  was  done 
him.  The  witness  said  she  did  not 
know  why  the  servants  had  declined 
to  admit  her  to  Judge  Holt's  house. 

When  Gen.  Butterworth  brought 
up  the  subject  of  Judge  Holt's  let- 
ters to  the  Throckmorton  family, 
he  asked  the  witness  where  these 
letters  had  been  kept  prior  to  the 
discovery  of  the  will.  She  replied 
that  they  were  kept  in  a  wooden 
box. 

Q.  "  How  was  that  box  fastened  ? " 
A.  "Nailed,"  said  Miss  Throck- 
morton, with  so  much  vehemence 
that  it  caused  a  general  titter. 

It  was  nearly  4  o'clock  when  the 
cross-examination  of  Miss  Throck- 
morton was  begun.  She  was  asked 
regarding  her  letter  to  Mr.  Devlin 
prior  to  the  discovery  of  the  will, 
but  without  additional  tlevelopments. 
She  was  also  questioned  closely  as 
to  the  names  of  the  servants  at 
Judge  Holt's  during  different  periods, 
but  her  recollection   was  not   very 


clear  regarding  them.  The  cross- 
examination  was  interrupted  by 
Judge  Bradley's  adjourning  the  court. 

Matt  day,  June  22. 

Detective  Laccy  was  called  by  the 
caveatees  to  testify  regarding  the 
interview  l)etween  Reporter  Trues- 
dell  and  George  O.  Johnson,  Secre- 
tary Carlisle's  l)utler,  who  was  for- 
merly in  Judge  Holt's  employ. 
Lacey  was  present  at  the  interview, 
and  testified  that  Johnson  said  he 
had  been  sent  for  by  Mrs.  Wash- 
ington Holt,  and  that  she  expressed 
surprise  and  disappointment  be- 
cause no  will  had  been  found.  John- 
son had  also  stated  that  Judge  Holt 
said  once  in  his  hearing  that  none 
of  his  property  should  ever  go  to  any 
of  his  relatives  who  had  criticized 
him  for  his  loyalty  to  the  Union. 

Cross-examined,  ]\Ir.  Lacey  also 
testified  to  Johnson's  statement  re- 
garding the  quarrel  between  Judge 
Holt  and  the  elder  Throckmorton. 
Johnson  said  he  regretted  it  at  the 
time  because  the  innocent  children 
who  had  nothing  to  do  with  the 
trouble  would  be  the  sufferers.  For 
his  own  part,  however,  he  had  been 
the  gainer  by  the  misunderstanding, 
as  prior  to  that  Judge  Holt's  carriage 
had  been  at  the  disposal  of  Mrs. 
Throckmorton,  and  she  had  used  it 
nearly  every  day,  which  made  him 
extra  work. 

Miss  Throckmorton  was  recalled 
to  the  stand,  and  her  cross-examina- 
tion resumed.  She  was  questioned 
closely  as  to  her  visits  to  Judge 
Holt's  house,  and  the  fact  was  de- 
veloped that  she  never  saw  Mr.  and 
Mrs.  Holt,  Miss  Holt,  Mrs.  Ray, 
or  Col.  Sterett  until  the  trial 
began.  Mr.  W^orthington  wanted  to 
know  whether  it  was  possible  for 
Judge  Holt  to  have  gone  to  Niagara 
in  1885  without  her  knowing  it,  and 
the  witness  replied  that  she  remem- 
bered his  going,  as  he  sent  her  pres- 
ents from  Niagara  on  that  occasion. 

"Miss  Throckmorton,"  asked  Mr. 
Worthington,  "do  you  remember 
that  your  father  wrote  your  mother 
that  he  had  received  a  letter  from 


974 


PART   III.      PROBLEMS   OF   PROOF 


No.  390. 


Judge  Holt  agreeing  to  take  care  of 
his  wife  and  children  in  case  he  was 
killed?" 

The  question  was  objected  to, 
and  the  examination  turned  upon 
the  letters  which  had  l)een  placed 
in  evidence.  Miss  Throckmorton 
repeated  her  statement  that  they 
had  been  kept  in  a  box  securely 
fastened  until  the  alleged  will  made 
its  appearance,  when  the  box  was 
opened  and  her  brother  brought  the 
letters  to  Washington  last  summer. 
One  of  the  letters  found  in  the  box, 
ISIiss  Throckmorton  stated,  was  from 
Gen.  Sherman  to  Judge  Holt,  in 
relation  to  the  Modoc  war,  but  the 
statement  was  objected  to,  and  the 
objection   sustained    by    the   court. 

The  witness  also  stated  that  she 
had  kept  a  scrapbook  of  papers 
connected  Avith  the  will  case,  begin- 
ning with  the  telegram  from  Luke 
Devlin,  regarding  tlie  discovery  of 
the  alleged  will,  and  including  various 
newspaper  articles  on  the  subject. 
She  ofl'ered  to  produce  the  book  if 
necessary.  Mr.  Darlington  stated 
that  he  intended  to  rest  his  case  with 
IVIiss  Throckmorton's  testimony,  but 
had  concluded  to  place  her  brother, 
AVicklifl'e  Throckmorton,  on  the 
stand,  adding  that  he  would  be  here 
on  Tuesday.  Otherwise  his  evidence 
was  all  in. 

George  Johnson  was  recalled  by 
INIr.  Worthington  at  this  point,  for 
the  purpose  of  testifying  to  the  fact 
that  Judge  Holt  kept  a  set  of  account 
books  in  which  he  recorded  even  his 
smallest  expenditures.  He  identified 
the  books  handed  to  him  by  Mr. 
^Yorthington.  Martha  Thomas  was 
also  recalled  and  testified  to  the  same 
fact.  She  was  also  questioned  re- 
garding the  statement  of  Ann  Tully, 
the  Throckmortons'  servant,  that 
she  had  accompanied  Miss  Throck- 
morton on  two  occasions  to  Judge 
Holt's  house.  The  witness  testified 
that  the  first  time  she  had  ever  seen 
Ann  Tully  was  when  she  aj)peared  in 
court.  Ann  Tully  had  stated  that 
she  sat  in  the  hall  for  an  hour  and 
waited  for  Mi.ss  Throckmorton,  but 


Martha  said  the  hall  was  narrow  and 
dark  and  nobody  ever  sat  there  as 
it  was  too  narrow  to  keep  a  single 
chair  there. 

Mr.  Frederick  F.  Schrader  was  also 
recalled  to  elaborate  the  story  of 
his  interview  with  Luke  Devlin, 
several  points  of  which  the  latter 
had  failed  to  confirm  when  he  was  on 
the  stand.  Mr.  Schrader  stated 
that  when  Mr.  Devlin  had  expressed 
the  belief  that  the  signatures  to  the 
alleged  will  were  genuine  he  had  not 
excepted  that  of  Mrs.  Sherman's. 
Devlin  had  told  him,  to  illustrate 
the  intimacy  between  Gen.  Grant 
and  Judge  Holt,  that  Gen.  Grant 
had  once  offered  to  make  Judge  Holt 
Secretary  of  War.  Mr.  Devlin  had 
also  stated  that  he  supposed  the 
will  was  signed  and  attested  some 
evening  when  all  the  parties  were  at 
Judge  Holt's  house. 

Charles  Strothers,  another  of  Judge 
Holt's  servants,  took  the  stand  again 
and  corroborated  the  testimony  of 
Johnson  and  Martha  Thomas  as  to 
the  account  books  and  also  as  to  the 
size  of  the  hall  at  the  Holt  residence. 
He  had  never  seen  a  chair  in  the  hall. 

Mr.  Worthington  recalled  Miss 
Mary  Holt,  Washington  Holt's  daugh- 
ter, who  identified  Judge  Holt's 
account  books,  and  stated  that,  at 
Mr.  Worthington's  request,  she  had 
examined  the  books  carefully  from 
1872  to  1888,  and  made  a  list  of  all 
items  of  expenditure,  with  which  the 
initials  of  Miss  Elizabeth  Hynes  were 
connected.  The  books  showed  all 
the  trips  Judge  Holt  had  made  away 
from  Washington,  and  the  last 
record  of  a  trip  to  Niagara  with  Miss 
Hynes,  the  witness  found  to  be 
October  6,  1879.  Mr.  Worthington 
placed  in  e\'idence  that  portion  of 
the  entries  covering  the  expenses 
of  this  trip  down  to  expenditures  of 
5  cents.  After  rece.ss  Miss  Holt 
identified  a  list,  which  she  made 
from  Judge  Holt's  expense  books, 
indicating  amounts  paid  to  "  E.  H." 
(Elizabeth  Hynes),  beginning  in  1872. 
The  amounts  specified  payments 
aggregating  between  $600  and  S700 


THROCKMORTON   V.    HOLT 


975 


per  annum  up  to  1884,  when  the 
present  of  810,000  in  bonds  was  made. 
After  that  the  payments  fell  off  to 
$30  in  1885,  $25  'in  1886,  and  $50 
in  1887. 

Q.  "Now,  Miss  Holt,"  asked  Mr. 
Worthington,  "in  examining  these 
books,  did  you  find  any  entry  in- 
dicating presents  to  any  member  of 
the  Throckmorton  family  ?" 

A.  "I  have  ne\er  found  the  name 
Throckmorton  in  any  of  the  books 
I  have  examined." 

The  cjuestioning  and  cross- 
questioning  of  the  witness  as  to  the 
method  she  had  pursued  in  making 
extracts  from  the  elaborate  expense 
accounts  occupied  considerable  time, 
Mr.  Worthington  explaining  that 
one  object  Avas  to  show  that  Aliss 
Hines  was  mistaken  in  testifying  that 
she  went  to  Niagara  Falls  with 
Judge  Holt  in  1885. 

Mr.  Worthington  called  Edward 
F.  Frazier,  a  photographer,  who 
testified  that  he  made  the  gelatine 
print  of  the  alleged  will,  the  photo- 
lithographs  of  Judge  Holt's  letters 
of  February  7  and  September  9, 
1873,  and  other  photographs  of  por- 
tions of  various  documents,  which 
have  been  introduced  as  evidence. 

Robert  E.  Carmody,  a  draftsman, 
identified  a  diagram  of  the  interior 
of  the  Holt  residence,  which  he  nmde 
yesterday  morning. 

Mrs.  Meigs,  wife  of  a  deputy  clerk 
of  the  court,  who  has  lived  on  New 
Jersey  avenue  near  the  Holt  resi- 
dence for  thirty-one  years,  was  called. 
She  knew  the  Throckmortons  and 
had  seen  the  children  call  at  Judge 
Holt's  house  when  they  wore  short 
dresses.  She  did  not  remember 
their  calling  after  that. 

Q.  "  Do  you  know  anything  of 
Miss  Throckmorton's  calling  there 
at  the  time  her  father  was  in 
trouble  ?  "  A.  "1  heard  of  her  being 
there,  but  did  not  see  her." 

Under  cross-examination,  the  wit- 
ness admitted  that  people  might 
have  entered  the  Holt  house  with- 
out her  seeing  them.  Mr/  Worth- 
ington   produced    a    letter    written 


by  Maj.  Throckmorton's  wife  to 
Judge  Holt  in  which  she  had 
written  asking  for  $2000.  The  sec- 
ond letter  stated  that  she  had  se- 
cured $1000,  and  continued  :  "Won't 
you,  dear  Mr.  Holt,  let  me  have 
$1000?  Charlie  is  to  be  tried  by 
court-martial,  and  we  are  very  much 
distressed." 

At  Gen.  Butterworth's  request 
Miss  Throckmorton  took  the  stand, 
and  testified  regartling  the  letter 
written  by  her  mother.  She  said 
that  almost  immediately  after  the 
letter  was  written,  the  necessary 
amount  had  been  secured.  She 
came  on  to  Washington,  and  went 
to  Judge  Holt's  house.  He  told  her 
he  would  gladly  let  her  have  the 
money,  and  said  if  she  would  return 
in  the  afternoon,  he  would  make 
the  necessary  arrangements.  She 
thanked  him,  l)ut  tohl  him  that  they 
did  not  need  it  then. 

Q.  "  Did  you  ever  take  any  other 
verbal  answer  from  Judge  Holt  to 
letters  from  your  parents  ? "  Mr. 
Worthington  inquired.  A.  "No,  I 
can't  say  that  I  remember  doing  so." 

Mr.  Worthington  thereupon  pro- 
duced a  letter  from  Maj.  Throck- 
morton, to  which  he  testified  he  had 
received  a  reply  through  his  daughter. 
The  letter  requested  Judge  Holt  to 
send  the  Major  a  letter  which  he 
could  place  before  the  general  court- 
martial. 

A.  "Yes,  I  recall  now,"  said  Miss 
Throckmorton.  "My  godfather 
said  he  would  be  glad  to  give  father 
a  letter,  but  he  would  have  to  dictate 
it,  as  he  was  in  such  a  condition  then 
that  he  could  not  write  himself." 

Q.  "Did  he  dictate  that  letter?" 
A .  "  No  ;  because  he  was  informed 
that  it  was  not  needed." 

At  2.45,  on  the  first  day  of  the 
sixth  week  of  the  trial,  ]\Ir.  Dar- 
lington announced:  "We  rest  here, 
your  honor,  so  far  as  we  are  con- 
cerned." 

Mr.  Darlington  thought  they 
should  make  an  effort  to  dispose  of 
the  prayers  to  instruct,  so  the  jury  was 
excused  for  the  day,  and  the  lawyers 


976 


PART    III.       PROBLEMS   OF   PROOF 


No.  390. 


began  their  consultations.  It  de- 
veloped that  only  Mr.  Darlington 
had  his  prayers  prepared,  hut  the 
court  suggested  that  as  he  was  the 
plaintiii  he  should  submit  them. 
This  was  done  at  once.  There  were 
eleven  of  them  altogether,  the  most 
important  being  those  referring  to 
instructions  regarding  the  evidences 
of  revocation.  Mr.  Darlington  asked 
that  the  jury  be  instructed  that  they 
nmstnot  find  revocation  merely  upon 
the  evidence,  of  the  paper  appearing 
in  a  burned  and  mutilated  condi- 
tion. They  must  find  that  the 
mutilation  was  the  work  of  Judge 
Holt  himself,  or  that  it  was  done  by 
his  direction,  and  that  it  was  done 
for  the  purpose  of  revocation.  In 
order  to  substantiate  the  theory 
of  revocation  by  a  subsequent  will, 
Mr.  Darlington  contended,  the  ca- 
veators must  have  satisfied  the 
jury  that  a  later  will  was  in  exist- 
ence at  the  death  of  Judge  Holt, 
or  that  it  was  accidentally  or  fraud- 
ulently destroyed  during  his  life- 
time. 

Mr.  Worthington  then  made  a 
general  review  of  the  prayers  of 
his  opponents,  objecting  to  all  of 
them  from  the  fourth  to  the  thir- 
teenth inclusive.  He  said  it  was 
practically  asking  that  the  jury  be 
instructed  that  the  caveators  must 
explain  the  mystery  of  the  will,  and 
that  unless  they  can  do  it  the  paper 
must  be  admitted  to  probate.  Mr. 
Worthington  thought  that  the 
proper  way  in  which  the  jury  should 
be  instructed  was  that  there  was 
no  burden  of  proof  about  it.  He 
thought  his  side  would  be  justified  in 
asking  the  court  to  instruct  the  jury 
that  from  the  appearance  of  the 
paper,  and  the  fact  that  it  came  from 
nowhere,  the  presumption  must  l)e 
that  it  had  been  revoked  if  Judge 
Holt  ever  executed  it.  He  would 
also  ask  that  the  jury  be  instructed 
that  if  there  was  any  doubt  in  their 
minds  as  to  whether  Judge  Holt 
executed  the  will,  then  their  de- 
lil)erations  must  be  confined  to  that 
point. 


Tuesday,  June  23. 

At  the  opening  yesterday  Capt. 
James  E.  Bell,  superintendent  of 
the  city  delivery  of  the  general 
post  office,  was  called  to  the  stand 
for  the  purpose  of  having  all  his 
information  concerning  the  mailing 
of  the  will  appear  in  the  record. 
It  did  not  take  him  long  to  tell  all  he 
knew  about  it.  It  was  only  possible 
for  him  to  say  that  the  envelope  was 
collected  in  the  north-west  section  of 
the  city  on  the  4  p.m.  collection. 

Maj.  Throckmorton's  son,  Charles 
WiekUffc  Throelcmorton,  was  called 
by  Mr.  Darlington.  He  stated  that 
he  was  in  Washington  in  the  months 
of  June  and  September,  1S95.  He 
came  the  second  time  for  the  purpose 
of  seeing  Luke  Devlin,  and  that  was 
the  first  time  he  ever  saw  him. 
He  first  saw  the  alleged  will  on 
Labor  Day,  1895.  He  brought  with 
him  the  letters  from  Judge  Holt 
to  the  Throckmortons,  which  have 
been  introduced  in  evidence.  He 
had  never  seen  the  letters  prior  to 
that  time. 

Following  this  testimony,  Mr. 
Worthington  read  a  list  of  entries 
taken  from  Judge  Holt's  expense 
books  for  the  years  1889,  1890,  and 
1891,  for  the  purpose  of  rebutting 
Miss  Hynes'  testimony  that  Judge 
Holt  still  continued  to  send  her 
monthly  allowances  after  having 
presented  her  with  $10,000  in  bonds 
in  1884.  Mr.  Worthington's  list 
showed  that  in  no  one  of  the  three 
years  mentioned  did  Judge  Holt 
send  Miss  Hynes  more  than  $150, 
while  prior  to  the  gift  of  bonds 
the  allowances  had  averaged  $50 
per  month. 

Mr.  Worthington  also  undertook 
to  prove  by  these  same  expense 
books  that  the  dinner  at  Judge 
Holt's  house,  referred  to  several 
times  during  the  trial,  at  which 
President  and  Mrs.  Grant  and 
Gen.  and  Mrs.  Sherman  were  present, 
was  given  on  February  21.  An 
entry  und(M-  date  of  February  22, 
1873,  showed  that  Judge  Holt  had 
paid  a  caterer  $110  for  a  dinner  the 


No,  390. 


THROCKMORTON   V.   HOLT 


977 


day  before.  This  was  for  the  pur- 
pose of  correcting  a  possible  im- 
pression that  the  dinner  was  given 
on  the  date  the  alleged  will  was 
executed.  Several  letters  were  also 
read,  indicating  that  the  breach 
which  had  previously  existed  be- 
tween Judge  Holt  and  Mr.  Ray, 
husband  of  Miss  Hynes'  niece,  had 
been  healed. 

At  11.45  both  Mr.  Worthington 
and  Mr.  Darlington  announced  that 
they  had  no  more  evidence  to  present, 
and  Judge  Bradley  promptly  ex- 
cused the  jury  until  1  o'clock,  so  as 
to  give  the  lawyers  free  scope  for 
the  battle  over  the  prayers.  This 
occupied  nearly  an  hour,  in  the 
course  of  which  there  were  several 
little  tilts  between  opposing  counsel. 
Everything  was  finally  arranged, 
however,  and  immediately  after 
recess  Mr.  Blair  Lee  began  the 
opening  argument  in  behalf  of  the 
caveatees. 

JVIr.  Lee  began  by  calling  attention 
to  the  privilege  of  his  opponents 
to  set  up  two  lines  of  defense  — 
forgery  and  revocation  —  adding, 
however,  that  common  sense  com- 
pelled them  to  adopt  one,  as  the 
one  was  absolutely  inconsistent 
with  the  other.  "It  will  become 
necessary,"  he  continued,  "for  the 
gentlemen  on  the  other  side,  when 
they  come  before  you  with  their 
argument,  to  decide  whether  they 
will  hold  that  this  paper  is  or  is  not  a 
forgery,  or  whether  there  was  rev- 
ocation of  the  document." 

Mr.  Lee  went  on  to  say  that  it 
had  become  necessary  for  his  ad- 
versaries to  "shift  their  ground." 
Mr.  Worthington,  at  the  outset, 
had  contended  that  Judge  Holt 
could  not  by  any  possibility  have 
created  Maj.  Charles  B.  Throck- 
morton a  trustee,  but  it  had  been 
clearly  proven  that  Maj.  Throck- 
morton was  not  guilty  of  the 
charges  laid  at  his  door.  Besides, 
these  charges  were  made  long  after 
Miss  Josephine  Throckmorton  be- 
came of  age,  and  the  trust  had 
expired.     Mr    Lee  referred   to   the 


great  stress  his  opponents  laid 
upon  the  finding  of  a  memorandum 
in  Judge  Holt's  closet.  "Nearly 
every  witness  placed  on  the  stand 
referred  to  it,  until,  taking  a  hint 
from  the  cross-examination.  Brother 
Worthington  tried  to  hedge  a  little. 
And  then  the  whole  matter  fell 
upon  the  simple  statement  of  Miss 
Hynes  that  the  will  referred  to  in 
the  memorandum  was  her  will,  and 
the  executors  her  executors."  Mr. 
Worthington's  picture  of  the  tender 
relations  between  Judge  Holt  and 
the  Steretts  was  next  touched  upon. 
"  It  was  stated  that  during  the  last 
few  years  of  his  life  Judge  Holt 
leaned  upon  them  like  a  cripple 
upon  his  crutches ;  and  yet  their 
own  witnesses  testify  that  Judge 
Holt  could  not  understand  the  two 
Col.  Steretts,  the  one  always  making 
money  and  the  other  always  hard  up. 
And  this  Col.  Sterett,  who  made  his 
entry  to  the  house  by  the  back  way, 
was  unable  to  get  possession  of  the 
keys  and  watch  from  this  dead 
man's  body.  That  10-cent  key  to 
a  10-cent  lock  may  have  been  small 
protection,  but  they  were  intrusted  to 
a  servant  of  Judge  Holt's  rather 
than  to  this  faithful,  intimate,  and 
tender  nephew." 

Mr.  Lee  referred  at  length  to  the 
emphasis  laid  upon  the  alleged 
separation  of  the  contested  docu- 
ment, and  to  the  testimony  of 
various  witnesses  to  the  contrary, 
and  also  to  the  statements  of  Fred 
Grant  and  William  T.  Sherman,  Jr., 
as  to  the  genuineness  of  the  signa- 
tures of  the  witnesses.  Regarding 
the  burning  of  the  documents  at 
the  Holt  house,  Mr.  Lee  said  he  had 
always  regarded  it  as  strange  that 
Washington  Holt  should  have  or- 
dered certain  letters,  which  he  was 
particularly  interested  in  having 
destroyed,  burned  on  a  portion  of 
the  premises  where  he  could  not 
see  them. 

Another  significant  fact,  Mr.  Lee 
thought,  was  the  appearance  of 
the  will  at  the  very  time  that  Charles 
Strothers  was  about  to  be  ejected 


978 


PART    III.       PROBLEMS   OF    PROOF 


No.  390. 


from  the  Holt  residence,  where  he 
had  been  living,  tax  free  and  rent 
free,  ever  since  the  Judge's  death. 
After  the  will  appeared,  however, 
Strothers  continued  to  live  there, 
and  was  likely  to  remain  indefinitely. 

Mr.  Lee  took  up  what  he  called 
the  "  trick  transparency  of  this 
campaign."  He  said  he  had  care- 
fully compared  the  word  "Washing- 
ton "  in  the  letter  of  February  7, 
1873,  upon  which  so  much  stress 
was  laid,  with  the  word  in  the  trans- 
parency, and  that  to  his  eye  "un- 
aided, or  rather  imdimmed  by  this 
gelatine  partition,  there  was  a  slight 
difference  in  nearly  every  stroke." 
I\Ir.  Lee  also  drew  a  comparison 
between  the  statements  of  numerous 
witnesses,  both  expert  and  non- 
expert, that  the  alleged  will  was  a 
forgery,  by  reason  of  various  existing 
or  lacking  characteristics,  and  Mr. 
Worthington's  claim  that  many 
words  in  the  will  were  simply  traced 
from  letters  written  by  Judge  Holt. 
A  memorandum  found  at  the  safe 
deposit  and  dated  a  month  subse- 
quent to  the  alleged  will,  which 
Mr.  Lee  claimed  presented  the 
strongest  resemblance  to  the  writing 
in  the  will  of  any  document  yet 
profluced,  was  then  handed  to  the 
jury  for  their  inspection. 

Judge  Holt's  relations  with  his 
family  prior  to  the  date  of  the  will 
were  referred  fo  by  ]Mr.  Lee,  dwelling 
upon  the  fact  that  Judge  Holt  was 
not  on  very  intimate  terms  with 
his  relatives  until  long  after  the 
date  of  the  alleged  will.  After  a 
time,  however.  Judge  Holt  did 
take  an  interest  in  his  old  home  in 
Kentucky,  and  finally  grew  to  love 
it,  but  Mr.  Lee  held  that  this  love 
(Vul  not  extend  to  his  relatives. 
And  the  influence  which  Washington 
Holt  thus  acquired  over  his  uncle 
was  not  used  to  bring  about  affec- 
tionate relations  between  Judge 
Holt  and  the  balance  of  his  family, 
for  there  were  no  family  reunions 
at  Holt's  Bottom.  So  far  as  Judge 
Holt's  relations  with  the  Throck- 
morton famih-  were  cc)ncerned,  ^Ir. 


Lee  thought  they  made  the  writing 
of  such  a  will  as  the  one  in  question 
extremely  probable. 

Mr.  Lee  attacked  the  testimony 
of  witnesses  regarding  troubles  be- 
tween Judge  Holt  and  Luke  Devlin, 
claiming  that  if  Witness  Fought 
had  known  of  such  actions  as  he 
accused  Devlin  of  on  the  witness 
stand,  he  woidd  not  have  gone  to  his 
superiors  with  trifling  tales  when 
he  had  it  in  his  power  to  crush  Devlin 
by  telling  of  the  more  serious  irregu- 
larities. He  reviewed  at  length  the 
testimon  V  of  the  witnesses  in  Devlin's 
behalf. 

INIr.  Lee  was  bitter  in  his  attack  on 
the  testimony  of  the  caveators.  ]\Irs. 
Washington  Holt's  veracity,  he  said, 
was  attacked  by  her  cousin,  and 
Mr.  Holt's  lack  of  veracity  was 
admitted  by  himself.  "They  come 
here  desperate,"  he  continued,  and 
charge  a  great  crime  to  a  man 
(Luke  Devlin)  who  has  a  very 
small  interest  in  this  case.  They 
are  like  the  character  in  the  Scrip- 
ture who,  having  been  forgiven  a 
great  debt,  went  out  and  took  the 
man  who  owed  him  a  penny  by  the 
throat." 

Mr.  Lee  made  the  most  of  the 
picture  of  Maj.  Throckmorton  in 
the  lava  beds  of  California,  about 
the  time  the  alleged  will  was  exe- 
cuted, writing  to  Judge  Holt  and 
saying  that  he  hoped  to  return  to 
his  darling  wife  and  little  ones  by  a 
certain  date,  but  that  if  he  should 
be  so  unfortunate  as  not  to  get  back, 
he  knew  Judge  Holt  would  not  let 
his  family  want. 

At  this  point  Mr.  Lee  announced 
that  his  time  had  expired. 

Mr.  Darlinc/fon  began  his  address 
to  the  jury.  He  said  at  the  outset 
that  there  were  only  two  points  for 
them  to  consider :  first,  whether 
Judge  Holt  executed  the  will,  which 
he  thought  was  simply  a  question 
of  whether  it  was  in  his  handwriting 
or  not,  and,  second,  if  Judge  Holt 
did  write  it,  did  he  revoke  it  ? 

Mr.  Darlington  proceeded  at  once 
to     discuss     the     inconsistency     of 


No.  390. 


THROCKMORTON   V.    HOLT 


979 


Washington  Holt's  conduct,  after 
accusing  Charles  Strothers  of  steal- 
ing or  destroying  a  will,  to  subse- 
quently place  him  in  charge  of  the 
Holt  residence.  The  rejection  by 
Washington  Holt  of  Mr.  Devlin's 
suggestion  that  the  house  be  rented 
Avas  also  commented  on,  and  Mr. 
Darlington  proceeded  to  review  the 
testimony  tending  to  show  that 
Charles  Strothers  addressed  the 
envelope  in  which  the  will  was 
received  at  the  Register's  office. 
He  said  there  were  five  times  as 
much  evidence  to  show  that  Strothers 
did  it  as  there  was  to  indicate  that 
Devlin  was  the  man. 

Mr.  Darlington  confined  his  at- 
tention largely  to  the  technical 
features  of,  the  case,  going  over 
the  evidence  as  to  the  handwrit- 
ing and  the  composition  of  the 
alleged  will,  from  the  standpoint 
of  both  the  lay  and  the  expert  wit- 
nesses. He  took  Mr.  Carvalho's 
minute  measurements  of  characters 
in  the  will  and  the  letters  written 
by  Judge  Holt,  and  claimed  that 
they  were  all  in  favor  of  the  will. 
Mr.  Carvalho's  composite  photo- 
graph of  Judge  Holt's  signature, 
Mr.  Darlington  said,  also  compared 
very  favorably  with  that  in  the  will. 
Mr.  Darlington  also  added :  "  I 
don't  like  to  discuss  Mr.  Carvalho, 
as  I  will  say  very  frankly  that  he 
did  not  impress  me  favorably,  and 
I  believe  he  had  the  same  effect 
on  you.  He  attempted  to  impose 
on  the  jury  as  science  things  that 
are  the  veriest  nonsense  in  the 
world." 

The  testimony  of  Mr.  Carvalho, 
that  the  ink  with  which  the  will 
was  written  was  not  in  existence  at 
that  date  was  vigorously  attacked 
by  Mr.  Darlington,  who  said  :  "  If 
that  record  does  not  satisfy  any 
man  that  he  is  unreliable,  untrust- 
worthy, and  unentitled  to  belief, 
then  I  am  doing  him  a  great  injus- 
tice." He  read  Mr.  Carvalho's 
evidence  concerning  archil,  and  con- 
tinued :  "  He  is  evidently  a  man 
ignorant    of   what    he   pretends    to 


know,  who  attempts  to  impose  on 
people  whom  he  assumes  to  be  as 
ignorant  as  himself." 

Mr.  Darlington  combated  the 
theory  that  Judge  Holt  was  a  strict 
technical  lawyer,  and  poked  fun 
at  the  testimony  of  some  of  the  wit- 
nesses to  this  fact,  one  of  whom  did 
not  know  the  difference  between 
caveatees  and  caveators.  He  also 
assailed  Washington  Holt's  state- 
ment that  he  did  not  believe  Judge 
Holt  would  have  used  the  expres- 
sion "highest  standard,"  or  that  he 
would  have  used  the  word  "inherit" 
as  applying  to  personal  property. 

Mr.  Darlington  endeavored  to 
point  out  that  the  selection  of  Luke 
Devlin  as  executor  was  a  perfectly 
natural  proceeding,  in  view  of  whom 
the  beneficiaries  were  and  the  char- 
acter of  the  property  to  be  divided. 
He  asked  the  jury  to  compare 
the  letters  written  by  Judge  Holt 
about  the  date  of  the  will  to  mem- 
bers of  his  family  with  those  he 
wrote  to  the  Throckmortons,  and 
those  in  which  Miss  Hynes  was 
mentioned,  and  judge  for  themselves 
who  he  would  have  been  most  likely 
to  make  his  beneficiaries. 

Mr.  Darlington  had  not  quite 
finished  his  address  to  the  jury 
when  the  hour  of  adjournment 
arrived.  The  court  has  restricted 
the  time  for  argument  to  three 
hours  for  each  side. 

U\'d?i('sday,  June  24- 

Mr.  Darlington,  for  the  caveatees, 
faced  the  jury  again  as  soon  as 
court  opened  yesterday  morning, 
and  began  in  his  suave  and  easy 
manner  to  unfold  his  theories.  He 
thought  it  passing  strange  that 
his  opponents  should  first  devote 
se\eral  weeks  to  showing  that  the 
will  was  written  in  a  hand  thor- 
oughly unlike  that  of  Judge  Holt, 
and  then  another  week  to  arguing 
that  the  resemblance  was  so  close 
that  it  could  only  have  been  ac- 
complished by  tracing.  It  was  also 
curious,  if  tracing  was  the  method 
resorted  to,  that,  while  unimportant 
words  had    been    traced,  no  signa- 


980 


PART   III.       PROBLEMS    OF    PROOF 


No.  3^0. 


ture  of  Judge  Holt's  could  he  found 
which  was  an  exact  facsnnile  of  the 
one  in  the  will. 

In  reviewing  the  evidence  on  his 
side  of  the  case,  Mr.  Darlington 
said  fourteen  witnesses  had  sworn 
that  the  handwriting  was  genuine, 
and,  besides,  the  \ery  appearance 
of  the  paper  itself  was  inconsistent 
with  the  theory  that  the  will  was 
not  genuine.  It  was  absurd  to 
suppose  that  any  one  attempting 
to  perpetrate  a  forgery  would  have 
burned  and  mutilated  his  work  in 
such  a  manner.  As  for  the  sending 
of  the  will  to  the  Register's  office, 
IMr.  Darlington  admitted  that  he 
could  tell  nothing  about  it.  He 
had  his  own  theory,  and  he  pre- 
sumed the  jury  had  theirs.  "As 
for  the  burning,"  he  continued, 
"I  can  only  say  that  if  the  paper 
had  been  folded  twice  and  thrust 
into  a  fire  in  a  coal  scuttle  or  a  grate, 
it  would  present  about  the  same 
appearance  as  it  does  now."  There 
could  be  no  doubt  as  to  the  genu- 
ineness of  the  signatures  of  the 
witnesses ;  that  had  been  proven 
beyond  question.  It  had  also  been 
shown  conclusively  that  the  paper 
was  in  one  piece  when  it  reached 
the  Register's  office. 

The  character  of  the  persons  in- 
volved, he  said,  was  additional 
proof  that  no  such  crime  as  forgery 
had  been  committed.  A  review 
of  Luke  Devlin's  career  was  satis- 
factory proof  that  he  would  never 
have  stooped  to  forgery.  In  looking 
for  a  forger  the  jury  would  have  to 
go  beyond  Luke  Devlin.  It  would 
be  equally  preposterous  to  suppose 
that  a  man  with  a  long  and  honor- 
able record  in  the  army,  like  Maj. 
Throckmorton,  was  guilty  of  the 
crime,  and  he  thought  no  member 
of  the  jury  would  smirch  the  fair 
name  of  Mrs.  Throckmorton  or 
that  of  her  beautiful  daughter  by 
even  a  suspicion  that  they  would 
take  part  in  a  crime  for  which 
people  are  .sent  to  the  penitentiary. 

Referring  to  the  theory  of  revoca- 
tion, Mr.  Darlington  said  there  was 


absolutely  no  evidence  to  show 
that  Judge  Holt  had  ever  changed 
his  mind  as  to  the  disposition  of 
his  property,  and  there  was  nothing 
to  prove  that  Judge  Holt  had  ever 
done  anything  that  constituted  a 
legal  revocation.  If  he  had  made  a 
later  will,  the  fact  that  it  was  not 
found  was  legal  presumption  that 
he  destroyed  it  himself. 

yir.  Darlington  concluded  his 
argument  shortly  after  11  o'clock, 
and  was  followed  by 

Mr.  WorthingtonioY  the  caveators. 
There  were  four  questions  to  be  de- 
cided, said  Mr.  Worthington.  Did 
Judge  Holt  write  the  will  ?  Did  he 
revoke  it  ?  Was  there  fraud  ?  Was 
there  undue  influence  ?  The  argu- 
ment of  his  opponent, -that  if  the 
jury  found  Judge  Holt  did  not  write 
the  will,  it  would  mean  that  Luke 
Devlin  did,  was  unsound.  It  would 
mean  only  that  Judge  Holt  did  not 
write  it,  and  nothing  more.  An 
effort  to  find  the  forger  would  fall 
upon  another  court.  Neither  Mr. 
Devlin  nor  any  member  of  the 
Throckmorton  famil^y  would  be  im- 
plicated by  such  a  decision. 

The  theory  that  Charles  Strothers 
had  mailed  the  will  to  the  Regis- 
ter's office,  Mr.  Worthington  held 
was  unworthy  of  consideration.  If 
Strothers  had  found  the  will  and 
carried  it  in  his  pocket  for  a  year,  no 
good  reason  why  he  should  have  sent 
it  in  at  the  end  of  that  time  had  been 
shown.  The  only  result  would  be 
an  opportunity  for  him  to  come 
into  court  and  perjure  himself. 
If  he  had  found  it,  the  natural 
thing  for  him  to  have  done  would 
have  been  to  take  it  to  Washington 
Holt  or  to  Col.  Sterett  and  make 
what  he  could  out  of  it ;  or  he  might 
haAC  taken  it  to  the  Throckmortons 
and  Miss  Hynes  and  tried  to  dicker 
with  them  over  it.  It  would  be 
just  as  reasonable  to  suppose  that 
Washington  Holt  or  Col.  Sterett 
had  sent  the  will  in,  and  then 
engaged  lawyers  to  try  to  prove  that 
they  did  not. 

The  will  was  a  suspicious  docu- 


No.  390. 


THROCKMORTON    C.    HOLT 


981 


ment  from  first  to  last,  and  not 
worthy  of  the  sHghtest  trust.  It 
was  sent  in  by  some  person  who 
was  ashamed  of  what  he  was  doing 
and  unwiUing  to  have  any  one 
know  it.  The  burning  of  the  paper 
could  not  have  been  done  by  drop- 
ing  it  into  the  fire,  as  was  shown 
by  an  examination  of  the  burns. 
It  was  remarkable  that  not  a  single 
word  in  the  whole  document  had 
been  obliterated.  It  required  no 
expert  testimony  to  show  that  the 
ink  with  which  the  will  was  written 
was  difl^erent  from  that  with  which 
Judge  Holt  wrote  his  letters,  and  if 
Judge  Holt  wrote  the  will,  he  must 
have  sent  out  and  got  a  special 
bottle  of  ink,  which  he  never  used 
again.  Mr.  Worthington  called  at- 
tention to  various  other  suspicious 
appearances,  and  continued  that  the 
will  was  the  work  of  an  ignoramus. 
It  convicted  the  writer  in  the  first 
line,  which  began,  "I.  J.  Holt." 
Any  lawyer  knew  that  the  name  of 
the  devisor  should  be  written  out  in 
full.  Again,  one  of  the  beneficiaries 
was  referred  to  as  Lizzie  Hynes,  so 
that  if  she  should  ever  have  occasion 
to  transfer  any  of  the  property,  she 
would  have  to  secure  affidavits 
that  J.  Holt  was  Joseph  Holt  and 
that  Lizzie  Hynes  was  Elizabeth 
Hynes.  Mr.  Worthington  declared 
that  if  he  should  ever  draw  up  such 
a  will  for  anybody  and  charge  $5  for 
it,  he  would  be  liable  to  arrest  for 
obtaining  money  under  false  pre- 
tenses. He  compared  the  alleged 
will  with  other  legal  papers  drawn 
up  by  Judge  Holt,  including  the  will 
of  1848  and  Miss  Hynes'  will,  which 
he  said  were  models  of  clearness 
and  fullness. 

Mr.  Worthington's  argument  was 
interrupted  at  the  usual  hour  for 
luncheon.  He  resumed  his  address 
after  recess,  calling  attention  to 
•  the  character  of  the  witnesses  for  the 
caveators,  who  gave  evidence  con- 
cerning the  handwriting  and  signa- 
tures in  the  alleged  will,  and  pointing 
to  the  fact  that  they  had  every 
facility    for    being    competent     to 


judge.  He  thought  it  was  a  most 
striking  fact  that  every  one  of  these 
witnesses  had  stated  positively  that 
neither  the  handwriting  nor  the 
signature  was  that  of  Judge  Holt. 
Fourteen  witnesses,  he  said,  none  of 
them  at  all  interested  in  the  case, 
had  testified  to  this  effect.  He 
characterized  as  an  immense  fallacy 
the  argument  of  his  opponents  that 
the  evidence  of  the  witnesses  was 
valueless  because  they  could  not 
point  out  specific  differences  in  the 
writing. 

Referring  to  Mr.  Darlington's 
denunciation  of  Expert  Carvalho, 
Mr.  Worthington  said  he  would 
ofter  to  the  jury  a  theory,  by  which 
they  could  determine  Avhether  Mr. 
Carvalho  came  to  the  court  to  give 
his  honest  opinion  or  to  lie  for  so 
much  per  day.  He  then  proceeded 
to  point  out  that  Mr.  Carvalho, 
in  regard  to  several  circumstances 
where  his  own  opinion  differed  with 
that  of  the  lawyers,  bj^  whom  he  had 
been  summoned,  unhesitatingly  as- 
serted his  own  views  without  any 
regard  for  the  effect  it  would  have 
on  the  case.  He  had  testified  that 
the  kind  of  paper  on  which  the  will 
was  written  was  manufactured  as 
long  ago  as  1873 ;  he  had  expressed 
the  opinion  that  Luke  Devlin  had 
not  written  the  will,  and  that 
the  document  had  not  been  entirely 
severed  at  the  time  it  was  received. 
All  these  theories  were  at  variance 
with  the  belief  of  the  lawyers,  but 
it  had  made  no  difference  to  Mr. 
Carvalho's  testimony.  "Now,  I 
would  like  you  to  contrast  this 
testimony  with  that  of  an  individual 
v.'ho  came  from  Troy,"  he  continued. 
"Don't  you  remember  Mr.  Hagan, 
standing  there  and  saying  to  me : 
'  If  I  said  anything  that  will  help 
you,  I  didn't  intend  it?'  Standing 
at  the  bar  of  justice,  where  he  had 
sworn  to  toll  the  whole  truth,  he 
unblushingly  declared  that  if  the 
truth  would  help  us,  he  would  not- 
tell  it." 

Turning    to    the    forgery    theory, 
Mr.    Worthington   grew    vehement. 


082 


PART    III.       PROBLEMS    OF   PROOF 


No.  390. 


He  had  his  transparency  prepared 
days  before  he  had  seen  the  famous 
letter  of  February  7,  1873,  and  knew 
that  when  he  came  to  place  the 
word  "Washington"  in  the  will  over 
that  in  the  letter  he  would  find 
them  identical.  He  knew  it  because 
the  same  words  in  the  will  agreed 
identically,  and  it  was  natural  to 
suppose  there  was  an  original  some- 
where. "We  knew,"  he  added, 
"that  the  person  who  forged  that 
will  was  the  person  who  had  in 
his  possession  that  letter."  Mr. 
Worthington  here  held  up  for  the 
inspection  of  each  member  of  the 
jury  the  will  and  two  letters,  one  of 
Februarv  7,  1873,  and  the  other  of 
September  11,  1888.  The  "Wash- 
ington" in  the  former  letter,  he 
said,  was  the  one  from  which  they 
claimed  the  word  in  the  will  was 
traced,  while  the  "Washington"  in 
the  letter  of  September  11,  the  other 
side  claimed,  bore  just  as  much 
reseml)lance  to  the  word  in  the  will. 
He  asked  the  jury  to  compare  the 
two  words,  indicating  a  large  num- 
])er  of  alleged  differences.  He  went 
into  the  subject  of  handwriting  at 
great  length,  making  numerous  com- 
parisons between  the  testimony  of 
the  two  experts  —  Carvalho  and 
Hagan.  He  cut  the  word  "that" 
out  of  his  famous  transparency 
and  placed  it  over  "that"  in  the 
letter  of  September  9,  1873,  from 
which  he  claimed  the  word  was 
traced,  and  then  made  the  same 
comparison  of  the  word  in  other 
letters,  which  Mr.  Hngan  said  also 
resembled  the  word  in  the  will.  He 
invited  the  jury  to  step  up  and  use 
their  own  eyesight.  The.se  com- 
parisons occupied  some  time,  and  at 
the  conclusion  Mr.  W^orthington 
summed  up  the  list  of  striking 
similarities. 

"  Xow,"  said  he,  "we  come  to  the 
crowning  point  of  all.  When  you 
think  about  it,  the  ringing  in  of 
such  an  expression  as  '  whose  charac- 
ter I  believe  to  be  of  the  highest 
standard,'  after  the  name  of  an 
executor    is    a    very    extraordinary 


thing.  But,  lo,  and  behold  !  what 
happens  ?  The  gentlemen  on  the 
other  side  bring  in  a  letter  dated 
September  29,  1873,  which  we  had 
been  looking  for,  and  on  the  fourth 
page  we  find  the  following  reference 
to  Blackstone  :  '  Which  is  a  standard 
work  of  the  highest  character.' 
Now  you  see  why  that  expression 
was  put  in  there.  They  wanted 
something  to  copy." 

The  question  of  punctuation  was 
then  taken  up.  Mr.  Worthington 
read  a  number  of  properly  punctu- 
ated epistles  of  Judge  Holt's,  then 
dashed  oflF  the  alleged  will,  pausing 
three  times  to  take  breath. 

"There  are  other  things,"  he 
continued,  "  which  I  do  not  like  to 
refer  to,  which  indicate  that  this  will 
is  a  forgery.  Why  was  this  will 
dated  February  7,  1873  ?  We  sup- 
posed we  knew  all  about  it  when 
the  letter  of  February  7,  1873, 
appeared.  The  witnesses  were 
President  U.  S.  Grant  and  Mr.  and 
Mrs.  Sherman  —  all  dead  before 
Judge  Holt,  all  dead  before  this 
paper  saw  the  light  of  day,  so 
there  was  no  chance  of  their  con- 
tradicting it.  Now,  if  it  be  a  fact, 
as  I  think  I  have  demonstrated  to 
you,  that  this  will  was  prepared  by 
somebody  who  had  the  letters  of 
February  7  and  September  29, 
1873,  in  their  possession,  you  would 
expect  they  would  use  any  knowl- 
edge in  their  possession  regarding 
the  witnesses.  Very  well ;  some 
time  in  February,  1873,  Judge  Holt 
gave  a  dinner,  at  which  these 
witnesses  were  present.  And  you 
find  that  the  people  who  had  these 
letters  had  in  their  possession 
another  letter,  which  they  held 
back  until  the  last  minute  —  a 
letter  which  shows  that  this  dinner 
was  to  have  been  gi\'en  on  February 
7,  1873,  but  was  postponed. 

"  You  also  find  Miss  Josephine 
Throckmorton  leaving  New  York  a 
few  days  before  this  will  appeared  and 
going  to  Culpeper,  Virginia,  where 
she  had  relatives  living.  It  had 
never  occurred  to  her  to  visit  them 


No.  390. 


THROCKMORTON   V.    HOLT 


9S3 


before.  She  comes  back  here  and 
waits  at  the  Baltimore  and  Potomac 
depot  for  one  hour  for  her  train. 
"iVnd  during  that  very  hour  this 
thing  was  mailed,  and  mailed  in 
the  very  section  of  the  city  in  which 
she  was  waiting.  This  coincidence 
of  the  mailing  of  that  letter ;  the 
coincidence  of  the  date  of  the  will ; 
this  terrible  coincidence  of  the  words 
in  the  will  and  the  words  in  the  let- 
ters in  the  possession  of  the  Throck- 
morton family,  all  point  to  something 
which  you  will  have  to  decide  upon." 

Mr.  Worthington  proceeded  to 
attack  the  assumption  that  it  was 
natural  for  Judge  Holt  to  have 
made  Luke  Devlin  his  executor, 
and  next  argued  against  the  possi- 
bility that  Judge  Holt  would  have 
made  a  will  cutting  off  all  his  blood 
relations.  His  opponents,  he  said, 
had  failed  in  their  attempts  to 
show  that  Judge  Holt  was  a  man 
without  a  family.  He  read  numer- 
ous letters  from  Judge  Holt  to  mem- 
bers of  his  family  in  Kentucky,  the 
tone  of  which,  ]\Ir.  Worthington 
held,  proved  of  itself  that  he  never 
could  have  written  such  a  will.  "  It 
is  enough  to  make  him  rise  from 
his  grave  and  come  here  to  curse 
those  who  proclaim  that  he  did  so," 
the  attorney  declared. 

After  completing  his  argument, 
that  it  was  impossible  for  Judge 
Holt  to  have  written  such  a  will,  Mr. 
Worthington  took  up  the  theory  of 
revocation,  and  referred  at  length 
to  the  evidence  regarding  the  changes 
in  Judge  Holt's  relations  with  the 
parties  interested.  Especially  did 
INIr.  Worthington  dwell  upon  his 
relations  with  the  family  of  Washing- 
ton Holt,  adding  that  if  Judge 
Holt  had  died  and  left  such  a  will 
as  the  one  under  discussion  for  the 
world  to  see,  then  he  was  "  the 
grandest  hypocrite  the  world  has 
ever  seen."  If  Washington  Holt 
told  the  truth,  Mr.  Worthington 
said,  his  evidence  absolutely  dis- 
posed of  the  question  of  revocation. 
He  spoke  of  his  tireless  search  for 
the  will  and  his  questioning  of  the 


servants  and  then  asked :  "  Do 
you  suppose  Washington  Holt  would 
have  acted  in  this  way  if  none  of 
these  things  he  has  testified  to  is 
true  ?  No  ;  he  had  these  con\'ersa- 
tions  regarding  a  will  with  Judge 
Holt,  and  that  was  why  he  acted 
in  that  way." 

Mr.  Worthington  exhibited  a 
memorandum  of  a  bequest  to  the 
Washington  Humane  Society,  which 
Washington  Holt  testified  to  finding 
in  a  closet  at  the  Holt  residence, 
showing,  Mr.  Worthington  said, 
that  Judge  Holt  was  engaged  in 
the  act  of  making  a  will  after  1886. 
"There  it  is,"  he  said,  holding  up 
the  paper.  "Judge  Holt's  own 
handwriting.  He  is  speaking  from 
the  grave." 

The  gift  of  $10,000  to  Miss  Hynes 
next  received  attention  from  Mr. 
Worthington,  who  argued  that  the 
interest  accruing  from  the  bonds 
was  equivalent  to  the  allowance 
of  $600  per  annum  which  he  had 
previously  made  her.  He  would 
say  nothing  reflecting  upon  Miss 
Hynes,  except  that  her  interest  in 
the  case  had  so  affected  her  memory, 
unconsciously,  that  it  was  absolutely 
unreliable.  Mr.  Worthington  also 
endeavored  to  correct  the  impression 
that  certain  of  Judge  Holt's  letters, 
containing  kindly  references  to  Mr. 
Ray,  were  not  written  subsecjuently 
to  the  breach  between  the  two  men. 
He  argued  also  that  the  will  which 
Judge  Holt  drew  for  Miss  Hynes, 
disposing  of  the  $10,000  in  bonds 
which  he  had  given  her,  was  a 
strong  piece  of  evidence  against 
the  existence  of  such  a  will  as  that 
in  question.  Judge  Holt  was  care- 
ful to  so  arrange  matters  that  none 
of  the  $10,000  could  ever  get  into 
the  hands  of  his  enemy,  IMr.  Ray, 
and  if  there  had  been  a  will  in  exist- 
ence leaving  Miss  Hynes  half  of  his 
estate,  or  if  he  had  intended  to 
leave  her  anything  more,  he  would 
not  have  drawn  such  a  will  for 
Miss  Hynes,  in  which  the  only 
property  referred  to  was  the  money 
he  had  given  her  in  1SS4. 


984 


PART    III.       PROBLEMS    OF    PROOF 


No.  300. 


Thursday,  June  25. 
Mr.  Worthington  resumed  his  ad- 
dress for  the  caveators  at  the 
opening  with  further  references  to 
the  testimony  of  the  Throckmortons. 
If  they  had  toki  the  exact  truth 
on  the  witness  stand,  lie  said,  then 
eight  or  ten  eminently  respectable 
and  disinterested  witnesses  had  not 
told  it.  The  Throckmortons  had 
stated  that  the  difference  Judge 
Holt  had  with  the  elder  Mrs. 
Throckmorton  had  not  extended  to 
the  other  memhers  of  the  family, 
while  numerous  other  witnesses  said 
that  Judge  Holt  had  expressed  the 
greatest  animosity  toward  the  whole 
family.  Mr.  Worthington  devoted 
considerable  attention  to  the  rela- 
tions between  Judge  Holt  and  the 
Throckmortons,  calling  attention  to 
the  unavailing  appeals  for  money 
made  to  Judge  Holt  when  Maj. 
Throckmorton  was  in  trouble.  He 
thought  Miss  Throckmorton's  state- 
ment that  she  came  to  Washington 
from  New  York  for  the  express 
purpose  of  telling  Judge  Holt  that 
her  father  had  made  arrangements 
for  the  money,  and  did  not  need  it,  a 
most  remarkable  one. 

Turning  to  Judge  Holt's  relations 
with  the  family  of  his  nephew, 
Washington  Holt,  Mr.  Worthington 
asketl  why  it  was  that  Judge  Holt 
directed  his  servants  to  turn  over 
his  watch  and  keys  to  Washington 
Holt  instead  of  Luke  Devlin,  if 
such  a  will  as  the  one  in  question  was 
in  existence.  Mr.  Worthington  had 
no  doubt  that  Judge  Holt  did  write 
a  will,  as  he  told  his  nephew,  in 
which  he  made  him  executor,  but 
that  on  his  deathbed  his  thoughts 
turnc(l  back  to  his  old  home  in 
Kentucky  and  to  all  of  his  relatives, 
and  he  decided  to  let  his  property  go 
to  all  of  them  alike.  "  I  am  as  sure, 
gentlemen,  as  I  am  of  anything," 
he  added,  "that  Judge  Holt's  own 
liand  destroyed  that  will,  leaving  his 
[)r()p('rty  to  be  divided  among  all  his 
relatives  as  the  law  provides." 

Mr.  Worthington  was  followed  by 
his  collcM'rue, 


Jcre  Wilson,  who  began  with  a 
vigorous  attack  upon  the  validity 
of  the  alleged  will.  He  reviewed 
the  evidence  thoroughly  on  both 
sides  as  to  the  genuineness  of  the 
document,  and  asked  the  jury  to 
make  a  comparison  of  the  testi- 
mony. The  burden  of  proof  as 
to  the  validity  of  the  will  rested  on 
the  other  side,  and  he  did  not  think 
they  had  proved  it.  There  was 
argument  in  every  sentence  of  Mr. 
Wilson's  address.  It  was  perfectly 
natural,  he  said,  that  the  will  should 
bear  a  striking  resemblance  to  the 
handwriting  of  Judge  Holt.  A  man 
would  be  an  arrant  fool  to  attempt 
to  get  up  a  fictitious  will  and  not 
to  imitate  the  handwriting  of  the 
person  whose  will  it  purported  to  be. 
He  thought  the  preponderance  of 
evidence  was  that  it  was  not  Judge 
Holt's  writing.  The  legal  form  and 
composition  of  the  alleged  will  he 
argued  was  convincing  proof  that  it 
was  not  written  by  a  man  of  Judge 
Holt's  character  and  attainments. 

Mr.  Wilson  referred  pointedly 
to  the  testimony  of  Miss  Throck- 
morton, where  it  conflicted  with  the 
testimony  given  by  the  servants  at 
the  Holt  residence.  There  was  as 
much  reason  for  believing  them,  he 
said,  as  for  believing  her.  There 
was  no  $80,000  or  890,000  at  stake 
so  far  as  they  were  concerned,  and 
besides  there  were  six  of  them  and 
their  statements  all  agreed,  while 
hers  was  exactly  the  opposite. 

Gen.  Buitc-rworih  began  the  closing 
argument  for  the  caveatees  im- 
mediately after  recess.  He  began 
with  an  attempt  to  refute  the  asser- 
tions of  his  opponents  that  the  will 
was  not  such  a  document  as  an 
able  lawyer  would  ha\e  drawn  up. 
On  the  contrary  he  doubted  whether 
there  was  a  lawyer  in  Washington 
who  could  have  drawn  up  a  will  that 
would  dispose  of  property  more 
satisfactorily.  The  only  thing  that 
could  be  said  against  the  will  was 
that  it  had  turned  up  in  a  mysterious 
manner,  and  to  his  mind  it  was  sur- 
prising that  it  ever  turned  up.     His 


No.  390. 


THROCKMORTON   V.   HOLT 


985 


opponents,  he  said,  were  trying  to 
make  it  appear  that  it  was  a  forgery 
and  that  the  forger  in  order  to  certify 
to  its  worthlessness  had  burned  and 
mutilated  it  in  an  efl'ort  to  defeat  his 
own  aims.  "That  this  will  was 
burned,"  he  continued,  "is  certain, 
and  that  it  was  burned  by  the  only 
persons  interested  in  its  destruction 
is  equally  certain." 

Paying  his  respects  to  Expert 
Frazier,  Gen.  Butterworth  said  that 
ships  could  not  be  navigated  about 
the  shores  unless  more  accurate 
measurements  coidd  be  made  than 
Mr.  Frazier  was  able  to  make  with 
the  instrument  he  called  a  "pro- 
ducer." Mr.  Worthington  cor- 
rected him,  and  said  it  should  be 
"projector,"  at  which  one  of  the 
spectators  laughed  so  loudly  that 
Judge  Bradley  reprimanded  him 
severely,  and  said  if  it  occurred 
again,  he  would  have  the  offender 
ejected  from  court.  Reverting  again 
to  the  handwriting.  Gen.  Butter- 
worth  said  a  bank  teller  knows  in  a 
moment  whether  a  bank  note  is  good 
or  not,  but  he  cannot  tell  why.  In 
the  matter  of  handwriting  it  was  the 
same,  the  general  appearance  enabled 
any  one  to  decide  as  to  its  genuine^ 
ness.  People  do  not  always  write  the 
same ;  it  depends  on  conditions. 

Discussing  the  probabilities  of 
Judge  Holt  writing  such  a  will. 
Gen.  Butterworth  spoke  eloquently 
of  Judge  Holt's  promise  to  his  dying 
wife  to  care  for  Lizzie  Hynes.  He 
referred  to  the  war,  and  made  the 
most  of  Judge  Holt's  loyalty  to 
the  Union  and  the  fact  that  his  rela- 
tives were  Southern  sympathizers. 
He  drew  a  harrowing  picture  of 
the  bitter  civil  strife,  when  rewards 
were  offered  for  the  heads  of  aboli- 
tionists. It  had  been  said  that 
Judge  Holt  referred  to  the  family 
of  Washington  Holt  as  an  oasis  in 
the  desert  of  his  life,  and  surely,  said 
Gen.  Butterworth,  "an  oasis  which 
cost  $75,000  was  not  a  cheap  one." 

Concerning  the  probability  of 
Judge  Holt  writing  such  a  will. 
Gen.  Butterworth  asked:    "Isn't  it 


a  little  strange  that  until  Wash- 
ington Holt  and  his  family  estab- 
lished an  oasis  in  the  life  of  Judge 
Holt  nobody  who  had  any  claim  on 
him  was  ever  turned  away  from  his 
door  ?  Wasn't  it  a  little  strange 
that  after  they  came  into  his  life 
the  key  turned  hard  and  there  were 
letters  which  never  reached  Joseph 
Holt  ?  Wasn't  it  strange  that  when 
he  went  to  his  old  Kentucky  home 
there  were  no  family  reunions  there  ? 
When  he  went  to  the  oasis  he 
had  nothing  but  the  oasis.  The 
trouble  between  Judge  Holt  and 
the  elder  Mrs.  Throckmorton  origi- 
nated in  Kentucky,  and,  strangely 
enough,  after  that  the  mails  did 
not  reach  Joseph  Holt  regularly." 
He  drew  a  touching  picture  of 
Miss  Throckmorton's  interview  with 
Judge  Holt  when  her  father  was 
in  trouble  and  of  her  unswerving 
devotion  to  the  latter,  and  added  : 
"  Is  it  possible  that  she  has  dis- 
graced him  by  an  attempt  to  per- 
petrate a  forged  will  for  the  purpose 
of  securing  an  estate  ?  Is  it  possible 
that  that  can  be  true  ?  If  so,  hu- 
man nature  is  a  lie."  Gen.  Butter- 
worth again  waxed  eloquent  when: 
referring  to  the  relations  between 
Judge  Holt  and  the  Throckmortons, 
and  cjuoted  Scripture  in  connection 
with  the  bottle  of  water  from  the 
River  Jordan  which  Judge  Holt 
sent  for  use  at  the  baptism  of 
Miss  Josephine.  The  General  pro- 
nounced Jordan  in  the  same  way 
that  many  people  pronounce  a. 
product  of  Kentucky  which  does 
not  flow  in  streams.  Taking  up  Mr. 
Worthington's  insinuation  that  Miss. 
Throckmorton  had  mailed  the  will. 
Gen.  Butterworth  grew  vehement. 
" They  would  ha\e  you  believe," 
he  shouted,  "that  this  young  lady, 
whose  life  has  been  as  spotless  as  a 
star,  is  the  criminal." 

He  dashed  at  the  tracing  theory 
like  a  bull  at  a  red  rag,  and  referring^ 
to  the  characters  in  the  will  which 
it  had  been  claimed  were  identical 
with  those  in  Judge  Holt's  letters, 
said  :    "  If  they  are  the  same,  I  will 


986 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


abandon  jhi.s  case.  I  not  only  deny 
that  they  are  the  same,  but  I  deny 
that  any  man,  honestly  comparing 
them,  has  a  right  to  tear  the  heart- 
strings and  rentier  infamous  a  help- 
less girl  with  such  an  insinuation. 
My  friend  (Mr.  Worthington)  has 
said  here,  without  hesitation,  they 
are  the  same.  I  deny  it.  And 
yet  upon  this  he  bases  his  claim  of 
forgery."  "By  what  warrant  do 
you  assert  that  I  set  my  theory 
upon  that  similarity?"  interrupted 
Mr.  Worthington.  "Well,  upon 
that  and  other  things,"  responded 
the  General  fiercely.  "You  have 
warped  the  heartstrings  of  innocent 
women  upon  the  theory  that  this 
is  a  reproduction."  Considerable 
time  was  spent  by  Gen.  Butter- 
worth  in  submitting  for  the  exam- 
ination of  the  jury  the  words  in  the 
alleged  will  compared  with  the  words 
in  the  letter  from  which  it  was 
claimed  they  were  traced.  "Now, 
if  anybody  had  been  using  that 
letter  for  the  purpose  of  tracing," 
resumed  the  speaker,  "they  would 
have  been  apt  to  trace  the  genuine 
name.  Is  it  possible,  viewed  from 
any  standpoint  of  reason,  that  this 
can  be  a  forgery?"  Gen.  Butter- 
worth  claimed  that  it  had  never  been 
denied  that  the  signatures  to  the 
will  were  genuine,  and  asked  whether 
it  was  possible  that  President  Grant 
or  Gen.  Sherman  signed  a  forged 
paper.  He  denounced  Witness  Car- 
valho  in  unmeasured  terms.  "He 
knows  no  more  about  chemistry," 
said  the  General,  "than  I  do  about 
Sanscrit."  Gen.  Butterworth,  in 
referring  to  the  gelatine  print  of 
the  will,  pointed  out  to  the  jury 
that  in  examining  the  writing  by 
the  aid  of  this  transparency  the 
refraction  of  the  light  would  make  a 
substantial  difference,  and  it  would 
also  make  a  difference  as  to  the 
point  from  which  it  was  viewed. 
He  stated  also  that  he  had  found  no 
le.ss  than  fifty-seven  instances  in 
other  letters  of  .lurlge  Holt,  where 
the  characters  agreed  with  those  in 
the  will  just  as  clo.sely  as  those  in 


the  letter  from  which  it  was  claimed 
they  were  traced. 

The  testimony  regarding  Luke 
Devlin's  character  was  taken  up. 
"  Of  the  whole  pack  turned  loose  to 
hunt  Luke  Devlin  down,"  said  the 
speaker,  "only  one  could  be  found 
to  say  aught  against  him,  and  that 
was  Fought.  He  made  him  a  crim- 
inal from  choice,  one  who  forged 
for  the  love  of  it,  without  hope  of 
reward  or  fear  of  punishment.  After 
holding  up  Luke  Devlin  as  a  forger 
they  turned  from  him  and  attempted 
to  humiliate,  degrade,  and  disgrace 
the  goddaughter  of  Joseph  Holt." 

The  closing  portion  of  the  argu- 
ment was  devoted  to  the  revoca- 
tion theory.  "Forty-five  thousand 
dollars  offered  for  a  will,"  said  the* 
speaker.  "  Where  are  the  witnesses 
to  this  subsequent  will  ?  Is  it 
possible  that  such  a  reward  would 
not  call  some  of  them  into  existence  ? 
Is  it  probable,  if  he  made  a  will, 
that  no  one  would  know  anything 
about  it  ?  All  the  evidence  they 
have  on  this  point  is  that  he  loved 
these  relatives.  Col.  Bill  Sterett 
says  there  never  was  a  will,  and 
there  is  a  kind  of  rugged  candor 
about  Col.  Sterett  that  I  admire. 
Are  we  to  make  a  will  for  Joseph 
Holt  ?  Are  we  to  destroy  his  will, 
or  is  it  to  stand  ?  My  friend  says 
that  if  you  find  this  a  forgery,  it 
will  cast  no  reflection  on  anybody, 
but  he  has  labored  here  week  after 
week  to  wreck  a  home  and  a  heart  to 
set  aside  the  will  of  Josepli  Holt." 

The  closing  hours  of  what  has  been 
perhaps  the  most  remarkable  trial 
in  the  history  of  the  Circuit  Court 
of  the  District  were  of  the  dramatic 
order,  the  feature  of  the  proceedings 
being  the  eloquent  appeal  of  Gen.  Ben- 
jamin Butterworth  in  behalf  of  the 
caveatees.  The  crowd  in  the  court 
room  throughout  the  day  was  dense ; 
but  when  the  time  came  for  Judge 
Bradley  to  deliver  his  charge  to  the 
jury  there  was  a  breathless  stillness 
in  the  room,  and  many  members  of 
the  bar  present  strained  their  ears  in 
an  effort  to  hear  every  word. 


No.  390. 


THROCKMORTON   V.    HOLT 


987 


Judge  Bradley  prefaced  his  charge 
to  the  jury  with  a  very  pleasant 
little  address,  in  which  he  referred 
to  the  fact  that  the  jury  had  been 
kept  beyond  the  ordinary  time  which 
the  law  imposes  upon  citizens  for 
such  service.  "I  feel  sure,"  he 
continued,  "  that  each  member  of 
the  jury  has  felt  it  a  privilege  to  sit 
in  a  case  so  remarkable  in  all  its 
features.  The  case  has  been  dis- 
tinguished by  the  remarkable  ability 
of  counsel  on  both  sides,  and  it  has 
been  a  pleasure  to  listen  to  a  case 
so  admirably  tried." 

Proceeding  directly  to  his  charge, 
Judge  Bradley  said  :  "  There  are 
four  issues  which  have  been  sub- 
mitted by  the  Orphans'  Court,  and 
to  each  of  these  issues  you  must 
return  an  answer,  and  that  answer 
will  be  'yes'  or  *no,'  save  with  re- 
spect to  the  fourth  issue.  The  an- 
swer to  that  issue  may  be,  if  the 
evidence  justifies  it,  more  than  the 
simple  affirmative  or  negative.  The 
first  issue  is.  Was  the  paper  executed 
by  the  said  Joseph  Holt  as  his  last 
will  and  testament  ?  The  second 
is.  Was  the  execution  procured  by 
fraud  practiced  upon  Joseph  Holt  ? 
The  third  is,  Was  it  secured  by 
undue  influence?  The  fourth  is, 
If  it  was  executed,  has  it  been 
revoked  by  the  testator  ?  Your 
deliberations  will  be  confined  ab- 
solutely to  the  first  and  fourth 
issues,  for  these  are  the  only  issues 
which  have  been  on  trial.  The 
second  and  third  relate  to  the 
question  of  fraud  and  undue  in- 
fluence upon  the  testator  by  any 
person  or  persons,  and  to  the 
second  and  third  you  will  answer '  no,' 
for  there  is  no  evidence  which  would 
justify  any  other  conclusion,  and  the 
court  directs  that  you  return  that 
answer  to  these  two  issues. 

"  As  to  the  first  question,  inasmuch 
as  the  testimony  has  indicated,  and 
the  instrument  itself  indicates,  that 
this  entire  will,  as  well  as  the  signa- 
ture, purports  to  be  in  the  handwrit- 
ing of  Judge  W.  Holt,  the  question 
necessarily  is,  Was  this  will,  as  well 
as  the  signature  to  it,  written  by 


him  ?  As  a  necessary  sequence,  if 
it  were  not  written  by  him,  either 
as  to  signature  or  body,  it  is  not 
his  will.  If  it  were  written  by  him 
and  signed  by  him  as  his  last  will 
and  testarnent,  then  it  matters 
not  what  its  contents  are,  who  is 
benefited  by  it,  or  who  is  deprived 
of  benefit  by  it.  The  fact  being 
established  that  this  will  is  in  his 
handwriting  and  signed  by  him, 
your  answer  to  this  first  issue  would 
necessarily  be  'Yes.' 

"  If  this  will  had  been  found 
(and  when  I  say  will,  I  don't  mean  to 
indicate  that  it  is  a  will)  among  the 
papers  of  Judge  Holt,  that  circum- 
stance would  lend  to  it  the  pre- 
sumption of  genuineness.  If  we 
had  been  enlightened  by  the  testi- 
mony of  any  one  of  these  subscribing 
witnesses,  probably  this  question 
would  not  have  been  put  to  you 
for  determination.  If  any  one  of 
these  subscribing  witnesses,  Gen. 
Grant,  who  was  at  the  time  of 
this  alleged  execution.  President 
of  the  United  States,  or  Gen. 
Sherman,  who  I  believe  was  General 
of  the  army  at  that  time,  or  his  wife, 
had  testified,  I  hardly  think  that  any 
one  of  3'ou  would  have  any  question 
as  to  the  genuineness  of  the  signa- 
ture of  Judge  Holt.  If  a  reputable 
witness  had  testified  that  he  had 
seen  Judge  Holt  sign  the  paper, 
or  had  heard  him  acknowledge  the 
signature,  the  question  would  have 
been  almost  absolutely  foreclosed. 

"  If  we  were  enlightened  as  to 
the  source  from  which  this  paper 
emanated  just  before  it  made  its 
appearance  in  the  office  of  the  Reg- 
ister of  Wills,  doubtless  it  would 
throw  a  great  deal  of  light  upon 
this  question.  The  difficulty  is  that 
this  paper  was  deposited  in  the  mail 
by  some  person  who,  for  some 
fraudulent  reason  of  his  own,  deems 
it  necessary  to  be  quiet,  for  he  does 
not  come  forward  and  indicate 
that  it  was  so  deposited.  Who  that 
person  is  there  is  no  direct  evidence 
in  this  case.  Who  that  person  may 
be,  it  is  claimed  by  counsel  for  both 
parties,    is    indicated    by    circum- 


9S8 


PART    III.       PROBLEMS    OF    PROOF 


No.  390. 


stances  in  this  case.  Who  that 
person  is  you  may  he  able  to  deter- 
mine, measuring!;  these  circumstances 
by  your  experience  as  men  and 
und(>rstan(lin,i,'  the  motives  which 
orihnarily  influence  them.  And  if 
you  do  reach  the  conchision  as  to 
who  in  all  probability  sent  this 
paper  to  the  office  of  the  Register  of 
Wills,  you  will  probably  have  in 
your  hands  the  key  to  the  situation." 

The  court  then  referred  to  the 
numerous  prayers  which  he  had 
jjranted  to  both  sides,  most  of  them 
referring  to  the  revocation  issue, 
and  in  this  connection  the  court  in- 
structed tiieni :  "  Your  inquiry  as  to 
this  question  must  be  addressed 
to  the  circumstances  in  evidence. 
If  these  circumstances  show  you 
that  this  paper  was  mutilated,  torn, 
or  burned  by  Judge  Holt  with  the 
intention  to  revoke  it,  then  your 
answer  to  this  inquiry  should  be 
'yes.'  If  he  executed  it  as  a 
sealed  instrument  and  he  subse- 
quently tore  off  that  seal,  that  act 
would  be  sufficient  to  accomplish 
the  fact  of  revocation.  If  you 
reach  the  conclusion  that  it  has  been 
revoked  by  later  will  containing 
inconsistent  provisions  which  do 
not  cover  the  entire  estate,  then  you 
should  indicate  by  your  answer  to 
what  extent  this  inconsistency  goes." 

At  this  point  Mr.  Worthington 
handed  in  two  supplementary  pray- 
ers. The  prayers  were  granted  by  the 
court,  who  said  :  "  You  are  to  be 
influenced  by  no  other  motive  than 
to  reach  the  exact  truth.  Let  justice 
be  done,  no  matter  who  is  injured  by 
your  verdict.  You  are  not  respon- 
sil)le  for  the  outcome  of  this  case,  no 
matter  whether  or  not  it  will  indicate 
jjcrjury  on  tiie  part  of  any  witnesses 
of  high  or  low  social  standing." 

It  was  4.20  o'clock  when  the  court 
completed  the  charge,  and  l)oth  Mr. 
Darlington  and  Mr.  Worthington 
callefl  attention  to  minor  points  to 
which  they  took  exception.  They 
were  all  straightened  out  without 
difficulty,  however,  and  at  4.35 
o'clock  the  jury  filed  out  of  tlie  court 
room.     At  the  end   of  an   hour    an 


attendant  announced  to  the  waiting 
crowd  tliat  there  was  no  prospect  of 
a  verdict  and  the  court  room  was 
cleared.  It  was  at  first  stated  that 
the  jury  were  instructed  to  render 
a  sealed  verdict,  and  under  this  im- 
pression both  Mr.  Darlington  and 
Mr.  Lee  left  for  their  homes  in  the 
suburbs.  Judge  Bradley,  however, 
left  orders  to  be  notified  at  any  time 
before  10  o'clock  if  a  verdict  was 
reached,  and  he  was  back  at  the 
court  very  soon  after  8  o'clock  upon 
notice  that  the  jury  had  agreed.  A 
single  gas  lamp  threw  a  dim  light 
upon  the  final  scene  in  the  great 
drama.  The  figure  of  Judge  Bradley 
was  only  a  dark  outline  upon  the 
bench,  and  a  few  indistinct  shadows 
scattered  about  the  room  represented 
the  lawyers  and  spectators. 

The  verdict  was  rendered  without 
a  single  one  of  the  lawyers  for  the 
caveatees  being  present.  Messrs. 
W^orthington  and  Wilson  were  there 
representing  the  caveators,  who  were 
none  of  them  present,  while  on 
the  other  side  were  Maj.  and  Mrs. 
Throckmorton,  Luke  Devlin,  and 
Mrs.  Ray.  Messrs.  Darlington  and 
Lee  had  both  left  for  their  country 
homes  under  the  impression  that 
a  sealed  verdict  was  to  be  ren- 
dered, and  Gen.  Butterworth  could 
not  be  foimd.  After  waiting  until 
8.20  o'clock  for  some  of  the  lawyers 
for  the  caveatees  to  put  in  an  ap- 
pearance. Judge  Bradley  announced 
that  he  did  not  feel  justified  in 
keeping  the  jury  waiting  any  longer, 
and  ordered  that  they  be  summoned 
to  the  court  room.  They  filed  in 
and  stood  in  line  on  the  right  of  the 
bench.  The  foreman  handed  the 
clerk  the  paper  on  which  the  ques- 
tions they  had  decided  upon  were 
typewritten,  and  after  each  man  had 
answered  to  his  name,  the  clerk  read 
the  four  questions. 

The  whole  verdict  hinged  upon 
the  first  question  :  "Was  the  paper, 
bearing  date  Fel)ruary  7,  1873,  and 
filed  in  this  court  August  28,  1895, 
written  and  executed  by  the  said 
Joseph  Holt  as  his  last  will  and 
testament  ?  "     "  Your  answer  to  this 


No.  390. 


THROCKMORTON    V.    HOLT 


989 


question  is  — ?"  And  here  the 
clerk  paused  and  Foreman  Bentley 
answered  "No.''  The  answers  to 
the  other  three  questions  were  neces- 
sarily the  same,  but  they  were  all 
read  and  the  proper  replies  made. 
The  second  inquiry  was  whether 
fraud  had  been  exercised  in  con- 
nection with  the  execution  of 
the  will ;  the  third  was  whether 
undue  influence  had  been  brought 
to  bear,  and  the  final  question  was 
whether  the  paper  had  been  re- 
voked. By  arrangement  between 
the  lawyers  and  the  court  the  for- 
mal answer  to  the  last  inquiry  was 
recorded:  "No,  because  it  was  not 
executed."  This  was  done  to  avoid 
any  possible  conflict  in  the  event  of 
another  trial. 

As  soon  as  he  heard  the  verdict, 
Maj.  Throckmorton  arose  and  hur- 
riedly left  the  court  room  to  join 
his  wife  in  the  corridor,  where  she 
had  gone  as  soon  as  Judge  Bradley 
summoned  the  jury.  She  accepted 
the  result  without  the  slightest 
demonstration. 

Judge  Bradley  addressed  a  few 
words  to  the  jury,  saying  :  "  I  think 
you  should  receive  the  thanks  of 
the  court  for  your  faithful  services. 
I  am  glad  that  you  were  able  to  so 
promptly  reach  a  conclusion  in 
such  a  difficult  case."  The  court 
room  was  quickly  cleared,  Mr. 
Wilson  going  at  once  to  the  Riggs 
House  to  inform  Washington  Holt 
of  the  verdict. 

There  was  really  little  division 
among  the  jury.  Two  or  three  of 
them  were  inclined  to  hold  to  the 
theory  that  the  will  was  genuine, 
but  was  subsequently  revoked,  but 
one  of  the  others  had  taken  with 
him  the  will  of  1848,  and  it  was  not 
long  before  those  who  believed  in 
the  revocation  theory  were  won  over. 
While  it  was  generally  thought  that 
the  verdict  would  be  against  the 
will,  there  was  a  strong  feeling  that 
it  would  be  repudiated  on  the  ground 
of  revocation. 

A  highly  important,  and,  in  view 
of  the  verdict,  a  somewhat  startling 
fact  was  developed  yesterday.     The 


fact  that  Mrs.  U.  S.  Grant,  though 
still  alive,  had  had  no  connection 
whatever  with  the  case  has  been 
commented  upon  frequently,  and 
it  was  ascertained  yesterday  that 
the  lawyers  for  the  caveatees  have 
in  their  possession  an  affidavit 
by  Mrs.  Grant,  stating  that  one 
evening  in  February,  1873,  she  was 
present  at  a  dinner  at  Judge  Holt's 
house,  together  with  her  husband, 
President  Grant,  and  General  and 
Mrs.  Sherman,  whose'  names  appear 
as  witnesses  to  the  will.  The  affida- 
vit further  states  that  during  the 
evening  Judge  Holt,  President  Grant, 
and  Gen.  Sherman  retired  together 
from  the  room  in  which  the  party 
was  assembled,  and  that  a  few 
minutes  later  Gen.  Sherman  re- 
turned, and  asked  his  wife  to  step 
into  the  next  room,  as  her  presence 
there  was  desired  for  a  minute. 

This  affidavit  was  only  secured 
last  Sunday,  and  no  attempt  was 
made  to  introduce  it  as  rebuttal 
testimony,  although  there  were 
vague  hints  concerning  it  during 
the  argument  for  counsel  yesterday. 
In  his  address  Mr.  Worthington 
mentioned  the  fact  that  Mrs.  Grant 
was  alive,  but  nothing  had  been 
heard  from  her,  and  in  closing. 
Gen.  Butterworth  took  the  mat- 
ter up  and  asked  Mr.  Worthington 
whether  he  would  be  willing  to 
admit  a  deposition  at  that  point. 
Mr.  Worthington  answered  that  he 
would  have  been  perfectly  willing 
at  the  proper  time. 

The  caveatees  will  undoubtedly 
appeal  the  case,  and  the  affidavit 
will  doubtless  be  produced  in  the 
higher  court. 

[On  the  points  of  law,  principally 
rulings  on  evidence,  the  verdict  was 
sustained  in  the  Supreme  Court  of 
the  District  (1898,  Throckmorton  v. 
Holt,  12  D.  C.  App.  552).  But  in 
the  Supreme  Court  of  the  United 
States  the  verdict  was  set  aside, 
three  judges  dissenting  (1901, 
Throckmorton  r.  Holt,  180  U.  S. 
552,  21  Sup.  474).  No  second  trial 
took  place,  the  parties  having  settled 
the  case  by  compromise.] 


990 


PART    III.       PROBLEMS    OF   PROOF 


No.  391. 


391.    LAURENCE  BRADDON'S 

Triah.      IX,  1127.) 

[After  the  accession  of  James  II  in 
1680,  the  antagonism  of  the  Protes- 
tant and  C'athoHc  parties  became 
even  more  intense.  Two  prominent 
leaders  of  the  Protestants  were  the 
Earl  of  Essex  and  Lord  Russell. 
Treason  being  in  the  air,  Russell 
and  Esse.x,  with  Colonel  Algernon 
Sidney  and  others,  were  charged 
with  a  Protestant  conspiracy  to 
depose  the  Catholic  James  (the 
Rye-House  Plot).  All  were  arrested. 
Lord  Russell's  trial  began  on  Friday, 
July  13,  1083.  The  Earl  of  Essex 
had  been  confined  in  the  Tower. 
On  that  morning,  his  body  was 
found  in  his  cell  with  the  throat  cut 
and  a  razor  by  his  side.  This 
suicide  of  one  of  the  leaders  made  a 
deep  impression  when  the  news  came 
to  the  court  room.  Russell,  Sidney, 
and  others  were  convicted  and 
executed.  Shortly  afterwards,  a 
rumor  spread  that  Essex  had  been 
assassinated  by  connivance  of  gov- 
ernment sympathizers,  the  killing 
being  timed  so  as  to  produce  an  im- 
pression on  the  pending  trials.  The 
Protestants  were  in  consternation  ; 
and  a  zealous  gentleman  named 
Braddon  set  himself  to  disprove  the 
suicide  and  vindicate  the  memory  of 
the  Earl.  Later,  in  1688,  much  evi- 
dence pro  and  con  was  elicited  at  an 
investigation  made  by  a  Committee 
of  the  House  of  Lords  on  Mr.  Brad- 
don's  demand.  But  at  the  time  of 
his  original  inquiry  the  chief  and 
almost  only  basis  of  Braddon's 
belief  was  the  story  told  by  two 
children,  living  near  the  Tower  of 
Ivondon,  who  on  the  morning  of  the 
Earl's  death  said  that  tlicy  bad  seen 
a  bloody  razor  thrown  out  of  the 
Pearl's  window  in  the  Tower.  Brad- 
don procured  their  written  state- 
ments, and  began  to  stir  up  inquiry. 
For  this  he  was  prosecuted,  on 
charges  of  seditious  libel  and  of  sub- 
ornation. The  trial  t()f)k  place  on 
February  7,  1684.  Whether  the 
Earl's    death    was    a    murder   or   a 


TRIAL.      (1684.     Howell's  State 

suicide  has  been  discussed  by  every 
historian  of  English  politics,  and  the 
verdicts  have  differed.  These  chil- 
dren's stories,  however,  were  the 
starting  point  in  this  interesting 
problem.] 

Hilary,  Fehrunry  7,  1684. 

The  defendants,  who  had  pleaded 
not  guilty  to  an  information  filed 
last  term,  were  now  brought  to  trial. 

CI.  of  Cr.  —  Crier,  call  the  de- 
fendants, Laurence  Braddon  and 
Hugh  Speke. 

Crier.  —  Laurence  Braddon  and 
Hugh  Speke,  come  forth,  or  else 
this  inquest  shall  be  taken  by  your 
default. 

Mr.  Wallop.  —  They  appear. 

CI.  of  Cr.  —  Gardez  votrez  Chal- 
lenges. .  .  . 

CI.  of  Cr.  —  Gentlemen,  you  of 
the  jury  hearken  to  the  record.  .  .  . 

Then  Proclamation  was  made  for 
evidence. 

Mr.  Dolben .  —  May  it  please  your 
lordship,  and  you  gentlemen  that 
are  sworn ;  This  is  an  information 
preferred  by  Mr.  Attorney-General, 
against  the  defendants  Laurence 
Braddon  and  Hugh  Speke,  and  the 
information  does  set  forth,  that 
Avhereas  Arthur  late  earl  of  Essex, 
the  12th  of  July  last,  was  committed 
to  the  Tower  of  London  for  certain 
treasons  supposed  to  have  been  by 
him  done :  And  the  said  earl  being 
so  committed  prisoner  to  the  Tower 
for  treason,  not  having  the  fear  of 
God  before  his  eyes,  feloniousl}'  and 
as  a  felon  did  kill  and  murder  him- 
self, as  by  an  incjuisition  taken  before 
the  coroner  of  the  Tower  lil)crty  may 
more  fully  appear ;  yet  the  defend- 
ants Laurence  Braddon  and  Hugh 
Speke  not  being  ignorant  of  the 
premises,  but  designing  to  bring  the 
government  into  hatred  and  con- 
tempt, the  15th  day  of  August  last, 
in  the  parish  of  St.  Clement  Danes 
in  this  county,  with  force  and  arms, 
falsely,  unlawfully,  maliciously,  and 
seditiously  did  conspire  together  to 


No.  391. 


BRADDON  S   TRIAL 


991 


make  the  king's  subjects  believe, 
tiiat  the  inquisition  aforesaid  was 
unduly  taken,  and  that  the  said  earl 
of  Essex  did  not  murder  himself,  but 
was  by  certain  persons  unknown,  in 
whose  custody  he  was,  murdered. 
And  it  further  sets  forth,  that  these 
defendants,  Laurence  Braddon  and 
Hugh  Speke,  designed  to  disturb  and 
disquiet  the  minds  of  the  king's  sub- 
jects, and  to  spread  false  reports, 
did  conspire  to  procure  certain  false 
witnesses  to  prove  that  the  said  earl 
of  Essex  was  not  a  felon  of  himself, 
but  was  by  some  persons  unknown 
killed  and  murdered  :  And  to  per- 
suade other  subjects  of  our  sover- 
eign lord  the  king  to  believe  the  said 
report,  they  did  falsely,  maliciously, 
unlawfully,  and  seditiously  cause  to 
be  declared  in  Avriting,  that  the  said 
Laurence  Braddon  was  the  person 
that  did  prosecute  the  said  earl's 
murder.  And  this  was  to  the  great 
scandal  of  the  government,  to  the 
evil  example  of  all  persons  in  like 
case  offending,  and  against  the  peace 
of  the  king,  his  crown  and  dignity. 
To  this  the  defendants  have  pleaded 
not  guilty ;  if  we  prove  it  upon 
them,  we  make  no  question  you 
will  find  it.   .   .   . 

Att.-Gen.  —  My  lord,  we  will  then 
read  the  inquisition,  that  the  earl, 
being  thus  in  the  Tower,  killed  him- 
self. 

Solicitor-General.  (Mr.  Finch.) — - 
Show  the  inquisition.  Where  is  Mr. 
F'arnham  ? 

]Mr.  Farnham.  —  Here  I  am.  The 
inquisition  is  returned  here,  and  is 
upon  record. 

CI.  ofCr.  —  Here  it  is,  Number  IL 
[He  reads.]   .   .    . 

Att.-Gcn.  —  Call  Mr.  Evans  and 
Mr.  Edwards.  After  this,  my  lord, 
we  shall  show  you,  that  Mr.  Brad- 
don went  about  the  town,  and  de- 
clared the  earl  was  murdered,  and 
he  was  the  prosecutor.  There  is  Mr. 
Evans,  swear  him.  [Which  was 
done.]  Pray  will  you  give  an  ac- 
count to  my  lord  and  the  jury,  what 
you  know  of  Mr.  Braddon's  going 
about   and    declaring    he    was    the 


prosecutor  of  my  lord  of  Essex's 
murder  ? 

Mr.  Evajis.  —  My  lord,  all  that  I 
know  of  this  matter,  is  this.  About 
the  17th  of  July  last  — 

L.  C.  J.  (Sir  George  Jefferies.) 
— When  is  the  inquisition  ? 

CI.  of  Cr.  —  It  is  the  14th  of 
Julv. 

L.  C.  J.  —  Well,  go  on. 

Evans.  —  The  17th  of  July  last  I 
was  at  the  customhouse  key,  ship- 
ping off  some  lead,  and  the  person 
that  brought  me  the  warrant,  I  told 
him  I  could  not  execute  it  without 
one  of  the  commissioners'  officers  ; 
and  I  bid  him  go  to  Mr.  Edwards, 
who  was  the  next  officer  adjoining  to 
the  key,  and  he  went  to  his  house, 
and  told  him  I  was  at  the  water 
side,  and  had  a  warrant,  which  I 
desired  him  to  be  present  while  I 
executed  it ;  Mr.  Braddon  it  seems 
was  then  present  in  the  place  with 
Mr.  Edwards  when  this  was  told 
him,  and-  hearing  my  name,  Mr. 
Braddon  came  down  with  Mr. 
Edwards,  and  found  me  then  at 
Smith's  coffeehouse.  .  .  . 

.  .  .  There  they  began  to  dis- 
course about  this  matter. 

Just.  Withins.  —  Who  began  to 
discourse  ? 

Evans.  —  Mr.  Edwards. 

L.  C.  J.  —  Well,  what  was  it  he 
said  to  thee  ? 

Evans.  —  Mr.  Edwards  began 
thus :  Says  he,  Mr.  Evans,  this 
gentleman  has  been  at  my  house  to 
examine  my  son  concerning  a  report 
that  is  spread  abroad  concerning  a 
razor  that  was  thrown  out  of  the 
window  of  the  earl  of  Essex's  lodg- 
ings that  morning  he  cut  his  throat. 
I  hearing  of  that,  said  I,  Gentlemen, 
I  have  read  the  Coroner's  inquest 
that  is  in  print,  and  it  is  otherwise 
declared  there :  And  therefore  let 
there  be  no  discourse  of  any  such 
matter,  for  I  believe  no  such  thing. 
And,  said  I  to  that  gentleman,  Mr. 
Braddon,  pray  forbear  meddling  in 
any  such  thing,  for  Mr.  Edwards  is 
a  poor  man,  and  has  divers  children, 
he  may  be  ruined,  and  you  likewise 


992 


PART    III.       PROBLEMS    OF    PROOF 


No.  391. 


may  be  ruined  yourself,  it'  you  pro- 
ceed any  farther  in   it.   .   .   . 

Mr.  Braddon.  —  [Lifting  up  his 
hands  in  an  unusual  manner.]  Mr. 
Evans.  Pray,  will  you  answer  one 
thing?  .   .   . 

L.  C.  J.  —  What  is  it  you  would 
ask  him  ? 

Braddon.  —  My  lord,  I  desire  he 
may  be  asked,  whether  I,  with  a 
brother  of  his,  did  not  come  to  his 
country  house,  on  the  ]\Ionday  im- 
mediately after  my  lord  of  Essex's 
death,  and  whether  at  his  table 
there  was  not  a  report  then  of  a  razor 
being  seen  to  be  thrown  out  of  my 
lord  of  Essex's  window  ?  .   .   . 

Evans.  —  My  brother,  Mr.  Hat- 
sell,  came  down  along  with  Mr.  Brad- 
don to  my  house  at  Wansted  in 
Essex,  on  the  Monday,  after  my  lord 
of  Essex's  death  (July  16),  and  com- 
ing down,  my  brother,  Mr.  Hatsell, 
pulled  out  the  Coroner's  inquest 
upon  oath  that  %vas  printed,  and 
showing  of  it  to  me,  I  read  it ;  and 
as  soon  as  ever  I  had  read  it,  said  I, 
Mr.  Edwards,  that  was  at  the 
Customhouse,  that  very  morning 
when  the  earl  of  Essex's  throat  was 
cut,  did  declare  to  me  upon  the 
Customhouse  key.  That  his  son  did 
declare  that  the  razor  was  thrown 
out  of  the  window,  which  seems  to 
contradict  this  paper,  that  says,  it 
was  found  lying  by  him. 

Mr.  Frckc.  —  Was  this  before  Mr. 
Braddon  was  with  Mr.  Edwards  ? 

Kvmi.s.  —  I  can't  tell  that. 

Mr.  Frckc. — Was  it  before  Mr. 
Braddon,  and  Mr.  Edwards  came 
to  you  to  the  coffeehouse  ? 

Evans.  —  Yes.  I  believe  it  was.  .  .  . 

Att.-Gen.  —  Yes,  my  lord,  this  dis- 
course at  W'ansted  was  l)efore  that 
at  the  customhouse.   .   .   . 

Att.-Gcn. — Take  the  times,  my 
lord,  and  you  will  see  he  does  speak 
very  notably.  The  i;^th  of  July  my 
lord  of  Essex  imirdered  himself,  the 
14th  of  July  the  inquisition  was 
taken  l)efore  the  coroner.   .   .   . 

L.  ('.  ./.  —  But  pray  let  me  ask 
you  one  question,  if  your  matter 
about  the  inuuisition  in  the  country 


was  before  the  matter  of  your  cau- 
tious discourse  at  the  Customhouse, 
how  came  you  to  tell  them,  I  heard 
this  report  of  a  razor  thrown  out  of 
the  window  that  morning  the  earl  of 
Essex  cut  his  own  throat  ? 

Evans.  —  Mr.  Edwards  reported 
this  same  thing  that  very  same 
morning  to  me  and  several  others 
at  the  Customhouse  key. 

L.  C.  J.  —  Why  did'  you  not  tell 
us  this  before  ?  .   .   . 

L.  C.  J.  —  Now  after  all  this  dis- 
course of  the  matter,  for  aught  I  can 
understand,  the  matter  is  but  this : 
he  says,  Edwards  before  the  meetings 
either  at  his  house  in  Essex,  or  at 
the  coffeehouse  by  the  Customhouse, 
reported  to  him,  as  though  the  earl 
of  Essex  had  not  murdered  himself, 
but  somel)ody  else  had  done  it  for 
him.  And  this  was  reported  at  the 
Customhouse  that  morning  the  earl 
of  Essex  cut  his  own  throat.  .  .  . 

Sol.-Gcn.  —  Look  you,  Sir,  you 
say  that  very  morning  my  lord  of 
Essex  killed  himself,  IVIr.  Edwards 
discoursed,  and  made  this  report  to 
you  at  the  Customhouse ;  pray  tell 
what  the  discourse  was ;  what  he 
said  to  you  ;  and  then  tell  us  what 
time  of  day  it  was  ? 

Evans.  —  To  the  best  of  my  re- 
membrance it  was  about  11  o'clock  ; 
there  were  several  persons  standing 
together,  among  the  rest  captain 
Goodland,  and  some  of  the  searchers, 
and  Mr.  Edwards  was  there ;  and 
said  he,  I  am  informed  from  home, 
that  my  boy  has  been  at  home,  and 
given  an  account  to  my  wife,  that 
being  in  the  Tower,  he  saw  a  hand 
throw  a  razor  out  of  a  window,  and 
he  named  my  lord  of  Essex's  win- 
dow ;  and  this  Mr.  Edwards  did  not 
only  tell  me,  but  to  a  whole  coffee- 
house of  people,  this  matter  of 
fact. 

Just.  II  olio  way.  —  Did  not  Mr. 
Edwards  tell  you,  that  somebody 
had  been  examining  his  boy  about 
that  report  ? 

Evans.  —  That  was  the  second 
time,  when  Mr.  Braddon  and  Mr. 
Edwards  came  together.   .   . 


^o.  391. 


BRADDON  S   TRIAL 


993- 


AU.-Gen.  —  Come,  Mr.  Edwards. 
Crier  swear  him.     [Which  was  done.] 

L.  C.  J.  —  What  do  you  ask  him, 
Mr.  Attorney?  .  .  . 

Sol. -Gen.  —  Pray  tell  what  you 
know  of  Mr.  Braddon's  coming  to 
your  son,  and  what  discourse  he  or 
you  had  about  the  murder  of  the 
earl  of  Essex  ? 

Mr.  Edwards.  —  The  report  that 
Mr.  Braddon  came  to  incjuire  after, 
was  with  us  some  three  days  before ; 
it  was  in  our  family  three  days 
before,  and  upon  the  17th  of  July  — 

L.  C.  J.  —  What  was  the  report, 
Mr.  Edwards,  before  Mr.  Braddon 
came  to  you  ?   .   .  . 

Edwards.  —  The  report  of  the  boy 
the  13th  of  July,  about  ten  o'clock, 
as  I  was  informed  by  my  family,  and 
by  the  boy  afterwards  by  word  of 
mouth,  was  this  :  he  comes  in  about 
ten  o'clock,  says  he,  I  have  been  at 
the  Tower  (to  one  of  his  sisters),  and 
I  have  seen  his  majesty  and  the 
duke  of  York,  and  the  earl  of  Essex 
has  cut  his  throat,  and  I  see  an  hand 
throw  a  razor  out  of  the  window, 
and  one  came  out  of  the  house,  a 
maid,  or  a  woman  in  a  white  hood 
and  a  stuff  coat,  and  took  it  up,  and 
went  in  again,  and  then  I  heard  a 
noise  as  of  murder  cried  out.  This 
was  the  boy's  report,  and  more  than 
as  his  report  I  cannot  speak  to  it. 

L.  C.  J.  —  This  was  your  son,  was 
it  not  ? 

Edwards.  —  Yes,  the  younger  of 
them.  The  two  boys  were  that 
morning  going  to  Merchant-Taylors' 
school  together  as  they  used  to  do, 
and  by  the  way  hearing  the  king  was 
in  the  Tower,  this  younger  boy  that 
was  well  acquainted  with  the  Tower, 
gave  his  elder  brother  the  slip  and 
went  into  the  Tower,  and  rambled 
about  from  place  to  place. 

Aft. -Gen.  —  Did  not  you  examine 
him  ? 

Edwards.  —  Ay,  I  did  examine 
him. 

Att.-Gen.  —  Did  not  you  find  that 
he  denied  it  again  ? 

Edioards.  —  No,  I  did  examine 
him,  and  I  found  no  denial  of  any- 


thing at  all  that  he  had  reported, 
till  Mr.  Braddon  came  to  make  in- 
quiry. As  soon  as  he  came  to  make 
the  inquiry,  and  I  understood  what 
Mr.  Braddon's  business  was,  I 
begged  of  him  that  he  would  not 
insist  upon  it  by  no  means,  I  begged 
of  him  as  if  I  had  begged  for  my  life, 
but  he  was  so  zealous  in  the  business, 
that  nothing  would  satisfy  him. 
And  after  I  had  told  Mr.  iJraddon 
that  which  I  could  not  deny,  which 
was  the  boy's  report,  I  left  him  and 
went  down  to  the  Customhouse, 
and  some  of  my  family  discoursed 
the  boy  at  that  rate,  that  he  began 
to  deny  it,  and  in  less  than  half  an 
hour's  time  recollected  himself,  and 
began  to  own  it  again  ;  and  so  the 
boy  was  off  and  on  till  the  time  he 
was  before  the  Council ;  and  to  this 
day  he  seems  to  stand  in  the  denial ; 
whether  he  will  do  it  now  or  no  I 
cannot  tell. 

Att.-Gen.  —  Did  you  acquaint  Mr. 
Braddon  that  you  had  found  this 
boy  to  be  a  lying  boy,  and  detected 
him  in  lies  several  times  ? 

Edivards.  —  May  it  please  you. 
Sir,  I  acquainted  him  with  thus 
much :  said  I,  Mr.  Braddon,  as  I 
have  dealt  ingenuously  with  you,  to 
let  you  know  what  the  boy's  report 
was,  so  I  must  likewise  tell  you,  that 
I  cannot,  nor  will  undertake  to  assert 
the  truth  of  it ;  and  presently  upon 
that  my  daughter  told  me,  the  boy 
had  many  times  excused  his  playing 
truant  by  false  stories. 

Att.-Gen.  —  Did  you  acquaint  Mr. 
Braddon,  that  your  boy  was  a  lying 
boy  at  that  time  ? 

Edwards.  —  I  think  I  did  not  at 
that  instant  of  time. 

L.  C.  J.  —  How  old  is  this  boy  you 
talk  of  ? 

Edwards.  —  About  13  years  of  age, 
my  lord. 

Att.-Gen.  —  What  do  you  know  of 
Mr.  Braddon's  forcing  your  boy  to 
sign  anything  that  he  luul  prepared 
after  this  ?   .   .   . 

Sol-Gen.  —  How  did  Mr.  Braddon 
behave  himself  ? 

Edwards.  — Like  a  civil  gentleman. 


994 


PART    III.       PROBLEMS    OF    PROOF 


No.  391.. 


I  saw  nothing  else  by  him,  but  that 
he  was  very  zealous  in  the  business, 
that  is  the  truth  of  it,  nothing  could 
persuade  him  to  desist.   .   .   . 

Mr.  Jones.  —  Did  not  Mr.  Brad- 
don  carry  your  son  before  several 
justices  of  peace  ? 

Edicanls.  —  Before  none  as  I  know 
of ;   not  one  truly  to  my  knowledge. 

Att.-Gen.  —  Did  you  understand 
he  had  taken  your  boy  from  your 
house  in  a  coach. 

Edwards.  —  Never  till  he  carried 
him  into  his  majesty's  presence  be- 
fore the  I'ouncil,  and  I  knew  not 
that  till  the  boy  came  home. 

Mr.  Thompson.  —Mr.  Attorney, 
Have  you  done  with  him  ?  may  I  ask 
him  a  question  ? 

Att.-Gen.  —  Ay,  ask  him  what  you 
will. 

Mr.  Thompson.  —  If  I  understand 
you  right.  Sir,  this  report  of  the  boy's 
was  that  morning  that  the  earl  of 
Essex  was  murdered. 

L.  C.  J.  —  Was  murdered  ?  mur- 
dered himself,  man. 

Mr.  Thompson.  —  My  lord,  I 
mean  the  day  of  his  death.  Now  I 
would  ask  you.  Sir,  when  that  was  ? 

Edwards.  —  The  boy's  report  was 
this,  Sir,  — 

IMr.  Thompson.  —  I  ask  you  not 
what  his  report  was,  but  when  ? 
What  day  it  was  ? 

Edwards. — The  13th  of  July. 
That  day  the  earl  of  Essex  cut  his 
throat. 

Mr.  Thompson.  —  How  many  days 
after  that  was  it  when  Mr.  Braddon 
came  to  you  ? 

Edwards.  —  It  was  not  till  the 
17th  of  July. 

Mr.  Thompson.  —  Had  you  dis- 
coursed of  the  report  of  your  boy  at 
the  Customhouse,  or  anywhere  else, 
that  same  day  he  came  to  you  ? 

Edwards.  —  I  cannot  say  that. 

Mr.  Thompson.  —  Had  you  dis- 
coursed it  l)efore  Mr.  Braddon  spake 
to  you,  upon  your  oath  ? 

Mr.  Edwards.  —  Yes,  I  believe  I 
had. 

Sol.-Grn.  —  Had  you  discoursed 
it  before  your  boy  told  you  ? 


Edwards.  —  I  should  then  indeed 
have  been  the  contriver  of  the  story. 

Att.-Gen.  —  So  it  is  like  enough 
you  were. 

Sol. -Gen.  —  Had  you  discoursed 
it  to  anyl)ody  before  you  went  home 
to  vour  own  house,  upon  your  oath, 
Sir^? 

Edwards.  —  Upon  my  oath  then 
I  discoursed  nothing  of  that  nature, 
not  a  tittle  of  it,  nor  knew  nothing 
of  it,  till  I  had  it  from  my  own  family. 

Sol. -Gen.  —  Did  you  not  discourse 
of  it  before  you  went  home  ? 

Edwards.  —  No,  when  I  came 
home  they  told  me  of  it. 

L.  C.  J.  —  I  ask  you  again.  Sir, 
Did  not  you  tell  it  before  you  came 
home  ? 

Edwards.  —  About  ten  o'clock,  I 
having  heard  the  news  of  the  earl 
of  Essex's  cutting  his  throat,  at 
the  Customhouse,  I  stepped  home, 
being  very  near  to  my  own  house, 
and  as  soon  as  I  came  in  at  the  door, 
the  family  began  to  give  me  an  ac- 
count what  news  the  boy  brought  in. 

L.  C.  J.  —  That  was  the  first 
time  you  heard  of  it  ? 

Edwards.  —  Yes,  that  was  the  first 
time  I  heard  of  it. 

L.  C.  J.  —  And  did  you  not  dis- 
course of  it  till  after  that  ? 

Edwards.  —  No. 

L.  C.  J. —  Call  Mr  Evans,  let 
him  come  in  again. 

Att.-Gen.  —  Let  Mr.  Evans  come 
in  again. 

L.  C.  J.  —  Mr.  Evans,  I  would  ask 
you  this  question.  .  .  . 

L.  C.  J.  —  W' hen  you  first  had  a 
discourse  with  Edwards  about  this 
matter,  what  was  it  that  Edwards 
did  say  to  you  ? 

Evans.  —  Being  upon  Custom- 
house key,  and  captain  Goodland 
and  several  others  standing  upon  the 
key,  that  very  morning  my  lord  of 
Essex's  throat  was  cut,  about  eleven 
o'clock  Mr.  Edwards  came  to  us, 
being  standing  upon  the  key,  and 
told  us,  That  he  was  informed  his 
boy  had  been  at  the  Tower,  and 
came  home  and  told  his  mother,  he 
saw  a  hand  throw  a  razor  out  of 


No.  391. 


BRADDON  S   TRIAL 


995 


a  window,  and  that  he  went  to  take 
it  up,  and  a  maid  or  a  woman  came 
and  took  it  up,  and  went  in  again. 

L.  C.  J.  —  Evans,  did  he  tell  you 
this  as  if  he  had  been  at  home  ? 

Evans.  —  No,  I  think  it  was  that 
he  had  it  from  home  by  some  hand 
or  other. 

Edwards.  —  I  was  at  home. 

Evans.  —  My  lord,  at  two  o'clock 
in  the  afternoon,  when  he  came  again 
to  the  Customhouse,  he  did  tell  us 
he  had  been  at  home,  and  his  boy 
did  tell  him  the  same  story. 

L.  C.  J.  —  But  when  he  had  told 
you  before  he  had  dined,  did  he  say, 
he  had  been  at  home  ? 

Edwards.  —  My  family  can  testify 
I  was  at  home  between  ten  and 
eleven  o'clock. 

Evans.  —  To  the  best  of  my  re- 
membrance he  told  me  he  heard  so 
from  home. 

L.  C.  J.  —  Before  he  went  home, 
you  say,  he  told  you  of  this,  and  that 
was  ten  o'clock  in  the  morning,  and 
about  two  o'clock,  in  the  afternoon, 
he  said,  he  had  been  at  home,  and  it 
was  true. 

Mr.  Evans.  —  Yes,  my  lord. 

Edwards.  —  My  lord,  I  was  at 
home. 

L.  C.  J.  —  Mr.  Edwards,  did  you 
tell  him  so,  or  did  you  not  ? 

Edioards.  —  It  is  like  I  might  say  so 
about  ten  o'clock,  but  not  before  I 
had  received  the  report  at  home. 

Mr.  Evans.  —  I  understood  it  so, 
my  lord,  that  he  had  heard  from 
home. 

L.  C.  J.  —  I  ask  you  this  upon 
your  oath,  mind  the  question,  and 
answer  me  plainly.  Did  you  speak 
to  him,  that  you  had  such  a  report 
from  home,  or  did  you  not  ? 

Edioards.  —  When  I  told  it  him, 
I  had  it  from  home,  for  I  brought 
it  from  home. 

L.  C.  J.  —  Nay,  did  you  tell  him 
you  had  such  a  report  from  home 
at  ten  o'clock,  or  no  ? 

Edwards.  —  I  told  him  that  I  had 
met  with  such  a  report. 

L.  C.  J.  —  From  whom  ? 

Edwards.  —  From   my  family   at 


home,  for  the  boy  came  not  to  me  to 
tell  it. 

L.  C.  J.  —  Then  did  you  see  Mr. 
Evans  about  two  o'clock  that  after- 
noon ? 

Edward^'.  —  'Tis  probable  I  did. 

L.  C.  J.  —  Did  you,  or  did  you 
not? 

Edwards.  —  Yes,  I  believe  I 
might.   .  .  . 

L.  C.  J.  —  Answer  me  my  ques- 
tion, did  you,  or  did  you  not  tell 
him  so  ? 

Edwards.  —  I  did  not  acquaint 
him  with  it  before  I  had  been  at 
home,  and  received  it  from  ray  own 
family. 

L.  C.  J.  —  Look  you,  Sir,  don't 
you  go  about  to  evade  the  question, 
to  trifle  with  the  court,  you  must  an- 
swer me  my  question  directly,  and 
upon  your  oath,  did  you  tell  him 
you  had  notice  from  home  of  such  a 
report,  or  no  ? 

Edwards.  —  I  did  not  receive 
notice  from  home,  but  I  brought  it 
from  home. 

L.  C.  J.  —  Did  you  tell  him  you 
had  it  from  home  ? 

Edwards.  —  I  told  him  I  had  it 
from  my  family,  who  told  me  the 
boy  had  made  such  a  report. 

L.  C.  J.  —  Did  you  tell  him  you 
had  it  from  your  boy,  or  received 
notice  from  home  about  it  ?  • 

Edwards.  —  I  did  not  tell  him  any- 
thing before  I  had  been  at  home. 

L.  C.  J.  —  Well,  then,  answer  me 
this  question.  Did  you  tell  him  in 
the  afternoon  at  two  o'clock  :  Now 
I  have  been  at  home  and  examined 
my  bo3',  and  find  it  so  as  I  told  you  ? 

Edwards.  —  I  examined  my  boy 
at  dinner,  and  I  found  the  boy  agreed 
with  the  report  of  my  daughter,  and 
confirmed  it. 

L.  C.  J.  —  I  ask  you  what  you 
told  Mr.  Evans,  not  what  your  boy 
or  your  daughter  told  you  ? 

Edwards.  —  It  is  probable  I  might 
tell  Mr.  Evans  the  same  story  after 
dinner  at  two  o'clock,  that  I  did 
before. 

L.  C.  J.  —  Now  tell  us  the  passage 
again,  Mr.  Evans,  as  you  heard  it> 


996 


PART    III.       PROBLEMS    OF    PROOF 


No.  391. 


Events.  —  To  the  best  of  my  re- 
membrance, at  two  o'clock  in  the 
afternoon,  Mr.  luiwards  came  and 
told  us,  he  had  examined  the  boy, 
and  says  he,  the  boy  has  confirmed 
all  that  I  told  you. 

L.  C.  J.  —  But  before  that  in  the 
morning  what  diti  he  say  ? 

Evans.  —  I  cannot  say  exactly 
the  time,  but  I  think  it  was  about 
ten  o'clock.  There  were  four  or 
fi\e  more  besides  myself  standing  at 
the  Customhouse  key,  and  Mr. 
Edwards  came  to  us,  and  told  us, 
says  he,  I  am  informed  from  home, 
as  I  understood  it,  not  that  he  had 
l)een  at  home,  but  that  he  heard  it 
from  home,  that  his  boy  had  been 
at  the  Tower,  had  seen  an  hand 
throw  a  razor  out  of  the  window. 

L.  C.  J.  —  ^^^lat  said  he  at  two 
o'clock  ? 

Evans.  —  He  said  he  had  ex- 
amined his  boy,  and  he  said  the 
same  tiling,  that  he  told  us  he  had 
heard  in  the  morning.   .   .   . 

Sol.-Gen.  —  Mr.  Edwards,  pray 
let  me  ask  you  a  question,  Did  Mr. 
Braddon  tender  any  paper  to  your 
son  to  sign  ? 

Edwards.  —  I  was  informed  he  did 
do  it  afterwards,  but  I  saw  him  not 
do  an\'  such  thing. 

Sol. -Gen.  —  Did  you  never  say 
that  Mr.  Braddon  had  tendered  a 
paper  to  your  son  to  sign  ? 

Edwards.  —  I  do  not  believe  I  ever 
did  say  so,  I  do  not  remember  any 
such  thing. 

Sol.-Goi.  —  Pray  recollect  your 
memory,  and  tell  us  whether  you 
did,  or  did  not  ? 

Edwards.  —  I  thank  God,  Sir,  that 
he  has  given  me  m\'  memory  and 
my  understanding,  I  l)less  him  for  it. 

Aft. -Gen.  —  But  it  were  well  if 
thou  hadst  any  honesty  too. 

Edwards.  —  And  honesty  too.  Sir  : 
I  have  not  lived  the.se  thirty-nine 
years  at  the  ("ustomhou.se  without 
honesty.  I  never  had  my  honesty 
questioned  to  this  day.  I  am  .sure 
nobody  can  tax  me  with  dishonesty. 

Sol.-Gen.  —  Pray,  Mr.  Edwards, 
let  your  anger  alone  for  a  while,  and 


answer  the  question  that  I  shall  ask 
you  :  Did  your  son  refuse  to  sign 
that  paper  ? 

Edwards.  —  He  did  sign  it  at  last. 

Sol.-Gcn.  —  Did  he  refuse  to  sign 
it? 

Edwards.  —  I  do  not  know  whether 
he  refused  it  or  no. 

Just.  Withens.  —  Did  you  hear 
that  your  son  refused  it  ? 

Edwards.  —  I  did  hear  that  he 
had  signed  it. 

Just.  JVithens.  —  But  did  you 
hear  that  he  refused  to  sign  it  ? 

Edwards.  —  The  boy  did  not  tell 
me  he  had  refused  to  sign  it.  I  did 
not  hear  him  refuse  it. 

L.  C.  J.  —  Thou  dost  prevaricate 
very  strangely,  I  must  tell  thee  that, 
notwithstanding  thy  reputation  of 
thirty-nineyears  of  honesty  :  Prithee, 
answer  plainly,  Did  you  hear  at  any 
time,  that  your  son  had  refused  to 
sign  it  ? 

Edwards.  —  No,  my  lord,  I  did 
not,  to  the  best  of  my  remembrance. 

L.  C.  J.  —  That  is  a  plain  an.swer, 
man  ;  but  thou  dost  so  shuffle  up 
and  down,  one  cannot  tell  what  to 
make  of  what  thou  sayest. 

IVIr.  Thompson.  —  Sir,  I  desire  to 
ask  you  one  question,  Whether  ever 
Mr.  Braddon  and  you  had  any  for- 
mer   acquaintance  ? 

Sol.-Gen. — Pray,  stay,  Sir,  and 
if  you  please,  spare  your  question  a 
little,  for  we  have  not  yet  done  with 
Mr.  Edwards.  ]\Ir.  Edwards,  pray 
answer  me.  Did  Mr.  Braddon  ever 
tell  you,  that  he  had  other  informa- 
tions to  confirm  this  report  of  your 
son  from  others  ? 

Edwards.  —  Truly,  I  do  not  re- 
member he  .said  any  such  thing. 

Sol.-Gen.  —  Did  you  ever  say  he 
told  you  so?  Consider  of  it,  and 
remember  your  former  examination. 

Edwards.  —  'Tis  like  since  he  may 
ha\'e  said  so,  but  not  at  his  first 
coming. 

Sol.-Gen.  —  At  his  first  coming  did 
your  son  sign  his  paper  then  ? 

Edwards.  —  No,  h(>  did  not,  as  I 
am  informed,  I  saw  it  not. 

Sol.-Gen.  —  But    afterwards    you 


No.  391. 


BR.\DDON  S   TRIAL 


997 


say,  Mr.  Braddon  did  tell  you  he  had 
other  evidence  to  confirm  it. 

Edwards.  —  It  may  be  he  might, 
I  cannot  say  it  positively. 

Att.-Gen.  —  You  say  he  did  not 
sign  the  paper  at  his  first  coming  ? 

Edwards.  —  No,  I  am  informed  he 
did  not. 

Sol.-Gen.  —  How  do  you  know  he 
did  sign  it  at  last  ? 

Edwards.  —  My  wife  and  daugh- 
ter's information. 

L.  C.  J.  —  But  how  then  can  you 
say,  that  you  never  heard  he  did 
refuse  it. 

Edwards.  —  My  lord,  he  did  not 
tender  a  paper  to  sign,  till  he  had 
been  two  or  three  times  there,  as  I 
have  heard  ;  it  was  not  tendered  the 
first  time  he  came. 

L.  C.J.  —  I  wonder  how  thou  hast 
escaped  thirty-nine  years  with  such 
a  reputation. 

Edwards.  —  IMy  lord,  I  never  was 
thought  otherwise,  nor  I  hope  never 
gave  any  occasion  for  such  a  thought. 

L.  C.J.  —  I  assure  thee  I  do  not, 
nor  can  take  thee  for  one. 

Edwards.  —  I  hope  I  ha\e  done 
nothing  to  make  your  lordship  think 
the  contrary. 

L.  C.  J.  —  Yes,  thou  hast.  Thou 
didst  nothing  but  shuflSe  up  and 
down,  thou  art  to  consider  thou  art 
upon  thy  oath,  and  must  answer 
questions  plainly. 

Edwards.  —  My  lord,  I  do  an- 
swer as  truly  as  I  can.  .   .  . 

Att.-Gen. — Then  where  is  Edwards, 
the  boy  ?  [Who  was  brought  forth- 
with into  the  court.] 

Edwards.  —  I  charge  you  in  the 
presence  of  Almighty  God,  speak 
truth,  child. 

Snl.-Gcn.  —  And  so  should  you  too. 

Edwards.  —  Be  sure  to  say  noth- 
ing but  the  truth. 

L.  C.  J.  —  And  child,  turn  about, 
and  say.  Father,  be  sure  you  say 
nothing  but  the  truth. 

Att.-Gen.  —  My  lord,  this  is  the 
boy,  he  is  very  little  and  very  young, 
will  your  lordship  have  him  sworn  ? 
What  age  are  vou  of  ? 


ir.  Edwards.  —  I  am  thirteen,  my 
lord. 

Att.-Gen.  —  Do  you  know  what  an 
oath  is  ? 

W.  Edwards.  —  No. 

L.  C.  J. — Suppose  you  should  tell 
a  lie,  do  you  know  who  is  the  father 
of  liars  ? 

IF.  Edioards.  —  Yes. 

L.  C.  J.  —  Who  is  it  ? 

W.  Edwards.  —  The  devil. 

L.  C.  J.  —  And  if  you  should  tell 
a  lie,  do  you  know  what  will  become 
of  you  ? 

W.  Edwards.  —  Yes. 

L.  C.  J.  —  What  if  you  should 
swear  to  a  lie  ?  If  you  should  call 
God  to  witness  to  a  lie,  what  would 
become  of  you  then  ? 

W.  Edwards.  —  I  should  go  to 
hell-fire. 

L.  C.  J.  —  That  is  a  terrible  thing. 
And  therefore,  child,  if  you  take  an 
oath,  be  sure  you  say  nothing  but 
what  is  truth,  for  no  party,  nor 
side,  nor  anything  in  the  world ; 
for  that  God,  that  you  say  will 
call  you  to  an  account,  and  cast 
you  into  hell-fire,  if  you  tell  a  lie, 
and  witness  to  a  falsehood,  knows 
and  sees  all  you  do,  therefore  have 
a  care,  the  truth  you  must  say,  and 
nothing  but  the  truth. 

Crier.  — -  Pull  off  your  glove,  and 
hearken  to  your  oath.  [Then  he  was 
sworn.] 

Sol.-Gen.  —  And  now  remember 
you  call  God  to  witness  to  the  truth 
of  what  you  say. 

Att.-Gen. — Young  man,  look  upon 
that  paper,  is  that  your  hand  ? 

W.  Edwards.  —  Yes. 

Att.-Gen.  —  Did  you  sign  that  ? 

W.  Edwards.  —  Yes. 

Att.-Gen.  —  Prithee  tell  the  court, 
how  thou  camest  to  sign  it  ? 

L.  C.  J.  —  Ay,  child,  be  not 
afraid.  Tell  the  truth,  for  if  thou 
tellest  the  truth,  thou  needest  not 
be  afraid,  but  if  thou  tellest  a  lie, 
thou  hast  need  to  be  afraid ;  let 
nobody,  whatever  has  been  said 
to  thee,  affright  thee  from  telling 
the  truth. 

Sol.-Gen.  —  Don't  be  afraid  of  thy 


998 


PART    III.       PROBLEMS    OF    PROOF 


No.  391. 


father,  or  anybody,  but  tell  plainly 
what  thou  knowest,  and  speak  only 
the  truth. 

Ati.-Gen.  —  How  came  you  to 
sign  that  paper  ? 

W.  Kdirardfi.  —  Mr.  Braddon  bid 
me  sign  it  when  he  had  writ  it. 

L.  C.  ./.  —  Hark  thee,  child.  Did 
he  take  it  from  thee  what  he  writ, 
or  did  he  write  it  from  himself  ? 
Come  hither,  child,  be  not  afraid, 
nobody  here  will  do  thee  any  hurt. 

Then  the  Boy  was  lifted  up  upon 
the  table  before  the  Judges. 

L.  C.  J.  —  Look  upon  that  paper, 
didst  thou  put  thy  name  to  that 
paper,  child  ? 

W.  Edwards-.  —  Yes. 

L.  C.  J.  —  Whose  handwriting 
is  that  paper,  besides  thy  name  ? 

W.  Edwards.  —  Mr.  Braddon's. 

L.  C.  J.  —  Did  he  bring  it  ready 
written  ? 

n'.  Edwards.  —  He  writ  it  in  our 
parlor. 

L.  C.  J.  —  How  came  he  to  write 
it? 

ir.  Edwards.  —  He  said  it  was  for 
the  earl  of  Essex,  to  give  to  his 
wife. 

L.  C.  J.  —  And  what  did  he  ask 
thee  before  he  writ  that  ? 

W.  Edivards.  —  He  asked  me, 
whether  I  saw  anything  at  the 
Tower,  and  so  I  told  him,  yes. 

L.  C.  J.  —  Ay,  tell  us  what  you 
told  him,  and  be  not  afraid,  child, 
but  tell   the  truth. 

ir.  Edwards.  —  I  told  him  I  was 
in  the  Tower,  and  saw  a  razor  thrown 
out  of  a  window. 

L.  C.  J.  —  You  told  him  so,  and 
then  what  said  he  to  you  ? 

W.  Edwards.  —  He  bid  me  speak 
the  truth. 

L.  C.  J.  —  Was  that  all  the  words 
you  had  ? 

IV.  Edwards.  —  I  afterwards  went 
with  my  brother  into  the  Tower,  and 
I  showed  my  l)rother  the  place,  and 
then  afterwarris  Mr.  Braddon  writ 
this,  and  he  said  it  was  to  give  to  the 
countess  of  Esse.x. 

Just.  Ilolloway.  —  Did  he  read  it 
to  you  after  he  had  writ  it  ? 


]]'.  Edwards. — Yes. 

Just.  Ilolloway.  —  And  did  he  ask 
thee,  whether  it  were  true  ?  IF. 
Edivards.  —  Yes. 

L.  C.  J.  —  And  didst  thou  tell 
him  it  was  true  ? 

U\  Edwards.  — Yes. 

L.  C.  J.  —  And  didst  thou  tell 
him  all  that  was  in  that  paper  was 
true  ?     ir.  Edwards.  —  Yes. 

L.  C.  J.  —  Did  you  tell  him  all 
that  was  writ  in  that  paper  before 
he  writ  it  down  ? 

W.  Edwards.  —  Yes. 

L.  C.  J.  —  Prithee  mind  the  ques- 
tion, and  speak  truth.  Didst  thou 
tell  him  all  that  was  in  that  paper 
before  he  WTit  it  down  ? 

W.  Edwards.  —  Yes,  I  told  him, 
and  so  he  writ  it  down. 

Just.  Ilolloway.  —  You  heard  it  all 
read  to  you,  you  say  ?     W.  Edwards. 

—  Yes. 

L.  C.  J.  —  Then  I  ask  you  again. 
Did  you  tell  him  all  that  was  in  that 
paper  was  read  to  you,  before  he 
writ  it  down  ?     W.  Edwards.  —  Yes. 

L.  C.  J.  —  And  after  you  had  told 
him,  he  writ  it  down  ? 

ir.  Edwards.  —  I  told  him  as  he 
writ  it  down. 

L.  C.  J.  —  And  after  such  time 
as  he  had  writ  it  down,  did  he  read 
it  to  you  ? 

IV.  Edwards.  —  Yes. 

L.  C.  J.  —  And  then  you  put  your 
name  to  it  ? 

JV.  Edwards.  —  Yes. 

Alt. -Gen.  —  I  pra}^  my  lord,  he 
may  be  asked  this  question,  Whether 
or  no,  when  he  first  brought  it  in, 
the  boy  did  not  deny  to  sign  it  ? 

L.  C.  J.  —  Did  he  bring  the  paper 
thither  before  thou  signedst  it  ? 

ir.  Edwards.  —  It  was  upon  the 
table. 

L.  C.  J.  —  Didst  not  thou  refuse 
to  put  thy  name  to  it  ?     W.  Edwards 

—  Yes. 

L.  C.  ./.  —  Why?  W.  Edwards. 
I  was  afraid. 

L.  C.  J.  —  Why  ? 

IV.  Edwards.  —  For  fear  of  coming 
into  danger. 

L.    C.    J.  —  Why,    what    danger 


No.  391. 


BRADDON  S   TRIAL 


999 


could    there    be  ?     There    was    no 
danger  if  it  was  truth. 

W.  Edwards.  —  That  was  not  the 
truth. 

L.  C.  J.  —  Which  was  not  the 
truth  ?  Was  not  the  paper  that  he 
had  written  truth  ? 

W.  Edwards.  —  No. 

L.  C.  J.  —  How  so,  child  ?  W^as 
not  that  thou  toldest  him  the  truth  ? 

W.  Edwards.  —  No. 

L.  C.  J.  — Tell  the  truth  now  then. 

W.  Edwards.  —  So  I  do. 

Sol.-Gen.  — Then  he  offered  it  first 
to  you,  and  bid  you  sign  it,  and  you 
denied  to  put  your  hand  to  it,  be- 
cause it  was  not  true  ? 

W.  Edwards.  —  Yes. 

L.  C.  J.  —  And  how  long  after  did 
he  offer  it  to  you  again  ? 

W.  Edwards.  —  A  little  while 
after. 

L.  C.  J.  —  But  did  you  tell  Mr. 
Braddon  it  was  not  true,  when  you 
refused    to  sign  it  ? 

W .  Edwards.  —  No,  T  did  not. 

L.  C.  J.  —  Why  didst  thou  refuse 
to  sign  it  then  ? 

W.  Edwards.  —  I  was  afraid,  be- 
cause it  was  not  true. 

L.  C.  J.  —  Didst  not  thou  tell  Mr. 
Braddon  it  was  not  true  ? 

W.  Edwards.  —  I  did  not  tell  Mr. 
Braddon  it  was  not  true. 

L.  C.  J.  —  Why  then  wast  thou 
afraid  to  sign  it  because  it  was  not 
true  at  one  time,  and  yet  did  sign  it, 
though  it  was  not  true,  at  another 
time  ? 

Sol.-G('}i.  —  Child,  didst  thou  give 
Mr.  Braddon  any  reason,  why  thou 
didst  not  sign  it  at  that  time  ?  IF. 
Edwards.  —  No,  Sir.   .   .   . 

L.  C.  J.  — Thou  sayest,  thou  didst 
first  refuse  it,  because  it  was  not 
true  ? 

W.  Edwards.  —  Yes. 

L.  C.  J.  —  And  then  afterwards 
thou  didst  sign  it  ?     W.  Edwards.  — 
Yes. 

L.  C.  J.  —  Then  I  ask  thee,  who 
persuaded  thee  to  sign  it  after  that 
time  that  thou  still  refusedst  it  ? 

W.  Edwards.  —  My  mother  was 
afraid  to  have  me  sign  it. 


L.   C.   J.  —  Who   persuaded   you 

to  sign  it  ? 

ir.  Edwards.  —  Mr.  Braddon  said 
there  was  no  harm  in  it,  so  I  did  it. 

L.  C.  J.  —  Did  Mr.  Jiraddon  then 
persuade  you  to  sign  it  ? 

W.  Edwards.  —  He  said  there  was 
no  harm  in  it,  that  was  all. 

L.  C.  J.  —  Did  you  do  it  at  his 
desire  ? 

W.  Edwards.  —  Yes. 

L.  C.  J.  —  x\nd  you  refused  it 
at  first  when  he  desired  it  ?  W. 
Edwards.  —  Yes. 

L.  C.  J.  —  What,  because  it  was 
false  ? 

W.  Edwards.  —  Yes. 

L.  C.  J.  —  Why  then  wouldst  thou 
sign  it  afterwards,  if  somebody  did 
not  persuade  thee  to  it  ? 

W.  Edwards.  —  He  told  me  there 
was  nothing  of  harm  in  it. 

Att.-Gen.  —  Hadst  thou  any  money 
offered  thee  by  Mr.  Braddon  ?  — 
W.  Edwards.  —  No. 

Att.-Gen.  —  Hadst  thou  any  money 
promised  thee  ?  W.  Edwards.  — 
No. 

Att.-Gen.  —  Hadst  thou  anything 
else  offered  or  promised  thee  ? 

W.  Edwards.  —  No,  nothing  at  all. 

L.  C.  J.  —  You  have  heard  what 
he  has  said,  gentlemen  ? 

Jury.  —  No,  my  lord,  we  have  not 
heard  a  word. 

L.  C.  J. —  Then  I  will  tell  you 
what  he  has  said  exactly.  He  says, 
that  Mr.  Braddon  writ  it  from  him ; 
that  he  writ  it  in  the  room  while  he 
was  there  ;  that  after  such  time  as  he 
had  writ  it,  Mr.  Braddon  read  it  to 
him  :  He  says,  that  he  had  carried 
his  brother  to  show  him  the  place 
where  he  assigned  that  the  razor  was 
found  in  the  Tower :  He  says,  that 
after  such  time  as  the  writing  was 
finished,  Mr.  Braddon  offered  it 
him  to  sign,  and  he  refused  to  sign  it, 
and  I  asked  him  the  reason  wh;,  and 
he  says,  because  it  was  false  ;  he  says 
some  short  time  afterwards  Mr.  Brad- 
don came  to  him  again. 

ir.  Edwards.  —  No,  Sir,  it  was  the 
same  time. 

L.  C.  J.  —  Well,  the  same  time 


1000 


PART    III.       PROBLEMS    OF    PROOF 


No.  391. 


Braddon  was  at  him  aj;ain,  and  told 
him  there  was  no  harm  in  it,  and 
therefore  desired  him  to  sign  it, 
and  because  he  would  not,  he  would 
have  his  aunt  to  have  signed  it  ; 
and  he  says,  that  Braddon  telling 
him  there  was  no  harm  in  it,  he  did 
sign  it. 

SoI.-G('7}.  —  But  withal  he  says, 
that  it  is  false. 

L.  C.  J.  —  Ay,  he  swears  now  it  is 
all  false. 

Mr.  Freke.  —  Did  you  tell  Mr. 
Bradtlon  it  was  false  ? 

L.  C.  J.  —  No,  he  says  he  did  not. 

Mr.  Frckr.  —  Did  your  sister  at  all 
discourse  with  you  after  you  had 
dictated  to  Mr.  Braddon  ?  Pray 
what  discourse  had  you  with  her  after 
Mr.  Braddon  writ  that  paper,  before 
you  refused  to  sign  it  ? 

L.  C.  J.  —  Do  not  ask  any  leading 
question.  Sir,  but  propose  a  fair  plain 
cjuestion. 

Mr.  Frckc.  —  Did  you  discourse 
with  your  sister  at  all,  after  Mr. 
Braddon  had  been  at  your  house  ? 

ir.  Edwards.  —  Yes,  I  had  been  at 
school,  and  when  I  came  home,  they 
said  that  a  gentleman  that  came 
from  the  earl  of  Essex's  brother, 
had  been  to  inquire  of  the  truth  of 
the  report  I  had  raised. 

Mr.  Frckc.  —  What  did  your  sister 
say  to  you  ? 

H*.  Edwards.  —  That  was  all. 

Sol.-Gen.  —  Did  she  name  the 
gentleman,  and  did  you  see  him 
afterwards  ? 

II'.  Edwards.  —  Yes. 

Sol. -Gen.  —  Who  was  it  ? 

ir.  Edwards.  —  That  gentleman, 
Mr.  Braddon. 

Juri/.  —  My  lord,  we  don't  hear  a 
word  he  .says. 

L.  C.  ./.  —  He  says  he  had  been 
at  school,  and  when  he  came 
home,  they  told  him  a  gentleman 
carric  from  the  earl's  brother,  to 
inquire  of  tlie  truth  of  what  he  had 
reported.  It  was  asked  him  who 
the  gentleman  was,  and  he  says,  it 
was  that  gentleman,  Mr.  Braddon. 

Mr.  Thoiiipson.  —  Before  such 
time  as  Mr.  Braddon  came  to  you, 


what  did  you  tell  your  father  about 
this  razor,  and  when  ? 

ir.  Edwards.  —  Sir,  I  told  him  the 
king  and  duke  of  York  were  at  the 
Tower,  and  while  I  was  there,  I  said, 
I  saw  a  hand  cast  out  a  bloody  razor, 
and  a  maid  come  out  and  take  it 
up,  and  go  in  again. 

Mr.  Thompson.  —  Did  you  see  any 
such  thing  as  a  bloody  razor  cast  out  ? 

W.  Edwards.  —  No. 

L.  C.  J.  —  What  a  dust  has  such  a 
trivial  report  made  in  the  world  ! 
Admit  the  boy  had  said  any  such 
thing,  what  an  age  do  we  live  in, 
that  the  report  of  every  child  shall 
blow  us  up  after  this  rate  ?  It 
would  make  a  body  tremble  to  think 
what  sort  of  people  we  live  among : 
To  what  an  heat  does  zeal  transport 
some  people,  beyond  all  reason  and 
sobriety  ?  If  such  a  little  boy  had 
said  so,  it  is  not  an  half-penny  matter, 
but  presently  all  the  government  is 
to  be  libeled  for  a  boy,  which, 
whether  he  speaks  true  or  false,  is  of 
no  great  weight,  and  he  swears  it  is 
all  false. 

Sol.-Gcn.  —  My  lord,  we  shall  next 
call  Dr.  Hawkins's  son  of  the  Tower. 
Where  is  Thomas  Hawkins  ?  [Who 
was  sworn.] 

Atf.-Gen.  —  My  lord,  agreeable  to 
what  the  boy  has  now  said,  to  show 
you  that  Avhat  Mr.  Braddon  got 
him  to  sign  was  all  false,  here  is  the 
young  man  that  truanted  with  him 
the  same  morning,  that  was  with 
him  all  the  time,  the  whole  morning, 
that  says,  there  was  no  such  thing, 
and  he  saw  no  such  thing ;  and  how 
could  it  enter  into  the  boy's  head 
such  a  malicious  lie,  if  it  had  not 
been  dictated  ?  Pray,  Mr.  Hawkins, 
will  you  acquaint  my  lord,  and  the 
jury,  whether  you  played  truant  that 
morning  with  this  other  boy,  and 
where  you  were  ? 

L.  C.  J.  —  Ay,  tell  the  truth  in 
God's  name,  young  man,  be  it  one 
way  or  the  other,  let  the  truth  come 
out. 

Ilaxohins.  —  In  the  morning,  Sir, 
I  met  with  him  at  the  Tower,  going 
round  with  the  king,  and  we  walked 


No.  391. 


BRADDON  S   TRIAL 


1001 


round  the  Tower  as  long  as  the  king 
walked,  and  then  the  king  going  into 
the  Constable's  house,  we  and  some 
more  boys  were  playing  — 

L.  C.  J.  —  Prithee  speak  out,  as 
though  thou  wert  at  play  at  chuck- 
farthing. 

Hawkins.  —  After  we  had  been  at 
play,  I  went  home,  and  after  I  had 
been  there  a  little  while,  news  was 
brought  to  my  father  that  the  earl 
of  Essex  had  killed  himself.  My 
father  went  down,  and  I  followed 
him,  and  after  I  had  been  there  a 
little  while,  ^Yilliam  Edwards  came 
home,  and  there  we  stood  looking 
up  at  the  window  an  hoin-  or  two 
at  least,  and  after  we  had  tarried 
there  a  great  while,  I  went  out  of 
the  Tower  gate  a  little  after  eleven. 

Att.-Gen.  —  Was  there  no  razor 
thrown  out  of  the  window  ? 

Haivkins.  —  No,  there  was  no 
razor  thrown  out. 

L.  C.  J.  —  Didst  not  thou  see  a 
razor  thrown  out  of  the  window  and 
a  maid  come  and  take  it  up  ? 

Hawkins.  —  No,  there  was  no 
such  thing. 

L.  C.  J.  —  Were  you  there  before 
Edwards  came  ?     Hawkins.  —  Yes. 

L.  C.  J.  —  And  you  went  out  with 
him  ? 

Hawkins.  —  Yes. 

L.  C.  J.  —  Did  you  and  Edwards 
go  away  together?  Hawkins. — 
Yes. 

Mr.  Thompson.  —  Did  he  tell  you 
of  any  such  thing  ?     Hawkins.  —  No. 

Sol.-Gen.  —  What  time  of  the  day 
was  it  that  you  went  out  of  the 
Tower  ? 

Hawkins.  —  Almost  eleven  o'clock. 

]\Ir.  Wallop.  —  The  boy  does  say, 
he  did  tell  his  father  and  mother,  and 
all  the  family  of  it.  And  it  is  plain 
by  the  father,  that  it  was  known  in 
the  family  by  ten  of  the  clock. 

Sol.-Gen. — Was  this  young  man 
with  you,  all  the  time  that  you  was 
there,  Edwards  ? 

II'.  Edwards.  —  Yes. 

Att.-Gen.  —  Did  you  not  tell  your 
father  of  this  story  when  you  came 
from  the  Tower  ? 


IF.  Edwards.  —  Yes. 

Att.-Gen.  —  And  that  was  the 
same  time  you  came  out  of  the 
Tower  with  Hawkins  ? 

W.  Edwards.  —  Yes. 

Att.-Gen.  —  And  you,  Hawkins, 
was  this  young  man  with  you  all  the 
time  you  were  at  my  lord  Essex's 
window  ? 

Hawkins.  —  He  came  thither  while 
I  stood  there. 

Att.-Gen. —My  lord,  this  is  but 
the  beginning  of  our  evidence,  your 
lordship  sees  what  a  fine  case  it  is, 
and  how  all  this  noise  and  bustle  has 
come  to  be  made  in  the  world.  The 
rumor  did  first  arise  in  a  fanatic 
family,  and  was  propagated  by  that 
party. 

Mr.  Jones.  —  Ay,  it  is  easily 
known  whence  it  came. 

L.  C.  J.  —  Gentlemen,  pray  will 
you  go  on  with  your  evidence,  and 
make  no  descants. 

Mr.  Freke.  —  You,  Hawkins, 
when  you  came  from  your  father's 
house,  did  you  find  that  boy  in 
Tower  ? 

Hawkins.  —  Yes,  Sir,  a-going 
round  with  the  king. 

L.  C.  J .  —  That  was  before  this 
thing  happened. 

Mr.  Freke.  —  Were  you  with  him 
all  the  while  he  was  in  the  Tower  ? 

Hawkins.  —  Just  before  my  lord 
Essex  cut  his  throat  I  went  home. 

Mr.  Freke.  —  Were  you  with  him 
all  the  time  or  no  ?  And  how  long 
were  you  with  him  ? 

Hawkins.  —  I  went  with  him 
round  the  Tower  with  the  king.  And 
after  we  were  at  pla}',  and  then  I 
went  home,  and  then  when  I  had 
been  at  home  a  little  time,  the  rumor 
and  noise  came,  that  the  earl  of 
Essex  had  killed  himself ;  so  I  went 
with  my  father,  and  stood  before  the 
window,  and  I  tarried  there  awliile 
before  he  came  home,  and  I  stayed 
with  him  looking  at  the  window  a 
great  while,  and  we  went  out  of  the 
Tower  together.   .   .   . 

Att.-Gen.  —  My  lord,  we  had  not 
laid  so  much  weight  upon  ^Ir.  Brad- 
don    for    this    matter,   but    that    he 


1002 


PART   III.       PROBLEMS    OF    PROOF 


No.  391- 


could  not  1)0  quiet,  hut  must  inform 
the  king  of  it,  and  this  matter  was 
all  examined  hefore  the  king,  the  boy 
was  sent  for,  and  before  his  face  the 
boy  declared  it  was  a  lie.  And  after 
he  knew  this,  and  after  the  boy  had 
twice  in  the  presence  of  the  king  de- 
nied it,  yet  notwithstanding  all  this, 
then  was  the  project  between  him 
and  Speke.  AVe  shall  first  prove  the 
examination  of  this  matter  l)efore 
the  Council,  and  how  he  was  ac- 
quainted with  it.  Pray  call  Mr. 
Blathwaite  and  Mr.  Monstevens. 

]\Ir.  Blathwaite  was  sworn. 

Att.-G €71.  — Fray,  Mr.  Blathwaite, 
will  you  gi\'e  an  account  whether  you 
were  present  at  the  Council,  when 
IVIr.  Braddon  brought  this  informa- 
tion, and  how  the  matter  was  ex- 
amined there,  and  what  was  done. 

Mr.  Blathwaite.  —  My  lord,  it  was 
on  the  20th  of  July,  that  Mr.  Brad- 
don came  to  Whitehall,  he  may  re- 
member I  was  there,  for  he  could 
not  but  see  me  attending  on  the  king. 
This  little  boy  was  brought  before 
his  majesty,  and  was  asked  Avhat  in- 
formation he  had  given  ]\Ir.  Brad- 
don ?  And  whether  the  matter  of 
the  information  was  true  ?  The 
boy  said  it  was  a  lie,  and  that  upon 
his  faith  it  was  not  true.  Mr.  Brad- 
don knew  all  this,  for  he  was  called 
in  and  informed  of  it ;  and  I  believe 
Mr.  Braddon  will  remember,  that 
he  heard  the  boy  deny  it.  The 
whole  examination  could  not  but 
show  that  it  was  an  invention  of  his, 
as  he  said  it  was,  to  excuse  himself 
for  having  played  truant  that  day, 
and  that  because  he  was  afraid  to  go 
home  he  invented  that  lie.  After 
this  Mr.  Braddon,  as  it  appears,  did 
nevertheless  pursue  this  business. 

L.  C.  J.  —  Pray  only  tell  what  you 
know  of  your  own  knowledge,  both 
before  and  after. 

Mr.  Blathwaite.  —  I  know,  my 
lord,  that  Mr.  Braddon  (having  been 
in  the  country)  came  afterwards 
before  the  king,  and  was  again  ex- 
amined upon  this  matter,  by  which 
it  appeared,  that  he  did  continue 
in     his     pursuit,     though     he    was 


always  informed  of  the  denial  the 
boy  made,  and  that  it  was  under- 
stood to  be  a  lie  by  the  whole  family 
of  the  Edwardses,  as  well  as  from 
the  denial  of  the  little  boy ;  for  they 
did  confess,  that  the  boy  used  to  tell 
lies,  and  one  of  the  sisters  said  he  had 
denied  it  at  first,  but  afterwards  was 
brought  to  say  it.  And  if  I  re- 
member right,  the  words  of  one  of 
the  sisters  were,  "Braddon  com- 
pelled the  boy  to  sign  it."  Those 
are  the  words  in  the  minutes  that 
I  took  at  the  examination.   .   .   . 

Alt.-Gen.  —  My  lord,  I  pray  that 
a  word  of  the  Information  may  be 
read,  we  will  first  pro\e  the  infor- 
mation taken  by  him.  .  .  . 

CI.  of  Cr.  —  This  is  subscribed, 
"William  Edwards." 

L.  C.  J.  —  Call  the  boy  in  again. .  . . 

L.  C.  J.  —  Hark  you,  young  man, 
do  you  know  my  lord  Gerard  ?  W. 
Edwards.  —  Yes. 

L.  C.  J.  —  Which  lord  Gerard  do 
you  know  ? 

W.  Edwards.  —  My  lord  Brandon 
Gerard. 

L.  C.  J.  —  How  came  you  to  know 
him  ? 

W.  Edwards.  —  By  sight  I  know 
him. 

L.  C.  J.  —  Do  you  know  where  he 
lodged  in  the  Tower  ?  W.  Edwards. 
—  Yes. 

L.  C.  J.  —  Where  ? 

If.  Edwards.  —  At  one  INIr.  Sam's. 

L.  C.  J.  —  Was  you  ever  in  his 
lodging  ? 

IV.  Edwards.  —  No. 

L.  C.  J. —  Never  at  all?  W. 
Edwards.  —  No. 

L.  C.  J.  —  Did  you  ever  tell  any- 
body you  were  in  my  lord  Brandon 
Gerard's  lodgings  ? 

W.  Edwards.  —  Never  in  my  life. 

L.  C.  J.  —  Did  you  never  tell  Brad- 
don, that  you  went  to  see  his  lodg- 
ings ? 

U\  Edwards.  —  Into  the  house  I 
never  went. 

L.  C.  J.  —  Did  you  never  tell 
Braddon,  That  you  went  to  see  my 
lord  Brandon  Gerard's  lodgings  ? 
Never  in  \'our  hfe  ? 


No.  391. 


BRADDON  S   TRIAL 


1003 


W.  Edwards,  —r-  No,  Sir. 

L.  C.  J.  —  Now  read  it. 

CI.  of  Cr.  [Reads.]  — "The  In- 
formation of  William  Edwards, 
second  son  to  Thomas  Pxlwards,  of 
the  parish  of  All-hallows  Barkin, 
London,  taken  the  18th  day  of  July, 
in  the  35th  year  of  the  reign  of  our 
sovereign  lord  king  Charles  2,  anno 
1683,  says :  That  this  informant 
on  Friday  the  13th  of  this  instant 
July,  as  he  was  going  to  school,  with 
his  brother  Edward,  he  heard  that 
his  majesty  and  his  royal  highness 
the  duke  of  York,  were  going  to  the 
Tower.  Whereupon  this  informant 
left  his  brother,  and  went  to  the 
Tower  to  see  his  majesty,  and  his 
royal  highness.  And  when  this 
informant  had  seen  his  majesty  and 
his  royal  highness,  this  informant 
about  nine  of  the  clock  in  the  morn- 
ing of  the  same  day,  went  to  see 
my  lord  Brandon  Gerard's  lodg- 
ings ;  and  as  this  informant  was 
standing  almost  over  against  my 
lord  Gerard's  lodgings,  between  the 
lord  Gerard's  and  the  late  lord  of 
Essex's  lodgings,  this  informant  saw 
a  hand  cast  out  a  bloody  razor  out  of 
the  said  earl  of  Essex's  lodgings.  And 
this  informant  was  going  to  take 
up  the  said  razor,  which  he  saw  on 
the  ground  to  be  bloody ;  but  before 
this  informant  came  to  the  razor, 
there  came  a  maid  running  out  of 
captain  Hawley's  house,  where  the 
said  lord  of  Essex  lodged,  and  took 
up  the  said  razor,  which  she  carried 
into  the  said  cap1;ain  Hawle^^'s 
house.  And  this  informant  be- 
Yieves  that  it  was  the  said  maid, 
who  he  first  heard  cry  out  murder. 
And  this  informant  further  said, 
That  he  heard  the  said  maid  say  to 
some  which  were  about  the  door, 
after  the  murder  was  cried.  That 
she  did  hear  the  said  lord  of  Essex 
to  groan  three  times  that  morn- 
ing. The  father,  three  sisters,  and 
brother  will  swear.  That  the  said 
William  Edwards  did  declare  the 
substance  of  this  Information  to 
them  on  Friday  the  13th  instant, 
and  never  in  the  least  denied  it  till 


Tuesday  after,  when  being  chid 
and  threatened  by  the  eldest  sister, 
he  did  deny  it ;  but  soon  after  con- 
fessed it,  and  signed  it  in  the  pres- 
ence of  five  or  six  witnesses." 

Just.  U'ithins. — Thus  you  see, 
he  persuaded  him  to  tell  a  fine  story 
of  going  to  see  my  lord  Brandon 
Gerard's  lodgings,  but  the  boy  never 
told  any  such  thing. 

L.  C.  J.  —  No,  he  never  told  him 
a  word  of  it,  he  swears.   .  .   . 

CI.  of.  Cr.  —  The  Information  of 
]\Irs.  P^dwards,  wife  to  Thomas 
Edwards,  saith,  "That  about  10 
o'clock  in  the  morning  on  Friday 
the  13th  of  this  instant  July,  this 
informant's  youngest  son  William 
Edwards,  aged  about  13  years,  came 
trembling  to  this  informant,  and 
in  great  amazement  and  horror  told 
this  informant,  that  the  lord  Essex 
had  cut  his  throat  in  the  Tower, 
and  further  said,  That  he  the  said 
William  Edwards  in  the  morning 
about  nine  o'clock,  did  see  a  hand 
cast  out  a  razor  out  of  the  said  lord 
of  Essex's  lodging  window,  which 
razor  he  saw  on  the  ground  to  be 
bloody.  And  the  said  William 
Edwards  was  going  to  take  up  the 
said  razor,  but  before  he  came  to  it, 
there  came  a  maid  running  out  of 
captain  Hawley's  house,  where  the 
said  earl  of  Essex  lodged,  and  took 
up  the  razor,  which  she  the  said 
maid  forthwith  carried  into  the 
said  captain  Hawley's  house,  and 
soon  after  he  the  said  William 
Edwards  heard  her,  as  the  said 
William  Edwards  did  believe,  cry 
out  murder.  And  this  informant 
further  saith.  That  the  substance 
of  which  the  said  William  Edwards 
hath  sworn  in  this  information,  he 
the  said  William  Edwards  on  Friday 
last  did  declare  to  this  informant  and 
her  whole  family,  several  times  at- 
testing it  to  be  true,  and  several 
times  since."  .   .   . 

L.  C.  J.  —  Ay,  that  is  t':e  boy's 
Information. 

CI.  of  Cr.  — :  Here  is  another,  it  is 
dated  August  the  8th,  1083.  The 
Information  of  Jane  Lodeman,  aged 


1004 


PART   III.      PROBLEMS   OF   PROOF 


No.  391. 


about  13  years,  did  in  the  presence 
of  these,  whose  names  are  here  under 
written,  tlechire  as  followeth,  "  That 
the  said  Jane  Lo(UMnan  was  in  the 
Tower  on  Frichiy  morning,  the  13th 
of.Iuly  hist,  and  standing  almost  over 
against  the  late  earl  of  Essex's 
lodging  window,  she  saw  a  hand 
east  out  a  razor  out  of  my  lord's 
window,  and  immediately  upon  that 
she  heard  shrieks,  and  that  there  was 
a  soldier  by  my  lord's  door,  which 
cried  out  to  those  within  the  house, 
that  somebody  should  come  and  take 
up  a  razor  which  was  thrown  out  of 
the  window,  Avhereupon  there  came 
a  maid  with  a  white  hood  out  of 
the  house,  but  who  took  up  the  razor 
she  cannot  tell." 

"  This  is  subscribed 

"John  Boom, 
"Wm.  Smith." 

CI.  of  Cr.  —  Here  is  another  paper, 
August  the  8th,  1683,  Mr.  William 
Glasbrooke  does  declare,  That  one 
Jane  Lodeman,  aged  about  13  years, 
inhabiting  in  the  same  house  where 
he  the  said  William  Glasbrooke 
lodged,  did  on  Friday  the  13th  of 
Jul\-  last  past,  between  the  hours 
of  10  and  11  in  the  morning,  in  the 
presence  and  hearing  of  him  the 
said  William  Glasbrooke  declare 
to  her  aunt,  "That  the  earl  of  Essex 
had  cut  his  throat,  which  upon  her 
aimt  was  \ery  angry  with  her,  where- 
upon she  the  said  girl  did  declare, 
that  she  was  sure  of  it,  for  she  saw 
him  throw  the  razor  out  of  the  win- 
dow, and  that  the  razor  was  bloody, 
and  that  she  heard  two  groans  or 
shrieks  (which  of  the  two  words  she 
used,  he  the  .said  William  Glasbrooke 
is  not  certain)  ;  of  this  he  the  said 
William  Glasbrooke  is  ready  to 
make  oath. 

"This  is  subscribed 

"W.M.  Glasbrooke, 
"Mar{;arp:t  Smith." 

Aii.-Grn.  —  He  carried  his  stuff 
about  him,  it  seems,  wherever  he 
went. 

L.  C.  ./.  —  It  is  stuff  indeed.  Good 
God,  what  an  age  do  we  live  in  I 

Att.-Grn.  —  It  is  not   taken   upon 


oath  before  any  magistrate,  but 
cooked  up  to  amuse  the  country, 
as  if  they  were  formal  Informa- 
tions. .   .   . 

Ait.-Gen.  —  ]My  lord,  we  have 
gone  through  our  evidence  for  the 
present  to  show  how  this  man  has 
endeavored  to  spread  this  matter 
to  the  scandal  of  the  government. 
We  shall  end  here  at  present  to  see 
how  he  has  improved  his  confidence, 
b}^  what  defense  he  will  make  to  all 
this  proof.   .   .   . 

Braddon. —  My  lord,  I  desire  the 
family  of  the  Edwards  may  be 
called. 

L.  C.  J.  —  Name  them.  Who  are 
they  ?  How  can  we  tell  >vho  your 
witnesses  are  ?  .   .   . 

Braddon. — Mr.  Edwards,  and 
Mrs.  Edwards.  [Who  came  into 
court.]  .  .  . 

L.  C.  J.  —  Well,  What  do  you  ask 
Edwards  ? 

Braddon.  —  What  day  was  the 
first  day  I  saw  you,  and  had  dis- 
course with  you,  and  what  was  the 
discourse  I  had  with  you  ? 

Edwards.  —  It  was  the  17th  of 
July. 

Braddon.  —  What  did  you  tell 
me  then  that  your  boy  reported  ? 

Edwards.  —  I  told  you  what  I  ac- 
quainted the  court  withal  before, 
that  the  boy  had  brought  home  such 
a  report. 

Braddon.  —  Had  the  boy  ever 
denied  it  before  I  saw  you  ? 

Edwards.  —  That  day  you  came 
to  speak  with  me  about  it,  as  I  was 
informed  by  my  wife  and  my  daugh- 
ter, the  boy  did  deny  it. 

Braddon.  —  W'as  it  before  I  came, 
or  after  I  came  that  he  denied  it  ? 

Edwards.  —  It  was  after  you  came. 

Braddon. — What  were  the  in- 
ducements that  made  him  to  deny 

itr 

L.  C.  -/.  —  He  tells  you  himself, 
because  it  was  false. 

Braddon.  —  I  desire  the  elder 
sister  Sarah  Edwards  may  be 
called.   .   .   . 

Crier.  —  Here  is  Sarah  Edwards 
now.     [Who  was  sworn.] 


No.  391. 


BRADDON  S   TRIAL 


1005 


Att.-Gen.  — This  is  not  the  sister, 
this  is  the  mother  of  the  boy. 

L.  C.  J.  —  Well,  what  do  vou  ask 
her  ? 

Brrifldon. — What  discourse  had 
you  with  your  hoy  about  ten  o'clock 
that  Friday  morning  I  met  \ou  ? 

Mrs.  Edwards.  —  I  had  no  dis- 
course, but  what  my  child  told  me. 

Br  addon.  —  "\Miat  did  your  child 
tell  you  ?  .   .   . 

Mrs.  Edwards.  —  What  was  it. 
Sir,  he  came  and  told  me  ?  Why, 
the  boy  told  me.  Mother,  says  he, 
I  have  been  at  the  Tower,  and  seen 
the  king's  majesty,  and  his  royal 
highness,  and  says  he,  the  earl  of 
Essex  has  cut  his  throat ;  and  Lord, 
Mother,  says  he,  and  wept.  Lord, 
child,  said  I,  I  am  afraid  you  are 
going  to  make  some  excuse  to  me 
that  I  should  not  beat  you,  being 
you  have  played  truant ;  no,  Mother, 
says  he,  I  did  not.  He  continued  in 
this  for  a  little  while,  and  then  after- 
wards did  deny  it. 

Braddon.  —  What  did  he  deny  ? 

Mrs.  Edwards.  —  Wliat  he  had 
said  to  me. 

Braddon.  —  Did  he  deny  that  he 
had  been  at  the  Tower  ?  Or  that 
the  earl  of  Essex  had  cut  his  throat  ? 

Mrs.  Edwards.  —  Xo,  he  denied 
what  he  said  he  saw. 

Braddon.  —  What  was  that  ? 

Mrs.  Edwards.  —  He  said,  he  saw 
an  hand  out  of  a  window,  and  a 
razor  fell  down,  and  he  went  to  take 
it  up,  and  there  came  out  a  woman,  or 
a  maid,  a  short  fat  woman  came  out, 
and  took  it  up,  and  went  in  again. 

Mr.  Wallop.  —  And  he  said  this 
crying  and  weeping  you  say  ? 

Mrs.  Edwards.  —  Yes,  he  did  so. 

Braddon.  —  Did  he  deny  it  before 
such  time  as  I  had  been  there  ? 

Mrs.  Edwards.  —  No,  you  was 
once  at  my  house  before,  and  spake 
to  my  husband,  and  then  you  came 
the  same  day  again.   .   .   . 

L.  C.  J.  —  Hark  you,  Mrs.  Ed- 
wards, before  you  go.  The  boy 
denied  it,  it  seems,  in  two  or  three 
days  after  he  had  given  out  such  a 
report  ? 


Mrs,  Edwards.  —  Yes,  my  lord, 
he  did. 

L.  C.  J.  —  How  came  he  to  deny 
it? 

Mrs.  Edwards.  —  I  \\ill  tell  you 
how.  When  this  gentleman  came 
and  accjuainted  my  husband  with 
his  business,  it  put  us  all  into  a  great 
damp ;  and  my  husband  said.  Now 
both  m^'^  boys  were  gone  to  school, 
and  says  he,  after  the  gentleman 
was  gone,  to  my  daughter  Sarah, 
Do  not  you  say  anything  to  your 
brother  when  he  comes  in,  but  let 
him  alone,  and  we  will  talk  to  him. 
So  Avith  that  she  was  grievously 
affrighted,  and  so  amazed,  that  as 
soon  as  he  came  in,  she  said.  Prithee 
Billy,  deal  truly,  and  do  not  you  tell 
any  lie  to  save  your  breech,  for  here 
has  been  a  gentleman  to  inquire 
something  about  what  you  said ; 
why,  sister,  says  he,  will  anything  of 
harm  come  ?  Truly,  child,  says  .she, 
I  do  not  know ;  and  upon  that  he 
did  denv  it. 

L.  C.\J.  —  Did  you  tell  Mr.  Brad- 
don, he  had  denied  it  ?  .   .   . 

Braddon.  —  Mrs.  Edwards,  did 
not  the  boy  come  to  you,  and 
cry  out,  he  should  be  hang'd,  and 
then  did  deny  it  ? 

Mrs.  Edwards. — Yes,  that  he  did. 

Braddon. — From  Avhence  did  he 
come,  that  he  was  in  such  a  fright  ? 

Mrs.  Edwards.  —  I  can't  tell  that, 
Sir. 

Braddon.  —  Did  not  your  eldest 
daughter  chide  him  and  threaten 
him  ? 

Mrs.  Edwards.  —  Yes,  she  did  bid 
him  speak  the  truth. 

Att.-Gen.  —  And  then  he  denied  it  ? 

Mrs.  Edwards.  —  Yes. 

L.  C.  J.  —  Ay,  says  she  to  him, 
Billy,  do  not,  to  save  thy  breech, 
tell  a  lie,  but  speak  the  truth  ;  why 
then,  says  he,  the  truth  of  it  is, 
there  was  no  such  thing. 

Braddon.  —  My  lord,  she  says  it 
was  after  his  sister  had  chid  and 
threatened  him. 

Sol. -Gen.  —  You  are  a  little  too 
fierce  upon  the  woman,  Mr.  Braddon, 
vou  do  not  observe  what  she  says. 


1006 


PART    III.       PROBLEMS   OF    PROOF 


No.  391. 


L.  C.  J.  —  Yes,  he  is  wonderful 
zealous,   flourishing   his   hands  — 

Sol. -Gen.  —  She  says,  the  daugh- 
ter did  tell  the  son  that  he  must 
speak  the  truth,  and  not  tell  a  lie 
to  sa\"e  his  breech,  for  there  had  been 
a  gentleman  to  inquire  ulxmt  it ; 
Why,  says  the  boy,  will  there  come 
any  harm  of  it  ?  I  don't  know, 
says  his  sister  ;  Why  tlien,  says  he,  I 
tell  you  the  truth,  there  was  no  such 
thing. 

L.  C.  J.  —  Ay,  when  she  engaged 
him  to  tell  the  truth,  and  not  tell 
a  lie  to  save  his  breech,  then  the 
truth  comes  out. 

Braddon.  —  Pray  call  Sarah 
Edwards  the  daughter.  My  lord, 
they  told  me  in  the  house  that  she 
hatl  frighted  him  into  a  denial.   .   .   . 

Then  Sarah  Edwards  the  younger 
was  sworn.  .  .  . 

Braddon.  —  Mistress,  pray  tell 
your  knowledge  of  what  the  boy 
declared  ? 

L.  C.  J.  —  Ay,  ay,  tell  what  you 
know,  what  your  brother  said  con- 
cerning his  seeing  a  razor,  and  his 
denying  of  it  afterwards.  Tell  all 
from  the  beginning  to  the  end,  and 
tell  truth  in  God's  name,  and  nothing 
but  the  truth.  We  desire  the  truth 
may  come  out,  let  it  be  of  which  side 
it  will. 

Sarah  Edwards.  —  My  brother 
came  home,  and  said  he  had  been  at 
the  Tower,  and  that  he  had  seen  his 
majesty  and  his  royal  highness,  and 
the  earl  of  Essex  had  cut  his  throat, 
and  that  he  saw  an  hand  fling  a  razor 
out  of  a  window,  and  that  a  maid,  or 
a  woman,  came  out  and  took  it  up, 
and  went  in  again,  and  presently 
after  he  heard  a  noise  of  murder  cried  ; 
so  I  knowing  he  was  very  apt  to  tell 
lies,  I  did  not  believe  it. 

Braddon.  —  Pray,  mistress,  did 
you  prevail  with  him  to  deny  it 
afterwards  'f 

L.  C.  J.  —  You  are  so  wonderful 
full  of  zeal  and  heat  in  this  matter, 
you  cannot  let  your  own  witnesses 
tell  their  own  story,  but  you  must 
interrupt  them.  .  .  .  Don't  expect 
for  your  zeal  sake,  and  the  flinging  of 


your  hands,  to  do  what  you  list.  Go 
on,  mistress. 

iS.  Edwards.  —  So,  Sir,  this  Mr. 
Braddon  came  on  Tuesday  following, 
about  one  or  two  of  the  clock,  and 
asked  for  my  father,  and  coming,  my 
sister  Mary  went  to  the  door,  and 
called  my  father  out  to  him.  When 
my  father  came  to  him,  he  told  my 
father  he  came  from  sir  Henry  Capell, 
and  the  countess  of  Essex,  to  know 
the  truth  of  my  brother's  report. 
So  my  father  told  him  the  boy  had 
reported  such  a  thing,  but  he  would 
not  assert  the  truth  of  it,  for  he  had 
been  informed  by  us  that  the  boy 
was  apt  to  tell  lies  to  excuse  his 
playing  truant ;  so  the  child  was 
gone  to  school  when  iNIr.  Braddon 
came,  and  when  he  came  home  from 
school  they  went  to  the  child  ;  said 
I,  Billy,  will  you  be  sure  to  tell  me 
the  truth  of  this  report ;  why,  sister, 
said  he,  will  any  harm  come  of  it  ? 
Nay,  said  I,  I  do  not  know,  for  there 
has  been  a  gentleman  to  inquire  about 
it.     So  then  the  child  denied  it. 

L.  C.  J.  —  Did  he  know  this  before 
he  made  the  boy  sign  the  paper  ? 

S.  Edwards.  —  Yes.  This  was  on 
the  Tuesday  after  Mr.  Braddon  had 
been  first  there.  And  I  spake  to  him, 
said  I,  Billy,  say  nothing  but  the 
truth,  be  sure,  and  don't  tell  a  lie  to 
save  your  breech.  So,  Sir,  as  soon 
as  ever  the  child  denied  it,  Mr.  Brad- 
don came  in  again  the  same  day,  and 
coming  in  found  us,  my  mother  and 
all  of  us,  daunted  hearing  the  boy 
deny  it ;  but  he  asked  the  child 
and  bid  him  speak  the  truth,  and 
told  him  it  was  a  dreadful  thing  to 
be  liar,  and  bid  him  read  the  5th  of 
the  Acts,  telling  him  he  would  find 
there  two  were  struck  dead  for  tell- 
ing of  a  lie,  and  several  other  such 
expressions  that  I  cannot  remember. 
Upon  Wednesday,  about  noon,  he 
comes  again,  and  then  my  brother 
did  own  it  again,  and  he  writ  down 
what  the  boy  owned,  and  went  away, 
saying  he  would  go  to  sir  Henry 
Capell  and  the  countess  of  Essex. 
And  on  Thursday,  he  comes  again 
and    brings    a    paper    written    over 


No.  391. 


BRADDON  S   TRIAL 


loo; 


again,  not  the  same  he  writ  at  our 
house,  and  then  the  child  set  his  hand 
to  it.  The  child  was  something  un- 
Avilling,  so  says  he  to  him,  It  will 
be  no  harm  to  you,  if  any  danger 
does  come  of  it,  it  will  come  to  me 
and  not  to  you. 

L.  C.  J.  —  The  child  was  unwill- 
ing to  sign  it  you  say,  but  by  his 
persuasion  ? 

S.  Edwards.  —  Yes,  Mr.  Braddon 
told  him  it  would  be  no  harm  to  him, 
all  the  harm  would  come  to  himself. 

Braddon.  —  ^^'hen  the  child  had 
owned  to  me  what  he  first  said,  and 
upon  your  saying  that  he  denied  it, 
I  asked  him  the  reason  why  he  denied 
it  ?  pray  will  you  tell  what  answer 
he  made  to  that  question.  Pray 
tell  the  truth  and  nothing  but  the 
truth. 

S.  Edwards.  —  Upon  my  word, 
Sir,  I  can't  recollect  that. 

Braddon.  —  Pray,  mistress,  what 
answer  did  he  make  ? 

iS.  Edicards.  —  I  have  told  you 
what  I  know,  to  the  best  of  my 
remembrance.  .   .  . 

Mr.  Wallop.  —  INIistress,  did  not 
you  tell  him,  that  his  father  would 
be  in  danger  of  losing  his  place  ?  S. 
Edicards.  —  Yes,  Sir,  we  did. 

Mr.  Wallop.  —  Did  you  tell  him, 
the  king  will  hang  your  father  if  you 
do  not  deny  it  ? 

L.  C.  J.  — Why  have  you  a  mind 
to  have  it  believed  that  it  was  true, 
then,  Mr.  AYallop  ?  .  .  . 

Mr.  Wallop.  —  My  lord,  I  do  not 
say  nor  believe  any  such  thing. 

L.  C.  J.  —  But  your  cjuestion 
seems  to  carry  it  so.  .   .  . 

Be  as  angry  as  you  will,  you  shall 
not  hector  the  court  out  of  their 
understandings.   .   .   . 

Mr.  Wallop.  —  I  refer  myself  to  all 
that  hear  me,  if  I  attempted  any 
such  thing  as  to  hector  the  court. 

L.  C.  J.  —  Refer  yourself  to  all 
that  hear  you,  refer  yourself  to  the 
court ;  it  is  a  reflection  upon  the 
government,  I  tell  you  your  ques- 
tion is,  and  you  shan't  do  any  such 
thing  while  I  sit  here,  by  the  grace 
of  God,  if  I  can  help  it.  .  .  . 


Pray,  mistress,  who 
family    would     be 

-  Indeed    I    cannot 

—  She  did   indeed 


say 
boy 
any 


Mr.  Wallop.— 
told     him    the 
ruined  by  it  ?  . 

«S.    Edivards.  - 
tell,  my  lord. 

Mrs.  Edwards 
say  so,  my  lord. 

Mr.  Wallop.  —  Pray,  let  it  go,  my 
lord,  as  it  is,  what  was  it  she  said  ? 
Did  she  speak  about  turning  her 
father  out  of  his  place  ? 

INIrs.    Edwards.  —  I    cannot 
that,   but  she  said,   when   the 
asked  whether  there  would  be 
harm  by  it,  she  could  not  tell,  but  it 
may  be  her  father  and  family  might 
be  ruined.   .  .  . 

Just.  Withins.  —  Was  there  a 
word  said  of  his  being  turned  out  of 
his  place  ? 

Mrs.  Edwards.  —  I  cannot  say 
there  was.  .   .   . 

Braddon. — Young  Mrs.  Edwards, 
if  I  suffer  anything  by  reason  of  the 
falsity  of  your  testimony,  it  will 
return  upon  you. 

S.  Edwards.  —  Sir,  I  do  tell  you 
all  I  know. 

Braddon.  —  Then  I  desire  you  to 
answer  me  this  question,  whether 
or  no  when  the  boy  did  own  what 
he  first  said,  and  I  asked  him  the 
reason  of  his  denial  whether  the 
falsity  of  the  thing,  or  fear  caused 
him  to  deny  it,  did  not  he  say  it  was 
fear  through  your  discouragements 
and  threatenings  ? 

S.  Edwards.  —  No,  he  did  not  say 
it,  did  he,  mother  ? 

L.  C.  J.  —  Why,  we  are  got  into 
a  way  of  appealing  and  appealing, 
here  is  appealing  to  the  people,  and 
appealing  to  the  witness ;  praj' 
keep  to  the  business,  and  within  the 
bounds  of  decency.  Before  such 
time  as  the  boy  denied  it,  did  you 
desire  him  to  speak  truth  ? 

N.  Edwards.  —  Yes,  I  did. 

Mr.  Thomp.ton.  —  And  when  Mr. 
Braddon  examined  him,  did  he  desire 
him  to  speak  truth  ? 

S.  Edwards.  —  Yes,  he  did. 

L.  C.  J.  —  But  he  knew  before 
he  examined  him  that  he  had  denied 
it,  did  not  he? 


1008 


PART    III.       PROBLEMS   OF    PROOF 


No.  391. 


S.  Edrcards.  —  Yes,  the  second 
time  before  he  came  into  the  house. 

Braddon.  —  I  desire  the  ohl  gentle- 
man may  be  asked  this  question. 

Mr.  Thompson.  — Call  Mr.  Edwards 
again.  .  .  . 

Braddon.  —  Mr.  Edwards,  Pray 
will  you  answer  this  question  ?  Did 
not  your  son,  when  he  was  asked 
why  he  denied  it,  say  that  it  was 
fear  and  discouragement,  through 
his  sister's  threats,  was  the  cause  ? 
Pray  speak  the  truth. 

Edwards.  —  I  cannot  tell  whether 
the  child  did  say  so ;  something  of 
that  nature  he  did  say. 

Mr.  Thompson.  —  Call  Anne  Burt. 

L.  C.  J.  —  We  have  got  such 
strange  kind  of  notions,  nowadays, 
that  forsooth  men  think  they 
may  say  anything  because  they  are 
counsel.  .  .  .  But  we  plainly  see 
through  all.  This  was  the  design 
from  the  beginning,  the  king  and  the 
duke  of  York  were  in  the  Tower  at 
that  time,  and  it  must  be  thought 
and  believed  that  they  had  designed 
this  matter,  and  so  then  all  the 
people  must  be  ruined  in  case  they 
would  not  say  the  earl  murdered 
himself,  though  indeed  others  had 
done  it.   .   .   . 

Braddon.  —  My  lord,  as  to  the 
making  such  an  inference,  or  any 
reflection  as  your  lordship  mentions, 
I  am  as  far  from  it  as  anybody 
here.   .  .   . 

Then  Anne  Burt  appeared,  and 
was  sworn. 

Braddon. — Mrs.  Burt,  I  desire 
to  know  what  fliscourse  you  had  with 
Mrs.  Edwards,  and  that  family  ?  .  .  . 

Mrs.  Burt.  —  I  went  to  make  a 
visit  to  Mrs.  Edwards,  and  I  had  not 
been  there  half  an  hour  but  in  comes 
this  gentleman;  now  I  had  asked 
no  questions  about  the  business,  but 
in  he  comes  and  desired  to  speak 
with  Mrs.  Edwards  ;  Mr.  Edwards 
was  called,  and  when  he  came  in 
with  Mr.  Edwards,  the  gentleman 
sat  down  in  the  room,  and  told  Mr. 
Edwards  he  had  lieard  a  report  of 
something  his  son  had  spoken,  but 
he  desired  to  have  it  from  his  son's 


own  mouth,  and  the  boy  was  called 
in  (this  is  a  real  truth.  Sir,  for  I  do 
not  know  whether  I  may  stir  from 
this  place  where  I  am  alive  or  no) ; 
And  when  the  boy  came  in,  the 
gentleman  said  to  him,  if  it  be  true 
that  you  have  reported,  own  it ;  if 
not,  do  not  own  it ;  for,  said  he,  it 
is  a  dreadful  thing  to  be  found  in  a  lie, 
I  would  ha\e  you  read  the  5th 
Chapter  of  the  Acts,  where  a  man 
and  a  woman  were  struck  dead  for 
telling  a  lie.  Sir,  said  the  boy,  it  is 
true,  and  what  I  said  I  will  speak 
it  before  any  justice  of  peace  in  the 
world.  And  then  he  asked  him 
what  he  had  reported,  and  the  boy 
made  a  repetition  of  what  he  had  seen 
and  said  before,  that  he  went  into 
the  Tower  and  came  to  the  first 
row  of  houses  that  goes  along.  And 
at  the  first  house  he  saw  nobody 
look  out  at  the  window,  nor  at  the 
second  house,  but  he  looked  up  at 
the  third  house,  and  he  took  his 
hand  and  showed  thus,  said  he,  I 
saw  a  man's  hand  he  did  not  say, 
but  an  hand  throw  a  razor  out,  of 
this  fashion,  and  he  imitated  it  with 
his  hand.  Said  the  gentleman,  was 
it  not  the  wrong  window,  or  the 
wrong  house  ?  I  will  not  take  the 
thing  upon  this  credit,  take  your 
other  brother  down,  that  was  a  big- 
ger boy  than  this,  and,  says  he,  go 
down  to  the  house,  and  show  your 
brother  the  window  where  you  saw 
this.  The  two  boys  went  down, 
and  he  showed  his  brother  the  place 
where  he  saw  the  hand  — 

L.  C.  J.  —  Were  you  present  at 
his  showing  ? 

Mrs.  Burt.  —  Will  your  lordship 
please  to  give  me  leave  —  ' 

L.  C.  J.  —  And  pray  give  me  leave 
too.  I  ask  you.  Were  you  present  ? 
For  you  tell  it  as  if  you  knew  it 
yourself. 

Mrs.  Burt.  —  Both  the  boys  came 
up  and  said  so. 

L.  C.  J.  —  You  should  have  said 
so  then,  that  they  told  you  it,  for 
you  are  upon  your  oath,  and  must 
affirm  nothing  but  your  own  knowl- 
edge.  .   .   . 


No.  391. 


BRADDON  S   TRIAL 


1009 


Mrs.  Burt.  —  My  lord,  I  heard 
what  I  say  with  my  own  ears. 

L.  C.  J.  —  But  you  talk  of  a  thing 
you  did  not  see  with  your  own  eyes, 
as  if  you  had  seen  it.  .  .  . 

Mrs.  Burt.  —  I  tell  what  is  truth, 
what  I  heard  and  saw  ;  for,  said  Mr. 
Braddon,  I  believe  it  was  not  the 
right  window,  when  the  boy  came 
up  and  said  he  had  showed  the  win- 
dow. And  this  gentleman,  I  cannot 
hit  his  name  right  (he  is  a  stranger  to 
me),  he  and  Mr.  Edwards  went  down 
with  the  boy,  to  see  whether  it  were 
the  right  window  of  the  house  where 
my  lord  died  (which  where  it  is  I 
cannot  tell  any  otherwise  than  has 
been  reported,  or  whether  there 
be  one  room  or  two  of  a  floor  I  do 
not  know) ;  and  when  he  came  up 
again  he  called  for  a  sheet  of  paper, 
that  he  might  write  from  the  boy's 
mouth,  and  that  he  might  not  differ 
one  word  from  what  the  boy  had  said 
himself.  And  when  I  saAV  Mr. 
Braddon  begin  to  write  I  went  away, 
for  I  thought  it  may  be  the  gentle- 
man might  expect  I  should  set  my 
hand  to  it  as  a  witness,  and  I  did 
not  desire  any  trouble. 

Braddon.  —  I  desire  this  question 
may  be  asked  her,  my  lord.  Do  not 
you  remember  it  was  said  the  boy 
denied  it  ? 

Mrs.  Burt.  —  Yes,  it  was  said,  the 
boy  did  deny  it.  .  .  . 

Mrs.  Burt.  —  Because  his  sister, 
as  his  mother  told  me,  had  been  talk- 
ing to  him. 

L.  C.  J.  —  As  his  mother  told  you, 
prithee,  woman,  speak  your  own 
knowledge,  and  not  what  another 
body  told  thee. 

Mrs.  Burt.  —  Pray,  give  me  leave, 
my  lord  — 

L.  C.  J.  —  I  tell  thee,  I  will  not 
give  thee  leave  to  say  what  thou 
shouldcst  not  say.  .  .  . 

Mrs.  Burt.  —  My  lord,  I  have 
done.  I  come  here  to  speak  the 
truth,  and  so  I  do. 

L.  C.  J.  —  Nay,  prithee  be  not  so 
full  of  tattle,  so  full  of  clack. 

Then  a  little  girl  came  into 
court. 


L.  C.J.  — What  age  is  this  girl  of  ? 
How  old  art  thou,  child  ? 

Girl.  —  I  was  13  last  Saturday. 

L.  C.  J.  —  Do  you  know  the  dan- 
ger of  telling  a  lie  ?     Girl.  —  Yes. 

L.  C.  J.  — Why,  what  will  be- 
come of  you  if  you  tell  a  lie  ? 

Girl.  —  The  devil  will  have  me. 

L.  C.  J.  —  Give  her  her  oath. 
What  is  thy  name,  child  ? 

Girl.  —  Jane  Lodeman. 

Then  she  was  sworn. 

L.  C.  J.  —  Child,  do  not  be  afraid 
of  anything  in  the  world,  but  only  of 
telling  anything  but  what  is  true ; 
be  sure  you  do  not  tell  a  lie,  for  if, 
as  you  say,  you  shall  be  in  danger  of 
hell-fire  by  telling  a  lie,  much  more 
will  you  be  in  danger  if  you  swear 
to  a  lie.  Now,  what  do  you  ask 
her  ? 

Braddon.  —  What  did  you  see  in 
the  Tower  that  morning  the  earl 
of  Essex  died  ? 

Lodeman.  —  I  saw  a  hand  out  of 
a  window,  but  I  cannot  tell  what  win- 
dow it  was,  but  it  was  a  hand  throw 
out  a  razor. 

Braddon.  —  And  what  did  you 
hear  after  that  ? 

Lodeman.  —  I  cannot  well  remem- 
ber, but  it  was  either  two  shrieks  or 
two  groans  that  I  heard  presently 
after. 

L.  C.  J.  —  What  time  of  the  day 
was  it,  child  ? 

Lodeman.  —  It  was  between  9  and 
10  of  the  clock. 

L.  C.  J.  —  Who  was  with  you 
besides  yourself  there  ? 

Lodeman.  —  There  were  more  be- 
sides me,  but  they  went  away. 

L.  C.  J.  —  Who  were  they,  child  ? 

L^odeman.  —  A  great  many  that 
I  did  not  know. 

L.  C.  J.  —  And  how  came  you  to 
take  notice  of  it  ? 

Lodeman.  —  And  there  was  a 
coach  stood  just  at  the  door. 

L.  C.  J.  —  Tell  us  some  of  them, 
child,  and  that  were  there  besides 
thyself,  speak  the  truth,  be  not 
afraid.  Thou  say  est  a  great  many 
people  were  there,  and  all  the  people 
must  necessarilv  see  it. 


1010 


PART   III.       PROBLEMS    OF    PROOF 


No.  391. 


Lodiman.  —  They  were  people  I 
did  not  know. 

L.  C.  J.  —  But  they  all  saw  it  as 
well  "as  you  ? 

Lodcman.  —  So  I  suppose  they  did. 

L.  C.  J.  —  And  you  heard  a  shriek 
or  two,  you  say  ? 

Lodcman.  —  Two  shrieks  or  two 
groans,  I  can't  well  remember  which. 

L.  C.  ./.  —  How  high  was  the 
window  ? 

Lodcman. — Not  above  one  pair 
of  stairs  high. 

L.  C.  J.  —  How  high  from  the 
ground  might  it  be?  Lodcman. — 
Not  above  one  story. 

Mr.  Thompson.  —  "Whereabouts 
in  the  Tower  was  it  ? 

Lodcman.  —  Sir,  it  Avas  as  you  go 
upon  the  mount. 

Mr.  Wallop.  —  AVhose  lodging  do 
you  think  it  was  ? 

Lodcman.  —  I  did  not  know  whose 
it  was,  but  folks  said  it  was  the  earl 
of  Essex's. 

L.  C.  J.  —  Who  did  vou  tell  this 
to? 

Lodcman.  —  I  told  nobody  till 
I  came  to  my  aunt,  and  I  told  her. 

L.  C.  J.  —  What  is  her  name  ? 

Lodcman.  —  Margaret  Smith. 

L.  C.  J.  —  Did  you  ever  tell  this 
to  that  man  ?  Lodcman.  —  Yes, 
afterwards  I  did. 

L.  C.  J.  —  How  came  he  to  in- 
quire of  you  about  it  ? 

Lodcman.  —  He  came  and  asked 
me,  and  I  could  not  deny  it. 

L.  C.  J.  —  Ay,  but  how  came  he  to 
ask  you  ? 

Lodcman.  —  There  was  a  gentle- 
woman that  was  at  our  house,  and 
she  heard  of  it,  and  spake  of  it  at  a 
gentlewoman's  at  dinner,  and  so  he 
came  to  our  house  to  inquire  about 
it. 

L.  C.  J.  —  Who  is  that  gentle- 
woman ?  What  is  her  name  ?  Lodc- 
man. —  Susan  Gibbons. 

L.  C.  J.  —  Let  me  see  the  infor- 
mation of  this  girl,  that  Mr.  Braddon 
had  taken  ? 

CI.  of  Cr.  —  Yes,  my  lord,  there  it 
is. 

L.  C.  J.  —  Do  you  kiKAv  my  lord 


of    Essex's    lodgings?     Lodcman. — 
They  said  it  was  his. 

L.  C.  J.  —  Did  you  know  it  of 
your  own  knowledge  ?     Lodcman.  — 
No,  Sir,  I  did  not. 

Mr.  Thompson. — Pray  what  be- 
came of  the  razor  that  w^as  thrown 
out  of  the  window,  after  it  was 
thrown  out  ? 

Lodcman.  —  I  saw  a  woman  in  a 
white  hood  come  out,  but  I  did  not 
see  her  take  it  up. 

SoI.-Gc7i.  —  Girl,  you  say,  that 
when  you  were  at  this  place  in  the 
Tower,  and  saw  this  matter,  there 
were  a  great  many  people  there 
besides  yourself  ?  Lodcman.  —  Yes, 
Sir. 

Sol. -Gen.  —  Did  the  razor  fall 
among  the  people  that  stood  there, 
or  did  it  fall  out  in  the  street,  or  how  ? 

Lodcman.  —  Sir,  it  fell  within  the 
pales. 

Sol. -Gen.  —  And  was  the  passage 
easy  into  the  pales?  Lodcman. — 
Yes. 

Sol.-Gcn. — What,  they  must  climb 
over,  must  they  ? 

Lodcman.  -^  No,  you  need  not 
climb  over,  there  is  a  door  to  go  in. 
And  when  people  went  in  the  soldier 
opened  the  door. 

Sol.-Gcn.  —  Who  went  in  with  the 
soldier  ?     Did  you  see  anybody  go  in  ? 

Lodcman. — There  was  a  man 
went  in,  but  I  know  not  who  he  was. 

Sol.-Gcn.  —  Did  the  soldier  stand 
at  the  door  when  this  razor  was 
thrown  out  ? 

Lodcman.  —  I  cannot  tell  that,  a 
soldier  used  to  be  at  the  door. 

Sol.-Gcn.  —  The  woman  came  out 
of  the  lodging,  did  she  not  ?  Lode- 
man.  —  Yes. 

Sol.-Gcn.  —  Did  she  go  in  again  ? 

Lodcman.  —  I  did  not  see  her  go 
in  again. 

Sol.-Gcn.  —  Did  she  go  into  the 
pale  ? 

Lodcman.  —  I  did  not  see  her  go 
into  the  pales. 

Sol.-Gcn.  —  Did  you  see  the  razor 
after  it  fell  upon  the  ground  ?  Lode- 
man.  —  No. 

Sol.-Gen.  —  Was  it  bloody  ? 


No.  391. 


BRADDON  S   TRIAL 


1011 


Lodcvian.  —  Yes. 

Sol.-Gen.  —  Very  bloody  ? 

Lodevian.  —  Yes. 

Sol.-Gen.  —  Did  you  see  nobody 
take  it  up  ? 

Lodeman.  —  No,  I  did  not. 

Sol.-Gen.  —  Come  hither,  child  ; 
are  vou  sure  it  was  a  razor,  or  a 
knife  ? 

Lodeman.  —  I  am  sure  it  was  a 
razor. 

Sol.-Gen.  —  Was  it  open  or  shut  ? 

Lodeman.  —  It  was  open. 

Sol.-Gen. — What  color  was  the 
handle  ? 

Lodeman.  —  Sir,  I  cannot  tell,  I 
see  it  but  as  it  flew  out. 

Sol.-Ge7i.  —  Was  it  all  over  bloody  ? 

Lodeman.  —  No. 

Sol.-Gen.  —  All  but  a  little  speck  ? 

Lodeman.  —  It  was  very  bloody. 

L.  C.  J.  —  Blessed  God,  what  an 
age  do  we  live  in  !  Girl,  you  say, 
you  did  not  know  it  to  be  my  lord 
of  Essex's  window  ? 

Lodeman.  —  No,  but  as  they  told 
me. 

L.  C.  J.  — Nor  you  did  not  see  any- 
body take  up  the  razor?  Lodeman. 
—  No. 

L.  C.  J.  —  But  you  are  sure  you 
did  not  ? 

Lodeman.  —  I  am  sure  I  did  not. 

L.  C.  J.  —  But,  child,  recollect 
thyself,  sure  thou  didst  see  somebody 
take  it  up  ? 

Lodeman.  —  No,  I  did  not. 

L.  C.J.  —  I  ask  thee  again,  Didst 
not  thou  know  it  to  be  my  lord  of 
Essex's  window  ? 

Lodeman.  —  No,  but  as  they  told 
me. 

L.  C.  J.  —  Did  you  hear  nobody 
speak  to  the  maid  that  came  out  ? 

Lodeman.  —  Nobody  at  all. 

L.  C.  J.  —  No ;  prithee  is  that 
thy  hand,  child  ?  Show  her  the 
paper,  the  uppermost  part  of  it. 
Lodeman.  —  Sir,  I  cannot  write. 

L.  C.  J.  —  Who  put  thy  name  to 
it? 

Lodeman.  —  Sir,  I  do  not  know,  no 
more  than  the  Pope  of  Rome. 

L.  C.  J.  —  Whose  handwriting  is 
that  ? 


Lodeman.  —  I  cannot  tell,  I  never 
could  write  in  my  life. 

Braddon.  —  Those  are  the  names 
of  such  as  heard  her  say  it. 

Ait. -Gen.  —  Yes,  you  have  cooked 
it  up  bravely. 

L.  C.  J.  —  You  shall  see  what  a 
brave  managery  you  have  made  of 
this  poor  child.  Read  the  Infor- 
mation. 

CI.  of  Cr.  [Reads.]  —  "  The  eighth  of 
August,  1683,  Jane  Lodeman,  aged 
about  13  years,  did  in  the  presence 
of  these  whose  names  are  under- 
written, declare  as  follows.  That  the 
said  Jane  Lodeman  was  in  the  Tower 
on  Friday  morning,  the  13th  of  July 
last,  and  standing  almost  over- 
against  the  late  earl  of  Essex's 
lodging  window,  she  saw  a  hand  cast 
out  a  razor  out  of  my  lord's  window, 
and  immediately  upon  that  she  heard 
shrieks  ;  and  that  there  was  a  soldier 
by  my  lord's  door,  which  cried  out  to 
those  within  the  house,  that  some- 
body should  come  and  take  up  a 
razor,  which  was  thrown  out  of  the 
window,  whereupon  there  came  a 
maid  with  a  white  hood  out  of  the 
house,  but  who  took  up  the  razor 
she  cannot  tell." 

L.  C.  J.  —  Here  it  is  said  "  the 
soldier  cried  out,"  but  now  she  says, 
the  soldier  she  does  not  know  was 
there,  and  she  heard  nobody  speak 
to  the  maid.  .  .  . 

Sol.-Gen.  —  Were  you  carried  by 
Mr.  Braddon  before  any  magistrate, 
or  any  justice  of  peace  ?  Lodeman. 
—  No. 

Sol.-Gen.  — Did  he  take  the  exami- 
nation himself  ?     Lodeman.  —  Yes. 

Ait. -Gen.  —  Did  not  he  desire  you 
to  go  before  a  justice  of  peace  to  be 
sworn  ? 

Lodeman.  —  No,  Sir. 

Sol.-Gen.  —  Did  he  write  it  him- 
self ? 

Att.-Gen.  —  Ay,  he  writ  it,  and 
took  it,  and  this  woman  that  is 
coming  here,  is  a  witness  to  it. 

L.  C.  J.  —  What  is  this  woman's 
name  ? 

Braddon.  —  This  is  the  aunt,  Mar- 
garet Smith.     [Who  was  sworn.] 


1012 


PART    III.       PROBLEMS    OF    PROOF 


No.  391. 


L.  C.  J.  — Well,  what  say  you  to 
her  ? 

Braddon.  —  I  desire  to  know,  what 
this  girl  said  to  you,  when  she  re- 
turned from  the  Tower  the  loth  of 
July  ? 

Mrs.  Smith.  —  She  said  to  that 
effect  that  she  speaks  now.  .  .  . 

AU.-Gvn.  —  ^listress.  Did  you 
send  to  Mr.  Braddon,  to  inform  him 
of  what  the  <iirl  had  said  ?  or  did  he 
come  to  you  't 

Mrs.  Smith. — Sir,  I  never  saw 
him  before  in  my  days. 

Att.-Gcn.  —  He  came  first  to  you 
then  r 

Mrs.  Smith.  —  Yes  :  he  hearing  of 
it,  came  as  a  stranger  to  me. 

Braddon.  —  Did  I,  directly,  or  in- 
directly, offer  you,  or  your  niece,  any- 
thing ? 

Mrs.  Smith.  —  No,  never  in  this 
world. 

Braddon.  —  Did  I  ever  desire  her, 
or  you,  to  say  anything  but  what 
was  true  ? 

Mrs.  Smith.  —  No,  Sir ;  you  ever 
encouraged  the  girl  to  speak  truth ; 
and  bid  her  speak  nothing  but  what 
was  truth. .  .  . 

Braddon.  —  Swear  William  Glas- 
brooke.     [Which  was  done.] 

L.  C.  J .  —  Well,  what  do  you  ask 
him  ? 

jMr.  Frrlcr.  —  ]My  lord,  wc  desire 
to  know  of  him,  whether  he  was  by 
on  the  13th  of  July,  when  the  girl 
gave  this  report  ? 

Glashrookc.  —  I  was  up  two  pair  of 
stairs  when  she  came  in. 

L.  C. ./.  —  What  is  your  name,  Sir  ? 

Gla.shrookc.  —  William  Glasbrooke. 

CI.  of  Cr.  —  Ay,  here  is  his  In- 
formation, among  those  that  were 
taken  about  Braddon. 

Gla.tbroohc.  —  She  came  in  to  her 
aunt,  that  went  out  just  now  before 
me,  and  I  heard  her  very  loud  with 
her  aunt,  saying,  the  earl  of  Essex 
had  cut  his  throat  in  the  Tower. 
Her  aunt  chid  her  upon  it ;  and  her 
aunt  chiding  her,  she  said,  she  was 
sure  it  was  true  ;  for  she  saw  a  bloody 
razor,  with  a  l)loody  hand,  thrown 
out  of  the  window. 


Mr.  Frrkc.  —  Was  this  the  day 
of  my  lord  P^ssex's  death  ? 

Glashrookc.  —  It  was  the  day  the 
king  was  in  the  Tower,  and,  as  was 
reported,  the  day  he  was  killed.  .  .  . 

L.  C.  J.  —  Now  my  lord  of  Essex 
cut  his  own  throat,  and  after  threw 
the  razor  out  of  the  window. 

Glasbrooke.  —  'Tis  what  the  girl 
did  declare. 

Att.-Gcn.  —  Does  not  this  girl 
usually  tell  lies  ? 

Glasbrooke.  —  I  have  before  that 
time  taken  her  in  a  lie. 

Att.-Gcn.  —  Did  you  acquaint  Mr. 
Braddon  with  that  ? 

Glashrookc.  —  I  cannot  tell  that  I 
did. 

Att.-Gcn.  —  Do  you  remember 
that  you  told  Mr.  Braddon,  That  she 
was  a  girl  that  told  truth  ? 

Glashrookc.  —  No,  I  never  did 
that ;  for  I  was  always  of  another 
persuasion  about  her.  .  .  . 

Braddon. — These  two  children 
told  me,  they  never  saw  one  another 
till  they  were  examined  at  the  Coun- 
cil. 

/..  C.  J.  —  Well,  well ;  Go  on  with 
your  witnesses. 

Braddon. — Where  is  William 
Smith  ?  [Who  appeared  and  was 
sworn.]  I  desire  to  know  of  you, 
Mr.  Smith,  wdiat  you  heard  the  girl 
say,  when  I  was  there  ? 

Svnth.  —  I  heard  the  girl  tell  us, 
That  she  saw  a  hand  cast  out  a  razor, 
and  either  the  hand  was  bloody,  or  the 
razor,  I  cannot  tell  which  ;  but  she 
said  it  was  out  of  the  window,  where 
she  said  the  earl  of  Essex  lodged. 

L.  C.  J.  —  Did  she  say  the  earl  of 
Essex  did  it  himself  ? 

Smith.  —  She  said  she  saw  an  hand 
cast  out  a  razor. 

L.  C.  J.  —  Did  she  tell  you,  it  was 
the  earl  of  Essex's  lodging  w  indow  ? 

Smith.  —  She  said  it  was  that 
lodging. 

L.  C.  J.  —  Ay,  but  she  says  now 
she  does  not  know  it  to  be  his  lodg- 
ing. 

Braddon.  —  My  lord,  she  said  she 
was  told  it  was  his  lodging. 

L.  C.  J.  —  But  you  have  made  her 


No.  391. 


BRADDON  S   TRIAL 


1013 


to  say  positively,  it  was  his  lodging, 
and  that  he  threw  out  the  razor. 

Sol.-G('7i.  —  Pray,  Sir,  where  did 
you  first  hear  this  report  of  this  girl  ? 

Smith. — Thereat  the  house  where 
she  was. 

Sol.-Gen.  —  Were  you  alone  when 
you  went  to  the  girl  the  first  time  ? 

Smith.  —  No,  I  went  with  Mr. 
Braddon. 

Sol. -Gen.  —  Did  you  hear  any- 
thing of  it  before  ?  What  (Hd  induce 
you  to  go  along  with  IMr.  Braddon  ? 
What  were  the  arguments  that  pre- 
vailed with  you  to  go  with  him  ? 

Smith.  —  I  did  not  know  where 
he  was  going ;  Mr.  Braddon  called 
me  at  the  shop,  as  I  stood  at  the  door, 
and  asked  me  if  I  was  busy,  or  would 
go  with  him  ?  So  I  went  with  him 
to  the  tavern. 

Sol.-Gen.  —  You  never  heard  one 
word  before  of  the  girl's  report  ? 

Smith.  —  Xo,  I  did  not. 

L.  C.  J.  —  What  else  did  the  girl 
tell  you  ? 

Smith.  —  I  cannot  say  what  else 
she  said.  This  I  remember  that  I 
have  told  you. 

L.  C.  J.  —  Did  she  name  the  earl 
of  Essex's  lodgings  ? 

Smith.  —  I  am  sure  she  said  the 
lodging  where  the  earl  of  Essex  lay. 

L.  C.  J.  —  Did  she  name  the  earl 
of  Essex  ? 

Smith.  —  She  did  name  the  earl  of 
Essex's  lodgings. 

L.  C.  J.  —  Did  she  in  so  many 
words  say,  That  it  was  the  earl  of 
Essex's  lodgings  ? 

Att.-Gen.  —  Your  lordship  sees, 
they  give  one  evidence,  and  she 
another. 

Smith.  —  I  cannot  say  whether 
she  did  in  so  many  words  say  so,  or 
no ;  but  she  said,  that  she  saw  a 
hand  toss  out  a  razor,  and  either  the 
hand  was  bloody,  or  the  razor,  and 
it  was  where  my  lord  of  Essex's  lodg- 
ings was. 

L.  C.  J.  —  But  she  did  name  my 
lord  of  Essex's  lodgings  ?  Smith.  — 
Yes,  she  did. 

L.  C.  J.  —  Well,  what  else  did  she 
say  ?     Tell  us  all  she  said. 


Smith.  —  She  said,  there  was  a 
man  stood  below,  and  she  heard  two 
shrieks,  and  the  man  did  say,  here 
is  a  razor ;  and  a  woman  came  out, 
or  one  in  woman's  clothes,  with  white 
headclothes.  Mr.  Braddon  asked 
if  she  see  anybody  take  it  up,  and 
she  said,  no ;  but  she  heard  a  man 
say  here  is  the  razor,  and  she  saw 
a  woman  come  out. 

L.  C.  J.  —  You  are  sure  that  is  all 
you  heard  her  say  ?  Smith.  —  I 
think  so. 

L.  C.  J.  —  Recollect  yourself, 
pray,  good  Mr.  Smith. 

Smith.  —  I  do  not  know  that  I 
heard  anything  else.  .  .  . 

Mr.  Wallop.  — My  lord,  I  shall 
leave  it  to  your  lordship  and  the 
jury,  how  far  they  think  the  defend- 
ant guilty  of  this  information. 

Att.-Gcn.  —  My  lord.  We  have 
indeed  given  as  great  an  evidence  as 
ever  was  given  I  think  of  any  offense. 
But  to  clear  up  the  matter,  that  it 
was  impossible  for  any  man,  unless 
the  most  maliciously  and  villainously 
inclined  against  the  government  and 
peace  of  the  kingdom,  that  can  be, 
to  imagine  such  a  thing,  much  less 
spread  such  a  report,  we  will  call 
you  two  or  three  witnesses  to  prove, 
that  the  earl  of  Essex  murdered 
himself. 

L.  C.  J.  —  It  is  necessary,  Mr. 
Attorney,  I  think,  for  you  so  to  do, 
to  satisfy  the  world,  though  to  a  dis- 
cerning eye  there  is  enough  given 
from  the  evidence  this  day,  to  make 
it  appear  to  be  a  most  malicious  and 
scandalous  contri\ance,  to  hawk 
about  for  every  idle  rumor,  to 
pick  up  children  of  such  tender  years, 
anil  make  them  swear  to  anything  to 
serve  a  turn. 

Att.-Gcn.  —  My  lord,  we  do  not 
call  these  witnesses  as  if  there  were 
any  doubt  of  it  in  the  world.  .  .  . 

It  is  not  to  satisfy  the  court 
nor  the  jury,  who  I  believe  are 
all  of  them  already  sufficiently  satis- 
fied, but  it  is  to  sati.sfy  the  world, 
that  may  have  entertained  some  prej- 
udices from  this  conspiracy*.  Call 
Mr.  Bomeney  in.  .  .  . 


1014 


PART   III.      PROBLEMS   OF   PROOF 


No.  3fl. 


Then  Boitinicy  was  sworn. 

L.  C.  J.  —  Did  you  wait  upon  this 
unfortunate  gentleman,  my  lord  of 
Essex  ? 

Bomcney.  —  Yes,  my   lord. 

L.  C.  J.  —  Well,  what  do  you 
know  of  his  death  '! 

Bomrucy.  —  I  went  with  him  from 
Whitehall,  and  I  stayed  with  him  all 
the  while  he  was  in  the  Tower. 

L.  C.  J.  —  How  came  he  by  that 
unhappy  end,  pray  ? 

Bomeney.  —  When  we  were  at  his 
lodging,  my  lord  used  to  call  for  a 
penknife  to  cut  his  nails  of  his  hands 
and  feet,  and  he  then  had  long  nails, 
and  said  to  me,  give  me  your  pen- 
knife to  cut  my  nails ;  said  I,  my 
lord,  I  have  none,  I  came  in  haste, 
but  I  will  send  to-morrow  for  one ; 
and  therefore  I  sent  our  footman, 
one  William  Turner ;  to  whom  I 
gave  a  little  note  for  provisions,  and 
among  other  things  which  I  writ 
directions  to  the  steward  to  send, 
there  was  a  little  line  ;  "  Pray  send  a 
penknife  for  my  lord."  He  brought 
some  provisions,  but  he  did  not 
bring  a  penknife  on  the  Thursday, 
because  he  said  he  had  none,  but  he 
would  send  one  the  morrow  after ; 
I  sent  William  Turner,  the  morning 
after  very  early,  and  gave  him 
another  little  note  for  provisions ; 
and,  among  other  things,  I  writ  in  the 
note,  "  Do  not  forget  the  pen-knife 
for  my  lord."  ...  I  went  to  my 
lord,  and  when  my  lord  asked  me  if 
I  had  gotten  him  a  penknife,  I  said 
the  footman  was  not  come,  but  I 
hoped  it  would  come  immediately, 
because  I  sent  him  early.  And  I  was 
turning  from  the  chamber,  thinking 
I  had  done  with  my  lord,  and  my 
lord  called  me  again,  Hark  you, 
liomeney,  said  he,  I  can  do  it  with 
one  of  your  razors.  My  lord,  said  I, 
I  will  fetch  one,  so  I  went  into  my 
closet  and  fetched  one.  And  I  went 
to  my  lord,  and  when  he  had  it,  he 
did  as  if  he  picked  his  nails  with  it, 
and  was  walking  in  the  chamber.  .  .  . 
I  went  down  into  my  closet  again, 
and  at  the  same  time  that  I  was  in  my 
closet,  there  came  the  footman,  and 


one  with  him  that  brought  the  pro- 
^'isions,  and  he  gave  me  the  pen- 
knife, and  gave  me  a  little  note,  that 
he  had  brought  with  the  provisions, 
which,  he  said,  Mr.  Billingsly,  that 
was  our  steward,  bid  me  to  show 
that  to  my  lord.  I  took  it,  and  went 
up  to  show  it  to  my  lord ;  I  found 
nobody  in  my  lord's  chamber,  there 
was  a  closet  there,  in  which  was  a 
close-stool,  and  that  I  found  shut, 
and  thinking  my  lord  was  there,  I 
would  not  disturb  my  lord,  but  came 
down  again,  and  stayed  a  little  while, 
in  so  much  as  I  thought  my  lord  by 
that  time  might  have  been  come  out. 
I  went  up  again,  and  found  no- 
body in  the  chamber,  but  the  closet 
door  shut  still,  I  went  against  the 
door,  and  knocked  three  times,  and 
said.  My  lord,  my  lord,  and  nobody 
answered :  then  I  looked  through 
the  chink  of  the  door,  between  the 
door  and  the  wall,  and  I  could  see 
blood,  and  a  little  part  of  the  razor. 
Then  I  called  to  the  Avarder,  and  the 
people  of  the  house,  and  they  came 
up  and  found  him  there. 

Att.-Gcn.  —  Had  you  much  ado 
to  open  the  door,  or  could  you  open 
the  door  easily  ? 

Bomeney.  —  No,  the  door  could 
not  be  opened  easily,  I  know  not 
how  they  opened  the  door,  but  I 
think  Russel  the  warder,  when  he 
came  up,  pushed  at  the  door,  but 
could  not  open  it  very  far,  because 
my  lord's  foot  was  against  the  door, 
and  so  they  had  much  ado  to  open 
the  door.  .   .  . 

Att.-Gen.  —  Did  you  find  the  razor  ? 

Bomeney.  —  Yes,  it  lay  by  him. 

Att.-Gen.  —  What  became  of  the 
razor  ? 

Bomeney.  —  The  coroner's  jury 
had  it. 

L.  C.  J.  —  Was  there  any  window 
in  that  room,  where  the  close-stool 
was  ? 

Bomeney.  —  Yes,  there  was  a 
window. 

L.  C.  J.  —  Was  there  a  casement 
to  that  window  ? 

Bomeney.  —  Yes,  I  think  there 
might. 


No.  391. 


BRADDON  S    TRIAL 


1015 


Just.  JVithins.  —  Which  way  does 
that  window  look  ? 

Bomcncy.  —  I  cannot  very  well 
remember,  my  lord. 

Just.  Withins.  —  Which  way  do 
you  think  ? 

Bomency.  —  I  believe  it  is  upon  a 
yard.  ... 

Sol.-Gen.  —  Then  we  will  call  Mr. 
Russel  the  warder  he  speaks  of. 
[Who  was  sworn.] 

Att.-Gen.  —  Pray  will  you  give 
my  lord  an  account  at  that  time 
where  you  were,  and  what  was  done  ? 

Mr.  Russel.  —  I  was  in  the  cham- 
ber, next  opposite  against  my  lord's 
chamber.  ...  I  was  then  waiter 
at  that  time,  and  stood  upon  the 
guard  ;  and  my  lord  asked  Mr.  Bom- 
eney,  whether  the  penknife  was 
come ;  and  he  told  my  lord,  no. 
Then  says  he,  lend  me  your  razor, 
that  will  do  it.  And  my  lord  took 
the  razor  in  his  hand,  and  the  door 
was  open  and  he  went  two  or  three 
turns  in  the  room,  with  the  razor  so. 
This  I  saw,  the  door  being  open, 
as  I  stood  in  the  passage.  My  lord, 
by  and  by  Mr.  Bomeney  goes  down, 
and  my  lord  shut  the  door  to  him, 
and  Mr.  Bomeney  stayed  below  a 
little  while,  and  afterwards  comes 
up  again.  .   .   . 

My  lord,  there  was  nobod;\^ 
went  up  or  down  all  the  time, 
but  Bomeney.  He  came  up,  and 
seeing  my  lord  was  not  come  out 
of  his  closet  (this  I  did  stand  and 
hear)  so  he  puts  by  the  hanging, 
and  looks  in,  and  sees  my  lord  in 
his  blood,  lying  in  the  closet ;  and 
he  makes  an  oration,  a  great  noise ; 
with  that  I  stepped  two  or  three 
steps,  hearing  him  make  such  an 
oration,  and  I  found  the  key  was  on 
the  outside  of  the  door,  and  I  opened 
the  door,  and  saw  him  lie  in  his  blood. 

L.  C.  J.  —  Could  you  open  the 
door  with  ease  ? 

Russel.  —  Yes,  I  could  put  it  a 
little  way  open,  and  there  saw  him. 

L.  C.  J.  —  But  you  could  not  put 
it  quite  open  ? 

Russel.  —  Xo,  for  his  legs  lay 
against  the  door. 


L.  C.  J.  — Was  it  a  narrow  closet  ? 

Russel.  —  Yes,  a  very  narrow 
closet. 

L.  C.  J.  —  In  what  posture  did  my 
lord  lie  ? 

Russel.  —  He  lay  all  along  on  one 
side. 

L.  C.  J.  —  Where  lay  the  razor  ? 

Russel.  —  By  him.  But  I  did  not 
take  so  much  notice  of  the  razor, 
for  I  was  surprised  with  the  sight. 

Just.  Hollo  way.  —  Was  there  any 
window  in  the  closet  ? 

Russel.  —  Yes,  that  looks  into 
captain  Hawley's  yard.  And  the 
window  is  quite  northward. 

L.  C.  J.  —  Which  way  does  that 
window  look  ? 

Russel.  —  Quite  the  other  way, 
into  the  back  yard. 

L.  C.  J.  —  Then  there  is  no  way 
out,  nor  light,  nor  casement  out  into 
the  foreyard  ? 

Russel.  —  Xo,  my  lord,  it  is  back- 
ward, and  it  is  paled  in,  only  into 
the  house  there  is  a  door. 

Att.-Gen.  —  Was  there  any  door 
out  of  the  street,  that  way  ? 

Russel.  —  No,  there  is  one  door 
that  goes  out  from  the  entry  to  go 
into  the  yard. 

L.  C.  J.  —  Has  anybody  else 
access  to  come  to  the  yard,  but  what 
must  come  through  Hawley's  house  ? 
Russel.  —  No,  nobody. 

Sol.-Gcn.  —  We  will  call  captain 
Hawley  himself. 

L.  C.  J.  —  Warder,  do  you  re- 
member there  was  any  coach  that 
stood  there  ? 

Rtissel.  —  No,  there  was  no  such 
thing. 

L.  C.J.  —  I  ask  you  for  this  rea- 
son, because  here  was  a  girl  that 
spake  of  a  coach,  that  came  through 
the  house  I  suppose,  and  so  through 
the  entry  out  of  that  door  into  the 
yard. 

Att.-Gen. — WTiere  is  Lloyd  the 
soldier  ?  for,  my  lord,  as  there  was 
a  warder  above,  so  there  was  a 
soldier  that  stood  at  the  door  below. 
And  while  he  stayed  there,  there  could 
not  anyone  come  in,  nor  near,  but 
he  must  observe  them. 


1016 


PART  III.   PROBLEMS  OF  PROOF 


No.  391 


Sol. -Gen. — Pray,  my  lord,  be 
pleased  to  ask  Mr.  Boineney,  how 
long  he  lived  with  my  lord  ? 

L.  C.  J.  —  How  long  had  you  lived 
with  my  loril  of  Essex  ?  Bomcnei/. 
—  SLx  years. 

Just.  ]]'ithin^.  —  You  waited  on 
him  in  his  chamber,  I  suppose  ? 

Bonicnri/.  —  Yes,  in  the  nature  of 
his  vahi  dc  chamhrc. 
Then  Lloyd  was  sworn. 
]\Ir.  Recorder.  —  Hark  you,  Lloyd, 
you  were  the  sentinel.  Give  an 
account  where  you  stood  that  day 
that  my  lord  of  Essex  murdered 
himself  ?  Lloyd.  —  At  my  lord's 
door. 

Att.-Gen.  —  Which  door  ? 
Lloyd.  —  At  my  lord  of  Essex's 
door. 

Att.-Gen.  — Were  you  abovestairs, 
or  below  at  the  street  door  ? 

Lloyd.  —  Below  at  the  street  door. 
Just.    J]'ithins.  —  Did     anybody 
come  into  the  house  that  morning  ? 

Lloyd.  —  Nobody  came  in,  all  the 
while  I  stood  there,  that  I  knew  of. 

Just.  Wit  kins.  —  Were  you  there 
at  that  time  when  my  lord  killed 
himself  ? 

Lloyd.  —  I   was    there   when    the 
noise  was  made  of  it  abovestairs.  .  .  . 
Att.-Gen.  —  Did  any  maid  go  out 
of  the  house  ? 

Lloyd.  —  None  at  all. 
L.  C.  J.  —  What,  not  in  a  white 
hood  ? 

Lloyd.  —  Xo. 

L.  C.  J.  —  Why,  didst  not  thou  call 
to  the  maid  to  come  and  take  up  the 
razor,  that  was  thrown  out  of  the 
window  of  captain  Hawley's  house  ? 
Lloyd.  —  There  was  no  razor  at  all 
thrown  out,  that  I  saw. 

L.  C.  J.  —  Did  not  you  open  the 
pales  for  her  to  go  in,  and  take  up 
the  razor  ?     Lloyd.  —  Xo. 

L.  C.  J .  —  Was  there  any  other 
soldier  there  besides  you  ?  Lloyd. 
—  No. 

L.  C.  J.  —  Then  you  must  be  he 
that  cried  out,  or  nobody  ? 

Lloyd.  —  I  .saw  no  razor,  nor  did 
not  cry  out  to  anybody.  .   .   . 

Att.-Gen.  —  My  lord,  We  will  then 


only    call    captain    Hawley.     [Who 
was  sworn.] 

Sol.-Gen.  —  Pray,  Captain,  tell 
what  you  know  of  this  matter  ? 

Capt.  II aivley.  — My  lord,  x\ll  the 
account  I  can  give,  is,  that  about 
four  or  five  o'clock  in  the  morning, 
I  went  to  open  the  gates,  that  being 
the  usual  hour  to  open  the  gates. 
And  I  was  at  the  gate  then  when  a 
warder  came,  and  told  me,  my  lord 
of  Essex  had  killed  himself,  and  that 
was  between  nine  and  ten  o'clock. 
When  I  came  into  the  house,  I  went 
upstairs,  and  saw  nobody  in  the 
room,  nor  no  blood ;  said  I,  to  the 
warder,  what,  do  you  make  a  fool 
of  me  ?  Here  is  nothing :  says  one 
of  the  warders,  look  into  the  closet ; 
I  went  to  the  closet,  and  could  not 
open  the  door  above  this  wideness, 
and  I  looked  in,  and  saw  the  razor 
all  in  blood,  and  my  lord  lay  on  his 
arm  in  this  fashion.  I  could  not 
tell,  Avhether  he  was  dead  or  no,  but 
I  thought  it  was  not  my  business  to 
stir  him.  Then  my  lord  Constable 
was  ordered  to  come  and  secure,  and 
examine  all  the  servants. 

/>.  C.  J.  —  Pray,  Captain  Hawley, 
where  does  the  casement  look  into  ? 

Capt.  Hawley.  —  The  house,  ever 
since  I  came  to  it,  is  just  as  it  was ; 
and  the  house  having  settled,  the 
casement  won't  open  above  thus 
far:  and  it  is  so  low,  and  the  pales 
are  nine  or  ten  foot  high,  that  it  is 
impossible  for  anyone  to  throw  any- 
thing out  of  the  window  three  foot 
hardly.  It  is  one  of  the  horridest 
reports  that  ever  was  heard  of,  and 
the  unlikeliest  thing,  they  cannot 
throw  anything  out  of  the  window 
to  be  seen. 

Att.-Gen.  —  My  lord,  I  think  it  is 
not  necessary  to  call  any  more 
witnesses.  .  .   . 

L.  C.  J.  —  Have  you  any  more, 
Mr.  Braddon  ? 

Mr.  Braddon. — My  lord,  I  have 
only  this  to  say  for  myself.  It  has 
not  l)een  proved  directly,  or  in- 
directly, that  I  used  any  evil  argu- 
ments to  persuade  these  witnesses 
to  testify  what  was  false  ;  but  I  dealt 


No.  391. 


BRADDON  S    TRIAL 


1017 


with  them  with  all  the  candor,  that 
any  person  in  the  world  could  use ; 
and  used  all  the  caution  that  I  could, 
to  hinder  them  from  speaking  any- 
thing that  is  false.  There  has  been 
nothing  proved  of  evil  practice  used 
by  me.  .  .  . 

L.  C.  J.  —  Gentlemen  of  the  jury, 
the  evidence  has  been  very  long, 
that  has  been  given  both  for  and 
against  the  persons,  against  whom 
this  information  is  exhibited.  .  .  . 

Gentlemen,  'Tis  a  concern  of  an 
high  nature,  and  if  you  do  believe 
these  persons  that  are  defendants, 
or  either  of  them  to  be  guilty ;  such 
as  you  believe  to  be  guilty,  you  must 
find  guilty,  and  of  such  as  you  be- 


lieve them  guilty.  And  if  in  case 
they  shall  by  you  be  found  guilty, 
the  court  is  to  take  care  to  inflict 
a  punishment,  if  it  be  possible, 
suitable  to  their  ofl^ense. 

Then  the  court  arose,  and  the  jury 
afterwards  gave  in  a  pri\ate  ver- 
dict, which  the  next  morning  was 
repeated  in  court  and  recorded. 
And  by  that  verdict  they  found 
the  defendant,  Laurence  Braddon, 
Guilty  of  the  whole  matter  charged 
upon  him  in  the  information,  and 
the  defendant  Hugh  Speke  Guilty 
of  all  but  the  conspiring  to  procure 
false  witnesses,  and  of  that  they 
found  him  Not  Guilty. 


lOlS 


PART    III.       PROBLEMS   OF    PROOF 


No.  392. 


392.    EARL  OF  THANET'S  TRIAL 

XXVII.  821.) 

Court  of  King'a  Bench,  April  25, 1799 

Counsel  for  the  Croxvn. 

Mr.  Attorneif-General  [Sir  John 
Scott,  afterwards  Lord  Chancellor 
Eldon] ; 

Mr.  Law  [afterwards  Lord  Ellen- 
borough,  and  Lord  Chief  Ju.stice  of 
the  Court  of  King'.s  Bench] ; 

JNIr.  Garroic  [afterwards  a  Baron 
of  the  Exchequer] ; 

Mr.  Adam  [afterwards  Lord  Chief 
Commissioner  of  the  Jury  Court,  and 
a  Baron  of  the  Exchequer  of  Scot- 
land] ; 

Mr.  Wood  [afterwards  a  Baron  of 
the  Exchequer] ; 

Mr.  Fielding; 

Mr.  Abbott  [afterwards  Lord  Chief 
Justice  of  the  Court  of  King's  Bench]. 

Solicitor  —  Mr.  White,  Solicitor 
for  the  affairs  of  his  Majesty's 
Treasury. 


(1799.  Howell's  State  Trials. 


Counsel  for  the  Defendants,  the  Earl  of 
Thanet,  Mr.  Ferguson,  and  Mr. 
O'Brien. 

The  Honorable  Thomas  Erskine 
[afterwards  Lord  Chancellor  Er- 
skine] ; 

Mr.  Gibbs  [afterwards  Lord  Chief 
Justice  of  the  Court  of  Common 
Pleas] ; 

Mr.  Best  [afterwards  a  Judge  of 
the  Court  of  King's  Bench] ; 

Mr.  MacKintosh  [afterwards  Re- 
corder of  Bonil)ayl. 

Solicitor  —  Mr.  Lowten. 

Counsel  for  the  Defendant,  Mr. 
Browne  —  Mr.  Rous. 

Solicitor  —  Mr.  Foulkes. 

Counsel  for  the  Defendant,  Mr. 
Thompson  —  Mr.  Rayne. 

Solicitor  —  Mr.  Bonney. 

The  Information  was  opened  by 
Mr.  Abbott,  and  is  as  follows  :  ^   .  .  . 

Mr.  Attorney-General.  —  May  it 
please  your  Lordships  and  Gentle- 
men of  the  Jur}'  —  I  can  \'ery  un- 
feignedly  assure  you,  that  I  should 
have  felt  infinite  satisfaction,  if,  in 


any  view  that  I  could  take  of  what 
my  country  required  of  me,  I  could 
have  determined  not  to  have  in- 
stituted the  present  prosecution. . . . 
Gentlemen,  the  information  states 
to  you,  that  at  a  special  session  of 
Oyer  and  Terminer,  held  at  Maid- 
stone in  the  month  of  May  last,  Mr. 
O'Connor  together  with  several 
other  persons  were  tried  for  the 
crime  of  high  treason,  of  which  they 
had  been  accused  by  a  grand  jury 
of  the  county  of  Kent.  The  in- 
formation states,  that  the  jury  had 
found  four  of  the  defendants,  Mr. 
O'Connor  being  one  of  the  four,  not 
guilty  of  the  oft'ense  with  which  they 
were  charged.  The  information 
states,  that  before  he  was  discharged, 
these  defendants  (and  you  will  give 
me  leave  to  point  out  particularly  to 
you  the  substance  of  the  different 
charges  in  this  information)  did, 
in  open  court,  and  before  any  dis- 
charge, make  a  riot,  and  attempt  to 
rescue  him  out  of  the  custody  of  the 
sheriff' ;  that  they  assaulter!  three 
persons  named  in  the  first  count  of 
the  information,  John  Rivett,  YA- 
ward  Fugion,  and  Thomas  Adams  ; 
that  they  riotously  impeded  and 
obstructed  the  commissioners  of  his 
majesty  in  the  due  and  lawful  hold- 
ing of  the  session.  The  second  count 
charges  them  with  ha\'ing,  before  the 
discharge  of  Mr.  O'Connor,  assisted 
him  to  rescue  himself  out  of  the 
custody  of  the  sheriff,  and  having 
assaulted  Thomas  Adams,  who  was 
acting  in  aid  of  the  sheriff.  The 
third  count  charges  them  with  hav- 
ing made  a  riot  in  open  court,  and 
been  guilty  of  the  assault.  The 
fourth  count  charges  them- with  a  riot 
in  open  court,  without  the  circum- 
stance of  the  assault ;  and  the  last 
count  charges  them  with  a  riot,  with- 
out any  addition  of  circumstances  : 
and  it  will  be  for  you  to  determine 
whether  they  are  guilty  of  all,  or 


^  [The  italics  and  small  capitals  for  passages  of   the  witnesses'  testimony  are  found  in 
HowpU's  edition.  —  Ed.] 


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2S  j-f  21. 


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No.    392.      EARL   OF   THANET's  ""RIAL 


No.  392. 


EARL   OF   THANEt's   TRIAL 


1019 


any  of  the  charges  stated  in  this  in- 
formation. 

Gentlemen,  I  will  endeavor  now 
to  open  to  you  as  much  of  this  case 
as  may  enable  you  to  understand  as 
much  of  this  evidence  as  is  offered 
to  you.  .  .  . 

Gentlemen,  the  trial  at  Maid- 
stone was,  as  I  need  not  tell  those 
to  whom  I  have  the  honor  to  address 
myself,  an  extremely  long  one.  The 
witnesses  on  both  sides  had  been 
desired  to  withdraw  from  the  court 
previous  to  the  commencement  of 
the  trial.  In  the  natural  course  of 
proceeding,  the  witnesses  for  the 
defendants  were  called  after  the  wit- 
nesses for  the  prosecution ;  and  the 
noblemen  and  gentlemen  who  gave 
evidence  in  favor  of  Mr.  O'Connor 
and  the  other  defendants  in  that 
trial  for  high  treason,  after  respec- 
tively giving  their  evidence,  re- 
mained in  court.  .  .  .  You  will  ha^•e 
plans  of  the  court  offered  to  you  by 
and  by  in  order  to  make  the  evi- 
dence more  intelligible.  .  .  . 

The  witnesses  were,  therefore, 
directly  opposite  the  jury,  and  the 
prisoners  at  the  bar  were  removed 
somewhat  behind  the  counsel,  who 
sat,  as  it  were,  in  the  place  where  I 
am  now  standing,  there  being  some 
little  distance  between  them  and 
the  prisoners,  who  were  in  the  bar 
behind.  .  .  . 

When  the  verdict  of  Not  Guilty 
was  pronounced,  Mr.  O'Connor 
endeavored  (it  will  be  for  you  to 
decide  whether  or  not  with  the 
cooperation  of  the  defendants  whose 
names  occur  upon  this  record)  to 
get  out  from  the  place  in  which  he 
stood  as  a  prisoner,  with  a  view  to 
get  out  of  court,  and  for  the  purpose 
of  not  being  answeral)le  to  some 
demands  of  justice  which  he,  and 
those  who  were  acting  with  him, 
had  reason  to  believe  Avould  be  made 
upon  him,  if  he  stayed  till  he  was 
regularly  discharged. 

Gentlemen,  one  of  the  defendants 
in  this  case,  I  mean  Mr.  Thompson, 
a  member  of  parliament,  was  bound, 
certainly,   from   his   situation   as   a 


subject  of  this  country,  and  bound 
from  the  high  situation  in  which 
he  stands  in  the  country,  not  to  be 
acting  in  the  execution  of  such  a  pur- 
pose as  this  information  imports ; 
but  you  will  find  that  he,  together 
with  Mr.  O'Brien,  had  taken  great 
pains,  in  the  course  of  the  afternoon 
...  to  know  with  certainty,  whether 
there  was  any  demand  of  justice 
upon  Mr.  O'Connor,  supposing  him 
to  be  acquitted  of  the  present  charge. 
Now,  gentlemen,  be  so  good, 
without  my  entering  into  a  detail 
of  that  evidence,  to  attend  to  the 
circumstances  as  to  the  conduct 
of  the  different  defendants,  during 
the  time  the  learned  judge  was  ex- 
ecuting the  painful  duty  of  passing 
the  sentence  of  death  —  giving  your 
attention  also  to  what  was  the  con- 
duct of  the  several  defendants, 
when  this  notice  had  been  publicly 
given  in  Court,  the  moment  that 
that  sentence  was  finished ;  and 
unless  I  am  deceived  indeed,  with 
respect  to  the  effect  of  that  evidence, 
you  will  have  no  difficulty  in  coming 
to  this  conclusion,  that  those  de- 
fendants did  mean  to  take  Mr. 
O'Connor  out  of  the  reach  of  the 
demands  which  it  had  been  publicly 
declared  justice  had  upon  him.  .  .  . 

Evidence  for  the  Crown 
Mr.   Sergeant  Shepherd  [afterwards 
Lord   Chief  Baron   of  the   Ex- 
chequer of  Scotland]  sworn.  — 
Examined  by  Mr.  Garroiv. 

We  have  collected  from  the  record, 
that  you  were  one  of  the  commis- 
sioners appointed  to  try  certain  per- 
sons at  Maidstone  ?  —  I  was. 

Did  you  attend  upon  the  bendi 
upon  that  occasion  ?  • —  I  did. 

Do  you  remember  the  circum- 
stance of  the  jury,  after  they  had 
retired,  coming  into  court  to  deliver 
their  verdict  ?  —  I  do. 

Are  you  acquainted  with  the  per- 
son of  my  lord  Thanet  ?  —  I  am.  I 
had  seen  my  lord  Thanet  examined 
as  a  witness  on  that  day  for  IMr. 
O'Connor ;  I  did  not  know  his  per- 
son before. 


1020 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


Are  you  acquainted  with  the  per- 
son of  Mr.  Dennis  O'Brien  ?  —  I 
am. 

Are  you  acquainted  with  the  per- 
son of  Mr.  Gunter  Browne  ?  —  I  can- 
not say  I  am.  .  .  . 

Are  you  acquainted  with  Mr. 
Fergusson,  a  gentleman  at  the  bar  ? 
—  I  am. 

Are  you  acquainted  with  Mr. 
Thompson  ?  —  I  am  acquainted  with 
the  person  of  Mr.  Thompson ;  but 
I  do  not  recollect  seeing  Mr.  Thomp- 
son at  Maidstone. 

Be  so  good  as  state  to  the  Court, 
whether,  after  the  jury  had  given  in 
their  verdict,  and  judgment  of 
death  had  been  pronounced  upon 
the  prisoner  who  was  convicted,  you 
made  any  observation  upon  any  of 
these  persons,  or  their  conduct  ?  — 
After  the  jury  had  gi\en  their  ver- 
dict, and,  indeed,  I  think,  at  the 
time  the  jury  gave  their  verdict,  my 
lord  Thanet  was  standing  before 
the  bar  at  which  the  prisoners  stood, 
with  his  back  to  the  prisoners,  and 
his  face,  of  course,  towards  the  ( "ourt. 
I  am  not  quite  sure  whether  my  lord 
Thanet  was  on  the  bench  at  which 
the  solicitors  for  the  prisoners  stood, 
or  whether  there  was  any  space  be- 
tween the  bench  and  the  bar ;  that 
I  could  not  sufficiently  observe. 

Mr.  Garrow.  —  It  may  not  be 
improper  here  to  state  (and  we  shall 
certainly  prove  it),  that  there  was 
no  such  space.  .  .  . 

Mr.  Sergeant  Slirphcrd.  —  My  lord 
Thanet  stood  with  his  face  towards 
the  Court,  and  his  back  to  the  pris- 
oners ;  he  was  rather  to  the  right 
hand  of  O'Connor ;  I  do  not  mean 
upon  a  line  with  O'Connor,  of  course, 
l)ut  rather  to  his  right  hand. 

Mr.  Garrow.  —  May  I  interrupt 
you  to  ask,  whether  the  right-hand 
side  was  the  side  upon  which  the 
jailer  was  placed  ? 

Mr.  Sergeant  Shrp/wrd.  —  I  am 
not  quite  sure  whether  it  was  the 
side  on  which  the  jailer  was  placed  ; 
it  was  the  side  on  which  O'Coigly, 
the  convicted  prisoner,  stood  ;  and 
it  was  the  side  on  which  the  Bow- 


street  officers  afterwards  endeavored 
to  advance. 

Mr.  Erskine.  —  The  side  nearest 
to  the  great  street  of  Maidstone  ? 

]Mr.  Garrow. — Certainly  so,  which 
is  the  side  on  which  we  all  know  the 
jailer  is  placed.  You  recollect  the 
jailer  has  a  box  on  that  side  next 
the  great  street  ?  —  I  recollect  he 
has ;  and  therefore  it  was  certainly 
on  that  side  on  which  the  jailer 
was  placed.  Mr.  O'Brien  stood,  or 
sat,  at  that  time,  I  do  not  exactly  rec- 
ollect which  —  but  iMr.  O'Brien  was 
on  the  same  line  with  lord  Thanet, 
but  rather  to  the  left  hand  of  Mr. 
O'Connor.  Whether  there  was  any 
persor  between  my  lord  Thanet  and 
Mr.  O'Brien,  I  do  not  recollect. 

When  I  interrupted  you,  you  were 
about  to  state  something  of  the  Bow- 
street  officers  advancing  ?  —  I  think 
something  had  been  said  before  the 
jury  brought  in  their  verdict.  When 
there  was  an  expectation  that  they 
were  coming,  something  had  been  said 
about  the  Bow-street  officers  being 
there.  There  was  a  sort  of  noise 
or  buzz  in  court ;  and  somebody  said, 
I  do  not  know  who,  that  the  Bow- 
street  officers  were  making  a  noise. 
In  consequence  of  that  it  was,  that 
I  observed  one  of  the  officers,  I 
think  Rivett  —  it  was  either  Fu- 
gion  or  Rivett ;  I  am  not  quite  sure 
that  I  recollect  the  person  of  one 
from  the  other  — 

You  had  seen  them,  and  heard 
them  give  evidence  ?  —  I  had,  and 
I  rather  think  it  was  Rivett,  whom 
I  observed  standing  at  the  corner 
of  the  bar ;  and  they  were  desired 
to  be  quiet  —  not  particularly  the 
Bow-street  officers,  but  the  Court 
desired  that  everybody  would  be 
quiet ;  and  they  were  quiet ;  and 
the  jury  then  l)rought  in  their  ver- 
flict.  When  the  jury  pronounced 
their  verdict  of  Not  Guilty  upon  Mr. 
O'Connor,  some  person,  but  whom 
I  do  not  recollect,  said,  "Then  they 
are  discharged"  ;  other  persons  sit- 
ting round  the  table  said,  "No,  they 
are  not  discharged " ;  and  at  that 
time   Mr.   O'Comior,   I   think,   had 


No.  392. 


EARL   OF   THANEt's   TRIAL 


1021 


raised  his  knee  to  the  bar,  as  if  to 
fjet  over;  whether  he  was  pushed 
hac'lv,  or  pulled  back,  I  do  not  know  ; 
but  he  was  restored  to  his  former 
position  behind  the  bar.  A  ques- 
tion was  put  to  the  Court  by  some- 
body —  whether  by  the  prisoners 
or  the  counsel  for  the  prisoners,  or 
by-standers,  I  cannot  tell  —  but 
some  one  said,  "Are  they  not  dis- 
charged, my  lord^?"  or,  "Have  they 
not  a  right  to  be  discharged?"  or 
some  such  terms.  Mr.  Justice  Bvd- 
ler,  I  think,  said,  "No,  they  are  not 
to  be  discharged  yet ;  put  the  other 
prisoners  back,  and  let  O'Coigly 
stand  forward."  I  do  not  pledge 
myself  for  the  exact  words,  but  cer- 
tainly to  that  effect. 

I  will  trouble  you  to  repeat  that, 
according  to  the  best  of  your  recol- 
lection ?  —  "  Put  the  other  prisoners 
back,  and  let  O'Coigly"  (who  was 
the  convicted  prisoner)  "stand  for- 
ward." I  should  have  told  your 
lordship,  that  when  it  was  asked, 
"  whether  they  were  not  to  be  dis- 
charged ?  "  before  the  riot,  if  I  may 
so  speak,  began,  one  of  the  Bow- 
street  officers,  I  think,  got  up  upon 
the  bench,  or  form  I  should  rather 
say,  and  said,  "  No,  my  lord,  I  have 
a  warrant  against  Mr.  O'Connor  "  ; 
whether  he  added,  "for  treason," 
or  "for  high  treason,"  I  do  not  rec- 
ollect. It  was  immediately  upon 
the  officer's  saying  that,  that  Mr. 
Justice  Buller  said,  "They  are  not 
discharged";  I  do  not  mean  in 
answer  to  that ;  but  he  said,  as  a 
direction  of  the  Court,  "  they  are  not 
discharged  ;  put  the  others  back,  and 
let  O'Coigly  stand  forward." 

I  wovdd  ask  you,  whether  that 
form,  upon  which  the  officer  raised 
himself  to  address  the  Court,  was 
near  the  place  where,  as  you  before 
described,  the  Bow-street  officers 
were  before  the  bar,  and  near  lord 
Thanet  ?  —  Certainly.  He  set  his 
foot  upon  the  end  of  the  form  be- 
fore which  lord  Thanet  stood,  with, 
certainly,  I  think,  the  interval  of 
three  or  four  persons. 

Was  that  expression  of  the  officer's 


addressed  audibly  to  the  Court  ?  — 
Certainly;  I  heard  it  most  dis- 
tinctly, and,  I  think,  every  one 
mu^it  have  heard  it. 

Did  he  produce  a  paper  ?  —  Yes  ; 
he  said,  "  No,  my  lord,  they  are  not 
to  be  discharged.  I  have  a  warrant 
against  Mr.  O'Connor";  and  he 
certainly  extended  his  hand  with 
a  paper  in  it. 

After  that  direction  which  you 
have  stated  had  been  given  by  the 
Court,  what  then  passed  ?  —  Mr. 
Justice  Buller  proceeded  to  pro- 
nounce sentence  upon  the  prisoner 
O'Coigly.  During  the  first  part 
of  the  time  that  he  was  pronouncing 
sentence,  my  attention  was  partic- 
ularly attracted  to  O'Coigly,  the 
prisoner.  I  was  looking  at  him,  and 
attending  to  him. 

The  form  of  the  sentence  was  in- 
troduced by  a  prefatory  address  ?  — 
Yes ;  during  the  former  part  of  it, 
my  attention  was  directed  to  him. 
Towards  the  conclusion  of  the  sen- 
tence, I  think  just  as  Mr.  Justice 
Buller  came  to  that  part  of  the  sen- 
tence which  pronounces  the  specific 
punishment,  I  observed  lord  Thanet 
and  Mr.  O'Brien  standing  in  the  same 
position  as  they  had  stood  before, 
and  I  observed  Mr.  O'lirien  turn 
round,  and  look  up  at  Mr.  ()'(  onnor. 
.  .  .  He  looked  up  at  Mr.  O'Con- 
nor, and  then  looked  down  to  the 
place  before  him,  which  cannot  be  so 
well  expressed  in  words  as  by  an 
imitation  of  the  manner ;  he  looked 
down  with  a  very  slight  motion, 
certainly  an  inclination  of  his  head. 
Lord  Thanet  was  standing  with  his 
back  against  the  bar,  behind  which 
Mr.  O'Connor  stood.  I  can  de- 
scribe it  no  other  way,  than  standing 
square,  as  I  do  now.  I  did  not  see 
lord  Thanet  make  use  of  any  motion 
or  gesture,  at  that  time,  certainly. 
The  moment  the  last  word  of  the 
sentence  had  been  pronounced  by 
Mr.  Justice  Buller,  the  instant  he 
had  finished,  Mr.  O'Connor  raised 
himself  upon  the  bar;  he  jumped 
with  liis  left  foot  upon  the  bar;  he 
put  his  left  liand  upon  the  shoulder 


1022 


PART   III.      PROBLEMS   OF   PROOF 


No.  392. 


of  Mr.  O'Brien,  and,  I  think,  his 
right  upon  lord  Thanet's  shoulder, 
jumped  over  the  bar  between  lord 
Thanet  and  Mr.  O'Brien,  passed  Mr. 
O'Brien  towards  the  door  of  the 
court,  which  was  on  that  side  next 
the  small  street  of  Maidstone  — 

That  is,  from  the  Bow-street 
officers  ?  —  Yes  ;  then  I  lost  sight  of 
Mr.  O'Connor.  Whilst  Mr.  O'Con- 
nor was  getting  over  the  bar,  which, 
though  it  takes  some  space  to  de- 
scribe, was  done  almost  in  an  instant, 
the  Bow-street  officers  were  pressing, 
endeavoring  to  get  towards  him, 
for  the  purpose  of  stopping  him, 
I  suppose. 

That  is,  in  the  narrow  pass  be- 
tween the  back  of  the  seat  for  the 
counsel  for  the  prisoners,  and  the 
bench  that  was  made  for  the  ac- 
commodation of  their  solicitors  ?  — 
Yes ;  lord  Thanet  certainly  stood 
in  the  position  in  which  I  had  ob- 
served him.  There  was  a  great 
noise,  of  course,  took  place  at  that 
time,  at  the  moment  when  Mr. 
O'Connor  was  getting  over  the  bar ; 
and  some  people  calling  to  stop  him, 
there  was  a  great  noise  certainly. 
Lord  Thanet  stood,  in  the  way  that 
I  have  described  to  your  lordship,  in 
the  pass  ;  the  officers  were  endeavor- 
ing to  press  by  him ;  and  he  stood 
till,  I  think,  in  a  very  short  space  of 
time,  he  held  up  his  stick  with  both 
his  hands  over  his  head.  There  was 
then  a  great  deal  of  confusion ;  per- 
sons got  upon  the  table ;  and  there 
was  a  press,  in  the  narrow  pass,  of 
officers  and  persons  from  that  side 
of  the  court,  attempting  to  press  to- 
wards the  door  to  which  O'Connor 
had  rushed ;  and  other  persons, 
whom  I  cannot  say,  appearing  to  me 
to  push  the  other  way,  as  if  to  pre- 
vent them  from  passing.  I  saw 
sticks  raised,  and  fists  raised,  by 
inflividuals ;  but  who  did  so,  I  can- 
not speak  to.  There  became  then  a 
general  confusion  in  that  part  of  the 
court,  so  that  I  lost  sight  of  partic- 
ular individuals;  the  candles  were 
some  of  them  thrown  down  ;  they 
were  upon  the  table ;  and  there  was 


a  general  riot  and  confusion,  cer- 
tainly, in  that  part  of  the  court, 
and  in  most  other  parts  of  the  court ; 
at  that  time  a  great  number  of 
persons  had  got  upon  the  table,  and 
there  was  certainly  a  great  deal  of 
confusion.  In  a  very  short  time, 
somebody  called  out,  "O'Connor  is 
stopped  "  ;  and  he  was  brought  back 
again  to  the  bar.  I  should  state  to 
your  lordship,  that,  just  at  the  time 
that  I  lost  sight  of  lord  Thanet, 
and  of  the  particular  individuals, 
a  person  had  got  upon  the  table 
(which  drew  off  my  attention  from 
what  was  going  on  at  the  bar),  and 
had  drawn  a  saber  which  was  lying 
there. 

That  was  part  of  the  baggage  of 
Mr.  O'Connor,  which  had  been  pro- 
duced upon  the  trial  ?  —  It  was. 
He  drew  that  saber,  and  placed 
himself  between  the  judges  and  the 
part  of  the  court  where  the  con- 
fusion was,  obviously  to  prevent 
any  persons  from  advancing  towards 
the  judges  —  if  I  may  use  the  phrase, 
to  defend  the  judges.  I  did  not  at 
that  time  see  the  face  of  the  person 
who  had  it ;  and,  therefore,  I  had 
some  apprehension  it  might  be  in 
the  hands  of  some  imprudent  man, 
who  might  do  mischief ;  if  I  had 
known  who  it  was,  I  should  have 
known  that  he  had  discretion  enough 
not  to  misuse  it. 

It  was  Mr.  Stafford,  the  witness, 
was  it  not  ?  —  Yes ;  I  said  to  him, 
not  seeing  his  face,  "Don't  strike  !"■ 
When  I  saw  who  it  was,  I  was  satisfied. 
After  the  riot  had  ceased,  a  number 
of  persons  got  upon  the  tal)le  towards 
the  judges ;  some  to  ask  questions 
upon  the  subject  of  the  legality  of 
this  warrant;  and  others,  whether 
the  prisoners  were  not  entitled  to 
their  discharge;  and  others,  cer- 
tainly, to  allay  the  fervor  that 
seemed  to  be  at  that  time  operating 
upon  the  minds  of  many  persons 
who  were  in  court ;  to  restore  order, 
in  fact;  I  should,  perhaps,  use  that 
phrase.  The  particular  conversa- 
tions and  expressions  that  were 
used  by  any  of  those  persons  upon 


No.  392. 


EARL   OF   THANEt's   TRIAL 


1023 


the  table,   I  cannot  pledge  myself 
to  recollect. 

I  will  take  the  liberty  of  asking 
you,  —  I  believe  you  were  at  a 
distance  from  the  learned  judge,  Mr. 
Justice  Lawrence  ?  —  I  was.  Mr. 
Justice  Heath  and  Mr.  Justice  Dul- 
ler both  sat  between  me  and  Mr. 
Justice  Lawrence. 

Therefore,  I  would  ask  you, 
whether  you  had  an  opportunity  of 
hearing  any  particular  conversation 
addressed  to  the  learned  judge  who 
is  now  present  ?  —  No  ;  I  think  I 
remember  Mr.  Sheridan  speaking 
to  Mr.  Justice  Buller,  or  Mr.  Justice 
Heath,  or  both  ;  and  I  remember  lord 
Thanet  being  upon  the  table  after 
Mr.  O'Connor  was  brought  back, 
apparently  to  me  conversing  with  the 
learned  judge,  Mr.  Justice  Lawrence. 

What  he  said,  you  did  not  hear  ? 
—  I  did  not ;  for  at  that  time  there 
was  a  great  deal  of  noise  in  the  court. 

Was  it  after  that,  that  you  ob- 
served Mr.  Sheridan  talking  with 
the  learned  judge  ?  —  I  think  it  was  ; 
the  object  of  Mr.  Sheridan  seemed 
to  be,  to  allay  the  tumult ;  and  then 
he  crossed  the  table,  and  conversed 
with  the  learned  judges.  .  .  . 
Mr.  Sergeant  Shrpherd  cross-ex- 
amined  by   Mr.    ErsJcine. 

J  have  very  few  questions  indeed 
to  put  to  you.  You  state,  that 
when  the  verdict  of  Not  Guilty  had 
been  pronounced,  some  persons, 
but  whom  you  do  not  know,  seemed 
to  inquire,  as  if  for  information, 
whether  the  prisoners  were  to  be 
discharged  or  not?  —  Not  quite  so; 
not  to  inquire ;  but  some  persons 
exclaimed,  "Then  they  are  dis- 
charged." 

Who  those  persons  were,  you  do 
not  know  ?  —  I  do  not. 

You  say  that  you  observed  lord 
Thanet  standing  fronting  the  Court, 
as  I  am  now  fronting  the  Court  ?  — 
Yes,  certainly. 

With  his  back  to  the  prisoner  ?  — 
Certainly  so. 

He  was  in  that  position  when  the 
jury  came  in  with  their  verdict  ?  — 
1  think  so. 


You  have  observed  that  Mr. 
O'Brien  looked  round  to  Mr.  O'Con- 
nor, and  then  looked  down,  as  you 
have  described  it ;  did  lord  Thanet 
continue  all  that  time  in  the  same 
position  ?  —  The  time  when  Mr. 
O'lirien  looked  round,  was  a  very 
short  time  before  Mr.  O'Connor 
jumped  over  the  bar;  from  that 
time,  certainly,  lord  Thanet  had 
continued  in  the  same  position, 
standing  as  I  described. 

While  the  learned  judge  was 
passing  sentence  of  death  upon 
O'Coigly,  did  lord  Thanet  still 
continue  in  the  same  position  ?  — 
Certainly  he  did.   .   .   . 

You  then  describe,  that  upon  the 
officers  coming  in,  and  pressing 
through  this  narrow  place,  the  next 
that  you  saw  of  lord  Thanet  was,  with 
a  stick  with  both  his  hands  up  ?  — 
Yes  ;  I  did  not  mean  that  the  officers 
came  in  then,  but  that  they  had 
come  in  some  time  before,  having 
declared  that  they  had  a  warrant ; 
but,  certainly,  upon  Mr.  O'Connor 
jumping  over  the  bar,  the  officers 
rushed  forward  to  follow  him  ;  after 
they  had  made  several  pushes  it  was, 
that  I  saw  lord  Thanet  in  that  posi- 
tion. 

Did  you  ever  observe  any  change  in, 
the  position  of  lord  Thanet,  from  the 
time  you  first  saw  him,  till  you  saw 
him  in  the  situation  you  haw  now 
described  to  the  Court?  —  /  did  not 
observe  any  change. 

But  a  stick  over  his  head?  —  IV^; 
and,  perhaps,  I  should  say  this  —  it 
seemed  to  be,  when  he  held  it  in  that 
loay,  that  it  teas  to  defend  his  head. 
The  Rev.  William  Ilussey  sworn.  — 
Examined  by  Mr.  Adam. 

1  believe  you  are  a  clergyman  of 
the  church  of  England  ?  —  I  am. 

Were  vou  at  Maidstone  at  the  trial 
of  Mr.  O'Connor  and  Mr.  O'Coigly  ? 
—  I  was. 

Were  you  there  at  the  time  the 
jury  were  out,  deliberating  upon 
their  verdict  ?  —  Part  of  the  time. 

Were  you  in  court  at  the  time  they 
returned  with  their  verdict  ?  —  I 
was.  .  .  . 


1024 


PART   III.       PROBLEMS    OF   PROOF 


No.  392. 


In  what  part  of  the  court  did  you 
first  see  lord  Thanet '!  —  The  first 
time,  when  he  came  to  give  his  evi- 
dence ;  and  the  next  time,  at  the 
table  fronting  the  judges,  and  after- 
wards sitting  under  the  bar  at  which 
the  prisoners  stood. 

Upon  a  bench,  with  his  back  to  the 
prisoners  ?  —  With  his  back  to  the 
prisoners. 

Do  you  remember  seeing  the  Bow- 
street  officers  there  ?  —  I  saw  a  per- 
son who,  I  was  informed  afterwards, 
was  a  Bow-street  officer.  I  did  not 
know,  at  that  period,  that  he  w^as 
a  Bow-street  officer. 

Do  you  recollect  the  jury  deliver- 
ing their  verdict  ?  —  I  do. 

Can  you  state  to  my  lord  and  the 
Court,  an\thing  that  struck  your 
attention  upon  the  jury  delivering 
their  verdict  of  Not  Guilty,  with 
respect  to  Mr.  O'Connor  ?  —  After 
the  jury  returned  their  verdict  of 
Not  Guilty,  I  observed  Mr.  O'Con- 
nor make  a  feint  to  get  over  the 
bar ;  he  put  up  his  foot,  as  if  he 
would  get  over. 

Did  you  observe  anything  more 
pass  at  that  time  ?  —  I  cannot  speak 
expressly  as  to  the  direct  period  of 
time  at  which  I  saw  the  circumstance 
happen ;  whether  it  was  at  that 
period,  or  a  future  period,  I  must 
say  that  I  cannot  immediately  rec- 
ollect. 

What  was  that  circumstance  ?  — 
That  the  carl  of  Thanet  was  in  that 
situation  which  I  before  mentioned, 
sitting  with  his  back  towards  the 
bar,  nearly  under  the  prisoners,  or 
under  the  jailer ;  and  as  the  person 
was  pressing  forward  from  that  side 
of  the  court  to  get  towards  the 
prisoners  — 

Lord  Kenyon.  —  What  person  ?  — 
I  cannot  say  who  the  person  was  ;  I 
was  informed  afterwards  he  was  a 
Bow-street  officer  ;  and,  indeed,  from 
the  circumstance  of  his  mentioning 
to  the  jury  what  was  the  matter  — 
he  said  he  had  a  warrant  to  appre- 
hend Mr.  O'Connor  —  I  supposed 
him  to  be  a  peace  officer. 

Mr.  Adam. — Then,  as  this  per- 


son, who  held  a  paper  in  his  hand, 
and  pressed  forward  —  ?  —  I  saw 
no  paper  in  his  hand ;  lord  Thanet 
seemed  to  press  himself  against  the 
bar  with  his  body  inclined  somewhat 
towards  that  person,  apparently  with 
an  intention  to  interrupt  his  progress 
towards  the  prisoner. 

In  what  situation  was  Mr.  O'Con- 
nor at  that  time?  —  Mr.  O'Connor, 
at  that  period,  was  standing  at  the 
bar. 

Go  on,  and  state  what  you  saw 
after  this.  —  Upon  my  word,  from 
the  confusion  that  was  in  the  court, 
I  do  not  recollect  any  particular 
circumstance  that  I  can  take  upon 
me  to  speak  to. 

The  Right  Hon.  Charles  Lord  Rom- 
71  ey  sworn.  —  Examined  by  Mr. 
Wood. 

W^as  your  lordship  in  court  at  the 
time  of  the  trial  of  the  prisoners  at 
Maidstone  ?  —  Yes. 

In  what  part  of  the  court  did  your 
lordship  sit  ?  —  Next  to  Mr.  Justice 
Lawrence,  upon  the  bench.  .  .   . 

After  the  riot  began,  what  did 
your  lordship  observe?  —  W^hen  the 
riot  first  began,  I  looked  very  much 
towards  the  prisoner  O'Connor,  and 
saw  him  get  over  the  bar,  and  go 
towards  the  narrow  street.  I  looked 
at  the  other  part  of  the  court,  where 
there  were  individuals  forcing  a  pas- 
sage through,  which  were  the  Bow- 
street  officers ;  I  saw  them  forcing 
their  way,  and  blows  were  struck. 
I  paid  particular  attention  to  Mr. 
O'Connor,  and  then,  almost  at  the 
same  moment,  turned  my  eyes  to  a 
different  part  upon  the  table,  where 
there  was  a  sword  brandishing 
about ;  I  do  not  know  whether  it 
was  drawn  or  not,  for  I  could  not 
see  at  that  time  ;  but  I  should  imagine 
that  it  was  drawn  ;  upon  which  I 
thought  things  seemed  to  bear  a  very 
serious  aspect,  and  I  let  myself  down 
from  the  l)ench,  where  I  was  sitting, 
and  crossed  the  table  directly  to 
where  I  saw  the  prisoner  escaping 
from.  I  dipped  my  head  under  the 
broadsword  that  was  brandishing 
about ;   I  got  immediately  to  tlie  end 


No.  392. 


EARL   OF   THANEt's   TRIAL 


1025 


of  the  table,  near  that  part  of  the 
court  where  the  prisoner  escaped 
from ;  and  as  soon  as  I  got  there,  I 
immediately  saw  the  prisoner  O'Con- 
nor brought  back  to  that  part  of  the 
table  by  several  javelin  men  and 
others.  I  then  immediately  said  to 
the  javelin  men,  "Form  yourselves 
round  the  prisoner,  and  let  no  one 
approach  you,"  or,  "  Let  no  one 
come  round  you,"  or  words  to  that 
effect;  "for  he  is  not  yet"  (I  meant 
to  say,  and  imagine  I  did  say)  "  dis- 
charged." I  was  told  afterwards 
that  I  had  said  wrong ;  for  I  had 
said,  he  was  not  acquitted ;  upon 
which  I  answered,  I  might  very 
possibly  make  use  of  the  word  ac- 
quitted; but,  if  I  did,  it  was  a  mis- 
take ;  I  meant  discharged. 

Mr.  Garroiv.  —  Will  your  lordship 
mention  who  it  was  that  said  that  ? 
—  I  think  it  was  Mr.  Fergusson : 
he  said,  "  My  lord,  you  are  mistaken  ; 
you  said,  'He  is  not  acquitted'  — 
he  is  acquitted."  I  think  it  was 
Mr.  Fergusson.  I  have  no  doubt 
myself,  as  Mr.  Fergusson  mentioned 
it,  but  that  I  did  make  use  of  the 
word  acqtdttcd,  in  the  hurry ;  I  have 
no  doubt  of  it :  it  was  not  my  in- 
tention to  say,  he  was  not  acquitted, 
but  that  he  was  not  discharged  ;  I 
meant  to  make  use  of  the  word  that 
I  heard  Mr.  Justice  Buller  make 
use  of  from  the  bench. 

Mr.  Wood.  —  Does  your  lordship 
recollect  whether  the  Court  had  said 
anything,  before  that,  about  his 
not  being  discharged  ?  —  Yes  ;  and 
I  meant  to  make  use  of  the  word 
discharged,  because  I  had  heard 
Mr.  Justice  Buller  use  the  word  dis- 
charged. .  .  . 

Did  your  lordship  notice  any 
particular  persons  that  were  acting 
in  the  riot  ?  — ...  I  certainly  could 
not  say  who  it  was  in  the  passage 
that  was  struck  by  the  Bow-street 
officers ;  for  when  I  looked  to  that 
part,  the  confusion  was  very  great, 
and  the  blows  very  frequent  in  that 
part. 

Did  your  lordship  hear  any  con- 
versation between  lord  Thanet  and 


Mr.  Justice  Lawrence,  ■  after  Mr. 
O'Connor  was  secured  ?  —  It  is 
really  a  very  considerable  time  since 
the  riot ;  and,  at  the  same  time,  as 
many  dift'erent  things  were  going  on 
at  that  moment,  I  cannot  positively 
swear;  and,  therefore,  unless  I  was 
perfectly  convinced,  it  can  be  of 
no  consequence. 

Lord  Kenyon.  —  It  is  my  duty, 
and  I  am  bound  to  say,  your  lord- 
ship must  recollect  as  well  as  you 
can.  —  If  your  lordship  will  give 
me  leave  to  say,  that  at  this  dis- 
tance of  time,  ten  or  eleven  months, 
I  really  cannot  swear  whether  I 
heard  it  at  the  time,  or  whether  it 
was  a  conversation  afterwards,  that 
such  and  such  things  had  passed  ; 
and,  therefore,  as  I  cannot  answer 
positively,  I  must,  for  myself,  beg 
leave  to  decline  answering  it.  .  .  . 
The  Right  Hon.  Charles  Lord  Rom- 
ney  cross-examined  by  Mr. 
Gihbs. 

You  say,  you  intended  to  say  that 
the  prisoner  had  not  been  dis- 
charged ;  but  you  had  been  informed 
by  some  one,  that  you  had  said  he 
was  not  acquitted ;  and  then  you 
corrected  yourself,  and  said  you 
meant  to  say,  discharged f  —  I  have 
no  doubt  but  that,  in  directing  my 
speech  to  somebody  in  the  hurry 
of  the  business,  I  said  he  was  not 
acquitted. 

There  was  but  one  person  who 
said  that  ?  —  Mr.  Fergusson  said 
it  repeatedly:  and  then  I  said,  "I 
meant  to  have  said,  discharged;  if 
I  had  said  acquitted,  it  was  a  mis- 
take"; and  then  Mr.  Plumer  came 
up,  and  I  told  him  that  Mr.  Fer- 
gusson had  said  so. 

Lord  Kenyon.  —  There  can  be  no 
occasion  to  go  into  all  that  conver- 
sation.  .   .   . 

Sir  John  Mitford  (his  Majesty's 
Solicitor-General)  sworn.  —  Ex- 
amined by  Mr.  Fielding. 

Have  the  goodness  to  describe 
what  was  your  particular  situation 
in  the  court  at  Maidstone  ?  —  You 
mean  after  the  jury  had  withdrawn, 
I  suppose  ? 


102G 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


n  you  please.  —  I  went  up  to  Mr. 
Justice  Duller  and  spoke  to  him ; 
and  tlien  I  placed  myself  immediately 
under  him,  opposite  to  Mr.  O'Connor, 
ujion  whom  I  kept  my  eye  fixed 
when  the  jury  came  into  court  and 
gave  their  verdict.  /  ohscnrd  Mr. 
O'Connor  and  Mr.  Fcrgmson;  I  par- 
ticularly fi.red  my  eyes  upon  them. 
I  observed  Mr.  Fergusson  speaking  to 
Mr.  O'Connor,  and  Mr.  O'Connor 
put  his  leg  over  the  bar:  I  called  out, 
"Stop  him."  Mr.  Fergusson  said, 
"He  is  discharged."  I  said,  "He 
is  not  discharged."  Mr.  Fergusson 
then  addressed  Mr.  O'Connor,  and 
said,  "  You  are  discharged."  I  re- 
peated, "He  is  not  discharged,"  I 
believe  more  than  once.  I  observed 
the  jailer  leaning  over  towards 
Mr.  O'Connor,  and  I  think  he  took 
hold  of  him. 

Mr.  Garrow.  —  The  other  pris- 
oners were  between  the  jailer  and 
IMr.  O'Connor,  were  they  ?  —  Two 
of  them  were,  and  the  other  two 
behind  Mr.  Binns  and  Mr.  O'Coigly  ; 
and  then  Mr.  Allen  and  Mr.  Leary 
were  behind.  Then  Mr.  O'Connor 
drew  back  his  leg :  there  was  then 
a  disturbance  immediately  under 
IVIr.  O'Connor,  and  some  person  or 
persons  pressing  forward,  and  Mr. 
Fergusson  made  some  complaint 
to  the  Court  upon  the  sul)ject ;  then 
Rivett,  the  officer,  who  appeared 
to  be  the  person  pressing  forward, 
said  — 

Mr.  Fielding.  —  When  you  say 
pressing  forward,  in  what  kind  of 
direction  was  that  pressure  ?  —  To- 
wards Mr.  O'Connor. 

That  was  not  forwarcl  towards  the 
body  of  the  court,  but  towards  Mr. 
O'Connor?  —  It  was  towards  the 
l)ody  of  the  court,  in  order  to  get  to 
Mr.  O'Connor,  and  place  himself 
under  Mr.  O'Connor,  as  I  conceived. 
Rivett  said,  he  had  got  a  warrant 
against  Mr.  O'Connor;  and  the 
gaoler  also  said  .something  upon 
the  same  subject,  but  I  do  not  rec- 
ollect the  particular  words ;  and 
Mr.  Justice  BuUer  spoke  to  the 
officers,  as  I  understood,  to  keep  the 


prisoners  back,  or  some  expression 
of  that  description,  and  then  almost 
instantlv  began  addressing  Mr. 
O'Coigly. 

Lord  Kenyan.  —  With  a  view  to 
pass  the  sentence  ?  —  With  a  view 
to  pass  the  sentence.  I  recollect 
that  this  was  almost  instantaneous ; 
because  I  was  about  to  speak  to 
the  Court ;  and  it  was  so  sudden, 
that  I  thought  it  was  indecent  to 
interrupt  Mr.  Justice  Buller,  other- 
wise should  have  spoken  to  the  Court. 

Mr.  Garrow.  —  Mr.  Attorney- 
General  had  retired  from  the  court  ? 
—  He  had  retired  from  the  court, 
and  had  desired  me  to  speak  to  Mr. 
Justice  Buller  upon  the  subject, 
which  I  had  done  after  Mr.  Justice 
Buller  had  passed  sentence  upon 
Mr.  O'Coigly.  I  fixed  my  eye  par- 
ticularly upon  Mr.  O'Connor,  and 
I  observed  Mr.  Fergusson,  and  some 
other  persons  wjiom  I  did  not  know, 
encouraging  Mr.  O'Connor  to  go 
over  the  bar.  Mr.  O'Connor  ap- 
peared for  a  little  while  to  hesitate, 
but  it  was  only  for  a  moment ;  he 
then  sprung  over  the  bar,  and  leaped 
into  the  lower  part  of  the  court, 
between  the  bar  and  the  jury  box, 
which  was  on  the  right  hand  of  the 
judges.  From  that  time  I  did  not 
see  Mr.  O'Connor  until  he  was 
brought  back  by  the  officers ;  for  at 
the  same  instant  that  Mr.  O'Con- 
nor jumped  over  the  bar,  three  or 
four  persons  whom  I  did  not  know 
leaped  over  from  the  box  opposite 
the  jury  box  upon  the  table. 

jNIr.  Garrow. — Was  that  box  the  box 
where  the  witnesses  had  been  exam- 
ined ? — Where  the  witnesses  had  been 
examined,  and  where  persons  who 
attended  the  trial  through  curios- 
ity had  been.  They  went  to  the 
spot  where  the  riot  was,  and  jumped 
among  the  rioters :  all  the  lights, 
except  those  before  the  judges,  and 
the  lights  which  hung  in  the  middle 
of  the  court,  in  a  kind  of  branch  or 
chandelier ;  I  do  not  recollect  ex- 
actly what  sort  of  a  thing  it  was ; 
it  gave  a  consideral)le  light  —  but  all 
the  other  lights  were  extinguished. 


No.  392. 


EARL   OF    THANET  S    TRIAL 


1027 


Mr.  Garroio.  —  The  chandelier 
that  hung  over  the  prisoners  ?  —  In 
the  middle  of  the  court ;  there  were, 
I  think,  three  patent  lamps  in  it ; 
it  gave  a  great  deal  of  light.  Mr. 
Fergvsson,  at  the  moment  that  Mr. 
O'Connor  jumped  over  the  bar,  turned 
himself  round,  and  appeared  to  me  to 
follow  Mr.  O'Connor;  but  I  cannot 
positively  say  that  he  did  so,  because 
the  persotis  ivho  rushed  from  the  other 
side  of  the  court,  came  between  me  and 
him;  but  I  recollect  that  when  they 
were  passed  I  did  not  see  him.  I 
then  attended  to  the  prisoner 
O'Coigly,  apprehensive  that  he  might 
escape ;  and  that  attracted  my 
attention  in  some  degree  from  what 
was  passing  in  the  riot ;  he  was  per- 
fectly tranquil,  and  I  was  convinced, 
from  his  behavior,  that  he  did  not 
mean  to  stir ;  and  therefore  my  at- 
tention was  drawn  back  again  to  the 
riot.  Mr.  Knapp's  clerk,  Mr.  Staf- 
ford, jumped  upon  the  table,  and 
drew  Mr.  O'Connor's  sword  (a  kind 
of  broadsword,  I  think),  which  was 
lying  upon  the  table ;  and  he 
flourished  it  over  the  heads  of  the 
persons  who  were  engaged  in  the 
riot  below.  I  got  up  to  speak  to 
him,  to  desire  him  to  put  up  the 
sword,  which,  after  some  time,  he 
did ;  and  soon  after  Mr.  O'Connor 
was  brought  back.  Mr.  Stafford 
being  between  me  and  the  rioters, 
prevented  me  from  seeing  what 
passed  after  the  riot  was  over.  I 
do  not  recollect  anything  material 
except  lord  Thanet ;  that  is,  a  person 
whom  I  understood  to  be  lord 
Thanet.  I  did  not  know  lord 
Thanet's  person ;  that  is,  I  did  not 
recollect  him  ;  I  had  seen  him  many 
years  ago.  /  saw  a  person  whom 
I  understood  to  be  lord  Thanet  come 
across  the  table;  and  I  saw  him  in 
conversation  with  Mr.  JuMice  Law- 
rence; that  conversation  wa^  a  little 
warm,  but  I  did  not  hear  the  particu- 
lars of  it.  When  my  lord  Thanet  left 
Mr.  Justice  Lawrence,  and  tcent 
across  the  table  again,  I  heard  him 
say,  "  I  thought  it  was  fair  he  should 
have  a  run  for  it." 


Was  that  addressed  to  the  judge 
in  parting  from  him  and  going  across 
the  table  ?  —  I  think  it  was  not  ad- 
dressed to  the  judge,  but  as  he  turned 
from  the  judge  :  he  said  it  rather  in  a 
tone  of  anger ;  I  think  it  %eas  in  con- 
sequence  of  what  had  fallen  from  Mr. 
Justice  Lawrence,  which  I  did  not 
e.vactly  hear.  I  do  not  recollect 
anything  else. 

]Mr.  Fielding.  —  Will  you  have  the 
goodness  to  explain  what  you  meant 
by  "  encouraging  Mr.  O'Connor  to  get 
over  the  bar" f  —  It  was  not  immedi- 
ately encouragement,  by  any  words 
that  I  coidd  hear ;  but  by  action,  as  if 
he  was  encouraging  him  to  come  over 
the  bar,  and  by  insisting  that  he  was 
discharged. 

Sir  John  Mitford  cross-examined  by 
Mr.  Best. 

While  Mr.  Fergusson  was  speaking 
to  Mr.  O'Connor,  he  was  in  his  place 
at  the  barf  —  He  loas. 

There  was  a  vast  number  of  other 
persons  at  the  same  time  speaking  to 
Mr.  O'Connor?  —  Yes. 

I  believe  it  was  generally  under- 
stood in  the  court  at  that  time,  that 
Mr.  O'Connor  would  be  acquitted  ? 
—  I  do  not  know  whether  they  were 
congratulating  him ;  it  was  after 
he  was  acquitted.  .  .  . 
Mr.  Justice  Heath  sworn.  —  Exam- 
ined by  Mr.  Attorney-General. 

Your  lordship,  I  believe,  was  one 
of  the  commissioners  of  Oyer  and 
Terminer  at  Maidstone  ?  —  I  was. 

Did  your  lordship  observe  any 
riot  that  took  place  ?  —  I  did  ;  and 
if  you  will  give  me  leave,  I  will  state 
all  that  I  observed.  I  was  applied 
to  in  the  course  of  the  day  by  a  mes- 
senger from  the  secretary  of  state, 
who  informed  me  that  a  warrant  was 
issued  for  the  apprehension  of  Mr. 
O'Connor,  in  case  he  should  be 
acquitted,  and  desiring  to  know  if 
the  Court  would  permit  him  to  ex- 
ecute that  warrant  if  he  should  be 
acquitted  ;  and  we  gave  leave,  .\fter 
the  verdict  had  been  given,  and,  I 
believe,  after  sentence  of  death  had 
passed,  this  messenger  very  unad- 
visedly went  from  that  corner  of  the 


102S 


PART    III.       PROBLEMS    OF    PROOF 


No.  302. 


box  where  the  prisoners  were  con- 
fined, to  that  corner  which  was  near 
the  door,  and  said  aloud,  "My  lord, 
may  I  now  execute  my  warrant?" 
Presently  after,  I  saw  Mr.  O'Con- 
nor thrust  one  leg  over  the  box,  and 
then  draw  it  back  again  :  afterwards, 
in  the  space  of  a  minute,  I  saw  him 
leap  over  the  box.  I  could  not  see 
any  person  between  him  and  the 
door  at  that  moment.  Immediately 
a  great  scuffle  and  a  riot  ensued, 
and  a  great  deal  of  fighting,  such  as 
I  never  saw  before  in  a  court  of 
justice ;  it  appeared  to  me  to  be 
between  the  constables  with  their 
staves  on  one  side,  and  those  who 
favored  the  escape  of  O'Connor  on 
the  other.  I  knoAV  not  from  whence 
the  favorers  of  Mr.  O'Connor  came ; 
it  l)eing  dark,  I  could  not  see  exactly 
the  numl)er  of  the  combatants ;  it 
was  dark  in  that  place  where  they 
were  fighting  ;  but  from  the  exertion 
of  the  constables  in  plying  their 
staves,  it  seemed  to  me  that  there 
must  have  been  ten  or  twenty,  I 
suppose,  all  fighting  together.  I 
saw  a  man  with  a  naked  saber, 
brandishing  it  over  the  heads  of  the 
combatants.  One  of  the  officers 
of  the  court,  I  believe,  came  up  to 
me  with  a  l)t'ace  of  pistols,  Avhich, 
I  believe,  belonged  to  Mr.  O'Connor, 
and  lay  upon  the  counsel  table,  say- 
ing, "I  have  secured  these  at  last." 
This  combat,  I  suppose,  might  last 
five,  six,  or  seven  minutes  ;  I  cannot 
exactly  say  how  long ;  but  in  the 
course  of  it,  I  saw  Mr.  Fergusson 
standing  upon  the  table,  together  tvith 
vtuny  others ;  he  turned  round  towards 
the  commissioners,  and  said,  I  be- 
lieve particularly  addressing  himseJf 
to  me,  "  My  lords,  the  constables  are 
the  persons  that  are  the  rioters:  they 
are  the  occasion  of  it,"  or  tcords  to  that 
effect.  Before  I  could  give  him  an 
answer,  he  turned  round  again  to- 
irards  the  combatants ;  it  was  impos- 
sible, from  the  noise,  for  him  to  hear 
anything  I  could  say  to  him.  My 
attention  was  chiefly  turned  from  him 
to  the  more  interesting  scene  of  the 
fight;  but  I  must  do  him  the  justice  to 


say,  that,  in  the  very  short  time  I  saw 
him,  which  was  not  above  a  minute 
or  so,  I  did  not  observe  him  say  or  do 
anything  to  encourage  the  riot.  I 
thought  myself  in  great  danger,  ami 
that  we  were  all  so.  I  could  not 
guess  at  the  view  of  the  rioters,  how 
far  it  extended,  or  whether  they  had 
any  and  what  arms ;  indeed  we 
were  more  alarmed,  because  we  had 
intelligence  beforehand,  that  there 
was  a  very  disaffected  party  in  the 
town.  —  That  is  all  I  have  to  say. 
Charles  Abbot,  Esq.,  sworn.  —  Ex- 
amined by  ]Mr.  Law. 

^Yere  you  in  court  when  the  jury 
brought  in  their  verdict  ?  —  I  was. 

Did  you  observe  any  motion  made 
by  Mr.  O'Connor  towards  quitting 
the  bar  ?  —  I  do  recollect  that  Mr. 
O'Connor  made  a  motion  with  his 
body,  as  if  he  would  leave  the  bar. 
Mr.  Fergusson,  almost  at  the  same  in- 
stant said,  "lie  is  discharged."  Mr. 
Solicitor-General  then  called  across 
the  table,  "No,  stop  him;  he  is  not 
discharged."  Just  at  the  same  in- 
stant, one  of  the  officers,  either  Riv- 
ett  or  Fugion,  but  I  cannot  say 
which,  got  upon  the  form  and  pressed 
forward  towards  Mr.  O'Connor, 
and  at  the  same  time  said  he  had 
a  warrant ;  there  was  then  a  little 
confusion  for  a  short  space  of  time, 
but  not  very  long;  the  prisoners 
resumed  their  places,  and  Mr.  Justice 
Buller  proceeded  to  pass  the  sentence 
upon  Mr.  O'Coigly.  During  this 
time  I  had  been  sitting  almost  im- 
mediately under  Mr.  Justice  Buller, 
ver\'  nearly  so.  At  the  very  in- 
stant that  Mr.  Justice  Buller  had 
closed  the  sentence,  I  observed  Mr. 
O'Connor  leap  over  from  the  bar 
towards  his  left  hand  ;  a  very  great 
tumult  and  confusion  immediately 
took  place  ;  and,  shortly  afterwards, 
I  saw  a  person,  whom  I  soon  learned 
to  be  Mr.  Stafford,  draw  a  saber, 
and  went  to  that  corner  of  the  table 
where  the  confusion  was.  Mr.  Gar- 
row  cautioned  him  not  to  strike  ;  and 
he  did  not  appear  to  aim  the  saber 
at  anybody,  but  merely  to  keep  it 
moving    over    their    heads.     When 


No.  392. 


EARL   OF   THANET  S   TRIAL 


1029 


this  second  tumult  began,  I  rose  up 
and  stood  upon  the  form  upon  which 
I  had  been  sitting ;  so  that  I  was 
standing  before  Mr.  Justice  Duller 
and  Mr.  Justice  Heath,  with  my 
back  towards  them.  When  the 
confusion  began  to  abate,  I  turned 
round,  and  entered  into  some  con- 
versation with  Mr.  Justice  Buller ; 
and  soon  after  this,  while  I  was  in 
that  situation,  I  saw  my  lord  Thanet 
standing  on  the  table,  nearly  before 
Mr.  Justice  Lawrence,  which  was 
towards  my  right  hand.  /  heard  Mr. 
Justice  Lawrence  speak  to  lord  Thanet 
to  this  effect,  "  /  think  it  ivould  he  an 
act  of  kindness  in  Mr.  O'Connor's 
friends,  to  advise  him  to  go  quietly  to 
the  prison,  lest  some  mischief  should 
happen."  I  do  not  pretend  to  state 
the  learned  judge's  words;  but  the 
substance,  I  believe,  I  am  correct  in. 
Lord  Thanet  then  turned  abruptly 
round  towards  his  right  hand,  which 
brought  his  hack  towards  me;  and  I 
did  not  distinctly  hear  the  first  ivords 
that  he  uttered,  hut  the  concluding 
words  toere  either  "  to  have  a  run  for 
■it,"  or  "fair  to  have  a  run  for  it."  L 
will  not  be  quite  certain  of  the  ivord 
"fair" ;  but  of  the  tvords  "to  have  a 
run  for  it,"  I  am  quite  certain.  I 
have  the  more  particular  recollec- 
tion of  this,  because,  shortly  after- 
wards, I  observed  Mr.  Sheridan  at 
the  same  part  of  the  table,  and 
heard  Mr.  Justice  Lawrence  speak 
to  him  to  the  same  effect  that  he  had 
before  spoken  to  my  lord  Thanet. 
Mr.  Sheridan  answered  with  great 
civility,  either  that  he  had  done  so, 
or  that  he  would  do  it :  it  was  the 
different  manner  of  Mr.  Sheridan 
to  that  of  my  lord  Thanet  that  made 
me  recollect  that.  .  .  . 

Mr.  Lftw.  —  Have  you  any  doubt 
of  the  words  spoken  by  lord  Thanet, 
"to  have  a  run  for  it"?  —  I  have 
not. 

John  Rivett  sworn.  —  Examined  by 
Mr.  Garroio. 

Did  you  attend  at  Maidstone  as 
a  witness  upon  the  trial  of  O'Connor 
and  others  ?  —  I  did. 

Was  any  application  made  to  you 


by  one  of  his  majesty's  messengers, 
to  assist  in  apprehending  Mr.  O'Con- 
nor, if  he  should  be  acquitted  by 
the  jury  ?  —  Yes,  there  was. 

Did  you,  in  conseciuence  of  that, 
go  into  the  court  with  a  view  to  give 
that  assistance  ?  —  Yes,  I  did. 

Who  went  with  you  ?  —  Fugion, 
my  brother  officer. 

He  was  another  officer  of  the 
police  ?  —  Yes,  and  the  messenger ; 
we  all  three  went  into  the  court  to- 
gether. 

Is  Fugion  since  dead  ?  —  He  is.  .  .  . 

At  which  end  of  the  bar  were  you  ? 
were  you  on  the  side  the  farthest 
from  Mr.  O'Connor,  or  the  nearest  ? 
—  Nearest  to  the  jailer,  which  was 
the  right-hand  side  of  the  bar. 

While  you  were  in  this  position 
had  you  any  conversation  with  a 
gentleman  you  understood  to  be 
Mr.  Thompson  ?  —  Yes. 

State  it  to  the  Court.  —  The  gen- 
tleman whom  I  understood  to  be  Mr. 
Thompson,  a  member  of  parliament, 
asked  me,  "What  I  did  there?" 
I  made  him  little  or  no  answer.  He 
then  said,  "What  business  have 
you  here  ?"  or  words  to  that  effect ; 
"  have  you  got  anything  against 
Mr.  O'Connor  ?  "  meaning,  as  I  sup- 
posed, a  warrant ;  I  did  not  know 
what  his  meaning  was.  I  replied, 
"No."  I  believe  he  asked  Fugion 
likewise,  to  the  best  of  my  recol- 
lection. .  .  . 

What  then  passed  ?  —  I  then  ob- 
served a  gentleman,  whom  I  knew 
to  be  Mr.  O'Brien,  at  the  farther 
end  of  the  court :  I  observed  Mr. 
O'Brien  whispering  something  to 
Mr.  O'Connor  over  the  bar. 

Describe  particularly  where  ^Ir. 
O'Brien  was  placed  during  that 
time  ?  —  He  was  on  the  left-hand 
side  of  the  bur,  by  Mr.  O'Connor ; 
I  was  on  the  right-hand  side,  aiifl  he 
on  the  left :  a  few  minutes  might 
elapse,  when  Mr.  Thompson  put 
up  his  finger  to  catch  the  eye  of  ^Ir. 
O'Brien,  and  beckoned  to  him ;  a 
few  minutes  might  elapse,  when  Mr. 
O'Brien  came  to  the  same  side  where 
I  stood. 


1030 


PART   III.      PROBLEMS   OF   PROOF 


No.  392. 


Did  Mr.  Thompson  still  continue 
standing  by  you  ?  —  Yes,  he  did. 

How  long  was  this  before  the 
verdict  was  given  ?  —  While  the 
jury  were  out,  considering  their 
verdict. 

When  Mr.  O'Brien  came  to  the 
place  where  you  and  Mr.  Thompson 
were  standing,  what  took  place  ?  — 
Mr.  O'Brien  and  Mr.  Thompson 
spoke  to  each  other ;  but  what  they 
said  I  cannot  tell.  ^Ir.  O'Brien  then 
addressed  me,  and  said,  "  Have  you 
got  a  warrant  against  Mr.  O'Con- 
nor ?  "  I  said,  "  No."  Then  he  said, 
"Then  Fugion  has." 

Do  you  mean  that  he  made  use  of 
Fugion's  name  ?  —  Yes  ;  Fugion  was 
present,  and  he  answered  immedi- 
ately that  he  had  not.  He  said, 
"  Fugion,  have  you  got  the  warrant  ?  " 
He  addressed  himself  to  Fugion : 
Fugion  said,  "Xo."  Then  Mr. 
O'Brien  said,  "Then  the  messenger 
has." 

Had  Wagstaffe  his  badge  as  king's 
messenger  on  at  that  time  ?  —  I  do 
not  recollect. 

Do  you  mean  to  say  that  he  ad- 
dressed himself  to  the  messenger  ?  — 
No;  he  said,  "Then  the  messenger 
has."  I  then  replied,  "  I  can  answer 
only  for  myself."  Mr.  O'Brien 
then  said,  "  I  will  bet  you  three 
guineas,"  I  think  it  was,  to  the  best 
of  my  recollection,  "that  you  have." 
Fugion  said,  "Done,"  I  believe,  or 
words  to  that  effect.  Mr.  O'Brien 
then  left  the  side  of  the  court  that 
I  was  on,  and  returned  to  the  left- 
hand  side  where  Mr.  O'Connor  was, 
and  whispered  something  to  Mr. 
O'Connor ;   but  what  I  cannot  tell. 

What  observation  did  you  make 
at  that  time,  with  respect  to  any 
other  persons  in  the  court,  as  to  any 
change  of  position  ?  —  It  remained 
quiet  till  the  jury  were  coming  in  : 
a  number  of  gentlemen  seated  them- 
.selves  directly  before  me  in  the 
place  where  I  stood. 

That  was  upon  the  bench  made 
for  the  prisoners'  attorneys  ?  —  Yes. 

Many  gentlemen  seated  them- 
selves there  ?  —  Yes. 


Did  you  know  any  of  those  per- 
sons ?  —  Not  that  were  sitting  down 
before  me ;  some  time  had  elapsed, 
when  there  was  some  noise  when 
the  jury  were  coming  into  court, 
"  Make  way  for  the  jury,"  or  some- 
thing to  that  effect.  I  then  en- 
deavored to  get  as  nigh  Mr.  Watson, 
the  jailer,  as  I  possibly  could.  I 
went  to  step  my  foot  up  to  get 
nigh  the  l^ar,  and  I  was  pulled  down 
again  by  my  leg ;  I  turned  round, 
and  the  person  who  pulled  me  down, 
I  supposed,  was  Mr.  Thompson. 

Do  you  mean  to  say  you  know  it 
was  Mr.  Thompson ;  or,  from  the 
situation  he  was  in,  that  you  appre- 
hended it  was  Mr.  Thompson  ?  — 
Exactly  so. 

You  do  not  aver  the  fact  pos- 
itively ?  —  No  ;  but  when  I  turned 
round  he  was  close  to  me. 

And  therefore  you  conclude  he  was 
the  person  that  pulled  you  ?  —  Yes. 
The  jury  then  came  in,  and  I  en- 
deavored to  get  up  again  as  near  the 
bar  as  I  possibly  could. 

When  you  use  the  expression,  that 
you  endeavored  to  get  up  as  near 
the  bar  as  you  could,  was  there  any- 
thing that  prevented  you  from  get- 
ting there  ?  —  Only  the  gentlemen 
sitting  there. 

With  what  view  was  that  ?  — 
With  a  view  to  assist  in  securing  Mr. 
O'Connor  if  he  should  attempt  to 
make  his  escape. 

Upoti  your  cndcawring  to  get  as 
near  the  bar  as  you  could,  ivhat  hap- 
pened f  —  The  jury  were  in,  and  the 
Court  called  "Silence."  The  jury 
had  given  their  verdict  —  Mr.  O'Con- 
nor and  the  others.  Not  Guilty;  and 
31  r.  O'Coigly,  Guilty;  and  then  I 
got  up  nigh  the  bar.  I  observed 
something  in  Mr.  O'Connor  that 
struck  mc  as  if  he  meant  to  make 
his  escape;  at  that  moment  there  was 
some  noise  in  the  Court,  and  Mr. 
Fergusson  says,  "  What  business  has 
that  fellow  there,  making  such  a  noise  ?  " 

Lord  Kenyon.  —  Whom  was  that 
addressed  to  ?  —  It  was  addressed  to 
the  Court,  I  believe.  Upon  that  I  got 
up  upon  one  of  the  benches,  and  ad- 


No.  392. 


EARL   OF   THANET  S  TRIAL 


1031 


dressed  the  judge,  and  told  him  my 
reasons  for  being  there.  I  told  his 
lordship  I  had  a  warrant  from  the 
duke  of  Portland  to  arrest  Mr.  O'Con- 
nor; the  judge  replied,  "  I  should 
have  him,"  or  words  to  that  effect; 
and  desired  the  jailer  to  take  care  of 
all  the  prisoners  for  the  present. 

Which  of  the  judges  wa.s  that?  — 
Judge  Buller;  then  the  sentence  was 
passed  upon  Mr.  O'Coigly.  As  soon 
as  the  judge  had  so  done,  Mr.  O'Con- 
nor  immediately  jumped  out  of  the 
bar:  there  was  then  a  very  greed  con- 
fusion in  Court;  those  gentlemen  who 
had  so  placed  themselves  before  me, 
stood  up ;  I  called,  out,  "  Shut  the 
door,  shut  the  door,"  several  times. 

After  Mr.  O'Connor  had  jumped 
over  the  bar,  which  way  did  he  take?  — 
He  took  to  the  left. 

He  took  the  direction  going  from 
youf —  Yes. 

That  was  as  we  have  been  describing, 
towards  the  narrow  street? — Yes; 
I  then  endeavored  to  get  forward,  but 
teas  prevented  by  those  gentlemen  who 
had  so  placed  themselves  quite  before 
me  and  Fugion,  and   the   messenger. 

Now  describe  particularly  ichat 
passed  which  prevented  you,  with  your 
assistants,  from  following  Mr.  O'Con- 
nor? —  /  ivas  pulled  down,  or  shoved 
down,  twice  or  three  times;  but  by 
whom,    I    am    not    able    to    say.     I 

THEX  JUMPED  FORWARD  AS  WELL  AS 
I  WAS  ABLE,  AND  WAS  ENDEAVORING 

TO   PURSUE  Mr.   O'Connor  ;    Mr. 

FeRGUSSON  JUMPED  UPON  THE  TABLE, 
AND  WITH  A  STICK  FLOURISHED  IT  IN 
THIS  WAY,  TO  PREVENT  MY  GETTING 
FORWARD. 

Flourished  it  over  your  head?  — 
He  flourished  it  with  an  intent,  as,  I 
presume,  to  stop  me. 

Was  Mr.  Fergusson  in  his  pro- 
fessional   dress? —  Yes,    he    was.     I 

THEN  SPRUNG  AT  HIM,  AND  WRENCHED 
THE  STICK  OUT  OF  HIS  HAND,  AND 
HE  RETURNED  BACK  TO  HIS  FORMER 
SITUATION. 

He  went  from  off  the  table,  and  re- 
turned  to  his  place  at  the  table?  — 
Yes;  otherwise  I  should  have  struck 
him    with    the    stick    which    I    had 


wrenched  from,  him,  if  he  had  not  that 
moment  got  away. 

Describe  what  more  took  place?  — 

As  SOON  AS  I  RECOVERED  MYSELF,  I 
WAS  THEN  KNOCKED  DOWN  BY  SOME 
PERSON  WHO  DROVE  AGAINST  ME  — 
NOT  WITH  A  STICK  ;  AND  AS  SOON  AS 
I  HAD  RECOVERED  MYSELF,  I  SAW 
THE  PERSON  WHO  HAD  SO  SHOVED 
ME  DOWN  ;  I  IMMEDIATELY  STRUCK 
HIM  WITH  MY  STICK  :  I  REPEATED  MY 
BLO\\^S  THREE  OR  FOUR  TIMES  ;  THAT 
PERSON  CALLED  OUT,  "Don't  STRIKE 
ME  ANY  MORE."  I  REPLIED,  "  I  WILL  ; 
HOW  DARE  YOU  STRIKE  ME  ?"       That 

person  I  so  struck  was,  as  I  under- 
stood while  I  was  in  court,  the  earl  of 
Thanet. 

Are  you  quite  certain  that  the  person 
you  struck  and  repeated  your  blows 
with  a  stick,  was  the  jierson  who 
shoved  you  down  f  —  Yes. 

And  that  person,  whilst  you  con- 
tinued in  court,  you  understood  was  my 
lord.  Thanet? —  Yes. 

Should  you  know  his  person  now? 

—  /  think  I  should. 

Look  round  the  court,  in  all  parts  of 
it,  and  see  if  you  see  his  lordship  here 

is  that  the  per.wn  you  struck  who 

sits  7ie.vt  Mr.  Gibbs? —  /  believe  it  is ; 
I  cannot  positively  say,  because  I  have 
never  seen  the  gentleman  but  once 
since  that  time. 

From  the  appearance  of  his  lord- 
skip,  from  his  person  and  make,  do 
you  now  believe  him  to  be  the  person? 

—  /  cannot  positively  say. 

Have  you  reason  to  believe  that  that 
gentleman  is  the  person?  —  /  have 
some  reason  to  believe  so,  from  his 

SIZE. 

Did  you  afterwards,  in  the  course  of 
your  continuance  in  court,  see  lord 
Thanet  in  any  other  part  of  the  court? 

—  He  was  pointed  out  to  me  iin- 
mediately  after. 

Upon  the  spot?  —  Upoti  the  spot. 

I  do  not  know  ivhcther  you  recollect 
how  he  icas  dressed?  —  No,  I  do 
not. 

Who  was  the  person  that  told  you 
that  the  name  or  title  of  the  person, 
with  whom  you  had  the  contest,  teas 
lord  Thanet?  —  Mr.  O'Connor,  after 


1032 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


being  secured  and  hroughi  back  again 
into  the  bar. 

Mr.  O'Connor  gave  the  title  of  lord 
Thanet  to  the  person  ivith  ichom  you 
had  had  the  contest?  —  Yes. 

Lord  Kenyon.  —  Was  it  a  conver- 
sation addressed  by  Mr.  O'Connor  to 
you?  —  It  teas. 

Mr.  Garrow.  —  After  you  had 
given  these  blows  to  the  person  sup- 
posed to  be  lord  Thanet,  what  passed  ? 

—  I  observed  ^Slr.  O'Connor  was  in 
custody  —  he  had  been  secured  by 
the  doorway  ;  I  then  assisted  in  get- 
ting him  back  to  the  bar.  .  .  . 
John  Rivett  cross-examined  by  Mr. 

Erskine. 

You  have  stated  to  my  lord  and 
the  jury,  that,  from  something  that 
passed,  you  expected  Mr.  O'Connor 
to  attempt  to  make  his  escape  ?  — 
Yes. 

I  take  it  for  granted,  that  the 
apprehension  that  he  wanted  to 
make  his  escape,  induced  you  to  go 
forward  ?  —  Yes  :  I  got  as  near  the 
bar  as  I  could. 

It  made  you  more  desirous,  with 
the  other  officers,  to  push  forward 
quickly  ?  —  Surely  so. 

If  you  had  had  no  reason  to  sup- 
pose Mr.  O'Connor  was  endeavor- 
ing to  escape,  and  that  others  had 
a  disposition  to  assist  him,  I  take 
it  for  granted  you  would  have  gone 
on  more  leisurely  ?  —  No  doubt. 

But  the  apprehension  that  you  had, 
that  you  might  be  disappointed  in 
the  execution  of  your  warrant,  made 
you  goon  with  considerable  rapidity  ? 

—  I  went  swifter  than  I  should  have 
done  if  I  had  not  been  molested,  no 
doubt. 

The  line  that  you  were  going  in  at 
that  time,  was  a  place  not  very  un- 
like where  I  am  standing  now,  im- 
mediately before  the  prisoners  ?  — 
Yes. 

That  is  to  say,  a  place  like  that  I 
am  now  standing  in,  divided  by 
something  like  this  from  the  place 
where  the  counsel  sat?  —  Just  .so.    • 

You  say  that  you  jumped  forward 
as  well  as  you  were  able,  and  were  en- 
deavoring to  pursue   Mr.   O'Connor, 


when  Mr.  Fergusson  jumped  upon, 
the  table,  and  with  a  stick  flourished 
in  this  way,  to  stop  you?  —  Yes. 

That  u'as  the  first  obstruction  you 
met  with? — No;  I  was  pulled  by  the 
leg. 

But,  except  that  pulling  by  the  leg, 
(ifter  you  pursued  your  progress 
through  the  solicitors'  box,  the  first 
interruption  you  v.et  with  was  by  Mr. 
Fergusson  jumping  upon  the  table?  — 

—  No :  I  had  been  pushed  down  before 
that. 

Had  you  strxick  anybody  before 
that?  —  No. 

Had  you  shoved  or  pushed  anybody? 

—  /  cannot  tell  that ;  in  the  confusion 
I  might. 

You  had  not  seen  lord  Thanet  till 
after  this  had  passed  with  Mr.  Fer- 
gusson?—  To  my  knowledge  I  had 
not. 

Lord  Thanet  is  a  very  strong,  big 
man  ?  —  Yes,  he  is  so. 

Then  you  had  not  seen  lord  Thanet 
till  after  you  had  been  with  Mr.  P'er- 
gusson,  at  this  time  upon  the  table  ? 

—  No,  I  had  not. 

And  you  had  shoved  against 
several  others  ?  —  I  probably  might, 
in  the  endeavor  to  get  forward.  .  .  . 

After  you  saw  Mr.  O'Connor  jump 
over  the  bar,  and  when  you  were  ap- 
prehending that  you  might  be  dis- 
appointed in  arresting  him,  you 
went  forth  with  all  the  rapidity  you 
could.  Now,  how  came  you  to  leave 
the  course  which  directly  led  to  him 
to  go  up  to  the  table  where  Mr.  Fer- 
gusson stood  ?  —  There  had  been 
a  great  many  gentlemen  in  the  cor- 
ner, and  I  got  a  little  farther  to  the 
right. 

Towards  the  table  where  Mr. 
Fergusson  was  ?  —  Yes. 

He  was  standing  upon  the  table, 
and  you  upon  the  ground  ?  —  No  ; 
upon  the  bench :  I  might  be  upon 
the  ground  sometimes ;  for  I  was 
up  and  down  several  times. 

IVIr.  Fergusson  was  upon  the  table, 
flourishing  a  stick  over  you,  in  his 
wig  and  gown,  and  you  forcibly 
wrenched  it  out  of  his  hand  ?  — 
Yes ;  and  if  he  had  not  got  away, 


No.  392. 


EARL   OF   THANET  S   TKIAL 


1033 


he  would   have  recollected   me  an- 
other time. 

Now  you  take  upon  you  to  say, 
that  when  this  transaction  took  place, 
he  returned  to  the  table,  and  went 
to  his  seat  ?  —  He  turned  back, 
and  went  from  me  to  the  table. 

Did  he  go  towards  ]\lr.  O'C'onnor  ? 
— No  ;  he  turned  towards  the  judges. 
Then  it  was  not  until  after  this 
transaction  had  jmssed,  when  Mr. 
Fergusson  had  flourished  his  stick  in 
this  manner,  and  had  gone  away  to- 
wards the  judges,  that  you  met  with 
lord  Thanetf  —  Just  so. 

What  interval  of  time  might  there  be 
between  Mr.  Fergusson' s  going  away 
in  the  manner  you  describe,  and  your 
meeting  toith  lord  Thanet  f  —  A  very 
few  minutes ;  a  minute  or  two. 

Where  was  it  you  met  with  lord 
Thanet  ?  —  A  very  little  distance 
from  me. 

Was  he  in  the  counsel's  seat,  or 
where  ?  —  I  do  not  know  what  you 
call  the  counsel's  seat ;  he  was  upon 
the  benches.  As  soon  as  I  turned 
from  Mr.  Fergusson,  I  was  immedi- 
ately shoved  down. 

Was  the  person  you  took  to  be 
lord  Thanet  upon  a  bench  by  where 
the  table  stood  ?  —  I  cannot  say. 

Had  he  a  stick  f  —  He  had  no  stick, 
that  I  recollect. 

Then,  lord  Thanet  having  no  stick, 
what  assault  did  he  make  upon  you  ? 
—  With  his  fist,  in  this  way,  shoved 
me  down  as  I  was  going  forward ; 
he  shoved  me  back. 

And  then  you  struck  him?  —  Yes; 
a.s  soon  as  I  recovered  myself,  I  struck 
him  two  or  three  blows. 

With  what?  —The  stick  that  I  took 
from  Mr.  Fergusson. 

I\Iy  lord  Thanet  had  no  means  of 
parrying  that  blow  ?  —  No  ;  he  did 
not  attempt  to  strike  me  afterwards. 

Where  was  he  at  the  time  you 
struck  him  two  or  three  times  ?  — 
When  I  hit  him  the  first  time,  he 
fell  upon  his  side,  this  way. 

Did  you  strike  him  after  that  ?  — 
Yes. 

j\Ir.  Fergusson  was  gone  away  ?  — 
Yes. 


Mr.  Fergusson  did  nothing  to  en- 
deavor to  extricate  lord  Thanet  from 
you  ?  —  No. 

Did  you  strike  anybody  else  but 
lord  Thanet  ?  —  I  do  not  know  that 
1  did ;  I  might  by  accident. 

If  you  struck  anybody  else,  besides 
lord  Thanet,  it  was  by  accident  ?  — 
Yes. 

Did  you  see  either  Fugion,  Adams, 
or  Wagstaffe,  who  were  there,  strike 
anybody  ?  —  No,  I  did  not. 

Mr.  Garrow.  —  Do  you  remember 
seeing  Fugion  strike  anybodv  ?  — 
No. 

You  said  you  were  not  before  ac- 
quainted with  the  person  of  IVIr. 
Thompson  ?  —  No. 

Should  you  know  him  again  now  ? 

—  I  should  think  that  little  gentle- 
man is  him. 

Mr.  Gibbs.  —  This  gentleman  ? 
[putting  his  finger  on  Mr.  Thomp.son.] 

—  No  ;   the  next  gentleman. 

This  gentleman  ?  [putting  his  fin- 
ger on  Mr.  Bonney.]  —  Yes  ;  I  think 
that  is  him. 

Sir  Edward  KnatchbuU,  Ijart.,  sworn. 
—  Examined  by  Mr.  Adam. 

Were  you  at  the  trial  of  O'Coigly, 
O'Connor,  and  others,  at  Maidstone  ? 

—  I  was. 

W^ere  you  present  in  court  at  the 
time  the  riot  took  place  ?  —  I  was. 

Will  you  state  to  m^\'  lord  and  the 
jury,  whether  you  saw  Rivett,  the 
Bow-street  officer,  engaged  with  any 
person,  and  with  whom  ?  —  Pre- 
vious to  the  sentence  being  passed 
upon  O'Coigly,  I  saw  Rivett,  the 
Bow-street  officer,  on  the  prisoner's 
right  hand  ;  he  produced  some  paper, 
wliich  I  understood  at  the  time  to 
be  a  warrant  from  the  duke  of  Port- 
land, to  secure  the  person  of  Mr. 
Arthur  O'Connor;  after  that,  there 
was  some  conversation  passed  be- 
tween the  jutlge  and  Rivett,  which 
I  do  not  immediately  recollect.  / 
saw  lord  Thanet  seat  himself  under 
the  prisoners  at  the  bar,  immediately 
at  the  conclusion  of  the  sentence  being 
passed  upon  O'Coigly.  I  saw  Rivett. 
who  appeared  to  me  to  be  placed  in 
a  situation  in  order  to  prevent  Mr 


1034 


PART   III.      PROBLEMS   OF   PROOF 


Nc.  392. 


O'Connor's  escape.  I  saw  Mr. 
O'Connor  put  his  right  foot,  I  think 
it  was,  upon  the  bar,  his  left  hand 
upon  the  raihng,  and  his  right  hand 
either  upon  some  person's  shoulder 
that  was  sitting  under,  or  else  upon 
the  rail,  and  jump  into  the  crowd. 
I  can  only  speak  now  as  it  struck  me 
at  the  time ;  it  appeared  to  me  that 
lord  Thanet  rof-c  from  his  scat  as  soon 
as  Mr.  O'Connor  jumped  into  the 
crowd ;  he  rose  from  his  seat  in  order 
to  prevent  Mr.  Rivett  from  securing 
the  person  of  Mr.  O'Connor.  There 
was  some  person,  who  it  was  I  can- 
not pretend  to  say,  hut  it  was  some 
person  with  rather  a  bald  head,  a 
person  whom  I  should  not  know 
again  if  I  was  to  see  him. 

Can  you  tell  how  he  was  dressed  ? 
—  No,  I  cannot ;  but  there  was 
some  person  who  took  hold  of  Rivett, 
at  least  it  had  that  appearance  to  me 
in  the  bustle  ;  he  took  hold  of  Rivett, 
and  pulled  him,  endeavoring  to  keep 
him  back  ;  lord  Thanet  was  between 
Rivett  and  where  Mr.  O'Connor  had 
leaped  out  of  the  pound.  I  know 
nothing  farther;  that  is  all  I  saw 
of  the  business.  I  cannot  pretend 
to  say  what  passed  afterwards. 

Did  you  see  any  fighting,  or  any 
blows  struck  ?  —  It  did  appear  to 
me,  but  I  can  by  no  means  speak 
positively  to  it,  that  when  a  per- 
son, whoever  it  was,  was  endeavor- 
ing to  keep  Rivett  back,  Rivett,  if 
I  may  make  the  gesture,  for  I  do  not 
know  how  to  describe  it,  Rivett,  in 
this  kind  of  way,  struck  lord  Thanet 
in  the  side,  as  it  appeared  to  me;  hut 
I  cannot  say  tvhether  he  struck  lord 
Thanet  or  not,  at  that  distance;  nor  did 
I  see  him  make  a  blow  at  any  person. 

Are  you  sure  that  lord  Thanet 
was  standing  in  that  part  of  the 
court  ?  —  I  am  quite  certain  that 
he  went  there  when  sentence  had 
passed. 

Thomas  Watson  sworn.  —  Examined 
by  Mr.  Wood. 

You  are  the  jailer  of  Maidstone, 
I  believe?  —  I  am. 

Were  you  in  court  at  the  trial  of 
these  prisoners  ?  —  Yes,  I  was. 


Do  you  remember  the  judges  giv- 
ing any  directions  not  to  discharge 
the  prisoner  ?  —  Yes. 

When  were  these  directions  given  ? 
—  Just  before  it  ended. 

Do  you  mean  before  the  sentence 
of  death  was  pronounced  ?  —  Yes, 
I  believe  it  was,  to  the  best  of  my 
knowledge. 

Before  the  sentence  was  finished, 
did  vou  sav  anvthing  to  Mr.  O'Con- 
nor ?— I  didfl  said,  "Mr.  O'Con- 
nor, remember  you  are  not  to  be 
discharged,  though  vou  may  be 
acquitted."  He  said, '"  Why  ?  "  and 
I  said,  "  Because  I  have  no  authority 
to  discharge  you,  and  therefore  you 
must  not  go." 

Was  anything  -said  after  that  to 
Mr.  O'Connor  by  anybody  ?  —  x\ 
person  just  below  him,  after  sen- 
tence was  passed,  said  to  Mr. 
O'Connor,  "  You  are  acquitted ; 
what  do  you  stand  there  for  ?  why 
do  not  you  jump  over  ?" 

You  do  not  know  who  that  person 
was,  I  suppose  ?  —  No  :  Mr.  O'Con- 
nor said,  "Mr.  Watson  says,  I  am 
nottogo  :"  the  gentleman  below  said, 
"  Pshaw  !  you  are  acquitted  :  what 
do  you  stay  there  for  ?  jump  over." 
He  instantly  sprung,  and  I  instantly 
caught  hold  of  the  skirt  of  his  coat 
as.  he  got  over,  and  held  him  :  I  then 
cried  out,  "Stop  him,  stop  him!" 
There  were  some  of  them  shoving  him 
behind,  to  shove  him  through  the 
wicket,  and  others  shoving  him  back ; 
but  he  was  so  secured,  that  they  got 
him  back  into  his  place  again. 

Did  you  see  Rivett  ?  —  I  did. 

Did  you  give  any  directions  to 
Rivett  ?  —  I  called  to  him,  or  his 
companion,  and  said,  "I  wish  you 
would  go  out  and  get  some  con- 
stables and  assistants;"  for  I  sus- 
pected there  would  be  something 
amiss  by  and  by. 
Thomas  Adams  sworn.  —  Examined 
by  Mr.  Fielding. 

You  were  coachman  to  Mr.  Justice 
Buller  at  the  time  of  the  trial  ?  —  I 
was. 

Tell  my  lord,  and  the  gentlemen 
of  the  jury,  what  you  observed  in  the 


No.  392. 


EARL   OF   THANET's   TRIAL 


1035 


court  after  Mr.  Justice  Buller  had 
passed  sentence  of  death  upon 
O'Coigly.  First  of  all,  where  was 
your  situation  ?  —  At  the  wicket 
door  that  leads  into  the  body  of  the 
court,  and  that  part  of  the  court  that 
the  spectators  stand  in. 

By  the  jury  box  ?  —  Yes. 

Now,  when  sentence  of  death  was 
passed,  what  did  you  observe  going 
forward  in  court  ?  —  Some  person 
said,  "  Spring,"  but  who,  I  know  not ; 
immediately  Mr.  O'Connor  jumped 
over  the  bar  into  the  body  of  the 
court. 

Did  you  observe  the  person  of 
the  man  from  whom  the  voice  came  ? 

—  No,  I  did  not ;  he  came  to  the 
wicket  door,  where  I  stood,  and  I 
immediately  caught  him  by  the 
collar. 

Then  he  had  made  his  escape  so 
far  as  to  get  to  the  place  where  you 
were  ?  —  He  had  ;  I  caught  him  by 
the  collar  of  the  coat,  and  savs, 
'Til  be  damned  if  I  let  you  go;" 
and  immediately  the  wicket  door 
was  opened  ;  I  took  the  wicket  door 
in  my  left  hand,  and  pulled  it  to, 
and  bolted  it ;  and  the  moment  I  had 
bolted  it,  some  person  knocked  me 
down. 

Did  you  see  that  person  after- 
guards, to  know  him  ?  —  My  whole 
attention  *  was,  to  stop  Mr.  O'Con- 
nor. 

Then  you  do  not  know  the  person 
wlio  knocked  you  down  ?  —  I  do 
not ;  I  immediately  got  up,  and 
seized  Mr.  O'Connor  again,  and  said, 
"  I'll  be  damned  if  I  let  you  go,  let 
the  consequence  be  what  it  will." 

When  you  had  reco^■ered  your- 
self, and  caught  him  again,  do  you 
remember  who  were  the  persons  im- 
mediately   about    Mr.    O'Connor  ? 

—  I  saw  several  gentlemen  between 
the  officers  and  Mr.  O'Connor. 

Did  you  know  any  of  them  by 
name,  as  it  appeared  afterwards  ?  — 
I  saw  my  lord  Thanet ;  his  lordship 
was  as  close  to  me  as  possible,  rather 
behind  me. 

How  far  was  that  situation,  in 
which  vou  saw  lord  Thanet,  from  the 


immediate  front  of  the  bar  from 
whence  Mr.  O'Connor  had  escaped  ? 
—  He  might  be  as  far  from  the  bar, 
not  quite  so  far,  as  I  am  from  you  ; 
rather  nearer  to  the  wicket,  where 
I  stood. 

Did  you  see  lord  Thanet  do  any- 
thing ?  —  I  saw  lord  Thanet  with 
a  small  stick  in  his  hand  in  this 
position,  directly  behind  me ;  and 
Rivett,  the  officer,  came  up,  and 
struck  at  him  with  a  stick ;  lord 
Thanet  says,  "What  did  you  strike 
me  for?  I  difl  not  strike  you."  — 
"You  struck  me  first,"  says  Rivett. 

Did  you  know  any  of  the  other 
persons  that  were  by  him?  —  I  did 
not. 

Did  you  see  any  person  there  with 
a  bald  head  ?  —  I  did  not  take  any 
notice  of  a  bald  head  ;  I  saw  a  gentle- 
man with  a  black  collar,  and  a  pepper- 
and-salt  coat  on. 

What  did  that  person  do  ?  —  I  did 
not  see  him  do  anything ;  he  was  in 
the  passage  among  the  other  persons 
that  were  endeavoring  to  obstruct 
the  officers  from  taking  Mr.  O'Con- 
nor :  I  called  out  to  some  person 
to  come  forward  to  my  assistance, 
for  he  made  a  spring,  and  the  wicket 
door  was  opened  again  ;  I  made  a 
spring  and  shut  it  again,  and  then 
Rivett  and  Fugion  came  up. 

How  many  persons  do  you  think 
there  were  between  you  and  the 
officers  Rivett  and  Fugion  who 
were  coming  up  ?  —  I  cannot  say 
how  many  there  were ;  there  might 
be  seven,  eight,  or  nine;  or  there 
might  not  be  quite  so  many. 

Do  you  know  the  persons  of 
either  Mr.  Thompson,  Mr.  O'Brien, 
or  Mr.  Gunter  Browne  ?  —  I  do 
not. 

Do  you  know  the  person  of  lord 
Thanet  ?  —  Yes,  I  believe  I  <lo  know 
him  ;  I  saw  his  lordship  give  his  evi- 
dence in  court. 

When  Mr.  O'Connor  was  last 
stopped  by  you,  what  became  of 
him  ?  —  I  delivered  him  up  to  two 
officers. 

How  near  to  the  bar  from  whence 
he  had  escaped,  did  you  come  with 


1036 


PART  III.   PROBLEMS  OF  PROOF 


No.  392 


him  ?  —  I  came  quite  up  to  the 
end  of  the  bar  with  him. 

At  that  time,  what  was  tlie  num- 
ber of  the  people  standing  about  ?  — 
They  were  directly  opposing  the 
officers  from  coming,  when  I  was  at 
the  corner  of  the  bar  with  him. 

Do  you  know  the  person  of  Mr. 
Fergusson  ?  —  I  do  not. 

Did  you  see  any  person  in  a  bar 
wig  and  gown  ?  —  Yes. 

In  what  situation  was  he  ?  —  He 
was  one  of  those  who  Avanted  to 
obstruct  the  officers  from  coming 
forward. 

What  did  you  observe  him  to  do  ? 

—  I  saw  them  stand  all  of  a  body 
together,  so  that  the  officers  could 
not  pass  to  take  him. 

Do  you  remember  any  complaint 
being  made  to  the  judge,  by  any  per- 
son, of  having  their  head  broke  ?  — - 
Yes;  a  gentleman  said,  "What  rec- 
ompense am  I  to  have  ?  I  have  got 
a  broken  head  ;"  but  I  do  not  know 
who  it  was. 

Was  that  the  person  that  you 
spoke  of  with  a  black  collar  ?  —  I 
cannot  say. 

Had  he  a  bald  head  ?  —  I  cannot 
say. 

Henry  William  Brooke  sw'orn.  —  Ex- 
amined by  Mr.  Abbott. 

I  believe  you  have  some  situation 
in  the  secretary  of  state's  office  ?  — 
Chief  clerk  in  the  alien  department. 

Were  you  at  ]\Iaidstone  at  the 
trials  ?  —  Yes.  '.   .  . 

Do  you  recollect  what  happened 
immediately  after  the  jury  had  pro- 
nounced their  verdict  ?  —  I  recollect 
that  Rivett,  one  of  the  Bow-street 
officers,  attempted  to  get  up  on  the 
side  where  the  jailer  sat. 

Did  he  declare  the  purpose  of  his 
attempting  to  go  that  way  ?  —  To 
the  best  of  my  recollection,  he  said, 
he  had  a  warrant  from  the  secretary 
of  state  to  arrest  Mr.  O'Connor. 

Did  you  observe  that  any  attempt 
was  made  to  resist  this  person  who 
was  endeavoring  to  Cf)me  forward  ? 

—  I  observed  some  persons  endeavor- 
ing to  pull  him  back.   .   .   . 

Did  Mr.  O'Connor  do  an\thin<!:y 


—  Mr.  O'Connor  placed,  as  far  as 
I  recollect,  his  left  hand  upon  the 
side  of  the  bar  where  he  stood,  and 
leaped  over. 

Did  you  hear  any  voices  crying  out 
anything  ?  —  At  that  time  the  tu- 
mult became  general :  I  heard  some 
cry  out,  "Stop,  stop;"  and  others. 
"Run,  run." 

Are  you  able  to  identify  any  per- 
son who  was  resisting  Rivett  ?  — 
I  saw  a  person,  to  the  best  of  my 
recollection,  who  was  dressed  in 
a  gray  coat  and  a  black  collar,  and 
his  head  was  bald  on  the  top. 

W^hat  did  you  see  that  person 
doing  ?  —  He  seemed  to  have  hold  of 
the  officer's  coat. 

Of  Rivett's  coat  ?  —  Yes. 

Did  you  afterwards  learn  who 
that  person  was  ?  —  I  afterwards 
understood  that  person  to  be  a 
captain  Browne. 

Did  that  person,  after  the  timiult 
was  over,  prefer  any  complaint  to 
the  Court  that  you  recollect  ?  —  I 
cannot  identify  the  person  of  the 
gentleman  that  endeavored  to  make 
a  complaint  to  the  Court  of  ill  usage  ; 
but  there  was  some  gentleman  upon 
the  table,  who  complained,  whether 
generally,  or  to  the  })ench,  I  cannot 
say,  "  Am  I  to  be  ill-treated  in  this 
way  ?"  or  to  that  effect. 

W^as  that  the  person  with  a  bald 
head  and  black  collar  ?  —  I  cannot 
say. 

Did  yon  knoiv  Mr.  Fergusson  the 
counsel f  —  /  have  not  the  honor  of 
Mr.  Fergusson^ s  acquaintance:  but 
I  had  his  person  pointed  out  to  me  as 
being  Mr.  Fergusson. 

Did  you  sec  him  do  anything ?  — 
He  appeared  to  have  something  in  his 
hand ;  but  tohether  it  ivas  a  stick  or  a 
sword  that  lay  upon  the  table,  or  what, 
I  cannot  say  —  but  he  was  brandish- 
ing it  over  the  heads  of  the  people. 

W'as  he  in  his  professional  dress 
at  this  time  ?  —  He  was. 
Henry    William    Brooke    cross-ex- 
amined by  Mr.  Erskine. 

Where  was  IVIr.  Fergusson  stand- 
ing when  you  apprehend,  rather  than 
express,  that  you  saw  him  brandish- 


No.  392. 


EARL   OF   THANEt's   TRIAL 


1037 


ing  something  which  you  da  not 
describe,  but  which  you  think  was 
a  stick  or  a  sword  ?  —  He  was 
standing  near  the  side  of  the  court 
upon  which  Mr.  O'Connor  stood. 

Upon  the  ground,  upon  tlie  bench, 
or  upon  the  table  ?  —  He  appeared 
to  nie,  as  far  as  I  can  charge  my 
recollection,  to  have  been  upon  a 
bench ;  he  appeared  to  be  elevated 
from  the  ground. 

This  was  after  the  sentence  had 
been  pronounced,  and  after  Mr. 
O'Connor  had  gone  out  of  the  dock  ? 
—  It  was  about  that  time,  as  far  as 
I  can  recollect. 

At  the  time  of  the  confusion  in 
court,  was  it  not  ?  —  It  was  at  the 
time  of  the  confusion. 
John    Stafford    called    again.  —  Ex- 
amined by  Mr.  Laic. 

I  will  not  examine  you  to  the  pre- 
liminary circumstances  which  have 
been  proved  by  several  witnesses. 
Confine  yourself  now  to  the  time 
that  Mr.  O'Connor  was  endeavor- 
ing to  get  over  the  bar.  At  that 
period  of  time,  did  you  see  any  of 
the  defendants,  and  particularly 
Mr.  Fergusson  or  lord  Thanet,  do, 
or  endeavor  to  do,  anything  ?  — 
At  the  instant  that  Mr.  O'Connor 
leaped  over  the  bar,  I  saw  my  lord 
Thanet  and  Mr.  Fergusson  :  I  had 
been  paying  particular  attention 
to  Mr.  Justice  Buller  in  passing 
sentence :  and  the  moment  that 
he  was  done,  I  turned  my  eyes  round 
to  the  bar,  and  saw  Mr.  O'Connor  in 
the  act  of  getting  over ;  he  had  his 
left  hand  upon  the  bar,  and  his  right 
hand  extended :  my  lord  Thanet 
stood  next  to  him,  to  the  right  of 
him ;  Mr.  Fergusson,  at  that  in- 
stant, was  in  front  of  him,  with  his 
back  to  me,  facing  ]\Ir.  O'Connor. 

Mr.  Erskinc.  —  Where  did  \ou 
sit  at  t'nis  time  ?  —  Supposing  this 
to  be  the  court  at  Maidstone,  I  sat 
directly  under  the  jury. 

Mr.  Law.  —  You  sat  so  that  you 
could  observe  the  whole  of  the  trans- 
action ?  —  Clearly  ;  but  the  whole 
of  the  transaction  was  of  that  sud- 
den nature,  that  I  was  rising  part  of 


the  time;  I  rose,  and  seized  one  of 
the  sabers  which  lay  upon  the  table, 
and  which  was  a  part  of  Mr.  O'Con- 
nor's baggage. 

Did  you  see  lord  Thanet  or  Mr. 
Fergusson  do  anything  in  aid  of 
Mr.  O'Connor  in  the  act  of  escaping  ? 

—  Ulicn  Mr.  O'Connor  extended  his 
arm,  he  either  laid  it  upon  lord 
Thanefs  shoulder,  or  Mr.  Fergusson's 
arm;  lord  Thanet  heinq  between  me 
and  Mr.  Ferc/u-sson,  I  could  not  dis- 
tinguish on  which  of  them  he  put  his 
hand. 

Did  you  see  any  obstruction  giveti 
by  them  to  any  persons  in  passing 
from  one  part  of  the  court  to  the  other  f 

—  /  did  not  obserre  lord  Thanet  make 
any  obstruction ;  Mr.  Fergtisson  had 
his  back  turned  to  that  side  of  the  Court 
from  whence  the  officers  were  endeavor- 
ing to  approach  to  the  bar. 

With  his  back  towards  the  great 
street  of  Maidstone  ?  —  Yes.  At 
the  instant  I  am  now  speaking  of,  I 
was  upon  the  table. 

Did  you  see  anything  in  particular 
done  by  Mr.  Fergusson  f  —  Mr.  Fer- 
gusson extended  his  arms  in  this  man- 
ner, seemingly  to  me  to  keep  the  per- 
sons back  who  were  forcing  themselves 
forward.  I  saw  no  other  act  done  by 
him. 

Then  did  ]Mr.  Fergusson  appear 
to  you  to  be  putting  himself  in  a 
position  to  stop  the  way  ?  —  Cer- 
tainly so. 

To  stop  the  way  for  whom  ?  —  I 
said  before,  to  stop  the  way  of  the 
persons  who  were  approaching  that 
side  of  the  court  where  the  officers 
were. 

Were  any  persons  at  that  time 
attempting  to  come  from  the  side  of 
the  court  where  the  officers  were, 
to  the  side  where  Mr.  O'Connor  was  ? 

—  Rivett  and  the  Bow-street  officers 
were.  /  at  this  time  stood  upon  the 
table  with  a  drawn  .mber  in  my  hand. 

Did  you  see  anybody,  before  that, 
have  hold  of  the  flap  of  Mr.  O'Con- 
nor's coat  ?  —  Yes  ;  before  Mr. 
O'Connor  got  from  the  bar,  I  ob- 
served that  Mr.  Watson  the  jailer 
had  got  hold  of  the  tail  of  his  coat. 


1038 


PART    III.       PROBLEMS   OF   PROOF 


No.  392. 


Was  it  at  the  same  period  of  time 
wlaen  you  saw  the  officers  rush  for- 
ward, and  Mr.  Fergusson  attempt 
to  stop  the  way  in  the  manner  that 
you  have  described  ?  —  Yes  ;  the 
whole  transaction  was  of  the  shortest 
duration  possible :  Mr.  Fergusson 
forced  himself  heticeen  Mr.  O'Coiirior 
and  Mr.  Watson  the  jailer ;  Mr.  Wat- 
son the  jailer  reached  across ;  he 
sat  on  the  other  side  from  where 
Mr.  O'Connor  the  prisoner  sat ;  he 
reached  across  behind  Binns,  and 
seized  the  flap  of  O'Connor's  coat, 
as  he  was  getting  over  the  table ; 
the  coat  was  extended  for  a  small  dis- 
tance between  O'Connor  and  the  bar, 
and  Mr.  Fergusson  forced  him.self  in 
between  the  two,  and  Mr.  Watson 
let  go  his  hold. 

Do  I  understand  you,  that  by  the 
action  of  Mr.  Fergusson,  the  jailer 
was  separated  from  his  prisoner?  — 
That  I  cannot  say:  the  jailer  might 
have  let  go  his  hold  without  the  action 
of  Mr.  Fergusson  ;  it  apjieared  to  me 
to  he  in  consequence  of  the  action  of 
Mr.  Fergusson. 

Do  you  know  the  person  of  ]\Ir. 
O'Brien  ?  —  No,  I  do  not.  .  .  . 

You  mentioned  standing  upon 
the  table  with  this  saber  in  your 
hand  :  did  you  strike  anybody,  or 
create  any  confusion  ?  —  I  certainly 
struck  no  one  ;  I  menaced  many  that 
I  saw,  apparently  to  me,  endeavor- 
ing to  force  Mr.  O'Connor  out ;  I 
brandished  the  saber,  and  cried  out 
very  loudly,  "Keep  back,"  and 
made  motions  as  if  I  would  strike ; 
but  I  did  not  strike  any  one. 

From  the  observations  you  were 
enabled  to  make,  to  what  cause  and 
to  what  efforts  did  you  attribute 
the  riot  ?  —  The  riot  must  be  at- 
tributed, most  certainly,  to  Mr. 
O'Connor's  attempt  to  escape,  and 
the  assistance  that  his  friends  gave 
him.  I  did  not  know  of  any  warrant 
there  was  to  apprehend  him,  till  I 
heard  Rivett  call  out  in  the  man- 
ner I  have  descriljed,  before  the 
sentence  was  passed. 

Did  you  ob.serve  any  other  cir- 
cumstances    of     actual     assistance 


given  by  the  friends  of  Mr.  O'Con- 
nor to  his  escape,  besides  those  you 
have  mentioned  ?  —  No  ;  the  trans- 
action was  so  short,  it  was  impo.ssible 
to  observe  minutely. 
John  Stafford  cross-examined  by  Mr. 
Krskine. 

This  scene  of  confusion  you  rep- 
resent as  almost  instantaneous,  and 
to  have  continued  but  a  very  short 
time  ?  —  Yes. 

You  were  sitting  as  clerk  to  Mr. 
Knapp,  under  the  jurv  box  ?  — 
Yes. 

And  your  face,  of  course,  towards 
the  great  street  of  Maidstone  ?  — 
Yes. 

Now,  after  ]\Ir.  Justice  Buller  had 
pronounced  sentence  of  death  upon 
O'Coigly,  did  you  see  O'Connor 
jump  out  of  the  bar  ?  —  I  did. 

Where  do  you  mean  to  represent 
that  you  saw  ]\Ir.  Fergusson  at  that 
time  ?  —  Mr.  Fergusson  did  not  at- 
tract my  eye  till  I  was  upon  the  table ; 
seeing  the  act  of  O'Connor,  I  im- 
mediately sprung  up. 

You  did  not  see  Mr.  Fergusson 
till  the  confusion  had  advanced  ?  — 
It  was  just  at  the  very  instant ; 
they  all  happened  almost  at  the 
same  time. 

Mr.  Fergusson  did  not  attract 
your  attention  till  you  had  got  upon 
the  table  in  consequence  of  that  in- 
stantaneous confusion  having  begun  ? 

—  I  got  upon  the  table  in  conse- 
quence of  seeing  Mr.  O'Connor  leap 
over. 

Then,  when  your  attention  was 
first  attracted  to  ]\Ir.  Fergusson,  it 
was  in  the  midst  of  the  confusion  ? 

—  Yes. 

Several  persons  appeared  to  be 
pressing  forward,  and  there  seemed 
to  be  a  scuffle  ?  —  Yes. 

You  observed  lord  Thanet  very 
distinctly?  —  I  had  never  seen  lord 
Thanet  before  that  day  — :  I  saw  him 
give  his  evidence  —  I  saw  him 
afterwards,  I  think,  sitting  between 
Mr.  Dallas  and  Mr.  Fergusson  ;  and 
I  think  I  cannot  err,  when  I  say,  I 
am  sure  it  was  lord  Thanet. 

Did    vou   not   see   distinctly   the 


No.  392. 


EARL   OF  THANET's   TRIAL 


1039 


person  you  took  to  be  lord  Thanet  ? 

—  Most  distinctly. 

How  far  was  he  from  you  ?  —  I 
am  sure,  not  more  than  two  yards ; 
for  the  space  between  the  table  and 
the  bar  is  ^•ery  small ;  and  it  was 
between  the  table  and  the  bar  that 
I  saw  lord  Thanet. 

Where  the  counsel  sat  ?  —  Xot  in 
the  seat  where  the  counsel  sat. 

At  this  time  you  were  upon  the 
table,  and  saw  Mr.  Fergusson  in  the 
midst  of  the  confusion  :  was  he  upon 
the  table  where  you  were,  or  in  his 
place  ?  —  Neither  upon  the  table, 
nor  in  his  place. 

Where  then  ?  —  Immediately  be- 
hind where  he  had  formerly  sat; 
he  had  sat  in  the  front  of  O'Connor, 
and  he  had  got  just  behind  the  seat 
where  he  had  sat  before. 

You  had  a  sword  which  you 
brandished  for  the  purpose  of  keep- 
ing off  any  danger  that  might  hap- 
pen ?  —  Yes. 

Do  you  mean  to  represent  that 
Mr.  Fergusson  was  at  that  time  in 
the  solicitor's  box  ?  I  do  not  know 
whether  I  can  call  it  the  solicitor's 
box  or  not ;  he  sat  at  the  extremity 
of  the  seat  wherein  the  solicitors  sat  — 
he  was  certainly  directly  before  me 
at  the  end  of  the  trial. 

At  that  time,  was  not  IVIr.  Fer- 
gusson surrounded  by  a  great  num- 
ber of  people,  who  were  pushing  and 
shoving,  and  making  a  disturbance  ? 

—  The  persons  behind  him  were 
certainly  crowding  upon  him ;  but 
there  was  a  small  space  before  him 
that  was  vacant. 

Was  there  not  a  pressing  upon  him 
e^■ery  way  ?  —  No,  not  from  the 
table. 

Were  there  not  persons  in  the 
place  where  the  solicitor's  box  was, 
pushing  and  crowding  at  the  time 
]Mr.  Fergusson  extended  his  arms  ? 

—  Certainly ;  but  I  saw  him  only 
pressed  on  the  side  that  I  describe. 

Do  you  mean  to  swear  that  you 
saw  Mr.  Fergusson  shift  his  place 
Avhere  he  had  been,  and  go  nearer  to 
Mr.  O'Connor  ?  —  No,  I  did  not 
see  him  shift  it. 


Mr.  Garrow.  — There  was  a  low- 
backed  seat  for  the  counsel  for  the 
prisoners  ?  —  Yes. 

Behind  that  was  a  space  and  bench 
for  the  solicitors  ?  —  Yes. 

And  if  I  understand  you  right, 
Mr.  Fergusson  appeared  to  you  to 
be  over  that  low  back  to  the  counsel's 
seat  ?  —  Yes,  certainly  so. 

Between  the  back  of  the  counsel's 
seat  and  the  bar  ?  —  Yes  ;  I  had  not 
immediately  before  this  obser\ed 
where  Mr.  Fergusson  was. 
The  Honorable  Robert  Clifford  sworn. 
—  Examined  by  Mr.  Garrow. 

I  shall  not  trouble  the  Court  to 
hear  from  you  over  again  the  detail 
of  the  circumstances.  .  .  . 

When  the  jury  returned,  and  had 
given  their  verdict,  what  observa- 
tions did  you  make  respecting  either 
lord  Thanet,  Mr.  Fergusson,  Mr. 
O'Brien,  Mr.  Thompson,  or  Mr. 
Browne  ? — When  they  had  returned 
a  verdict  of  Guilty  against  O'Coigly, 
I  observed  Mr.  O'Connor  put  his 
left  leg  over  the  bar  of  the  dock, 
I  believe  they  call  it,  leaning  upon 
his  left  hand ;  lord  Thanet  rose  up, 
and  Mr.  O'Connor's  hand  was 
within  this  distance  (six  or  seven 
inches)  of  lord  Thanet 's  left  shoulder 

—  it  was  below  his  head  :  I  did  not 
see  it  touch  his  shoulder,  because 
Mr.  Fergusson  rose  up,  and  was 
exactly  between  lord  Thanet  and 
myself. 

Mr.  Erskine.  —  Where  did  you 
sit  ?  —  I  sat  as  marshal  under  the 
jury  box. 

Mr.  Garrow. — Be  so  good  as  to  de- 
scribe that  risi}jg  of  Mr.  Fergusson' sf 

—  They  ran  off  all  together  —  they 
followed  Mr.  O'Connor,  as  it  ap- 
peared to  me  —  I  bent  myself  as  far 
as  I  could  to  see,  when  so  many  people 
came  jumping  from  the  witness  box, 
that  I  was  almost  overpowered. 

The  witness  box  was  opposite 
the  jury  box? — Yes;  and  they  all 
went  off  to  the  left  hand,  behind  the 
crier's  box. 

Lord  Kenyan.  —  Do  you  mean 
that  they  all  ran  off  together  ?  — 
Mr.  Fergusson  and  the  rest  of  them 


1040 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


2vcnt  off  towards  the  iiarruw  strrct  of 
Maidstotie. 

Mr.  Garroic.  —  There  you  lost 
sight  of  them,  on  account  of  the 
number  of  persons  that  came  to 
intercept  your  view  ?  —  I  was  sitting 
here,  and  they  all  went  there. 

Did  you  see  anything  more  of  the 
conduct  of  lord  Thanet  ?  —  I  saw 
no  more  of  them  after  that ;  I  saw  a 
gentleman,  that  was  almost  bald, 
come  and  complain  that  he  had 
received  a  blow  upon  his  head,  and 
asked,  "Whether  there  was  no 
redress  for  the  blow  he  had  re- 
ceived ?" 

Did  you  learn  afterwards  that  that 
was  Mr.  Gunter  Browne  ?^I  under- 
stood his  name  was  Browne. 

Did   you    see   him    favoring    the 
escape  of  O'Connor  ?  —  No.   .   .  . 
William    Cutbush    sworn.  — Exam- 
ined by  Mr.  Garrow. 

I  believe  you  are  a  clock  maker  at 
Maidstone  ?  —  Yes. 

^Yere  you  in  court  at  Maidstone 
when  sentence  of  death  was  passed 
upon  a  prisoner  of  the  name  of 
0'(  "oigly  ?  —  Yes,  I  was. 

Upon  that  occasion,  did  you  see 
Mr.  O'Connor  do  anything  ?  —  Yes  ; 
I  saw  him  get  over  the  bar. 

At  that  time  did  you  see  lord 
Thanet ;  and  if  you  did,  what  did 
you  see  him  do  ?  —  After  that,  I  saw 
a  man  with  a  sword  in  his  hand  beat- 
ing over  a  gentleman's  head. 

The  Court  have  lieen  sitting  many 
hours,  and  have  heard  the  general 
detail  of  the  transaction  ;  be  so  good 
as  to  a^nswer  my  questions  :  did  you 
see  lord  Thanet  ?  —  I  did. 

Did  you  see  his  lordship  do  any- 
thing, and  what  ?  —  I  saw  Rivett 
strike  lord  Thanet  over  the  l)ack ; 
I  did  not  know  it  was  Rivett  at 
that  time ;  I  knew  lord  Tiianet  very 
well. 

Where  was  lord  Thanet  at  the  time 
that  Rivett  struck  him  ?  —  Two 
or  three  yards  from  Mr.  O'Connor, 
or  thereaway. 

Was  lord  Thanet  nearer  to  the 
great  street  of  Maidstone,  than  he 
was  to  Mr.  O'Connor,  or  to  the  nar- 


row street  ?  —  They  were  all  on 
the  left  side. 

You  were  on  the  side  on  which  Mr. 
O'Connor  was  endeavoring  to  get 
out  ?  —  Yes. 

What  was  the  first  thing  you  saw  ? 

—  I  saw  nothing  till  I  saw  the  sword 
hit  upon  lord  Thanet's  back. 

That  was  not  Rivett  ?  —  Yes,  it 
was  ;  he  hit  lord  Thanet  upon  the 
back  with  a  sword  ;  I  did  not  know 
it  was  Rivett  till  afterwards. 

Were  any  of  the  lights  put  out  ?  — 
One. 

Did  you  hear  any  expression 
about  putting  out  the  lights  ?  — 
Yes ;  I  heard  some  person  say,  "  Put 
out  the  lights."  .  .  . 
Robert  Parker  sworn.  —  Examined 
by  Mr.  Garrow. 

Were  you  in  court  at  Maidstone 
when  the  jury  returned  into  court 
Avith  their  verdict,  in  the  case  of 
O'Connor  and  others  ?  —  Yes. 

W^ere  you  near  the  undersheriff  ? 

—  I  was  very  near ;    behind  him. 
Nearest  the  great  street  of  Maid- 
stone,  and  far  from  O'Connor  ?  — 
Yes. 

Did  you  see  anything  happen  upon 
that  verdict  being  brought  in  ?  — 
Upon  the  verdict  being  brought  in  he 
put  his  leg  over  the  bar,  feeling  him- 
self discharged,  as  he  afterwards 
explained  ;  a  Bow-street  officer  then 
stepped  up  and  said,  "There  was  a 
warrant  to  detain  him  ; "  Mr.  O'Con- 
nor then  put  his  leg  back  again,  and 
said, "  He  thought  he  was  discharged," 
and  one  of  the  judges  said,  "  He  was 
not  to  be  discharged,"  or  something 
of  that  sort ;  and  he  was  quiet  till 
sentence  was  over. 

Did  you  see  lord  Thanet  ? — Yes  ; 
I  saw  him  on  a  seat  at  the  front  of 
the  l)ar ;  I  am  perfectly  sure  I  saw 
lord  Thanet. 

After  sentence  had  passed  did  you 
see  the  Bow-street  officers  make  any 
attempt  to  pass  the  bar  where  Mr. 
O'Connor  stood  ?  —  Mr.  O'Connor 
jumped  over  the  bar,  and  then  the 
Bow-street  officers  both  advanced 
in  order  to  stop  Mr.  O'Connor ;  the 
jailer  called  out,  "My  lord,  am  I  to 


No.  392. 


EARL   OF   THANET's   TRIAL 


1041 


let  him  go  ? "  or  something  to  that 
effect,  and  there  was  a  contention  ; 
several  persons  were  assisting  Mr. 
O'Connor  to  get  out  at  the  opposite 
door,  and  the  Bow-street  officers 
were  attempting  to  stop  him. 

Did  you  at  that  time  see  lord 
Thandf  —  I  did. 

Ill  what  situation  f  and  what  was 
he  doing f  —  Lord  Thanet  evidently' 
appeared  to  me  to  he  obstructing  the 
officers  in  their  attempt  to  stop  Mr. 
O'Connor. 

Did  you  see  any  other  person  en- 
gaged in  the  same  attempt  ?  —  Not 
any  one  whose  person  I  then  knew. 

Did  you  observe  any  person  whose 
dress  was  remarkable  ?  —  I  saw  a 
gentleman  in  a  bar  gown  and  wig 
endeavoring  to  assist  the  escape  of 
O'Connor ;  but  at  that  time  I  did 
not  know  the  person  of  the  gentle- 
man. .   .   . 

Robert  Parker  cross-examined  bv  ISIr. 
Gibbs. 

You  say,  lord  Thanet  appeared 
to  you  to  be  obstructing  the  officers  ; 
did  you  see  him  do  anything  ?  —  I 
saw  him  resisting  with  his  hands. 

Pray  when  was  this  ?  before  or 
after  the  sentence  ?  —  It  began  im- 
mediately after  the  sentence ;  it 
began  upon  Mr.  O'Connor  getting 
over  the  bar. 

What  did  he  do  with  his  hands  ? 
—  The  Bow-street  officers  pushed 
forward ;  and  against  one  of  them 
it  was  that  he  was  making  resistance. 

Pray  which  of  them  ?  —  I  cannot 
tell ;  I  do  not  know  which ;  I  did 
not  know  either  of  them. 

Did  you  see  the  warrant  ?  —  Yes  ; 
I  saw  it  handed  over  to  be  read. 

Can  you  tell  whether  it  was 
against  either  of  those  two  men,  or 
against  the  messenger,  that  he  was 
making  that  resistance  ?  —  I  can- 
not. 

But  you  saw  him  put  his  hand 
against  one  man  that  was  coming 
forward  ?  —  Yes,  certainly. 

You  said  that  you  saw  a  gentle- 
man in  a  bar  gown  that  appeared 
to  assist  O'Connor  ?  —  Yes. 

What  did  you  see  him  do  ?  —  I 


recollect  that  gentleman  was  ranged 
with  the  counsel  for  the  prisoners  ; 
and  then  he  turned  round  with  his 
face  to  the  bar,  and  was  in  that  man- 
ner  contending  to  resist  their  ad- 
vancing towards  the  prisoner. 

He  was  standing  upon  the  ground 
and  reaching  over  ?  —  Yes. 

Standing,  as  I  may  be  standing 
now,  supposing  this  to  be  the  bar  ?  — 
Yes ;  supposing  you  were  turned 
round,  it  would  be  exactly  so ;  he 
turned  round  towards  the  bar. 

End  of  the  Evidence  for  the  Crown. 

Defense 

The  Honorable  Thomas  Erskine. 
—  Gentlemen  of  the  Jury :  It 
now  becomes  my  duty  to  address 
you.  ... 

You  have  heard  attentively 
the  accusing  testimony :  audi  al- 
teram  partem.  .  .  . 

We  are  here,  therefore,  upon  a 
mere  question  of  fact.  You  cannot 
but  have  observed,  that  the  attor- 
ney-general and  myself,  instead  of 
maintaining  opposite  doctrines,  per- 
fectly agree  upon  the  principles  which 
ought  to  govern  your  decision. 
The  single  object  of  inquiry  is, 
the  truth  of  this  record.  Is  the 
charge  proved  to  your  satisfaction  ? 
or,  rather,  icill  it  be  so  proved, 
when  the  ivhole  cause  has  been 
heard. 

In  adverting  to  what  the  charge  is, 
I  need  not  have  recourse  to  the  al)- 
stract  I  had  made  of  the  information. 
The  substance  and  common  sense 
of  it  is  this :  that  Mr.  Arthur 
O'Connor  had  been  brought,  by 
legal  process,  into  the  custody  of 
the  sheriff  of  Kent ;  that  a  special 
commission  had  assembled  at  Maid- 
stone, to  try  him  and  others  for  high 
treason  ;  that,  upon  the  opening  of 
the  commission,  he  had  again  been 
committed  by  the  Court  to  tht* 
same  custody ;  that  he  was  after- 
wards again  brought  up  to  the  bar, 
and  found  not  guilty ;  and  that; 
after  he  was  so  accjuittcfl,  but  l>efore 


1042 


PART  III.   PROBLEMS  OF  PROOF 


No.  392 


he  was,  in  strict  Jorm,  discharged 
by  the  order  of  the  Court,  the  de- 
fendants conspired  together,  and 
attempted  to  rescue  him.  This  is 
the  essence  of  the  charge.  The 
disturbance  of  the  Court,  and  the 
assaults  stated  in  the  different  counts 
of  the  information,  are  only  the 
overt  acts  charged  to  have  been 
done,  in  pursuance  of  this  purpose, 
to  rescue  the  prisoner.  The  criminol 
purpose  to  resc\ie  Air.  O'Connor  is 
the  fact,  therefore,  of  which  you 
must  be  convinced,  to  justify  the 
verdict  which  the  crown  has  called 
upon  you  to  pronounce. 

Before  I  proceed  to  address  my- 
self to  you  upon  the  e\idence,  .  .  . 
I  will  begin  by  relieving  your  at- 
tentions from  the  consideration  of 
all  circumstances  that  are  neither 
disputed,  nor  fairly  disputable, 
either  as  they  are  the  result  of 
what  you  have  heard  already,  or  as 
I  think  they  must  remain  when  the 
whole  case  is  before  you.  I  admit, 
then,  that  Mr.  O'Connor,  when  he 
heard  the  verdict  of  the  jury  in  his 
favor,  was  disposed  toleave  the  court. 
The  presumption,  indeed,  as  it 
arises  out  of  universal  practice,  as 
well  as  out  of  the  law  that  warrants 
it,  is,  that  he,  as  well  as  otiiers, 
thought  that  the  verdict  of  Not 
Guilty  entitled  him  to  do  so. 
Neither  can  it  be  disputed  that  a 
warrant  did  in  fact  exist,  and  that 
its  existence  was  known,  since  it 
appears  that  the  officers  stated  in 
open  court  that  they  had  one ;  and 
it  is  not  material  for  me  to  dispute, 
nor  is  it,  perhaps,  disputal)le,  that 
Mr.  O'Connor  knew  of  their  in- 
tention to  arrest  him ;  and,  if  he 
did  know  it,  human  nature  is 
stronger  than  all  the  evidence  in  the 
world,  to  convince  every  man  of 
his  disposition  at  least  to  escape 
from  it.   .   .   . 

Having  admitted  these  facts,  I, 
in  my  turn,  have  a  right  to  bring  to 
your  recollection,  that  it  is  an  in- 
disputable fact,  resting  upon  the 
whole  of  the  crown's  evidence,  that 
the  officers,  strongly  impressed  witli 


this  idea,  rushed  suddenly  and  im- 
petuously forward,  on  Mr.  O'Con- 
nor's stepping  over  the  bar  when  the 
verdict  of  Not  Guilty  was  delivered  ; 
and  indeed  Rivett,  upon  his  cross- 
examination,  distinctly  admitted, 
that,  owing  to  the  apprehension  of 
a  rescue,  he  rushed  into  court  with 
more  precipitation  than  under  other 
'circumstances  he  could  have  justified, 
and  that  a  great  bustle  and  con- 
fusion existed  before  he  approached 
any  of  the  defendants,  or  even  saw 
their  persons.  This  admitted  origin 
of  the  disturbance  removes  all  diffi- 
culties from  the  consideration  of 
the  cause ;  and  Mr.  Justice  Heath 
declared,  that  there  was  a  scene  of 
confusion  and  violence  in  court,  such 
as  he  had  ne\'er  seen,  nor  could  pos- 
sil)ly  have  expected  to  see,  in  a  court 
of  justice.  The  single  question, 
therefore,  is,  JVhat  share  the  defend- 
ants had  in  it?  Did  the  disturbance 
arise  from  any  original  acts  of 
theirs  ?  or  were  they,  on  the  con- 
trary, first  pressed  upon  by  the 
officers  and  their  assistants,  who, 
though  they  might  be  engaged  in 
what  they  mistakenly  supposed  to 
be  their  duty,  from  an  expectation 
of  resistance,  necessarily  created 
confusion  by  their  forcible  entry  into 
a  crowded  court  ?  Were  the  defend- 
ants engaged  in  any  conspiracy  or 
combination  to  deliver  Mr.  O'Con- 
nor ?  That  is  the  great,  or  rather 
the  only  question  ;  because,  if  this 
does  not  appear  from  the  evidence, 
all  their  acts,  even  if  they  were 
ultimately  to  remain  as  they  appear 
at  present,  are  perfectly  consistent 
with  the  conduct  of  gentlemen  sud- 
denly and  rudely  trampled  upon  in 
a  tumult,  though  without,  perhaps, 
being  the  particular  objects  of 
violence  by  those  who  created  it. 

The  natural  course  of  considering 
which  of  these  propositions  ought 
to  be  adopted  by  reasonable  men, 
is,  to  set  out  with  tracing  a  motive. 
There  can  be  no  offense  without 
some  corresponding  inducement  to 
commit  it.  .  .  . 

Now,   I  have  always  understood 


No.  392. 


EARL   OF  THANET's   TRIAL 


1043 


it  to  be  the  great  office  of  a  court  of 
justice,  when  evidence  is  to  be 
opposed  to  evidence,  to  consider  the 
probabilities  of  the  transaction : 
indeed,  a  judicial  decision  is  nothing 
else  but  the  bringing  up  facts  to  the 
standard  of  reason  and  experience. 
I  have  already  described  the  situa- 
tions of  the  only  two  defendants 
whose  cases  you  can  have  occasion 
to  consider ;  the  one,  as  a  high 
peer  and  magistrate  of  the  kingdom, 
with  the  natural  consciousness  of 
the  duties  inseparable  from  exalted 
stations ;  the  other,  standing  in  a 
manner  for  his  very  existence  upon 
the  dignity  and  decency  of  his  de- 
portment in  the  courts,  which  habit, 
as  well  as  principle,  had  taught  him 
to  reverence  and  respect.  .  .  .  Under 
these  circumstances,  you  are  asked 
to  believe  that  lord  Thanet  and  Mr. 
F'ergusson—  .  .  .  icithoutany  motive 
upon  earth  brought  home  to  them  by 
any  part  of  the  eridence,  engaged 
publicly  in  a  scene  of  audacious  riot 
and  violence,  in  the  public  face  of  the 
most  dignified  court ;  in  the  presence 
of  all  its  numerous  officers ;  of  an 
acute  and  intelligent  bar ;  of  the 
sheriff  and  all  his  train ;  of  a  jury 
composed  of  the  principal  gentlemen 
of  the  county,  and  of  all  that  con- 
course of  attendants.  .  .  . 

Gentlemen,  the  mind  of  man  can- 
not avoid  collecting  and  accumulat- 
ing these  absurdities  ;  but  they  are 
too  important  to  be  thus  run  over; 
they  must  be  viewed  separately, 
to  have  their  proper  effect. 

First,  then,  let  us  search  for  a 
motive  strong  enough  to  impel 
honorable  men  to  encounter  such 
desperate  difficulties,  in  the  pur- 
suit of  a  dishonorable,  useless,  and 
impracticable  purpose.   .   .   . 

It  seems,  they  were  not  in- 
different to  the  deliverance  of  Mr. 
O'Connor;  for,  upon  his  acquittal, 
they  hastened  to  the  bar,  and  con- 
gratulated him  on  the  verdict  I 
They  certainly  did  so,  in  common 
with  many  others ;  and  although 
the  impulse  of  personal  kindness 
which  directed  them  was  honorable, 


it  may  l)e  set  down,  not  so  much  to 
the  individuals,  as  to  the  character- 
istic benevolence  of  Englishmen.  .  .  . 
Long,  long,  may  this  remain  the 
characteristic  feature  of  our  country  ! 
When  Mr.  O'Connor,  therefore,  was 
pronounced  not  guilty,  was  it  any 
proof  of  a  conspiracy  to  rescue  him 
from  other  charges,  that  he  was 
congratulated  on  his  deliverance, 
which  he  was  not  only  entitled  to 
by  the  verdict  of  the  jury,  but  which 
the  evidence  on  the  trial,  and  the 
judge's  remarks  on  it,  had  pre- 
viously and  distinctly  anticipated  ? 
The  question,  therefore,  again  recurs 
—  Were  the  defendants  the  active 
authors  of  the  rescue,  for  ^the  pur- 
pose charged  in  the  indictment  ? 
The  MOTIVE  is  gone  already.  .  .  . 

The  next  consideration,  in  weigh- 
ing the  probabilities,  is,  how  this 
purpose,  supposing  it  still  to  exist, 
without  any  corresponding  inter- 
est, was  possibly  to  be  accom- 
plished ?  —  for  men  cannot  be  pre- 
sumed to  engage  in  the  most  perilous 
enterprises,  not  only  without  induce- 
ment, but  without  even  a  shadow 
of  hope  or  prospect  that  their  object 
is  practicable.  .  .  .  Mr.  O'Connor 
stood  at  the  bar  where  my  learned 
friends  now  sit,  surrounded  by 
hundreds  of  persons  not  attempted 
to  be  implicated  in  any  design  to 
favor  his  escape ;  on  the  right,  and 
on  the  left,  and  behind,  were  the 
public  streets  of  Maidstone,  from 
whence  no  passage  without  ob- 
servation was  to  be  expected  ;  and 
before  they  could  even  be  approached , 
an  outlet  must  first  have  been  made 
through  groves  of  javelins  in  the 
hands  of  those  numerous  officers 
which  the  exemplary  attention  of 
the  sheriffs  of  Kent  has  always  pro- 
vided for  the  security  and  dignity 
of  the  Court.  It  was,  therefore, 
not  merely  improbable,  but  natnrnlly 
impossible,  to  deliver,  or  even  hnpc 
to  deliver,  a  prisoner  from  the  i)ul)Iic 
bar  of  such  a  court,  in  the  view  of 
all  its  judges,  its  counsel,  and  at- 
tendants, without  the  support  of 
great  force  and  numbers,  and  with- 


1044 


PART    III.       PROBLEMS    OF   PROOF 


No.  392. 


out,  likewise,  a  previous  concert 
and  combination  to  direct  them  with 
effect.  .  .   . 

Gentlemen,  the  next  question 
upon  the  score  of  probability  is  this  : 
supposing  that,  contrary  to  every- 
thing eixher  proved  or  asserted,  the 
defendants  hud  felt  an  interest  in 
the  escape  of  Mr.  O'Connor,  and 
had  conceived  it  to  be  practicable, 
could  they  possibly  have  hoped  to 
escape  detection  —  more  especially 
lord  Thanet  and  Mr.  Fergusson, 
whose  persons  were  so  notorious  — 
the  one,  from  his  high  rank  and  res- 
idence in  the  county  whose  prin- 
cipal inhabitants  surrounded  him ; 
and  the  other,  from  being  in  his 
professional  dress,  in  the  place  as- 
signed to  him  as  counsel  on  the  trial, 
and,  in  the  very  midst  of  his  com- 
panions, engaged  in  the  business  of 
the  Court  ?  .  .   . 

The  next  recourse  to  probability, 
if  your  judgments,  as  in  all  other 
cases,  are  to  be  governed  by  reason 
and  experience,  is,  if  possible,  still 
more  imanswerable  and  decisive. 

Supposing  the  defendants,  tcithout 
interest  or  motive,  and  without  the 
possibility  of  success,  and  without 
even  a  chance  of  escaping  from  de- 
tection and  punishment,  to  have, 
nevertheless,  publicly  insulted  and 
disturbed  the  Court  by  acts  of  dis- 
order and  violence,  who  must  have 

BEEN     THE     WITNESSES    TO     SUCH     A 

SCENE  ?  .  .  .  The  proof  of  this 
fact,  to  which  the  whole  Court  must 
have  been,  as  it  were,  but  one  eye, 
and  an  eye  of  indignation,  is  not 
supported  by  any  one  person,  either 
upon  the  bench,  or  at  the  bar,  or 
amongst  the  numerous  officers  of  the 
Court.  On  the  contrary,  we  shall 
see,  by  and  by,  the  difference  be- 
tween the  testimony  of  a  reverend 
judge  of  England,  and  that  of  a  Bow- 
street  officer,  when  1  come  to  advert 
to  the  evidence  of  Mr.  Justice  Heath, 
which  is  directly  and  positively 
inconsistent  with  Rivett's,  on  who.se 
single  and  imsupported  testimony 
this  extravagant  and  incredible  part 
of  the  case  is  alone  supported. 


But,  it  seems,  they  have  given 
judgment  against  themselves,  by 
their  demeanor  and  expressions  upon 
the  occasion.  Lord  Thanet,  it  seems, 
said  to  Mr.  Justice  Lawrence,  as 
Mr.  Abbott  expressed  it,  who  did  not 
hear  what  the  learned  judge  liad 
said,  to  which  lord  Thanet's  words 
were  an  answer,  "  that  it  was  fair 
he  should  have  a  run  for  it;"  — 
words  which  cannot  be  tortured  into 
any  other  meaning,  more  especially 
when  addressed  to  one  of  the  judges 
of  the  Court,  than  that,  speaking 
in  extenuation  of  Mr.  O'Connor's 
conduct,  who  had  visibly  made  an 
effort  to  escape,  he  thought  it  fair 
that  a  person  so  circumstanced 
should  have  a  run  for  it,  if  he  could  ; 
a  sentiment  which,  by  the  by,  no 
man  in  his  senses  would  have  ut- 
tered, more  especially  in  such  a 
quarter,  if  he  had  felt  himself  at  all 
implicated  in  a  criminal  endeavor 
to  assist  him ;  ...  it  was  after  the 
riot  (as  it  indeed  must  have  been), 
that  Mr.  Justice  Lawrence  conversed 
with  lord  Thanet,  saying  to  him, 
amongst  other  things,  "that  he 
hoped  Mr.  O'Connor's  friends  would 
advise  him  to  submit  to  his  situa- 
tion." Now  I  may  safely  assert,  that, 
high  as  lord  Thanet's  rank  is,  that 
learned  judge  would  not  have  spoken 
to  him  as  a  person  from  whom  he 
solicited  and  expected  assistance,  if 
he  had  himself  observed  him,  or  if 
he  had  known  him  to  have  been  ob- 
served by  others,  disturbing  the 
order  of  the  Court.  .  .  .  Mr. 
Justice  Lawrence  was  one  of  the 
youngest  of  the  learned  judges  who 
presided  at  the  trial,  with  stronger 
health  than  belonged  to  all  of  them, 
which  enabled  him  to  keep  up  his 
attention,  and  to  observe  with 
acuteness ;  he  was,  besides,  deeply 
interested  in  whatever  concerned 
the  honor  of  the  Court ;  and  the 
elevation  of  the  bench  on  which 
he  sat  gave  him  a  full  view  of 
every  person  within  it.  Indeed, 
lord  Thanet,  at  the  time  this  mis- 
demeanor is  imputed  to  him,  was 
directiv  before  him,  and  under  him, 


No.  392. 


EARL   OF   THANET  S   TRIAL 


1045 


and  not  farther  from  him  than  lord 
Kenyon  at  this  moment  is  from  me. 
...  If  he  to  whom  the  discoursr 
icas  addressed,  and  who  was  the  best 
judge  of  the  fair  construction  to  be 
put  upon  it,  had  considered  it  in  the 
light  it  has  been  represented  and 
relied  on,  he  might  have  been  called 
as  a  witness.   ... 

Gentlemen,  let  us  now  pause  a 
little,  to  consider  the  effect  which  I 
feel  myself  entitled  to  derive  from 
these  observations.  —  I  consider  m\- 
self  to  have  advanced  no  farther  in 
the  argument  than  this  — 

First,  That  there  was  no  assigned 
nor  assignable  motive  for  the  crim- 
inal purpose  charged  by  the  indict- 
ment. 

Secondly,  That  it  was  a  purpose 
palpal)ly  impracticable,  and  which, 
therefore,  no  reasonable  men  could 
possibly  have  engaged  in  with  any 
prospect  of  success. 

Thirdly,  That  whatever  might 
have  been  the  probable  issue  of  such 
an  enterprise,  detection  and  pimish- 
ment  were  certain. 

Fourthly,  That  admitting  the 
evidence  you  have  heard  to  be  free 
from  all  errors,  the  defendants  did 
not  conduct  themselves  like  men 
engaged  in  such  a  pursuit,  nor 
appear  to  have  been  supported  in 
a  manner  reasonably,  or  even  pos- 
sibly, consistent  with  the  alleged 
conspiracy. 

Fifthly]  That,  although  the  wit- 
nesses against  them,  if  the  transac- 
tion had  been  justly  represented, 
must,  probably,  have  been  the 
greater  part  of  the  Court,  and  cer- 
tainly all  that  part  of  it  elevated 
both  by  situation  and  authority 
above  the  rest ;  yet  that  there  has 
been  not  only  no  such  concurrence  of 
testimony  against  the  defendants, 
but,  on  the  contrary,  the  most  correct 
and  respectable  witnesses  have  con- 
curred in  destroying  the  remainder 
of  the  proof. 

Sixthly,  That  the  expressions  im- 
puted to  lord  Thanet  cannot  pos- 
sibly affect  him,  without  supposing 
that     he     publicly     gave     evidence 


against  himself,  even  to  one  of  the 
judges,  who,  upon  the  e\idence  of 
his  own  senses,  had  authority  to 
have  punished  him  upon  the  spot. 

Lastly,  That  it  appears,  by  the 
whole  body  of  the  proof,  that  the 
confusion  arose  when  the  officers 
burst  with  improper  and  indecent 
precipitation  into  court ;  thatitbegan 
and  ended  almost  in  the  same  breath  ; 
and  that,  during  the  short  moment 
of  its  continuance,  there  was  such  a 
scene  of  tunndt  and  confusion  as  to 
render  it  impossible  for  the  most 
attentive  observer  to  give  any  clear 
and  distinct  accounts  of  the  trans- 
action. 

If  these  conclusions,  gentlemen, 
be  the  unavoidable  result  of  the 
crown's  evidence  when  brought  to 
the  common  standard  of  man's 
reason  and  experience,  it  appears  to 
me,  that  you  are  bound  to  return  a 
verdict  for  all  the  defendants,  even 
if  I  should  call  no  witnesses.  .  .  . 
This  proposition,  however,  cannot 
be  supported  by  general  observa- 
tions, nor  by  that  general  appeal 
to  the  proof  which  I  have  been  en- 
gaged in ;  it  must  be  examined  ac- 
curately in  the  detail.  .  .  . 

The  first  witness  examined  for 
the  crown  is  Mr.  Sergeant  Shepherd, 
who  was  joined  with  the  judges  in 
the  special  commission.  This  ex- 
amination is  highly  important  in 
every  part  of  it ;  because,  when  it 
becomes  necessary  to  compare  the 
evidence  of  different  witnesses  in 
order  to  arrive  at  a  safe  conclusion 
from  the  whole,  nothing  can  be  so 
satisfactory  as  to  find  some  person 
on  whose  testimony  the  judgment 
ma\  repose  with  safety.  IMy  learneci 
friend  (as  all  who  knew  him  must 
have  anticipated)  delivered  his  evi- 
dence with  the  greatest  clearness 
and  precision,  and  in  a  manner  most 
dispassionate.   .   .   . 

^Ir.  Sergeant  Shepherd  says,  "  Lord 
Thaurf  was  standing  before  the  bar 
at  which  the  jjrisoners  stood,  with  his 
face  turned  towards  the  Court;  he 
was  rather  to  the  right  hand  of  Mr. 
O'Connor,   nearest   to  the  great  street 


1046 


PART   III.      PROBLEMS   OF   PROOF 


No.  392. 


of  Maidstone  where  the  jailer  sat." 
Speaking  of  Mr.  O'Brien,  he  said, 
that  "  he  stood  in  the  satnc  line,  but 
rather  to  the  left  of  Mr.  O'Connor,  that 
something  had  been  before  said  by  the 
Bow-street  officers,  who  were  making  a 
noise,  and  had  been  desired  to  be  quiet. 
When  the  verdict  of  not  guilty  was 
delivered,  some  persons  (but  ivhom  I 
know  not)  said,  '  Then  they  are  dis- 
charged;' and  somebody  at  the  table 
replied,  *  No  they  are  not  discharged.' " 
.  .  .  "  At  this  time,"  Qontmned  the 
learned  sergeant,  "Mr.  Justice  Bul- 
ler  said  to  the  jailer,  '  Put  the  other 
prisoners  back,  and  let  O'Coigly  stand 
forivard ;'  when  one  of  the  Bow-street 
officers  stood  up  on  a  form,  and  said 
he  had  a  warrant  against  Mr.  O'Con- 
nor." This,  you  observe,  was  the 
first  time  there  was  any  mention 
of  a  warrant  in  court.  .  .  .  Whilst 
Mr.  Justice  Bullrr  was  passing  sen- 
tence, my  attention,"  continued  Mr. 
Sergeant  Shepherd,  "  icas  directed 
to  O'Coigly ;  and  wheti  he  had  finished, 
I  observed  Mr.  O'Brien  turn  round, 
and  LOOK  at  Mr.  O'Connor  and  im- 
mediately afterwards  LOOK  down 
^vith  a  very  slight  motion  and  inclina- 
tion of  his  head."  .  .  .  This  fact, 
therefore,  deHvered  with  the  re- 
straint which  the  integrity  and  un- 
derstanding of  the  witness  so  prop- 
erly suggested,  affords  no  evidence 
whate\'er  of  evil  design  in  Mr. 
O'Brien,  much  less  of  concert  or 
combination  with  the  other  de- 
fendants. .  .  .  It  is,  indeed,  strongly 
in  Mr.  O'Brien's  favor,  that  at  the 
moment  he  looked  down  as  de- 
.scribed  by  the  witness  he  could  not 
be  acting  in  concert  with  lord  Thanet ; 
for  sergeant  Shepherd  saw  lord 
Thanet  at  the  very  same  vioment,  and 
swore  that  he  was  standing  with  his 
face  to  the  Court,  and  that  he  never 
changed  this  position.  The  sergeant 
added  that  "  when  the  last  word  of 
the  sentence  was  pronounced,  Mr. 
O'Connor  jumped  ivith  his  left  foot 
upon  the  bar,  and  his  left  hand  upon 
the  shoulder  of  Mr.  O'Brien,"  but  who 
does  not  appear  to  have  held  out  his 
hand  to  assist  him.     Mr.  O'Brien, 


on  the  contrary,  though  he  could 
not  have  but  continued  in  view  for 
some  time  longer,  is  charged  with  no 
one  act  whatsoever ;  and  it  would  be 
strange  indeed,  to  convict  a  gentle- 
man of  a  rescue,  because,  standing 
near  a  prisoner  meditating  an  escape, 
he  had  laid  his  hand  upon  his 
shoulder.   ... 

The  remainder  of  sergeant  Shep- 
herd's evidence,  as  it  applies  to  lord 
Thanet,  is  so  absolutely  decisive, 
that  you  will  be  driven  to  pronounce 
by  your  verdict,  whether  you  give 
credit  to  this  most  respectable  and 
observing  witness,  or  to  a  Bow-street 
officer,  who  was  himself  the  author 
of  the  confusion ;  for  the  sergeant 
added,  that  "  ichen  Mr.  O'Connor 
had  jumped  over  the  bar,  and  he  had 
lost  sight  of  him,  the  officers  rushed 
into  Court  to  arrest  him,  and  a  great 
noise  ensued;  and  at  this  time" 
(gentlemen,  the  time  is  most 
material  and  critical,  because  it 
can  apply  to  no  other  than  the 

PRECISE  TIME  SWORN  TO  BY  RiVETT), 

"/  saiv  lord  Thanet,"  said  the  ser- 
geant, "standing  as  I  have  described 
him,  with  both  his  hands  over  his 
head,"  —  which  he  also  described 
to  you  by  putting  himself  in  the 
same  defensi^"e  posture,  as  far  more 
expressive  of  his  situation  than  any 
words  could  communicate.  This,  I 
say,  is  the  single  point  of  time  to  be 
looked  at ;  for  the  remainder  of 
the  sergeant's  original  evidence,  ap- 
plying to  a  subsequent  period,  de- 
scribed a  scene  of  great  confusion, 
in  which  he  said  he  could  discover 
nothing  distinctly ;  that  many  per- 
sons were  upon  the  table,  some 
asking  questions,  and  others  en- 
deavoring to  restore  order.  It  is  not 
therefore,  at  this  period  that  you 
are  to  look,  since  no  part  of  the  evi- 
dence at  all  applies  to  it :'  but  at  the 
moment  when  lord  Thanet  is  alone 
affected  Ijy  Rivett's  evidence,  the 
sergeant's  testimony  has  a  direct 
and  decisive  application  ;  for,  upon 
his  cross-examination,  he  said  in  so 
many  words.  "  /  never  saw  lord 
Thanet  look  round,  or  change  his  posi- 


No.  392. 


EARL   OF   THANET  S   TRIAL 


1047 


tion  as  I  have  before  described  it,  till 
the  very  instant  the  officers  rushed  into 
court;  and  then  /  saiv  him  with  his 
stick  held  as  I  before  described  it; 
but  I  am  BOUND  to  say,  that  he  ap- 
peared to  me  to  be  acting  on  the  de- 
fensive WHOLLY."  This  conclud- 
ing evidence  is  an  exculpation  of 
lord  Thanet,  and  must  ha\e  been  so 
intended.  I  did  not  even  put  the 
question  to  the  witness ;  he  himself 
conscientiously  added,  that  he  was 
BOUND  (bound,  of  course,  in  justice 
to  lord  Thanet,  who  was  accused  of 
active  violence)  to  say,  that  he  ap- 
peared to  be  only  acting  in  his  own 
defense.   .   .  . 

Mr.  Sergeant  Shepherd  was  prop- 
erly selected  as  the  first  witness  for 
the  Crown.  He  sat,  from  his  station 
as  judge,  in  an  elevated  position, 
where  he  had  a  better  opportunity  of 
observing  than  others ;  and  he  ac- 
cordingly appears  to  have  observed 
everything  which  passed ;  yet,  in- 
stead of  fastening  guilt  on  lord  Thanet, 
he  sees  him  from  the  time  the  jury 
returned  into  court,  standing  in  one 
position ;  not  looking  round  as  if  he 
was  watching  the  motions  of  INIr. 
O'Connor,  or  engaged  with  others 
in  attending  to  them  ;  not  even  look- 
ing towards  the  side  of  the  court  from 
whence  the  arrrest  was  to  proceed, 
but  upwards  to  the  judges ;  not 
opposing  his  body  as  an  obstacle  in 
a  narrow  passage  through  which  the 
officers  were  to  pass  :  not  presenting 
a  front  to  them  which  a  man  of  his 
strength,  with  the  intentions  im- 
puted to  him,  must  naturally  have 
been  expected  to  do ;  but  standing 
as  any  other  person  attentive  to  the 
trial,  till  the  officers,  apprehending 
a  rescue,  rushed  with  violence  into 
court,  and  pressed  upon  and  as- 
saulted him  ;  for,  had  he  not  been 
pressed  upon  and  assaulted,  he  could 
not  have  been  seen  by  sergeant  Shep- 
herd in  a  posture  of  defense :  and  if 
he  were  first  active  in  obstructing 
and  assaulting  Rivett,  in  the  man- 
ner which  he,  and  he  only,  has  sworn 
to,  why  should  not  sergeant  Shep- 
herd have  seen  It  ?  since  his  eye  was 


so  constantly  fixed  upon  lord  Thanet, 
from  the  time  the  jury  returned 
with  their  verdict  till  the  confusion 
became  general,  which  is  subsequent 
to  the  period  of  Rivett's  evidence, 
as  to  enable  him  to  tell  you  that  he 
did  not  shift  his  position,  nor  make 
a  gesture  or  motion,  till  the  officers 
and  others  rushed  in  upon  him  ;  and 
then,  i.e.  immediately  at  the  same 
moment  to  which  alone  the  evi- 
dence has  any  application,  he  sees 
lord  Thanet  with  a  stick  over  his 
head,  which  he  thinks  himself  bound 
to  express  And  even  to  describe  to 
you  as  a  passive  posture  of  defense. 
This  evidence,  which  so  completely 
exculpates  lord  Thanet,  is  not  less 
applicable  to  Mr.  P'ergusson,  for, 
if  he  who  is  placed  by  all  the  wit- 
nesses as  standing  close  by  him,  had 
been  an  active  conspirator,  armed 
with  a  stick,  which  he  was  flourish- 
ing over  the  heads  of  the  officers, 
can  you  possibly  suppose  that  he 
would  have  withheld  his  assistance 
from  lord  Thanet  who  was  visibly 
overpowered,  or  that  a  man  of  lord 
Thanet's  strength,  though  assisted 
by  Mr.  Fergusson,  who  is  above  six 
feet  high,  and  a  young  man  of  great 
activity  and  strength,  should  be 
perfectly  passive  under  the  blows  of 
Rivett,  endeavoring  only  to  save 
his  person  from  violence,  without 
retaliation,  or  even  a  motion  to  the 
accomplishment  of  his  object  ? 

The  evidence  of  Rivett  is  farther 
exposed,  by  his  having  denied  that 
lord  Thanet  had  a  stick  —  a  fact 
established  beyond  all  question ; 
and  by  his  swearing  that  he  took  the 
stick  from  JMr.  Fergusson,  and  struck 
him  with  it ;  when  it  will  appear  by 
and  by,  that  he  took  it  from  behind 
his  own  coat  when  he  assaulted  lord 
Thanet.  This  last  fact,  however,  I 
ouglit  to  ha\e  passed  over  at  pres- 
ent, because  it  arises  out  of  my  own 
e\idence,  which  I  do  not  wish  at 
all  to  mix  with  my  observations  on 
the  case  of  the  crown. 

Gentlemen,  the  other  judges,  with 
the  exception  of  Mr.  Justice  Heath 
(whose  testimony  will  also  support 


1048 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


the  innocence  of  the  defendants), 
have  not  been  examined,  though 
their  positions  in  court  were  so 
highly  favorable ;  neither  has  the 
bar  been  examined,  who,  if  lord 
Thanet  had  been  in  the  situation 
which  some  of  the  witnesses  ha\e 
described,  must  have  all  seen  it  to 
a  man  ;  and  their  not  having  been 
called,  affords  a  strong  inference 
that  their  evidence  would  not  have 
been  favoral.^le. 

Mr.  Hussey,  who  was  next  ex- 
amined, said,  "I  saw  Mr.  O'Connor 
attempt  to  get  over  the  bar"  (a  fact 
never  disputed) ;  "  and  at  that  time 
lord  Thanet  ivas  standing  loith  his 
back  to  the  prisoners.  I  saw  some- 
body pressing  forward,  who  .said  he  had 
a  warrant;  but  I  saw  no  pajjer.  Lord 
Thanet  seemed  to  press  himself  to- 
wards the  bar,  and  seemed  to  be 
DESIROUS  to  interrupt  his  progress." 
I  dare  say,  the  Rev.  Mr.  Hussey 
meant  to  tell  you  what  he  saw ;  but 
he  has  expressed  nothing.  What 
can  be  collected  from  such  expres- 
sions ?  Can  you  convict  any  man 
upon  evidence  which  imputes  no  act, 
but  only  a  seeming  desirousnessf 
Lord  Thanet  seemed  to  press  him- 
self towards  the  bar,  and  seemed 
to  be  desirous  of  interrupting  the 
officer's  progress.  Did  the  witness 
see  him  do  the  one  or  the  other  ?  If 
he  had,  he  would  of  course  have  so 
expressed  it ;  and  if  lord  Thanet 
had  actually  done  so,  why  should 
not  Mr.  Sergeant  Shepherd  have 
equally  seen  it,  who  ol)served  him 
accurately  at  the  very  same  moment? 
,  .  .  The  whole  of  Mr.  Hussey's  evi- 
dence, therefore,  amounts  only  to 
this  —  that  lord  Thanet  seemed  to 
press  forward,  and  that  too,  at  the 
very  same  moment  when  Mr.  Ser- 
geant Shepherd  described  him  as 
unmoved  and  motionless,  with  his 
back  to  the  prisoner,  and  his  face, 
of  course,  towards  the  Court.   .   .   . 

Lord  Ilomney  is  the  next  witness, 
whose  evidence  was  just  what  might 
have  been  expected  from  a  person 
in  his  situation  —  iiighly  interested 
in   the  honor  of  the  countv   where 


he  has  great  hereditary  estates  and 
honors.  .  .  .  He  was  placed,  be- 
sides, in  that  part  of  the  court  where 
he  was  entitled  by  his  rank  to  sit, 
from  whence  he  had  an  opportunity 
of  observing  what  was  transacting. 
Thus  circumstanced,  he  says,  "/ 
saw  the  Bow-street  officers  FORCING 
a  passage,  and  striking  blows  :  — 
whom  they  struck  I  do  not  know; 
there  ivas  a  sword  brandishing  on  the 
table.  Thinking  things  bore  a  serious 
aspect,  I  crossed  the  table,  and  saw  the 
prisoner  escaping;  he  was  brought 
back  by  the  javelin  men.  I  said  to 
them,  'Form  yourselves  round  the 
prisoner,  for  he  is  not  yet  discharged.' 
I  was  told  afterwards  I  had  said,  '  he 
was  not  acquitted.'  I  believe  Mr. 
Fergusson  said  so:  I  have  no  doubt  I 
made  the  mi.stake."  —  Gentlemen, 
undoubtedly  lord  Roniney  meant 
only  to  say,  that  Mr.  O'Connor  was 
not  discharged ;  though  the  answer  was 
not  made  to  him  by  Mr.  Fergusson  ; 
for  I  shall  call  the  gentleman  himself 
who  answered  him  ;  not  that  it  is  in 
the  least  material,  except  that  it 
proves  that  Mr.  Fergusson  was 
noticed  at  that  time  l)y  lord  Romney  ; 
and  surely,  gentlemen,  if  he  had  been 
acting  like  the  fool  and  madman, 
and,  I  will  add,  like  the  knave  he 
has  been  represented  to  you ;  if,  in 
his  professional  dress,  he  had  been 
publicly  flourishing  a  stick  upon  the 
table,  lord  Romney,  who  was  close 
by  him,  must  inevitably  have  ob- 
served him  ;  yet  his  lordship  does 
not  speak  of  him  as  out  of  his  place, 
or  as  engaged  in  any  act  of  disorder 
or  violence. 

Another  most  important  fact  is 
established  by  lord  Ronmey's  evi- 
dence ;  for,  though  his  lordship  said 
that  he  should  have  been  so  much 
hurt  if  the  county  had  been  dis- 
graced, that  his  attention  was  not 
directed  to  individuals,  and  that 
in  the  confusion  he  could  not  tell 
who  had  been  struck  in  the  passage 
by  the  officers,  yet  he  added,  that 
VERY  many  blows  wcrc  struck,  and 
MANY  persons  hurt;  yet  Rivett  says, 
that  Fugion  struck  ho  blows ;  that 


No.  392. 


EARL   OF   TIIANET  S   TRIAL 


1049 


Adams  struck  no  blows ;  that  the 
messenger  struck  none ;  nor  he  him- 
self any  but  those  which  were  struck 
at  lord  Thanet.  Rivett,  therefore, 
according  to  his  own  account,  was 
the  only  person  engaged,  and  success- 
fully engaged,  against  the  rioters ; 
yet  you  are  desired  to  believe,  that 
a  large  combination  of  strong  and 
active  conspirators  were  favoring 
an  escape  by  violence.  This  is  quite 
impossible;  and  the  blows,  there- 
fore, which  were  observed  by  lord 
Romney,  were  the  blows  which  the 
officers  themschcs  wantonly  inflicted  ; 
since  it  will  appear  hereafter,  by 
witnesses  whom  the  Court  cannot  but 
respect,  and  whose  evidence  cannot 
be  reasonably  rejected,  that  they 
rushed  in  like  madmen,  striking  with 
violence  the  most  harmless  and  in- 
offensive persons,  which  compelled 
others  to  put  themselves  into  that 
passive  posture  of  defense,  that  lord 
Thanet  has  been  so  frequently  and 
so  distinctly  described  in.   .   .   . 

Gentlemen,  I  will  now  state  to 
you  the  solicitor-general's  evidence. 
He  says,  "  /  Iccpt  my  eye  fixed  on  Mr. 
O'Connor.  When  the  jury  gave  their 
verdict,  I  observed  him  and  Mr.  Fer- 
gusson;  I  particularly  fi.ved  my  eyes 
upon  them .  I  observed  Mr.  Fergusson 
speaking  to  Mr.  O'Connor,  and  Mr. 
O'Connor  put  his  leg  over  the  bar:  I 
call  d  out,  'Stop  him!'  Mr.  Fer- 
gusson said,  'He  is  discharged.'  I 
an s leered,  'He  is  not  discharged.' 
Air.  Fergusson  then  said  to  Mr. 
O'Connor,  '  You  are  discharged.' 
I  repeated,  'He  is  not  discharged.'  I 
observed  the  jailer  lean  over,  and  lay 
hold  of  Mr.  O'Connor;  some  person 
ivas  at  this  time  pressing  forward,  and 
Mr.  Fergusson  complained  to  the 
Court.  The  officer  was  pressing  into 
court,  in  order  to  get  round  to  Mr. 
O'Connor." — Now,  gentlemen,  it  is 
fit  just  to  pause  here  a  little,  to  con- 
sider this  part  of  the  evidence. 
The  time  filled  by  it  is  not  above  two 
or  three  minutes ;  for  it  is  only  tlie 
inter\al  occupied  by  the  sentence 
upon  O'Coigly ;  and  if  a  combina- 
tion had  existed  between  lord  Thanet 


and  Mr.  Fergusson,  and  otlier  per- 
sons in  the  secret,  is  it  probable  that 
Mr.  Fergusson  would  have  made  him- 
self the  conspicuous  figure  which  I 
am  supposing  the  evidence  truly  to 
represent  him  to  have  done  ?  His 
conduct,  besides,  appears  quite  dif- 
ferent from  Rivett's  account  of  it. 
Did  he  enter  into  private  resistance 
or  altercation  ?  No ;  he  made  a 
regular  and  public  motion  to  the 
Court ;  the  judge  yielded  to  the 
suggestion ;  the  officers  were  di- 
rected to  stand  back  for  the  present, 
and  then  the  sentence  was  pro- 
nounced. This  is  not  the  natural 
deportment  of  a  person  engaged  in  a 
conspiracy.  .  .  .  The  solicitor-gen- 
eral farther  said,  "  Rirett,  the  officer, 
said  he  had  a  warrant  agaittst  Mr. 
O'Connor.  Mr.  Justice Builer  spoke  to 
the  officers,  commanded  silence,  and 
proceeded  to  pass  sejitence.  When  the 
sentence  was  finished,  I  observed  Mr. 
Fergusson,  and  some  other  persons 
whom  I  did  not  know,  encouraging 
Mr.  O'Connor  to  go  over  the  bar."  — 
Here  we  must  pause  again.  —  Mr. 
Gibbs  asked  the  witness,  upon  his 
cross-examination,  "  Did  you  hear 
him  say  anything?  Did  you  see 
him  do  anything?"  —  The  solicitor- 
general  proved  no  one  thing  which 
Mr.  Fergusson  said  or  did.  .  .  .  By 
these  observations  I  am  not  im- 
peaching the  evidence  of  the  solicitor- 
general  ;  I  am  commenting  as  a 
lawyer  upon  the  result  of  it ;  and  I 
do  say,  as  a  lawyer,  that  it  is  giving 
no  evidence  at  all,  to  swear  that  a 
man  encouraged,  or  appeared  to  be 
encouraging,  without  stating  the 
facts  on  which  that  impression  of  his 
mind  was  founded.  Mr.  Solicitor- 
General  went  on  to  say, "  /  did  not  sec 
Mr.  O'Connor  till  he  was  brought 
back  by  the  officers;  for  at  the  instant 
that  Mr.  O'Connor  jumped  over  the  bar, 
three  or  fotr  persons  leaped  from  the 
witnesses'  box  upon  the  table,  and 
mixed  among  the  rioters;  all  the  lights, 
except  those  before  the  judges,  and  the 
chandeliers,  were  extinguished.  Mr. 
Fergusson,  at  the  moment  Mr.  O'Con- 
nor jumped  over  the  bar,  turned  round. 


10.50 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


and  APPEARED  to  follow  Mr.  O'Con- 
nor;   BTT     I     WILL    NOT    POSITIVELY 

SWEAR  IT."  I  am  very  glad,  gentle- 
men, that  he  did  not ;  because  it 
would  have  been  unpleasant  to 
swear  that  positively,  which  will  be 
positively  contradicted ;  by  those, 
too,  who  are  of  as  good  faith,  and 
who  had  as  good  an  opportunity  of 
observing.  It  is  a  mere  misappre- 
hension ;  and  I  would  say  to  tiie 
solicitor-general,  if  I  were  to  see  him 
at  his  own  table,  or  at  mine,  that  he 
is  mistaken.  Indeed,  in  a  scene  -of 
confusion,  no  man  can  tell  what  he 
sees  with  any  certainty  or  precision, 
and  images  are  frequently  con- 
founded in  the  memory.  —  The  so- 
licitor-general then  said,  that  Mr. 
Stafford  jumped  upon  the  table,  and 
drew  a  sword ;  and,  speaking  of  lord 
Thanet,  he  said,  he  went  across  the 
table,  and  that  he  saw  him  in  conver- 
sation with  Mr.  Justice  Lawrence, 
the  particulars  of  which  he  did  not 
hear;  but  that,  when  he  went  across 
the  table  again,  he  said  he  thought  it 
fair  he  should  have  a  run  for  it:  he 
said  it  rather  in  a  tone  oj  anger,  in 
consequence  of  what  had  fallen  from 
Mr.  Jiistice  Lawrence.  Gentlemen, 
this  last  part  of  the  evidence  applies 
to  a  point  of  time  when  the  disturb- 
ance was  at  an  end :  .  .  .  you  can- 
not therefore  believe,  that,  under 
such  circumstances,  when  lord  Thanet 
could  not  but  know  that  high  offense 
had  been  given  to  the  justice  of  the 
county,  he  should  come  voluntarily 
forward,  in  the  hearing  of  the  king's 
judges,  and  confess  himself  to  be  an 
accomplice  in  a  high  misdemeanor. 
These  observations  are  not  made 
to  induce  you  to  believe,  that  lord 
Thanet's  expressions  have  been  mis- 
represented to  you  ;  but  to  convince 
you,  that  the  making  them  at  the 
time,  and  to  the  persons  to  whom 
they  were  made,  arose  from  a  con- 
sciousness that  he  had  no  share  in 
assisting  Mr.  O'Connor.  .  .  .  The 
right  of  Mr.  O'Connor  to  deliver 
himself  from  such  a  warrant,  if  he 
could  escape  before  it  was  executed 
on  his  per-son,  was  an  opinion  which 


lord  Thanet  might  correctly  or  in- 
correctly entertain  ;  but  to  enhance 
the  confession  of  such  an  opinion 
into  an  admission  of  the  crime  i?i 
himself,  is  contrary  to  every  human 
principle  and  feeling,  and,  therefore, 
not  a  reasonable  conclusion  of  human 
judgment.  —  Gentlemen,  these  are 
my  observations  upon  the  evidence 
of  the  solicitor-general,  as  it  affects 
lord  Thanet ;  and,  as  it  applies  to 
Mr.  Fergusson,  it  is  very  important ; 
for  if  Mr.  Fergusson  had  been 
flourishing  a  stick  in  the  manner 
which  has  been  falsely  sworn  against 
him,  what  should  have  induced 
the  solicitor-general  to  say,  only  in 
general  terms,  that  he  saw  him  en- 
couraging? Will  any  of  my  learned 
friends  maintain,  that  if  the  solici- 
tor-general could  have  proved,  in 
terms,  that  Mr.  Fergusson  had  a 
stick  in  his  hand,  till  it  was  wrested 
from  him  by  the  officers  in  repelling 
violence  by  violence,  that  he  would 
not  have  distinctly  stated  it? 

Gentlemen,  Mr.  Justice  Heath  was 
next  examined ;  and  there  is  no  part 
of  the  proof  more  important,  partic- 
ularly as  it  aft'ects  Mr.  Fergusson, 
than  the  evidence  of  that  very  learned, 
and,  I  must  add,  that  truly  honorable 
witness,  who  was  one  of  the  judges 
in  the  commission,  and  presiding 
at  the  trial.  He  said,  that  "a  mes- 
senger from  the  secretary  of  state  had 
applied  to  the  Court  for  liberty  to 
execute  a  warrant  upon  Mr.  (T Connor  ; 
that  permission  had  been  accordingly 
granted."  So  that  Mr.  O'Connor 
was  not  to  be  ultimately  liberated, 
but  was  to  remain  amenable  to  the 
process  in  the  hands  of  the  ofHcer.-s : 
that,  "  after  the  verdict  had  been  given, 
and  the  sentence  pronounced,  the 
messenger,  very  unadvisedly,  loent 
to  the  corner  most  removed  from  the 
door,  and.  said  aloud,  '  My  lord,  may 
I  now  execute  my  warrant?'  Pres- 
ently afterwards,  I  saw  Mr.  O'Con- 
nor put  one  leg  over  the  bar,  and  draw 
it  back  again."  I  have  already  re- 
minded you,  gentlemen,  that  at  this 
time  there  was  a  doubt  in  the  minds 
of  some  as  to  the  effect  of  the  verdict 


No.  392. 


EARL   OF   THANEt's   TRIAL 


1051 


to  liberate  the  prisoner ;  and  I  admit 
that  Mr.  O'Connor,  when  he  put 
his  leg  over  the  bar,  knew  of  the 
existence  of  the  warrant,  and  in- 
tended to  evade  it.  Mr.  Justice 
Heath  then  said,  "A  violent  riot  and 
fighting  took  place,  such  as  I  never 
before  saw  in  a  court  of  justice.  It 
seemed  to  me  to  be  between  the  con- 
stables on  one  hand,  and  those  who 
favored  the  escape  of  the  prisoner  on 
the  other."  This  shows  plainly  that 
Rivett  did  not  speak  the  truth,  when 
he  said  that  the  blows  were  all  on 
the  side  of  the  rioters  against  the 
officers ;  whereas  the  fray,  as  de- 
scribed by  Mr.  Justice  Heath,  arose 
at  first  from  the  activity,  if  not  the 
violence,  of  the  officers  ;  which  I  will 
confirm  hereafter  by  the  most  re- 
spectable testimony.  "  It  being  dark  " 
(continued  the  learned  judge)  "/ 
could  not  see  the  numbers  of  the  com- 
batants;  but  I  think  there  must  have 
been  ten  or  twenty  engaged  in  it.  I 
saw  Mr.  Stafford  brandishing  a  sword 
over  their  heads.  The  combat  might 
last  for  five  or  six  minutes.  I  saw 
Mr.  Fergusson,  in  his  professional 
dress,  standing  upon  the  table  with 
many  others.  He  turned  round,  and 
said,  'My  lord,  the  constables  are  the 
persons  to  blame;  it  is  they  that  are  the 
occasion  of  the  disturbance.'  Before 
I  could  give  him  an  answer,  he  turned 
round  towards  the  combatants;  and 
theji  my  attention  toas  drawn  from 
HIM  to  the  more  interesting  scene  of  the 
fight."  —  Every  part  of  this  evidence 
is  a  decisive  exculpation  of  Mr.  Fer- 
gusson. When  was  it  that  Mr. 
Justice  Heath  saw  him  upon  the 
table  ?  I  answer,  at  the  very  mo- 
ment, nay  at  the  only  moment  when 
blame  is  attempted  to  be  imputed 
to  him.  By  whom  was  he  thus  ob- 
served ?  Not  by  a  common  per- 
son, unqualified  to  judge,  or  unin- 
terested in  the  order  of  the  court,  but 
by  one  of  its  highest  and  most  in- 
telligent magistrates.  ...  It  is 
therefore  quite  impossible,  upon  Mr. 
Justice  Heath's  evidence,  to  mix 
Mr.  Fergusson  with  violence ;  for 
the  learned  judge  distinctly  stated. 


that  after  having  seen  and  heard 
him  as  he  described  him  to  you,  he 
observed  him  no  longer,  his  attention 
being  drawn  from  him  to  "  the  more 
interesting  scene  of  the  fight."  Is  not 
this  a  most  positive  declaration  of 
Mr.  Justice  Heath,  that  the  place 
where  Mr.  Fergusson  stood,  was  not 
the  scene  of  the  fight,  and  that  he  was 
not  personally  engaged  in  it?  for 
he  turned  his  eyes  from  him  to  the 
scene  of  the  combat,  and  of  course  to 
the  persons  of  the  combatants ; 
whereas,  if  Mr.  Fergusson,  with  a  per- 
son so  remarkable,  and  in  the  dress 
of  his  profession,  had  been  himself 
a  rioter,  the  learned  judge  must  have 
pursued  him  with  his  eyes,  instead 
of  losing  sight  of  him,  and  must  have 
seen  him  more  distinctly.  But  the 
truly  honorably  judge  does  not  leave 
the  exculpation  of  Mr.  Fergusson  to 
any  reasoning  of  mine,  having  con- 
cluded his  evidence  with  these  re- 
markable words:  "/  must  do  him 
the  justice  to  say,  that  in  the  short  time 
I  saw  him,  which  was  not  above  a 
minute  or  two,  I  did  not  see  him  do, 
or  hear  him  say,  anything  to  encourage 
the  riot.  I  thought  myself  in  great 
danger,  and  all  of  us  also."  This 
testimony,  gentlemen,  is  absolutely 
CONCLUSIVE.  .  .  .  When  we  con- 
sider, therefore,  that  this  learned 
and  reverend  person  stood  in  the 
same  situation  with  the  first  witness 
who  was  examincfl  for  the  crown  ; 
that  he  had  an  opportunity,  from  his 
situation  in  court,  of  seeing  every- 
thing which  belonged  to  the  scene 
of  combat,  as  he  termed  it ;  and 
when  he  nevertheless  so  separated 
Mr.  Fergusson  from  it  as  to  feel 
himself  compelled  to  say  what  he  did 
in  the  close  of  his  testimony,  we 
ought  to  give  to  his  words  a  weight 
beyond  the  voice  of  a  thousand 
witnesses.   .   .   . 

The  next  witness  was  Mr.  Abbott, 
a  gentleman  at  the  bar.  "lie  saw 
Mr.  O'Connor  make  a  motion  to  leave 
the  Court,  and  heard  Mr.  Fergusson 
say  he  was  discharged.  Mr.  Solicitor- 
General  ansxoered,  that  he  was  not  dis- 
charged;    and    then    either    Rivett    or 


1052 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


Fugion  said  he  had  a  umrrant;  there 
was  then  a  little  confusion;  hut  the 
prisoners  resumed  their  places,  and 
Mr.  Justice  Bidler  proceeded  to  pass 
sentence  on  O'Coic/ly.  ]]'hen  that 
was  finished,  Mr.  O'Connor  leaped 
over  the  bar  towards  his  left  hand ; 
a  great  tumult  and  confu.'iion  took 
place."  —  No  part  of  all  thi.s,  gen- 
tlemen, was  ever  disputed.  —  "  /  saw 
lord  Thanet  on  the  table  nearly  before 
Mr.  Justice  Lawrence."  This  is 
also  nothing.  If  lord  Thanet  mixed 
in  the  riot,  it  could  not  be  near  Mr. 
Justice  Lawrence,  hut  in  the  other 
part  of  the  court,  where  the  prisoners 
were  placed.  —  "  The  learned  judge 
spoke  to  lord  Thanet,  and  said  it 
icould  be  an.  act  of  kindness  in  Mr. 
O'Connor's  friends  to  advise  him  to  go 
quietly  to  prison,  lest  some  mischief 
should  happen.  Lord  Thanet  then 
turned  round,  and  said  —  /  did  not 
distinctly  hear  the  first  words,  but  the 
concluding   words  were,  'to  have  a 

RUN  FOR  IT,'  or  '  FAIR  TO  HAVE  A  RUN 

FOR  IT.'"  Gentlemen,  I  will  not 
weary  you  with  a  long  repetition  of 
the  same  observations.  I  have  ob- 
served more  than  once  already,  that 
if  Mr.  Justice  Lawrence  had  con- 
sidered lord  Thanet  as  having  done 
anything  to  promote  the  riot,  he 
would  have  acted  accordingly ;  and 
it  would  be,  therefore,  trifling  with 
your  time  and  patience  to  detain 
you  farther  with  Mr.  Abbott's 
testimony. 

Gentlemen,  we  are  now  arrived  at 
Mr.  Rivett ;  and,  retaining  in  your 
minds  the  testimony  of  the  crown's 
most  respectable  witness,  on  which 
I  have  been  so  long  observing,  I  shall 
leave  you  to  judge  for  yourselves, 
whether  it  be  possible  that  what  he 
says  can  be  the  truth,  independently 
of  the  positive  contradiction  it  will 
receive  hereafter.  Indeed,  the  evi- 
dence of  this  man  administers  a 
most  important  caution  to  juries 
not  to  place  too  implicit  a  confidence 
in  what  is  sworn  with  positiveness, 
hut  to  found  their  judgments  upon 
the  most  probable  result  from  the 
whole  body  of  the  proof. 


Rivett  says,  .  . .  "Many  gentlemen 
were  seated  upon  the  solicitors' 
bench,"  which  has  already  been 
described  to  you  as  immediately 
before  the  prisoners,  and  without 
the  counsels'  seat,  in  which  lord 
Thanet  appears  to  have  sat  till  he 
stepped  into  that  of  the  solicitors, 
where  he  was  heard  to  speak  to  Mr. 
O'Connor,  and  congratulate  him  on 
his  acquittal.  It  was  in  this  place, 
and  before  and  after  this  time,  that 
Mr.  Sergeant  Shepherd  described 
him  as  standing  unmoved,  with  his 
face  to  the  court,  and  his  back  to 
the  prisoners :  Rivett  went  on  to 
say,  "  Jl'hen  the  jury  were  coming  in, 
I  endeavored  to  go  nigh  to  the  jailer, 
when  I  was  p^dled  down  by  the  leg; 
and  as  soon  as  I  turned  round,  I  saw 
Mr.  Thompson,"  who  turns  out  not 
to  have  been  Mr.  Thompson.  "/ 
thought  Mr.  O'Connor  looked  as  if  he 
intended  an  escape.  At  that  time 
there  ivas  a  noise  and  violence;  and 
Mr.  Fcrgusson  said  to  the  Court, 
'  What  business  has  this  fellow  here, 
making  a  noise  f"  Now,  gentle- 
men, this  cannot  be  a  correct  state- 
ment as  it  respects  Mr.  Fergusson, 
since  it  has  been  sworn  by  all  the 
crown's  most  respectable  witnesses 
that  he  made  it  a  regular  motion 
from  the  bar,  and  the  officers  were 
desired  to  stand  back.  "/  told  his 
lordship,  I  had  a  warrant  from  the 
duke  of  Portland  to  arrest  Mr.  O'Con- 
nor;  and  the  judge  said  I  should  have 
him,  and  desired  the  jailer  to  take 
care  of  the  prisoners  for  the  present. 
The  sentence  was  then  passed  on 
O'Coigly;  and  as  soon  as  it  was 
finished,  Mr.  O'Connor  immediately 
jumped  out  from  the  bar ;  there  teas 
then  a  great  confusion  in  court;  the 
gentlemen  ivho  sat  before  me  got  up: 
Mr.  O'Connor  took  to  the  left,  and  I 
called  out  to  shut  the.  door.  I  en- 
deavored to  get  forward,  but  was  pre- 
vented by  those  gentlemen  who  had 
placed  themselves  before  me  and  the 
other  officers.  I  was  pulled  and 
shoved  down  two  or  three  times ;  but  by 
whom  I  know  not.  I  jumped  for- 
ward as  well  as  I  was  able,  and  was 


-\o.  392. 


EARL   OF   THANET  S   TRIAL 


1053 


endeavoring  to  pursue  Mr.  O'Connor, 
when  Mr.  Fergu^son  jumped  on  the 
table,  and  with  a  stick  flourished  it  in 
this  way,  to  stop  me.  Mr.  Fergusson 
was  in  his  gown.  I  sprang  at  him, 
and  icrenched  the  stick  out  of  his  hand, 
and  then  he  returned  from  the  table, 
and  went  to  his  seat."  I  will  not 
pause  at  this  part  of  the  evidence  as 
it  applies  to  Mr.  Fergusson,  but 
pursue  it  as  it  goes  on  to  lord  Thanet ; 
because,  if  I  can  show  you  that  its 
application  to  him  is  demonstratively 
false  when  compared  with  the  rest 
of  the  crown's  evidence,  on  which  it 
must  lean  for  support,  it  will  destroy 
all  its  credit  as  it  implicates  Mr.  Fer- 
gusson also.  He  says,  "  /  was  then 
knocked  down  by  a  person  who 
pushed  at  me  icith  both  hands,  and  I 
immediately  struck  that  person  three 
or  four  blows."  .  .  .  His  words 
were,  "He  shoved  me  with  both 
hands;"  and,  in  his  cross-exam- 
ination he  afterwards  described  it, 
"  /  struck  that  person  three  or  four 
blows:  he  called  out,  'Do  not  strike 
me  any  more;'  I  replied,  'I  will; 
how  dare  you  strike  me?"'  You 
observe  that  he  describes  lordThanet 
as  having  no  stick,  and  as  having 
struck  him :  whereas  Mr.  Sergeant 
Shepherd  saw  lord  Thanet,  at  what 
must  necessarily  be  the  same  point 
of  time,  standing  with  his  face  to  the 
judges,  and  his  back  to  the  prisoners, 
motionless,  as  I  have  repeatedly 
described  him,  till  he  must  have  re- 
ceived violence  from  some  other 
person,  since  the  Sergeant  saw  him 
leaning  back,  and  defending  him- 
self with  a  stick  which  he  held  in 
both  hands  over  his  head  —  an 
account,  which,  if  any  corroboration 
of  such  a  witness  could  be  necessary, 
I  will  establish  by  eight  gentlemen 
who  were  present,  and  who  will 
add,  besides,  in  contradiction  of 
Rivett,  that  lord  Thanet  was  him- 
self beat  severely,  and  never  struck 
the  officer  with  either  fist  or  stick. 
That  lord  Thanet  had  a  stick,  is 
beyond  all  controversy  :  and,  having 
one,  is  it  likely  that  a  man  of  his 
strength    and    activity,    engaged    in 


such  an  enterprise,  would  only  push 
at  his  opponent  with  his  hands,  or 
that  Mr.  Fergusson,  who  is  charged 
as  being  an  accomplice,  would  have 
contented  himself  with  flourishing 
a  little  stick  over  his  head  ? 

Mr.  Attoritey-Geveral.  —  I  do  not 
find  that  Rivett  has  at  all  .said  tiiat 
lord  Thanet  had  a  stick. 

Mr.  Fjrskine.  —  I  have  been  read- 
ing his  original  examination.     I  will 
state  his  cross-examination  by  and 
by,  and  then  set  both  of  them  against 
the    truth.     He    says    farther,    and 
to  which  I  desire  your  most  particu- 
lar attention,  "/  saw  Mr.  Fergusson 
flourishing  a  stick  about  the  middle  of 
the  table.     I  went  that  way,  to  avoid 
the  persons  who  had  stopped  up  the 
passage.     He   endeavored   to   prevent 
me;   but  I  wrenched  it  from  him,  and 
struck  him.     I  had  not  then  seen 
LORD  Thanet."     Now,  gentlemen,  I 
have  only  to  beg  that  you  will  have 
the  goodness  to  make  some  mark  upon 
the  margin  of  your  notes  of  this  fact, 
which  the  witness  has  had  the  auda- 
city   and    wickedness    to    swear    to. 
I  use  these  severe  expressions  which 
I  have  applied  to  no  other  witness 
in  the  cause,  because  I  never  wan- 
tonly employ  epithets  that  are  un- 
just.    He  was   in  such  a  situation 
that  he  cannot  be  mistaken  in  what 
he  swears ;    neither  does  he  qualify 
it  with  his  belief  :    but  takes  upon 
himself  to  marshal  the  proceedings 
in  his  memory,  and  to  affirm  posi- 
tively both  as  to  persons  and  times. 
Yet  I  will  prove  Mr.  Fergusson  to 
have  been  within  the  bar  in  his  place 
when  Rivett  speaks  of  him  as  on  the 
table,    and    certainly   without   a 
stick.     I  will  prove  this  —  not  by 
Bow-street  officers,   but  by  gentle- 
men as  honorable  as  any  who  have 
been    examined.     Mr.    Rivett    told 
you   too,   "thai  he  came  along  from 
the  great  street  where  the  Star  Inn  is, 
towards  the  prisoner,  to  arrest  him  ; 
but  that  he  went  to  the  table  to  avoid 
the  gentlemen  who  interrupted  him  in 
his    passage    towards    him."     Lord 
Thanet  is  one  whom  he  positively 
fixed  on  as  having  done  so.     Lord 


1054 


t 

PART   III.      PROBLEMS   OF   PROOF 


No.  392. 


Thanet  then  interrupted  him  in  his 
passage  to  the  prisoner,  which  in- 
duced him  to  go  to  the  table,  where 
he  had  the  conflict  with  Mr.  Fer- 
gusson  ;  and  yet,  according  to  his 
own  dehberate  dechiration,  he  never 
saw  lord  Thanet  till  (iftcr  the  stick 
had  been  flourished  by  Mr.  Fergus- 
son  over  his  head,  and  till  after  he 
had  wrenched  it  out  of  his  hand  ; 
or  the7i  it  icas,  and  for  the  first  time, 
that  he  swears  to  have  seen  lord 
Thanet.  This  is  totally  inconsist- 
ent, not  only  with  the  whole  course 
of  the  evidence,  but  even  with  his 
own.  And  I  will  prove,  besides,  by 
a  gentleman  who  sat  next  his  lord- 
ship, Mr.  George  Smith,  the  son  of 
a  late  chairman  of  the  East  India 
company,  a  gentleman  at  the  bar, 
and  of  independent  fortune,  that 
one  of  the  first  things  Rivett  did 
when  he  came  into  court,  was,  to 
press  rudely  upon  him  ;  and  that 
lord  Thanet,  without  having  struck 
a  blow,  or  oft'ered  any  resistance, 
was  attacked  by  these  men  in  a  most 
furious  manner ;  which  accounts 
for  the  attitude  of  defense  in  which 
he  has  been  so  often  described. 

No  embarrassment  or  confusion 
can  possibly  attend  the  consideration 
of  time ;  because  from  the  evidence 
of  Mr.  Sergeant  Shepheid  there 
could  be  no  interval.  It  was  all  in 
a  moment.  He  saw  lord  Thanet 
sitting  down :  he  rose,  and  stood 
with  his  face  to  the  judges  ;  and  then 
the  confusion  began.  But,  at  this 
time,  I  engage  to  prove  most  posi- 
tively by  many  witnesses,  that  Mr. 
Fergusson  was  in  his  place  at  the 
bar,  that  he  was  forced  upon  the 
table  in  consec|uence  of  the  tumult 
after  lord  Thanet  had  been  knoeked 
down,  and  that  he  had  NO  stick. 
This,  indeed,  is  incontestably  estal)- 
lished  by  the  evidence  of  Mr.  Justice 
Heath,  who  saw  him  in  that  situa- 
tion till  he  removed  his  eyes  from 
him  to  the  scene  of  confusion,  which 
he  could  not  po.ssil)ly  have  done  if 
the  confusion  had  not  become  gen- 
eral whilst  Mr.  Fergus.son  remained 
in  his  place  ;    and  so  far  was  he  from 


seeking  to  mix  himself  with  the  riot 
which  the  officers  were  occasioning, 
that  when  sir  Francis  Burdett,  a 
gentleman  possessed  both  of  strength 
and  spirit  (if  a  rescue  had  been  the 
object),  was  coming  hastily  across 
the  table,  from  seeing  the  situation 
lord  Thanet  was  placed  in,  Mr.  PVr- 
gusson,  knowing  that  it  would  only 
tend  to  embroil  instead  of  abating 
the  confusion,  took  hold  of  him  to 
prevent  him,  carried  him  bodily  to- 
wards the  judges,  desired  the  officers 
to  be  quiet,  and,  addressing  the 
Court,  said  publicly,  and  in  his 
place,  "  My  lord,  it  is  the  officers  who 
are  making  all  this  disturbance." 

What,  then,  is  to  be  said  for  this 
Mr.  Rivett,  who  swore  that  he  never 
saw  lord  Thanet  till  after  his  conflict 
with  Mr.  Fergusson  on  the  table, 
although  Mr.  Fergusson  will  appear 
to  have  at  this  time  been  in  his 
place  ?  Mr.  Smith  was  as  near  lord 
Thanet  as  I  am  now,  when  Ri\ett 
rushed  by  him,  and  attacked  him, 
Mr.  Fergusson  being  still  in  his 
station  at  the  bar. 

Gentlemen,  he  said  farther,  in  his 
cross-examination,  that  "he  struck 
lord  Thanet  several  blows;  that  lord 
Thanet  desired  him  to  desist,  but  that 
he  had  struck  him  once  or  twice  after- 
wards.^' This  was  after  Mr.  Fer- 
gusson had  gone  across  towards  the 
judges  ;  so  that  the  scene  he  describes, 
as  relative  to  lord  Thanet,  is  not 
immediately  upon  his  first  coming 
into  court,  but  afterwards,  when,  hav- 
ing gone  out  of  his  course  towards 
the  prisoner  from  the  resistance  he 
had  met  with  in  the  passage  towards 
him,  he  was  obstructed  by  Mr.  Fer- 
gusson at  the  table :  whereas  all  the 
witnesses  agree  in  placing  lord 
Thanet  in  the  solicitors'  box,  the  very 
passage  which  Rivett  states  himself 
to  have  left  in  consequence  of  resist- 
ance ;  and,  therefore,  he  must  have 
passed  lord  Thanet,  in  the  solicitors' 
box,  before  he  could  have  approached 
Mr.  Fergusson  at  the  table ;  anrl  if 
he  met  with  any  blows  or  interrup- 
tion from  him  at  all,  he  must  have 
met  with  them  immediately  upon  his 


No.  302. 


EARL   OF   THANET  S   TRIAL 


1055 


entering  the  court;  for  IVTr.  Sergeant 
Shepherd's  evidence  estabhshes,  that 
at  that  period  violence  must  have 
been  used  on  lord  Thanet,  as  he 
was  in  an  attitude  of  defen.se.  Rivett 
farther  said,  that  "lord  Thanet  had 
nothing  to  defend  himself  against  his 
bloivs,"  though  sergeant  Shepherd 
saw  and  described  him  with  a  stick ; 
and  that  "he  saw  no  bloivs  struck  by 
anybody  but  himself." 

What,  then,  is  the  case,  as  it  stands 
upon  Rivett's  evidence  ?  That  no 
blows  were  struck  but  his  own : 
though  a  learned  judge  has  sworn  to 
liave  seen  many  struck,  and  upon 
many  persons ;  that  he  received  no 
blows  from  Mr.  Thompson  —  none 
from  Mr.  O'Brien  —  none  from  Mr. 
Fergusson  —  none  from  any  of  the 
defendants  but  lord  Thanet,  nor 
from  any  other  person  in  the  court. 
It  is  for  you  to  say,  gentlemen, 
whether  this  statement  be  possibly 
consistent  with  a  widespread  con- 
spiracy to  rescue  a  prisoner  by 
violence,  of  which  the  defendants 
were  at  the  head. 

Sir  Edward  Knatchbull  saw  no 
blow  given  to  Rivett.  He  said,  "/ 
can  by  no  means  speak  positively; 
but  it  appeared  to  me,  that  when  some- 
body was  endeavoring  to  keep  Rivett 
back,  HE  struck  lord  Thanet  u'ith  his 
fist.  I  smc  no  blow  given  to  Rirett." 
So  that  Sir  Edward  Knatchbull 's 
evidence,  instead  of  confirming  Ri- 
vett's story,  mainly  and  importantly 
contradicts  it.   .   .   . 

Thomas  Adams,  who  was  then 
Mr.  Justice  Buller's  coachman,  "saw 
lord  Thanet  with  a  stick  iti  his  hand, 
and  saw  it  lifted  up."  We  had  got 
rid  of  that  stick  upon  Rivett's 
evidence,  and  now  it  comes  back 
upon  us  again  when  it  is  convenient 
to  have  it  lifted  up.  He  describes 
the  stick  as  lifted  up  in  this  position 
[imitating  the  witness];  whereas  it 
could  be  in  no  such  posture,  as  you 
must  be  convinced  of  from  the  ob- 
servations I  have  already  made  to 
you  ;  but  this  man's  evidence  is  very 
materia!  in  this  respect,  viz.  that  in 
describing  the  assault  of  Rivett  on 


lord  Thanet,  he  says,  "/  heard  lord 
Thanet  say  to  him,  '  What  do  you 
strike  me  for. ^  I  have  not  struck 
YOU  : ' "  —  an  expression  of  great 
importance  in  the  mouth  of  such  a 
person  as  lord  Thanet ;  and  falling 
from  him  at  the  very  moment  when 
it  could  have  proceeded  from  nothing 
but  consciousness ;  and  an  expres- 
sion that  I  will  confirm  his  having 
used  by  se\eral  of  my  own  witnesses. 

Mr.  Brooks,  who  was  next  called, 
says,  he  "  saic  Mr.  O'Connor  when 
the  jury  returned.  Mr.  Fergusson 
held  a  sword  or  stick  over  the  heads  of 
the  people."  A  sword,  or  something 
else,  given  to  us  in  this  confused 
manner,  adds  no  force  to  the  evi- 
dence;  more  especially  when,  upon 
being  asked  if  he  can  swear  with  posi- 
tiveness,  he  admits  that  he  cannot. 

Mr.  Stafford  was  then  examined, 
who  says,  "  he  sat  under  the  jury  box 
and  could  see  lord  Thanet  distinctly." 
I  particularly  asked  him  that  ques- 
tion, and  how  far  distant  he  was 
from  him  :  he  answered  me,  "  Not 
above  two  yards  from  me  —  three  times 
nearer  than  I  am  to  you."  He 
saw  lord  Thanet,  then,  distinctly, 
at  two  yards  distance,  and  from  the 
beginning  to  the  end  of  the  confu- 
sion ;  yet  he  swears,  "  he  did  not  ob- 
serve him  engaged  in  any  obstruction." 
Afterwards  when  the  tumult  became 
general,  this  witness  has  been  de- 
scribed as  brandishing  a  drawn 
sword  —  no  doubt,  from  a  sudden 
apprehension  of  danger,  and  to  avert 
it  from  that  quarter.  Now  sup- 
pose Mr.  Stafford  had  come  down, 
out  of  mere  curiosity,  to  Maidstone 
to  hear  the  trial,  and  had  been  seen 
flourishing  this  drawn  sword  in  the 
midst  of  the  affray  —  what  should 
have  prevented  Mr.  Ri\ett  from 
considering  this  gentleman  as  the 
greatest  rioter  of  them  all  ?  Why 
might  he  not  the  rather  have  rep- 
resented him  as  brandishing  it  to 
favor  the  escape  of  the  prisoner? 
One  cannot,  indeed,  imagine  a  case 
of  greater  cruelty  and  injustice ; 
but  what  could  have  been  his  pro- 
tection   if    Mr.    Fergusson    can    be 


1056 


PART   III.       PROBLEMS    OF   PROOF 


No.  392. 


convicted  on  the  evidence  you  have 
heard  ?  .  .  .  Mr.  Garrow  said  to  him 
at  the  moment,  "  take  care  that  you 
do  no  mischief,"  and  undoubtedly 
Mr.  Stafford  neither  did  nor  in- 
tended any;  but  that  makes  the 
stronger  for  my  argument,  and  shows 
how  httle  is  to  be  built  upon  appear- 
ances which  grow  out  of  a  scene  of 
tumult.  The  case  for  your  con- 
sideration, seems,  therefore,  to  be 
reduced  to  this  —  whether  you  will 
believe  the  two  learned  judges,  and 
the  other  respectable  witnesses  ?  or, 
whether  you  will  depend  upon  the 
single  and  unsupported  evidence  by 
which  violence  has  been  imputed  ? 
Mr.  Stafford,  who  was  within  two 
yards  of  lord  Thanet,  has  com- 
pletely acquitted  him ;  for  had  he 
been  in  the  situation  in  which  Rivett 
has  placed  him,  what  could  possibly 
have  prevented  him  from  seeing  it  ? 
It  was  also  sworn  by  Rivett,  that  Mr. 
Fergusson  had  a  stick ;  but  upon 
appealing  to  ]\Ir.  Stafford's  evidence, 
who  sat  just  opposite  to  him,  we 
find  that  he  had  none ;  but  that  he 
extended  his  arms  seemingly  to  pre- 
vent persons  approaching  that  side  of 
the  Court.  Mr.  Stafford  admits, 
that  when  he  saw  Mr.  Fergusson  it 
was  in  the  midst  of  confusion  ;  and 
it  would  be  a  harsh  conclusion  in- 
deed, that  Mr.  Fergusson  is  guilty 
of  the  conspiracy  charged  on  this 
record,  because,  upon  being  forced 
out  of  his  seat  by  the  tumult  which 
surrounded  him,  as  I  will  show  you 
he  was  by  several  witnesses,  he  had 
extended  his  arms  in  the  manner  you 
have  heard.  Mr.  Stafford  added, 
that  the  jailer  had  hold  of  Mr. 
O'Connor's  coat ;  that  Mr.  Fer- 
gusson forced  himself  between  them, 
and  that  the  jailer  stretched  his 
hand  behind  Hiimstotake  hold  of  the 
prisoner.  This  must  be  a  mistake ; 
for  Watson  sat  as  where  my  learned 
friend  Mr.  Wood  is  at  present  [jmnt- 
ing  to  hint]  and  Mr.  O'Connor  stood 
as  where  Mr.  Raine  is  now  sitting 
[pointing  to  him]  and  at  no  part  of 
the  time  is  it  even  asserted  that  Mr. 
P^ergusson   was   in    the   bo.x   of   the 


solicitors,  and  consequently  it  was 
utterly  impossible  that  he  could 
have  prevented  the  jailer  from 
keeping  hold  of  the  coat  of  the 
prisoner.  .   .  . 

Next  came  Mr.  Cutbush.  My 
learned  friends  appeared  to  be  soon 
tired  of  his  evidence ;  and  it  seemed 
to  produce  an  emotion  of  surprise 
upon  the  bench,  that  a  witness,  in 
such  a  stage  of  the  cause,  should 
give  such  extraordinary  testimony. 
He  said,  "  I  saw  lord  Thanet;  he  was 
two  or  three  yards  from  Mr.  O'Connor. 
I  observed  nothing  particular  till  I  saw 
Rivett  striking  lord  Thanet  on  the  back 
ivith  a  sword."  Now,  as  it  is  ad- 
mitted on  all  hands  that  no  such 
thing  ever  happened,  it  affords  an- 
other instance  of  the  difficulty  with 
which  juries  can  collect  any  evidence 
to  be  relied  on  in  a  scene  of  uproar 
and  confusion. 

The  evidence  of  the  last  witness, 
Mr.  Parker,  contains  nothing  which 
I  need  detain  you  with. 

Gentlemen,  I  have  now  faith- 
fully brought  before  you  all  that  is 
material  or  relevant  in  the  case  of 
the  Crown.  .  .  . 

I  have  therefore  no  more  to  ask 
of  you,  gentlemen,  than  a  very  short 
audience,  while  I  bring  before  you 
the  defendants'  evidence. — My  case 
is  this  : 

It  stands  admitted,  that  the  con- 
fusion had  not  begun  when  the  jury 
returned  with  their  verdict  —  that 
there  was  only  a  motion  towards 
it  when  the  officers  were  directed  by 
the  court  to  be  silent,  and  to  stand 
back.  The  period,  therefore,  to  be 
attended  to,  is,  the  conclusion  of 
the  sentence  on  O'Coigly,  when 
the  officers,  from  their  own  account 
of  the  transaction,  believing  that 
IVIr.  O'Connor  intended  to  escape 
from  them,  and  giving  them  credit 
that  such  intention  could  not  be 
frustrated  without  some  violence 
and  precipitation,  rushed  suddenly 
through  the  solicitors'  box,  where 
they  met  indeed  with  resistance,  but 
a  resistance  which  was  the  natural 
consequence  of  their  own  impetuos- 


No.  392. 


EARL   OF   THANET's   TRIAL 


1057 


ity,  and  not  the  result  of  any  con- 
spiracy to  resist  the  execution  of 
the  warrant. 

To  estabHsh  this  truth  with  posi- 
tive certainty  (if  indeed  it  is  not 
already  manifest  from  the  whole 
body  of  the  proof),  I  shall  produce, 
as  my  first  witness,  Mr.  George 
Smith,  whom  I  before  named  to  you, 
and  who  was  one  of  the  first  persons 
in  their  way  on  their  entering  the 
court.  He  sat  as  near  lord  Thanet 
as  I  now  stand  to  where  his  lord- 
ship sits  before  you,  and  who,  upon 
the  principle  of  this  prosecution, 
should,  above  all  others,  have  been 
made  a  defendant ;  for  he  will  admit 
freely,  that  he  endeavored  to  push 
them  from  him  with  his  elbow,  when 
they  pressed  upon  him  with  great 
and  sudden  violence :  he  will  tell 
you,  that  at  this  time  Mr.  Fergusson 
was  in  his  place  at  the  bar ;  that 
lord  Thanet  was  in  the  place  where 
sergeant  Shepherd  described  him ; 
that  he  was  violently  struck,  with- 
out having  given  the  smallest  prov- 
ocation, without  having  made  any 
motion,  directly  or  indirectly,  to- 
wards the  rescue  of  the  prisoner,  or 
even  looked  round  at  that  time  to 
the  quarter  where  he  stood :  that 
lord  Thanet,  in  order  to  escape  from 
this  unprovoked  violence,  so  far  from 
approaching  Mr.  O'Connor,  endeav- 
ored to  get  nearer  where  the  coun- 
sel sat,  when  Rivett,  instead  of 
advancing  straight  forward  in  pur- 
suit of  his  object,  which  was,  to 
arrest  the  prisoner,  leveled  re- 
peated blows  at  him,  as  he  was 
obliged  himself  to  admit,  while  lord 
Thanet  lay  back  in  the  manner 
which  has  been  so  often  described  to 
you,  protecting  his  head  from  tlie 
blows  he  was  receiving. 

In  the  same  seat  was  Mr.  Bain- 
bridge,  a  gentleman  educating  for 
the  bar,  a  near  relation  of  the  duke 
of  St.  Alban's,  and  a  pupil,  I  believe, 
of  my  honorable  and  learned  friend, 
Mr.  Wood ;  a  person  who  cannot 
reasonably  be  suspected  of  giving 
false  testimony,  to  encourage  vio- 
lence and  outrage  against  the  laws 


of  his  country.  Mr.  Bainbridge  will 
swear  positively,  that,  when  the 
officers  came  forward,  lord  Thanet 
was  in  the  solicitors'  box,  and  Mr. 
Fergusson  in  his  place  at  the  bar, 
where  he  remained  till  the  witness 
saw  him  forced  out  of  his  place,  and 
obliged  to  stand  upon  the  table,  and 
that  he  had  no  stick.  What,  then, 
becomes  of  Rivett's  evidence,  who 
swore  he  never  saw  lord  Thanet  till 
after  this  period,  although  it  is  ad- 
mitted that  it  must  have  been  b}-  the 
tumult,  in  which  he  falsely  implicated 
his  lordship,  that  Mr.  Fergusson  was 
driven  out  of  his  place  ?  This  is 
absolutely  decisive  of  the  case :  for 
it  will  apj>ear  farther,  that  Mr. 
Fergusson  continued  in  his  place 
after  the  period  when  lord  Thanet 
was  seen  defending  hiinself.   .   .   . 

The  next  witness  I  shall  produce 
to  you  will  be  Mr.  Charles  Warren, 
son  of  the  late  highly  celebrated 
physician.  .  .  .  Mr.  Warren  was 
placed  at  the  table,  attending  in  his 
gown  as  counsel,  and  had  the  most 
undeniable  opportunity  of  seeing 
Mr.  Fergusson,  who  sat  near  him, 
in  his  gown  also.  What  Mr.  Fer- 
gusson did,  cannot  be  matter  of 
j udgment or  opinion  in  such  awitness, 
but  matter  of  certainty.  .  .  .  Such 
extraoi'dinary  transactions  address 
themselves  directly  to  the  senses, 
and  are  not  open  to  qualifications 
of  opinion  or  belief.  For  the  same 
reason,  Mr.  Smith  and  Mr.  Bain- 
bridge must  both  be  perjured,  if 
the  evidence  of  Rivett  be  the  truth  ; 
and  Mr.  Warren  (subject  to  the 
very  same  observation)  will  swear 
positively  that  he  saw  lord  Thanet 
severely  assaulted,  and  that  he 
DID  NOT  STRIKE.  Is  this  a  mere 
negative  in  opposition  to  Rivett's 
affirmative  oath  ?  Certainly  not : 
for  there  are  some  negatives  which 
absolutely  encounter  the  inconsist- 
ent affirmatives,  and  with  ecjual 
force.   .  .   . 

I  will  then  call  to  you  Mr.  Max- 
well, a  gentleman  of  rank  and  for- 
tune in  Scotland,  who  lately  married 
a  daughter  of  Mr.  Bouverie,  member 


1058 


PART    in.       PROBLEMS    OF    PROOF 


No.  392. 


of  parliament  for  Xorthanipton.  He 
stood  under  the  witness  box,  which 
may  be  as  in  that  corner  [poiut'uKj 
to  a  corner  of  the  court],  eomnianiHnjj 
a  full  and  near  view  of  everythinji: 
that  could  pass ;  and  he  will  con- 
firm, in  every  particular,  the  e\i- 
dence  of  Mr.  Warren,  Mr.  Bain- 
bridge,  and  Mr.  Smith.  I  will  also 
call  Mr.  Whitbread,  who  attended 
the,  trial  as  a  witness,  who  was  near 
Mr.  Sheridan,  and,  like  him,  did 
everything  in  his  power  to  preserve 
the  peace.  Mr.  Whitl)read's  situa- 
tion I  need  hardly  descrit)e  to  you. 
He  is  a  man  of  immense  fortune,  ac- 
quired most  honorably  by  his  father 
in  trade,  and  who  possesses  almost 
incalculable  advantages,  which  are 
inseparal)Iy  connected  with  the  pro.s- 
perity  and  .security  of  his  country  : 
yet,  from  the  mouth  of  this  most 
unexceptionable  witness,  the  most 
important  parts  of  the  evidence  will 
receive  the  fullest  confirmation.  I 
shall  also  call  Mr.  Sheridan,  who 
showed  his  disposition  upon  the 
occasion  by  his  conduct,  which  was 
noticed  and  approved  of  by  the 
judges.  This  will  furnish  the  de- 
fense of  lord  Thanot  and  ]Mr.  Fer- 
gusson. 

As  to  Mr.  O'Brien,  it  is  almost 
injurious  to  his  interests  to  consider 
him  as  at  all  affected  by  any  part  of 
the  proof :  he  does  not  appear  to 
have  been  at  all  connected  with  Mr. 
O'Connor.   .   .   . 

I  am  sure  I  could  name  above 
twenty,  in  this  very  place,  upon 
proceedings  for  the  obstruction  of 
officers  in  the  execution  of  their 
duty  (proceeflings  most  important 
to  the  public),  where  the  evidence 
has  been  very  contradictory,  and 
where  the  noble  and  learned  lord,  not 
being  able  to  detect  perjury  in  the 
defense,  has  uniformly  held  this 
language  to  juries,  and  even  to  the 
coun.sel  for  prosecutions:  "This  is 
not  a  case  for  conviction  ;  the  de- 
fendant mai/  be  guilty,  but  there  is 
not  a  sufficient  preponderation  in 
the  evidence  to  pronounce  a  penal 
judgment." 


These  are  the  maxims,  gentlemen, 
which  have  given  to  British  courts 
of  justice  their  value  in  the  country, 
and  with  mankind.  These  are  the 
maxims  which  have  placed  a  guard 
around  them  in  the  opinions  and 
affections  of  the  people,  which,  I 
admit,  is  at  the  same  time  the  sting 
of  this  case,  as  it  deeply  enliances  the 
guilt  of  him  who  would  disturb  the 
administration  of  such  an  admirable 
jurisprudence.  But  if  the  courts  of 
England  are,  on  this  very  account, 
so  justly  popular  and  estimable ;  if 
they  have  been,  through  ages  after 
ages,  the  source  of  public  glory  and 
of  private  happiness,  why  is  this  trial 
to  furnish  an  exception?  For  myself, 
I  can  only  say  that  I  wish  to  do 
my  duty,  and  nothing  beyond  it. 
Govern  us  who  will,  I  desire  only 
to  see  my  country  prosperous,  the 
laws  faithfully  administered,  and 
the  people  happy  and  contented 
under  them.  Let  England  be  se- 
cure, and  I  am  sure  no  ambition  of 
mine  shall  ever  disturb  her.  I 
should  rather  say,  if  I  were  once  dis- 
engaged from  the  duties  which  bind 
me  to  my  profession, 
"  Oh  !  for  a  lodge  in  some  vast  wil- 
derness. 
Some      boundless      contiguity      of 

shade. 
Where  rumor  of  oppression  and  de- 
ceit. 
Of  unsuccessful  or  successful  war, 
Might  never  reach  me  more  !" 

To  conclude  —  if  you  think  my 
clients,  or  any  of  them,  guilty,  you 
are  bound  to  convict  them  ;  but,  if 
there  shall  be  ultinuitely  before  you 
such  a  case,  upon  evidence,  as  to 
justify  the  observations  I  have  made 
upon  the  probabilities  of  the  trans- 
action, which  probabilities  are  only 
the  results  of  every  man's  experience 
in  his  passage  through  the  world  ; 
if  you  should  thiidc  that  the  ap- 
pearances were  so  much  against  them 
as  to  have  justified  honorable  per- 
sons in  describing,  as  they  have  done, 
their  impressions  at  the  moment, 
yet  that  the  scene  of  confusion  was 
such  that  vou  cannot  arrive  at  a  clear 


No.  392. 


EARL   OF   THANET's   TRIAL 


1059 


and  substantial  conclusion  —  you 
will  acquit  all  the  defendants.  .  .  . 

Mr.  Ron^.  —  My  lord,  I  am  of 
counsel  for  captain  Browne. 

Lord  Kenyan.  —  When  the  at- 
torney-general comes  in  I  will  put 
the  question  to  him  whether  he 
thinks  there  is  sufficient  evidence 
against  him  or  Mr.  Thompson  ?  .  .  . 

Mr.  Attorney-General .  —  ...  I 
am  very  ready,  fairly  to  say,  I 
should  act  very  improperly  if  I 
showed  any  inclination  to  convict 
at  all ;  and,  therefore,  I  give  up 
the  prosecution  with  respect  to  him 
also.  .  .  . 

Lord  Kenyan.  —  Gentlemen  of  the 
jury,  as  far  as  I  can  recollect 
the  evidence,  there  is  not  sufficient 
evidence  to  call  upon  these  gentle- 
men for  their  defense ;  if  you  think 
so,  you  will  acquit  them. 

Mr.  Brawne,  Not  Guilty;  Mr. 
Thampson,  Not  Guilty. 

Evidence  for  the  Defendants 
Mr.   George   Smith  sworn.  —  Exam- 
ined by  Mr.   Gibbs. 
You  were  present  at  this  trial  ?  — 
I  was. 

The  row  in  which  the  solicitors  sat 
represents  that  where  we  are  now 
sitting,  and  the  counsel  before  us  ? 

—  It  does. 

And  the  place  in  which  the  pris- 
oners stand  was  behind  ?  —  Yes. 
In  what  part  of  the  court  were  you  ? 

—  Almost  during  the  whole  of  the 
trial  I  sat  in  the  solicitors'  seat. 

Are  you  at  the  bar  ?  —  I  am. 

I  believe  the  prisoners  stood  in  the 
place  allotted  for  them,  three  in  the 
front,  and  two  behind  ?  —  Exactly. 

Who  were  the  three  in  front  ?  — 
Mr.  O'Coigly,  Mr.  Binns,  and  Mr. 
O'Connor ;  Mr.  O'Connor  was  on  the 
left  as  he  looked  at  the  judges,  and  on 
the  right  as  they  looked  at  him ; 
Mr.  Binns  in  the  middle,  and  Mr. 
O'Coigly  next  the  jailer;  my  seat 
was  directly  under  the  jailer,  at  the 
end  of  the  .seat. 

Do  you  remember  the  time  when 
the  verdict  was  brought  in  ?  — 
Perfectly. 


Did  you  observe  anything  happen 
at  that  time  ?  —  I  recollect  tiiat  Mr. 
0'0)nnor  put  his  leg  over  the  bar, 
and  there  was  a  press  behind  me, 
but  a  very  trifling  one,  to  get  at 
him. 

This  was  before  sentence  was 
pronounced  ?  —  Before  sentence  was 
pronojmced. 

Did  that  cease  ?  —  Yes  :  silence 
was  called,  and  that  disturbance 
ceased.  The  judge  then  proceeded 
to  pronounce  sentence ;  I  was  at 
that  time  sitting,  as  I  have  described, 
at  the  end  of  the  seat  directly  under 
the  jailer ;  and  I  leaned  against 
a  projecting  desk,  looking  up  at 
O'Coigly  during  the  whole  of  the 
sentence,  so  that  my  back  was  to 
the  Bow-street  officers  :  that  instant 
that  the  judge  concluded  his. sentence, 
Mr.  O'Connor  put  his  leg  over  the 
bar,  and  the  jailer  caught  hold  of 
his  coat. 

At  this  time  did  you  observe 
where  lord  Thanet  sat  ?  —  At  that 
particular  moment  I  cannot  say  I 
saw  my  lord  Thanet,  but  I  know  that 
he  and  Mr.  Browne  were  both 
sitting  on  the  solicitors'  seat  within 
one  of  me. 

Where  was  Mr.  Fergusson  at  this 
time  ?  —  I  do  not  know  ;  I  did  not 
observe  him  at  that  time. 

You  were  proceeding  to  state  what 
passed  after  the  sentence  was  pro- 
nounced ?  —  At  the  same  moment 
that  Mr.  O'Connor  put  his  leg  over 
the  bar,  before  I  had  recovered 
myself  from  the  leaning  position  in 
which  I  sat,  one  of  the  Bow-street 
officers,  I  am  not  sure  whether  it 
was  Rivett  or  Fugion,  set  his  foot 
uponmybaek.  I  immediately  started 
up  and  drove  the  man  off,  and  asked 
him  what  he  meant. 

How  did  you  drive  him  off  ?  — 
With  my  elbow,  and  by  starting  up. 

What  was  his  answer  ?  —  lie 
damned  me,  and  told  me  he  had  busi- 
ness, and  would  press  on. 

Was  there  good  room  for  him  to 
get  by,  or  was  this  a  narrow  place  ? 
—  It  was  so  narrow  that  it  was  im- 
possible   two    people    should    pass 


lOGO 


PART    III.       PROBLEMS    OF    PROOF 


No.  332, 


witliout  contrivance;  a  short  strug- 
gle followed  hetween  the  officers  and 
myself,  for  there  were  several  people 
who  were  pressing  Ix'hind,  and  I 
could  not  get  out  of  the  seat  where 
I  was  without  making  that  resistance. 

How  did  you  get  out  at  last  ?  — 
At  last  I  struggled  a  great  while  with 
my  elbows  to  make  room  for  myself ; 
I  got  up,  stepped  upon  the  division 
between  the  solicitors'  and  the  coun- 
sels' seats,  and  from  thence  to  the 
table;  I  then  turned  round  immedi- 
ately, and  I  then  saw  the  same  man 
pressing  upon  my  lord  Thanet,  in 
the  same  way  in  which  he  had  been 
pressing  upon  me. 

You  said  lord  Thanet  and  ]\Ir. 
Gunter  Browne  were  within  one  of 
you  ?  —  Yes. 

Did  you  observe  this  immediately 
upon  your  extricating  yourself  ?  — 
The  instant  I  extricated  myself,  I 
turned  round  and  saw  a  man  pressing 
upon  lord  Thanet,  with  this  difference, 
that  when  I  resisted  him,  I  did  jiot 
observe  that  he  had  any  staff  or 
stick,  but  when  I  saw  him  with  lord 
Thanet,  he  was  strikinci  lord  Thanet 
u'ith  a  stick,  but  what  the  stick  was 
I  cannot  say ;  lord  Thanet  stood 
with  a  short  stick  in  both  his  hands, 
dodging  with  his  stick,  and  receiving 
the  blows  of  the  Bow-street  officer 
upon  that  stick. 

Lord  Thanet  was  guarding  him- 
self, with  his  hands  up,  from  Rivett's 
blows  ?  —  P>xactly  so. 

You  do  not  know  which  officer  it 
was  ?  —  I  am  not  certain,  I  think  it 
was  Rivett. 

Before  this  happened,  Rivett  had 
had  a  struggle  with  him  ?  —  I  had 
had  a  struggle  with  Rivett  in  the 
first  instance ;  and  I  should  state, 
that  duringthat  struggle, Mr.  O'Con- 
nor, wlio  had  endeavored  to  get  away, 
had  effected  his  escape  from  the 
jailer;  and  the  conse(|uence  was, 
that  the  people  pressed  forward 
from  the  opposite  end  of  the  bench, 
to  prevent  Mr.  ()'(  Oniior  from  effect- 
ing his  escape  ;  by  whicii  means  every 
person  who  sat  in  that  narrow  .seat, 
was  placer!,  if  I  may  say  so,  between 


two  fires  :  for  the  Bow-street  officers 
were  pressing  up  from  one  side,  and 
the  crowd  were  pressing  up  from  the 
other  side. 

You  say,  as  soon  as  you  got  from 
Rivett,  you  saw  him  instantly  en- 
gaged in  this  way  with  lord  Thanet?  — 
Yes. 

Could  Rirett,  in  the  interval  be- 
tween the  struggle  with  you,  and  the 
struggle  you  instantly  saw  him  have 
with  my  lord  Thanrt,  have  qot  over  to 
the  counsels'  table,  and  had  a  contact 
with  a  man  who  had  a  stick,  and  taken 
that  stick  from  him?  —  Impossible ; 
J  think  so  at  least;  the  interval  was  no 
longer  than  that  which  elapsed  from 
my  getting  from  the  seat  to  the  division, 
and  from  thence  to  the  table. 

Which  you  did  as  expeditiously  as 
possible  ?  —  Certainly  ;  for  I  felt  my- 
self in  danger. 

When  you  say  impossible,  I  need 
not  ask  you  whether  you  saw  the 
thing  happen  ?  —  Certainly  not. 

Had  you  your  gown  and  wig  on? — 
/  had.  Very  shortly  after  I  got 
upon  the  table,  a  man  took  up  one 
of  the  swords,  and  drew  it,  and 
flourished  it  about  over  the  heads 
of  the  people ;  very  shortly  after- 
wards I  saw  this  sword  coming  in 
a  direction  immediately  to  my  own 
head  ;  I  avoided  the  blow  by  spring- 
ing off  the  table  into  the  passage 
leading  into  the  street. 

Did  you  at  any  time  see  lord  Thanet 
strike  this  officer,  let  him  be  whom  he 
may?  —  /  never  saw  lord  Thanet  in 
any  situation  but  acting  ^ipon  the  de- 
fensive. 

If  lord  Thanet  had  struck  the  officer, 
do  you  think  you  must  have  seen  it?  — 
Certainly;  during  the  time  I  had  my 
eyes  upon  him. 

I  think  you  told  me  you  saw  the 
officer  first  pressing  by  lord  Thanet,  and. 
then  striking  him?  —  Yes. 

And  if  he  had  struck  the  officer,  you 
must  have  seen  him?  —  Certainly,  at 
that  time. 

Do  you  remember  lord  Romney 
coming  down  from  the  bench  ?  — 
Perfectly  well. 

Do  you  recollect  upon  lord  Rom- 


Xo.  392. 


EARL   OF   THANET's   TRIAL 


lOGl 


ney's  saying  the  prisoner  was  dis- 
charged, or  acquitted,  any  person 
making  an  observation  to  him?  — I 
remember  there  was  an  altercation 
between  lord  Romney  and  myself, 
in  consequence  of  his  saying  that 
the  prisoners  were  not  acquitted. 

There  was  a  misapprehension  be- 
tween the  words  acquitted  and  dis- 
charged ?  —  I  apprehend  so. 

However,  you  were  the  person  that 
had  the  conversation  with  him  ?  — 
Yes. 

Mr.  George  Smith  cross-examined  by 
Mr.  Attorney-General. 

You  insisted  that  they  were  ac- 
quitted, and  lord  Romney  insisted 
that  they  were  not  acquitted  ?  — 
Exactly  so. 

.1  Juryman.  —  I  wish  to  ask 
whether  you  left  the  court  during 
the  riot  ?  —  No,  I  did  not ;  I  jumped 
off  the  table  in  consequence  of  a 
blow  that  I  saw  coming  at  my  head, 
and  I  shortly  after  returned  to  the 
table  again. 

Did  you  observe  lord  Thanet  leave 
the  solicitors'  box  ?  —  No,  I  did 
not. 

Do  you  know  whether  he  did,  or 
not,  leave  the  solicitors'  box  ?  —  I 
cannot  say,  for  the  riot  lasted  a  very 
short  time  after  I  had  left  the  table. 

Lord  Kenyan.  —  Was  the  blow 
aimed  at  your  head  ?  —  By  no  means  ; 
it  appeared  to  me  that  all  the  blows 
struck  by  that  sword  were  struck 
by  a  man  that  did  not  know  what 
he  was  about. 

Were  there  any  wounds  ?  —  T 
heard  there  were,  but  I  do  not  know 
of  any. 

Mr.  Bainhridge  SAvorn.  —  Examined 
by  Mr.  Best. 

You  are  a  student  of  the  law  ?  —  I 
am. 

Were  you  in  court  during  the  trials 
at  Maidstone  ?  —  I  was. 

In  what  part  of  the  court  did  you 
sit  at  the  time  of  the  riot  ?  —  When 
the  jury  returned,  I  left  my  place 
at  the  table,  and  went  to  the  place 
where  the  solicitors  of  the  defendants 
sat,  to  speak  to  Mr.  Fergusson. 

Did  you  observe  Mr.  Fergusson  dur- 


ing this  time?  —  Mr.  Fergusson  sat 
directly  before  me. 

Did  you  observe  lord  Thanet f  — 
Lord  Thanet  sat  on  my  right  hand, 
close  to  me. 

So  that  you  had  a  complete  op- 
jyorf unity  of  obscrring  them  f  —  /  had 
a  complete  opportunity  till  the  fray 
began. 

Do  you  recollect  the  Bow-street 
officers  coming  in  ?  —  I  remember 
observing  the  Bow-street  officers 
standing  on  the  right-hand  side 
of  the  dock. 

Do  you  remember  seeing  those 
Bow-street  officers  at  the  time  the 
jury  pronounced  their  verflict  ?  —  I 
did. 

yV'hat  did  you  observe  them  doing 
at  this  time  ?  —  I  observed  two 
standing  with  their  eyes  fixed  upon 
Mr.  O'Connor,  as  the  impression 
struck  me. 

Do  you  recollect  them  after  the 
sentence  was  pronounced  ?  —  Yes, 
I  do. 

W'hat  did  you  see  them  do  at  that 
time  ?  —  I  observed  one,  whom  I 
had  from  observation  upon  the 
trial  known  to  be  Rivett,  put  his 
knee  upon  the  bench  that  came 
over  into  the  solicitors'  seat,  and 
get  over,  and  press  directly  forward. 

You  say  he  pressed  forward  :  in 
what  direction  ?  —  He  pressed  di- 
rectly on  to  the  bench  where  the 
solicitors  for  the  defendants  had 
sat,  and  the  counsel  for  the  defend- 
ants had  sat. 

Where  was  lord  Thanet  at  this 
time?  —  My  lord  Thanet  was  on 
the  right  hand  of  me,  and  in  the 
place  where  the  solicitor  for  Mr. 
O'Connor  had  sat,  I  believe  most 
part  of  the  day. 

Where  was  Mr.  Fergusson  thenf  — 
Directly  bifore  me,  i\  his  placr. 

Was  Mr.  Fergusson  at  that  time 
in  the  solicitors'  place,  or  the  place 
appropriated  for  the  counsel?  — 
Mr.  Fergusson  was  ix  his  own 
PLACE,  and  the  place  which  he  had 
kept  the  whole  day. 

Did  you  see  the  Bow-street  officers 
attempt    to    pass    lord    Thanet?  — 


1062 


PART   III.       PROBLEMS    OF    PROOF 


No.  392. 


I  saw  the  Bow-street  officers  attempt 
topasslordThanet ;  andlordTluinet, 
upon  being  pressed  upon,  moved, 
upwards,  as  if  to  prevent  being  over- 
powered or  crushed,  and  got  upon 
his  legs. 

Did  lord  Thaiui  do  anything  to  ob- 
sfrncf  thi.<  officer/ —  To  ini/  opinion, 
nothing  in  the  world. 

I  think  you  say,  on  the  contrary, 
he  moved  up  ?  —  He  endeavored  to 
get  upon  his  legs  ;  for  the  pressure  of 
the  people  upon  him  was  such,  that, 
if  he  had  not  got  up,  he  must  have 
been  totally  knocked  under  the 
bench. 

At  thi.^i  tiinr  did  you  sec  whether  lord 
Thanet  struck  this  Bow-street  officer, 
or  notf  —  /  never  observed  lord  Thaiiet 
strik-e  the  Bow-street  officer,  or  any- 
body else. 

From  the  situation  in  which  you 
were  at  this  time,  if  he  had  struck  him, 
do  you  think  you  must  have  seen  him? 
—  Certainly  I  must. 

If  lord  Thanet,  at  this  time,  had  been 
taking  an  active  part  in  the  riot,  must 
you  have  seen  that  alsof  —  /  miiM 
have  observed  that  too. 

Did  lord  Thanet  do  anything  to  aid 
the  escape  of  Mr.  (f  Connor,  or  add  to 
the  tumult  which  then  prevailed  in 
court  f  —  Nothing  in  the  world,  that  I 
saw. 

Did  you  observe  Mr.  Fergusson  at 
this  time  ?  —  I  did. 

Now  I  will  ask  you  if  Mr.  Fer- 
gu.sson  struck  anybody  ?  —  I  never 
saw  Mr.  Fergusson  strike  anybody  ; 
and,  if  he  had  struck  anybody,  I 
think  I  must  have  seen  it. 

Did  it  appear  to  you  that  Mr.  Fer- 
gusson encouraged  Mr.  O'Connor,  or 
at  all  favored  him  in  hi^  escape?  — 
Xot  the  least,  quite  the  coixtrary.   .   .   . 

Could  he  [Rivett]  have  struck 
him  [Ferguson],  anfl  wrested  the  stick 
out  of  his  hand,  without  your  seeing 
it?  —  I  think  not. 

You  were  there  during  the  whole 
of  this  tumult  ?  —  I  was  in  court 
during  the  whole  of  the  trial. 

Was  Mr.  Fergusson  any  part  of 
that  time  in  the  place  allotted  for 
the  solicitors  ?  —  Never. 


Was  he  ever  nearer  to  Mr.  O'Con- 
nor than  the  place  for  the  counsel  ? 
—  Never;   I  was  between  them. 

Where  did  he  go,  when  he  quitted 
that  place  ?  —  Towards  the  judges 
and  away  from  the  tumult. 

During  the  whole  of  this  time,  did 
Mr.  Fergu.sson  at  all  appear  to  en- 
courage the  tumult?  —  Quite  the  con- 
trary, I  think. 

Mr.    Bainbridge   cross-examined   by 
Mr.  Laie. 

You  have  said  that  Mr.  Fergusson, 
so  far  from  encouraging  this  tumult, 
acted  quite  the  contrary  ?  —  Yes. 

Am  I  to  understand  you,  that  he 
endeavored  to  dissuade  them  from 
riot  ?  —  /  heard  him  say  to  Mr. 
O'Connor,  "Be  quiet  and  keep  your 
place,  nothing  can  hurt  you." 

Was  that  after  the  acquittal  ?  — 
It  was  after  the  verdict  of  acquittal 
had  been  given,  and  before  the  sen- 
tence was  passed  upon  O'Coigly. 

But  after  the  sentence  was  pro- 
nounced, did  you  observe  ISIr.  Fer- 
gusson doing  anything  that  was 
quite  the  contrary  ?  —  He  seemefl 
to  say,  "be  quiet."  .  .  . 

You  have  told  us,  that,  during  the 
whole  day,  Mr.  Fergusson  kept  the 
same  place  ?  —  As  to  the  same  place, 
I  believe  he  might  have  moved  to 
the  right ;  he  might  have  been,  per- 
haps, to  the  right  of  Mr.  Plumer  in 
the  morning ;  but  what  I  mean  is, 
that  he  never  moved  out  of  the  place 
where  the  counsel  sat. 

Then  he  must  have  been  under 
your  own  observation  the  whole  of 
the  day  ?  —  Yes. 

Did  he  never  appear  to  be  upon 
the  table  in  the  course  of  that 
day  ?  —  While  the  jury  were  re- 
tired, he  went  across  the  table,  and, 
I  believe,  went  to  speak  to  some- 
body near  the  witnesses'  box  ;  but  at 
that  time  people  were  conversing 
and  walking  about,  but  there  was  no 
idea  of  a  riot  then. 

Will  j'ou  say,  after  the  verdict  was 
brought  in,  he  was  never  upon  the 
table  ?  —  He  was  never  upon  the  table 
thai  I  know  of,  till  he  was  pressed 
upon  by  the  Bow-street  officers. 


No.  392. 


EARL   OF   THANET  S   TRIAL 


1063 


Did  you,  during  the  day,  see  a 
stick  in  his  hand,  or  that  he  had 
not  had  a  stick  ?  —  I  will  swear  that 
I  did  not  see  a  stick  in  his  hand. 

And  you  had  him  so  much  under 
your  observation,  that  you  must  ha\e 
seen  it  ?  —  As  much  as  a  person 
could  do  sitting  in  a  court  of  justice  ; 
it  was  quite  ridiculous  to  suppose  he 
had  a  stick  in  his  hana. 

Were  you  a  witness,  or  concerned 
in  that  trial  ?  —  No.  I  went  from 
mere  curiosity. 

You  did  not  go  with  Mr.  Fergus- 
son  ?  —  No. 

And  you  will  swear  that  he  never 
had  a  stick  in  his  hand  ?  —  I  will 
swear  I  did  not  see  a  stick  in  his 
hand  ;  and  I  think  I  nuist  have  seen 
it,  if  he  had. 

If  you  had  him  constantly  in 
view,  you  must  ?  —  It  cannot  be 
supposed  that  I  had  my  eyes  upon 
him  for  fourteen  hours. 

Will  you  venture  to  swear 
that  during  the  riot  he  had  no 
stick  ?  —  i  will. 

A  Jnryman.  —  Did  lord  Thanet 
leave  the  court  during  the  riot  ?  — 
Lord  Thanet  moved,  as  Mr.  Fergus- 
son  did ;  upon  being  pressed  upon, 
he  got  upon  the  bench  ;  and  when  he 
moved  up,  Rivett  was  above  him  ; 
and  trying  to  strike  him ;  and  Mr. 
Fergusson  then  said,  "Whom  are  you 
striking,  sir  ?  " 

Juriimau.  — -  Whether  he  saw  lord 
Thanet,  during  any  part  of  the  period 
near  the  wicket  gate  that  leads  to 
the  narrow  street  ?  —  I  saw  lord 
Thanet,  I  think,  during  the  whole 
riot ;  and  I  think,  instead  of  being 
there,  he  went,  when  he  did  move, 
quite  the  contrary  way,  and  not  at 
all  towards  the  gate. 

Mr.  Justice  Lawrence.  —  From 
Mr.  Fergusson  complaining  of  a  tu- 
mult, it  seemed  as  if  he  wished  to 
keej)  everything  in  order ;  who  was 
the  person  that  he  complainerl  of  ? 
—  Rivett. 

That  was  before  the  sentence  was 
passed  ?  —  Yes. 

How  far  was  Rivett  from  Mr. 
Fergusson  at  that  time  ?  —  I  think 


he    nmst    have    been    about    three 
yards. 

At  that  time  was  he  not  making 
use  of  this  motion  [descrihituj  ii]  and 
saying,  "  Keep  bac-k,  where  are  you 
going?"  —  Yes,  and  I  think  Sir. 
Justice  Buller  then  said,  "What  is 
the  matter?"  Mr.  Fergu.sson  then 
said,  "Here  is  a  person  making  a 
noise,  and  will  force  himself  into 
the  court."  Mr.  Justice  Buller  then 
said,  "  What  do  you  mean  ?  "  He 
then  said,  "  My  lord,  I  have  a  warrant 
against  Mr.  O'Connor."  He  then 
told  him  to  keep  back. 
Mr.  Warren  sworn.  —  Examined  by 
Mr.  Mackintosh. 

I  belie\'e  you  were  present  at  the 
trials  for  high  treason  at  Maidstone  ? 
—  I  was. 

Were  you  present  the  second  day 
of  those  trials  ?  —  I  was. 

Where  dic|  you  sit  during  the  even- 
ing of  the  second  day  ?  —  Just  by 
the  witness  box,  opposite  to  the  jury. 

After  sentence  was  pronounced 
upon  O'Coigly,  tell  us  what  you  ob- 
served of  the  confusion  that  arose 
in  the  court  ?  —  After  the  sen- 
tence of  death  was  pronounced  upon 
O'Coigly,  the  first  part  of  the  alfray 
that  I  recollect  was  this  ;  Mr.  O'Con- 
nor endeavored  to  get  out  of  the 
dock ;  he  got  almost  out  of  the  dock 
on  the  left  side ;  the  jailer  who  was 
on  the  other  side  of  the  dock 
reached  across  the  dock,  and  caught 
him  by  the  coat ;  he  detained  him 
for  a  very  short  space  of  time  in 
that  situation ;  the  coat  tore,  or 
slipped  through  his  hands. 

Af  that  time  when  the  jailer  had 
hold  of  Mr.  O'Connor's  coat,  did  any- 
body reach  or  step  backwards  between 
them  f  —  Nobody. 

Then  Mr.  Fergusson  did  not?  — 
Certainly  he  did  not.  Mr.  O'Con- 
nor got  away,  either  from  the  coat 
being  torn,  or  slipping  through  the 
jailer's  hands ;  he  got  down  upon 
the  ground,  he  soon  mixed  with  the 
crowd,  and  I  lost  sigiit  of  him  ;  as 
soon  as  he  endeavored  at  first  to  get 
away,  two  persons,  who  had  before 
appeared   to  be  officers  from    Bow- 


1064 


PART    III.       PROBLEMS    OF    PROOF 


No.  .392. 


Street,  with  several  others,  riislied 
forward  to  apprehend  him.  In  their 
endeavor  to  apprehend  him,  the 
first  person  upon  whom  they  ap- 
peared to  rush  with  any  great  vio- 
lence, was  Mr.  George  Smith,  who 
was  sitting  at  the  end  of  the  seat 
of  the  solicitors  for  the  prisoners : 
he  was  torced  from  thence,  and  came 
to  the  place  where  I  was  sitting. 
The  next  person  that  I  obser\eil 
forced  from  his  seat  was  'Mr.  Dallas, 
one  of  the  counsel  for  the  prisoners ; 
he  came  likewise  and  sat  near  me ; 
the  officers  still  rushed  on  towards 
the  end  of  the  counsels'  seat,  and 
of  the  solicitors'  seat.  At  the  far- 
ther end  of  the  counsels'  seat,  or  near 
the  end  of  it,  Mr.  Fergusson  was 
sitting  to  the  best  of  my  recollection. 

Had  he  a  stick  in  his  handf  —  No 
stici:  that  I  saiv. 

Had  you  your  eye  upon  himf  and 
if  he  had,  must  you  have  seen  himf 

—  He  is  an  acquaintance  of  mine, 
and  he  ivas  in  his  professional  dress; 
and  if  he  hud,  I  think  I  could  not 
have  mistaken  it.  Lord  Thanet  was 
sitting  upon  the  solicitors'  bench, 
almost  immediately  behind  Mr. 
I-^ergusson.  By  this  time  the  con- 
fusion had  become  general,  and  a 
number  of  people  had  got  upon  the 
table,  from  all  parts  of  the  Court. 

If  Mr.  Fergusson  had  brandished 
a  stick,  or  presented  it  to  Rivett, 
must  you  have  seen  it  ?  —  I  cer- 
tainly must. 

I  need  not  ask  you  if  you  did  see  it  ? 

—  I  did  not  see  it ;  IVIr.  Fergusson 
had  risen  up,  and  lord  Thanet  had 
risen  up. 

Supposing  it  possible  that  a  stick 
had  been  in  Mr.  Fergusson's  hands, 
and  it  had  escaped  your  eye,  do 
you  think  it  possible,  from  time 
and  place,  that  Kivett  could  have 
wrenched  it  out  of  his  hands  before 
he  attacked  Ion!  Thanet?  —  I  do 
not  think  it  possible  he  could  have 
a  stick  of  any  sort. 

Was  lord  Thanet  nearer  to  Rivett 
than  Mr.  Fergus.son  ?  —  I  think  he 
was  rather ;  one  of  the  officers,  but 
I    do    not    know    which,    I    do    not 


know  their  persons,  pressed  very 
rudely,  as  it  appeared  to  me,  upon  Mr. 
Fergusson ;  I  believe  that  Mr.  Fer- 
gusso7i  might  shake  his  shoulder  when 
he  felt  the  man's  hand  upon  it;  that 
is  all  the  resistance  I  saw  made  on  the 
part  of  Mr.  Fergusson. 

What  did  you  see  pass  between  these 
officers  and  lord  Thanet? —  The  first 
thing  I  observed  particularly  of  lord 
Thanet  was,  that  he  teas  lying  almost 
down  upon  his  back  upon  the  table, 
with  a  small  stick  or  cane,  which  he 
held  in  both  hands  over  his  head  or 
face,  in  this  manner;  one  of  the  ofii- 
cers  was  striking  him  with  a  stick,  and 
lord  Thanet  endeavored,  with  very 
little  success,  to  defend  himself  by 
the  use  of  this  stick,  which  he  held 
in  both  his  hands. 

Now,  before  that  period  of  which  you 
last  spoke,  did  you  observe  lord  Thanet 
give  a  blow  or  any  provocation,  to  this 
officer? — I  never  saw  him  give  a  blow; 
I  never  saiv  him  give  any  provocation ; 
I  never  saw  him  in  any  other  way 
than  I  have  mentioned,  till  he  left 
his  seat ;  how  he  left  his  seat  I  can- 
not tell ;  they  had  risen  up  upon  their 
seats  ;  when  they  were  pressed  upon, 
they  rose  towards  the  left-hand  side 
of  the  prisoner,  as  the  prisoner  faced 
the  judges. 

Did  they  go  out  of  sight  ?  . —  No. 

Did  they  go  off  that  table?  —  They 
were  not  xipon  that  table;  Mr.  Fer- 
gusson was  upon  the  table  afterwards, 
but  not  on  the  table  at  any  time  that  I 
have  yet  spoken  to  —  lord  Thanet  was 
then  lying  upon  the  table.  I  am  not 
able  to  say  how  lord  Thanet  got 
from  that  situation ;  I  do  not  know 
that  I  took  particular  notice  of 
what  passed  after,  with  respeit  to 
lord  Thanet ;  Mr.  O'Connor  was 
brought  into  court,  and  then  the 
riot  ceased. 

Did  you  take  any  particular 
notice  of  Mr.  Fergusson,  between 
the  last  time  you  have  been  speaking 
of,  and  the  time  of  Mr.  O'Connor 
being  brought  into  court  ?  —  No, 
do  not  recollect  anything  more.       I 

I  need  not  ask  you  if  you  saw  Mr. 
Fergusson  brandish  a  sword  ?  —  No, 


No,  392. 


EARL   OF   THANET'S   TRIAL 


1065 


Did  you  see  Mr.  Fergusson,  after 
the  sentence  of  death  was  passed, 
go  back  to  his  old  place  ?  —  I  did 
not. 

Were  your  eyes  fixed  upon  that 
part  of  the  court  ?  —  They  were, 
most  particularly ;  I  was  placed  in  a 
situation  in  which  I  could  very  well 
see. 

So  that  it  was  impossible  for  Mr. 
Fergusson  to  have  gone  backwards 
from  his  seat,  without  having  struck 


your    eye 


I    think    it    was 


possible. 

Did  you  see  Mr.  Fergusson  upon 
the  table  before  lord  Thanet  teas  heat 
by  Rivettf  —  I  did  not. 

Mr.  Justice  Lawrence.  —  In  what 
part  of  the  court  were  you  ?  —  Un- 
der the  witness  box ;  I  rose  from 
thence,  and  got  upon  the  table,  as 
other  people  did. 

Mr.  ilaekintosh.  —  Did  you  see 
lord  Thanet  or  Mr.  Fergusson  take 
any  part  in  anything  that  had  the 
appearance  of  disturbance  or  riot  ? 
— No,  I  did  not.  I  saw  lord  Thanet 
defend  himself;  and  I  have  stateti, 
that  I  did  not  see  Mr.  Fergusson 
do  any  act  at  all,  except  shaking 
that  man's  hand  off  his  shoulder. 

Do  you  remember  Mr.  Dallas 
quitting  his  place  before  he  began  to 
address  the  jury  ?  —  I  do,  perfectly. 

And  yir.  Plumer  also,  I  believe  ? 
—  I  do  not. 

Do  you  recollect  Mr.  Fergusson 
leaving  his  own  place  in  consequence 
of  that  ?  —  I  am  rather  inclined 
to  think  it  was  so ;  but  I  cannot 
swear  to  that. 

I  understand  you  to  swear  most 
positively  that  Mr.  Feigusson  never 
interposed  between  the  jailer  and 
Mr.  O'Connor  ?  —  I  do  most  jjosi- 
tively  swear  I  do  not  think  he  did, 
and  if  he  had,  I  think  I  must  have 
seen  it. 

Mr.  Warren  cross-examined  by 
Mr.  Gar  row. 

The  dock  or  bar,  by  which  the 
Bow-street  officers  were  placed,  could 
only  occupy  five  or  six  persons  ?  — 
No  more. 

Only  the  jailer  and  the  prisoners  ? 


—  It    might    be   three   yards    long, 
perhaps. 

You  stated  that  after  the  sentence 
of  death  had  been  passed,  and  Mr. 
O'C'onnor  had  been  left  upon  the 
floor,  the  officer  pr(\ssed  forward  to 
apprehend  him  ;  what  induced  you 
to  think  these  were  officers  rushing 
forwaids  for  that  purpose  ?  —  I  took 
them  to  be  the  persons  who  had 
produced  the  warrant  in  court. 
When  they  had  forced  themselves 
up  to  the  end  of  the  solicitors'  seat, 
I\Ir.  Fergusson  said,  I  think,  "Here 
are  two  men  obtruding  themselves 
between  the  prisoners  and  the  jury." 
Mr.  Justice  Buller  .said,  "What  are 
you  about?  sit  down;"  and  one  of 
them  produced  a  paper  saying  either 
that  it  was  a  warrant  to  take  vp 
Mr.  O'Connor,  or  a  warrant  upon 
a  charge  of  high  treason  against 
Mr.  O'Connor,  or  something  to  that 
effect ;  and,  ther-efore,  ■  I  supposed 
them  to  be  Bow-sti-eet  officers,  or 
officers  of  justice.  .  .  . 
Mr.  Ma.vwell  sworn.  —  Examined  by 
Mr.  Erskine. 

Were  you  in  court,  at  Maidstone, 
during  any  par-t  of  the  trial  of  Mr. 
O'Connor  and  others  ?  —  I  was,  fre- 
quently. 

Did  you  hear  ]\Ir.  Justice  Buller 
pronounce  sentence  of  death  upon 
O'Coigly  ?  —  I  did. 

In  what  part  of  the  court  were 
you  at  that  time  ?  —  At  that  time 
I  was  immediately  to  the  left  of  the 
witness  box,  rather  farther  fi'om  the 
judge  than  the  witness  box. 

Were  you  elevated  above  the 
Court  ?  —  I  was  elevated  above  the 
table  where  the  counsel  sat. 

Did  that  elevation  and  position 
give  you  a  view  of  that  part  of  the 
court  where  the  Bow-street  officers 
enter-ed,  and  where  the  solicitors 
for  the  prisoners  sat  ?  —  That  gave 
me  a  distinct  view  of  that  part  of  tlie 
ccnirt. 

Do  you  ri'inenilxT,  when  Mr. 
Justice  Buller  had  finished  pronounc- 
ing sentence  upon  Mr.  O'Coigly,  do 
you  remember  any  persons  i-ushing 
forwards,  as  if  to  seize  Mr.  O'Con- 


lOGG 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


nor  ?  —  I  remember  some  of  the  Bow- 
street  officers,  among  whom  I  knew 
Rivett  and  Fugion,  rushed  violently 
to  that  place  where  ^Nlr.  O'Connor 
was. 

At  the  time  that  those  two  persons, 
Rivett  and  Fugion,  rushed  forwards 
in  the  direction  you  have  described, 
did  you  obser\e  where  lord  Thanet 
was  '{  —  I  did  ;  my  lord  Thanet  sat 
at  that  time  in  the  solicitors'  place. 

Did  you  obser\e  where  Mr.  Fer- 
gusson  was  at  the  same  time  ?  — 
Mr.  Fergusson  sat  in  his  own  place, 
where  he  had  been  as  counsel  for 
some  time,  on  the  bench  before  the 
solicitors'  bench. 

Which  of  them  was  nearer  to  that 
side  of  the  court  where  the  jur\-  box 
is,  and  where  ^Nlr.  O'Connor  was  ? 
—  I  think  lord  Thanet  was  rather, 
perhaps,  the  nearest  of  the  two ;  but 
there  was  very  little  difference. 

Did  you  see  anything  pass  be- 
tween Rivett,  the  officer,  and  lord 
Thanet?  — I  did. 

Describe  to  my  lord  and  the  jurj/ 
what  you  smo.  —  After  Rivett  had 
forcibly  overturned  and  driven  from 
their  places  those  tcho  stood  between 
hiyn  and  Mr.  O'Connor,  he  got  to  lord 
Thanet,  who  was  one  of  the  nearest. 
Lord  Thanet,  when  he  was  pressed 
upon,  got  out  of  the  place  where  he 
was,  and  went  from  the  scene  of 
tumult  towards  the  table. 

Was  that  farther  from  the  pris- 
oners than  he  was  Ix'fore  ?  —  Con- 
siderably farther  from  the  prisoners 
than  when  he  was  first  pressed  upon. 

When  lord  Thanet  retired  in  that 
manner  out  of  the  solicitors'  box,  over 
toicards  the  counsels'  table,  did  Rivett 
pursue  his  cour.se  on  towards  the 
prisoners  in  the  line  of  the  solicitors' 
box,  or  how  else?  —  He  followed  lord 
Thanet,  and  .struck  him  repeatedly. 

Had  lord  Thanet  .struck  Rivett  before 
he  went  over  from  the  solicitors'  seat 
towards  the  table?  —  Lord  Thanet 
never  struck  Rivett  before  or  after  that. 

Had  you  such  a  view  of  the  situa- 
tion in  which  lord  Thanet  was  placed, 
and  what  he  did,  as  to  swear  merely 
to  your  opinion  and  belief,  or  do  you 


swear  it  positively  ?  —  I  had  such 
a  view,  that  I  swear  it  positively; 
by  that  time  I  had  quitted  the 
place  where  I  was,  and  got  nearer 
to  lord  Thanet,  and  the  other  per- 
sons who  were  struck. 

Were  any  other  persons  struck  be- 
siiles  lord  Thanet  ?  —  I  saw  several 
blows  given,  but  I  cannot  say  to 
whom,  by  the  Bow-street  officers, 
and  those  who  followed  them. 

Do  you  know  whether  Rivett 
struck  any  person  besides  lord 
Thanet  ?  —  I  do  not  positively  know 
whether  he  struck  any  person  or  not. 

But  you  swear  positively  lord 
Thanet  did  not  strike  Rivett  at  all  f  — 
He  did  not ;  but  merely  put  himself  in 
a  posture  of  defense,  and  lying  back 
upon  the  table. 

Had  lord  Thanet  a  stick  ?  —  He 
had  a  small  stick,  which  he  held  up 
over  his  head  to  defend  himself; 
he  was  leaning  back  upon  the  table, 
an  attitude  in  which  it  would  have 
been  difficult  to  have  acted  offen- 
sively. 

Did  you  see  lord  Thanet  subse- 
quent to  the  time  that  he  was  in 
that  situation  ?  —  I  did. 

You  say  that  the  officers,  and 
particularly  Rivett,  rushed  into  the 
court,  and  having  passed  one  or  two 
that  were  before  lord  Thanet,  at- 
tacked lord  Thanet ;  tchat  length  of 
time  might  elapse  between  Rivett  first 
rushing  in  and  the  time  he  struck  lord 
Thanet  f  —  A  very  short  space  of  time 
indeed. 

JVas  it  possible  that  before  Rivett 
struck  lord  Thanet,  he  could  have  gone 
within  the  counsels'  place,  where  you 
have  described  Mr.  Fergusson  to  be, 
and  have  ivrested  a  stick  out  of  his 
hand  before  he  came  to  lord  Thanet f 
—  Rivett  did  not  go  to  take  a  stick  out 
of  his  hand,  fur  he  had  no  .stick  in  his 
hand,  he  did  not  go  up-  to  Mr.  Fer- 
gusson, but  immediately  went  up  to 
lord   Thanet  and  struck  him. 

If  Rivett  should  have  said  here,  that 
he  never  saw  lord  Thanet  till  after  he 
had  taken  a  stick  from  Mr.  Fergu.s- 
son,  from  ichat  you  observed,  is  that 
true  or  false  f  —  /    shoidd    certainly 


No.  392. 


EARL   OF   THANET's   TRIAL 


10G7 


say  it  was  false,  without  any  hesita- 
tion. 

During  the  time  that  you  thus  ob- 
served lord  Thanet  in  the  attitude 
of  defense,  retreating  from  the  scene 
of  tumult,  and  pursued  by  Rivett, 
where  was  ]\Ir.  Fergusson  ?  —  He 
was  in  his  place,  and  remained  in  his 
place  till  he  was  pressed  upon,  and 
then  he  got  out  of  the  scene  of 
tumult  upon  the  table. 

Did  you  see  him  while  he  was  in 
his  seat,  and  did  you  see  him  move 
from  his  seat  to  the  table  by  the 
pressure  that  was  upon  him  ?  — 
I  did. 

//,  whilst  Mr.  Fergusso7i  teas  in  his 
seat,  or  if  while  he  icas  pressed  upon 
when  he  rose  from  his  seat,  if  in  either 
of  these  situations  he  had  not  only 
had  a  stick,  but  had  brandished  and 
flourished  that  stick,  I  ask,  must  you 
have  seen  it  or  not?  —  /  must  have 
seen  it;  he  was  so  directly  before 
me,  that  it  is  quite  impossible  but  I 
should  have  seen  it;  I  can  swear  that 
Mr.   Fergusson  had  nothing  in 

HIS  HAND,  but  A  ROLL  OF  PAPER  IN 
HIS  RIGHT  HAND. 

And  was  in  his  professional  dress  ? 

—  He  was. 

If  Mr.  Fergusson  had  done  any 
one  act  to  encourage  the  tumult  that 
was  undoubtedly  then  existing,  or 
done  any  one  act  inconsistent  with 
his  duty  as  counsel,  or  committed 
any  one  act  of  indecency  or  turbu- 
lence, must  you  have  seen  it  ?  —  I 
must. 

Then  let  me  ask  you,  upon  your 
solemn  oath,  did  he  do  any  such 
thing  ?  —  He  did  not ;  on  the  con- 
trary, he  endeavored  to  keep  quiet 
in  the  court,  by  admonishing  the 
people  in  court  to  be  quiet.  Mr. 
Fergusson  said  particularly  to  Riv- 
ett, when  he  was  striking  lord 
Thanet,  "Do  you  know  whom  you 
are  striking  ?  That  is  not  a  person 
likely  to  begin  a  riot." 

Did  you  see  where  Mr.  Fergusson 
went  to  after  he  was  upon  the  table  ? 

—  He  got  upon  the  table,  and  got 
farther  from  the  scene  of  tumult ; 
and   I  do  not  know  whether  he  sat 


down   upon    the   table   or   not ;     he 
went  towards  the  crown  lawyers. 
Did  you  .see  sir  Francis  Burdett  ? 

—  I  did ;  he  at  first  stood  by  me  in 
the  witness  bo.x ;  and  when  the 
confusion  began,  he  got  nearer  to  the 
place  of  confusion  at  the  same  time 
that  I  did.  I  saw  Mr.  Fergu.sson 
remove  sir  Francis  Burdett  from 
the  scene  of  confusion,  and  put  him 
farther  from  it. 

And  you  saw  him  also  place  him- 
self at  a  distance  from  it  ?  —  Yes. 

Did  you  afterwards  see  him  ^  go 
upon  the  table  towards  the  jurlges  ? 

—  I  did ;  I  saw  him  till  all  the 
violence  was  over. 

The7i  can  you  take  upon  you  to 
swear  positively,  that  neither  Mr. 
Fergusson  nor  lord  Thanet,  du.infi  the 
tumult,  went  towards  Mr.  O'Connor? 

—  They  went  in  a  directly  opposite 
direction. 

Do  you  swear  that  from  your  own 
opinion  and  belief,  or  from  certain 
knowledge?  —  /  swear  it  positively 
from  certain  knowledge. 
Mr.  Maxwell  cross-examined  by  ]VIr. 
Adam. 

You  saw  Rivett  and  Fugion  press- 
ing forward  ?  —  I  did. 

Did  you  know  them  before  ?  — 
I  knew  them  from  having  seen  them 
examined  in  court  upon  that  trial. 

Only  from  that  circumstance  ?  — 
Only  from  that  circumstance. 

During  this  affray  you  shifted 
your  situation  to  another  part  of 
the  court  ?  —  Yes  ;  I  got  upon  the 
table. 

And  you  say  you  saw  sir  P'rancis 
Burdett  shift  his  place  ?  —  He  shifted 
his  place  at  the  same  time. 

From  what  ])art  of  the  court  did 
he  come  ?  —  From  the  witness  box; 
he  stood  on  my  right  hand. 

To  what  part  of  the  court  did  he 
go  ?  —  He  also  went  on  to  the  table. 

Do  you  mean  that  he  remained 
upon  the  table  ?  —  I  cannot  say 
whether  he  remained  up(Mi  the  table, 
but  he  went  there  with  me. 

Did  he  remain  on  the  table  any 
considerable  time  ?  —  The  tumult 
was  over  verv  soon  after  that. 


1068 


PART    III.       PROBLEMS   OF    PROOF 


No.  392. 


The  counsel  for  the  crown  sat 
immediately  under  the  witness  box  ? 

—  They  sat  on  the  same  side. 
Rovmd  the  an^le  ?  —  Yes. 
Tlierefore,  it  was  necessary,  when 

you  and  sir  Francis  Burdett  sliifted 
your  places,  that  you  should  go  over 
the  heads  of  the  counsel  for  the 
crown,  to  get  to  the  table  ?  —  Ex- 
actly so  ;  we  jumped  from  the  neigh- 
borhood of  the  witness  box. 

Do  you  remember,  when  sir 
Francis  Burdett  jumped  from  the 
neighl)orhood  of  the  witness  box 
to  the  table,  did  he  not  jump  im- 
mediately from  the  table  into  the 
crowd  ?  —  I  cannot  say  whether  he 
did  or  not ;  but  I  saw  him  standing 
upon  the  side  of  the  table,  or  sitting 
upon  the  side  of  the  table,  till  Mr. 
Fergusson  removed  him. 

But  that  was  near  the  conclusion 
of  the  affray  ?  —  It  was.  .  .  . 

Lord  Kenyan.  —  Did  you  see  Mr. 
O'Connor  go  out  of  the  dock  ?  — 
Yes. 

How  soon  was  he  out  of  your  sight  ? 

—  I  do  not  know  that  he  was  out 
of  my  sight. 

Do  you  know  the  situation  of  the 
wicket  ?  —  Yes. 

Where  were  Mr.  Fergusson  and 
lord  Thanet  during  the  time  that 
elapsed  between  his  leaving  the  bar 
and  being  brought  back  again  ?  — 
Upon  the  tal)le. 

Did  the  crowd  coming  upon  them 
prevent  you  from  seeing  them  ?  — 
No :  I  was  so  situated  that  I  saw 
them  both  distinctly ;  I  was  a  great 
deal  higher  than  they. 
Samurl  WhUhrcad,  Esq.,  sworn.  — 
Examined  by  Mr.  Gibhs. 

You  were  present,  I  believe,  at  the 
time  of  this  trial  ?  —  I  was  in  court 
the  latter  part  of  it,  after  I  had  been 
examined  as  a  witness. 

In  what  part  of  the  court  were 
you  ?  —  After  having  l)een  examined 
as  a  witness  I  retired  out  of  the  wit- 
ness box,  behind,  and  came  into 
the  court  again. 

Whereabouts  were  you  when  the 
\cnHct  was  brought  in  ?  —  Con- 
sidcrabi\'    Ix-hind    the   witness  box. 


Had  you  from  thence  a  perfect 
view  of  the  court  ?  —  Of  the  lower 
part  of  the  court. 

Had  you  a  perfect  view  of  the  dock 
in  which  the  prisoners  were,  the 
solicitors'  seat,  and  the  seat  where 
the  counsel  sat  ?  —  I  had  certainly 
a  view  of  the  whole  of  that  part  of 
the  court. 

Between  the  ^•erdict  and  the  sen- 
tence we  understand  some  Bow- 
street  people  came  in,  and  spoke  of 
a  warrant  ?  —  There  was  some  tu- 
mult, and  that  subsided  upon  Mr. 
Fergusson  calling  the  attention  of 
the  Court  to  the  cause  of  it.  He 
waved  his  hand  and  spoke  to  them  ; 
he  then  turned  to  the  bench,  and 
said,  "My  lord,"  or  some  such  word, 
just  to  draw  the  attention  of  the 
Court :  upon  that,  Rivett,  whom  I 
knew  before,  said  he  had  a  war- 
rant against  Mr.  O'Connor,  and  he 
thought  he  was  going  to  escape. 
Mr.  Justice  Buller  then  said,  "  Pa- 
tience," or  some  such  word ;  and. 
then  sentence  was  pronounced. 

After  sentence  was  pronounced, 
did  you  observe  O'Connor  ?  —  I 
observed  him  put  his  foot  upon  the 
front  part  of  the  dock,  and  get  out 
of  the  dock :  having  carried  my  eye 
after  him  some  time,  my  eye  re- 
turned to  the  bar,  and  there  I 
saw  Rivett  violently  attacking  lord 
Thanet ;  he  had  a  stick  in  his  hand  : 
I  did  not  see  him  strike  a  single  blow  ; 
I  saw  many  blows  struck  at  him, 
and  he  was  endeavoring  to  ward 
them  off. 

Did  it  appear  to  you  that  lord  Thanet 
made  any  attack  upon  Rivett  to  pro- 
voke this?  —  No;  on  the  contrary,  he 
was  defending  himself  against  a  vio- 
lent attack  of  liirett's  vpon  him. 

W'here  was  lord  Tlianet  at  the 
time  that  you  observed  this  ?  —  I 
think  he  was  close  to  the  table,  lean- 
ing back  upon  the  table  in  the  act 
of  defending  himself,  with  his  hands 
up,  in  which  I  think  he  had  a  stick. 

Did  you  see  at  this  time  where  Mr. 
Fergusson  was  ?  —  I  did  not  observe 
Mr.  Fergusson  at  that  time  :  before 
the    tunudt    had    quite   subsided,    I 


No.  302. 


EARL   OF   THANET  S   TRIAL 


l()(i!) 


observed  Mr,  Fergusson  upon  the 
table,  not  far  from  the  judges. 

Had  you  your  eyes  upon  lord 
Thanet  from  the  time  you  saw 
Rivett  striking  him  in  this  way  ?  — 
No,  I  had  not,  beeause  there  was 
a  great  deal  of  tumult  behind,  and 
of  persons  trying  to  get  out  at 
the  door  behind  the  bench,  and 
the  bailiffs  resisting  .their  attempts, 
which  engaged  my  attention  some 
time. 

Did  you  see  Mr.  O'Brien  during 
this  time  ?  —  I  do  not  recollect  that 
I  did. 

Did  you  know  Mr.  O'Brien  well  ? 

—  I  knew  him  perfectly  by  sight. 
If  he  had  been  acting  in  this  scene, 

must  you  have  noticed  it  ?  —  In  a 
scene  of  confusion  many  things  must 
have  escaped  the  observation  of 
every  person  ;  but  I  think  it  is  more 
than  probable  that  I  must  have 
seen  such  a  person  as  Mr.  O'Brien, 
if  he  had  been  active. 
Samuel  Whiihread,  Esq.,  cross-ex- 
amined by  Mr.  Attorney-General. 

How  long  did  you  remain  at 
Maidstone  ?  —  The  next  morning, 
I  think,  I  passed  3'ou  on  the  road  to 
London. 

ISIr.  Attorney-General .  —  I  beg  your 
pardon,  I  did  not  recollect  that  cir- 
cumstance. 

Previous  to  the  officers  approach- 
ing the  place  where  Mr.  O'Connor 
was,  ha  1  you  heard  that  there  was 
to  be  a  rescue  ?  —  I  had  not. 
Richard  Brinsley  Sheridan,  Esq., 
sworn.  —  Examined  by  Mr. 
Erskine. 

You  were  subptenaed  as  a  witness 
to  attend  the  trials  at  Maidstone  ? 

—  I  was. 

Were  you  in  court  at  the  time 
when  the  jury  retired  to  consider 
of  their  verdict,  and  also  when  they 
returned  with  it  ?  —  I  was. 

And  during  the  remaining  part  of 
the  time  till  the  tumult  ceased  ?  — 
During  the  whole  of  that  time. 

In  what  part  of  the  court  were 
you  whe:i  the  jury  brought  in  their 
verdict  ?  —  Sitting  with  sir  Francis 
Burdett    in    the  witness  box ;    that 


box  was  raised  very  considerably 
al)ove  the  table,  so  that  I  had  a 
direct  view  of  everything  pa.ssing 
in  the  court. 

Had  you  then  an  opportunity  of 
perfectly  observing  the  place  where 
the  solicitors  sat,  and  the  dock  where 
the  prisoners  were,  and  the  place 
where  the  counsel  were  ?  —  A  most 
perfect  opportunity,  without  being  in 
the  least  annoyed  or  mixed  with  the 
tumult. 

Do  you  remember  the  jailer  lay- 
ing hold  of  Mr.  O'Connor;  perhaps 
you  did  not  see  that  ?  —  The  first 
that  I  observed  of  the  tumult  was 
prior  to  the  sentence  being  passed 
upon  O'Coigly ;  I  did  not  see  Mr. 
O'Connor  make  an  attempt  to  go, 
but  I  had  observed  to  the  high 
sheriff  that  I  fancied  he'  would  come 
out,  for  that  I  had  observed  at  the 
Old  Bailey,  that  they  had  left  the 
bar  immediately  upon  the  jury 
pronouncing  them  not  guilty.  The 
riot  then  commenced,  and  I  ob- 
served some  men  pressing  very  vio- 
lently towards  the  box  where  Mr. 
O'Connor  was ;  my  attention  was 
taken  up  with  that :  Mr.  Fergusson 
then  appealed  to  the  court,  and  said, 
"Here  are  two  riotous  fellows," 
or  something  of  that  sort,  "dis- 
turbing the  peace  of  the  court." 
Rivett  then  said,  "  I  have  a  warrant 
to  apprehend  Mr.  O'Connor."  Mr. 
Justice  Buller  desired  him  to  be 
quiet,  and  then  put  on  his  cap  to 
pass  sentence,  and  everything  sub- 
sided. 

After  that  did  you  obser\e  the 
Bow-street  officers  rushing  in,  in  the 
way  that  we  have  heard  ?  —  The 
first  thing  I  saw  was  Mr.  O'Connor 
getting  very  nimbly  over  the  front 
of  the  dock,  and  going  towards  the 
narrow  street,  and  these  men  rush- 
ing after  him.  Certainly  the  man 
who  could  have  thrown  himself  most 
in  the  way  of  the  men,  was  Mr. 
O'Brien,  if  he  had  chosen  to  do  it. 

Are  you  acc|uainted  with  Mr. 
O'Brien  ?  —  I  know  him  intimately. 

Is  he  a  strong  man  ?  —  Certainl^v 
he  is. 


1070 


PART   III.       PROBLEMS    OF    PROOF 


No.  392. 


If  Mr.  O'Brien  had  been  desirous 
of  opposing  himself  to  the  officers, 
and  to  pre\ent  them  from  going 
after  him,  might  he  ?  —  He  was 
precisely  in  the  best  situation  to 
have  done  it. 

Had  you  an  opportunity  of  seeing 
whether  he  did  or  not  ?  —  He  did 
not,  and  I  am  sure  he  was  not  there 
in  the  sub.sequent  part  of  the  tumult. 

Can  you  take  upon  yourself  to 
swear  positively  that  he  gave  no 
manner  of  assistance  ?  —  Positively. 

And  ISIr.  O'Brien  had  an  oppor- 
tunity of  affording  the  most  essen- 
tial means  of  escape  to  INIr.  O'Con- 
nor, if  he  had  chosen  ?  —  I  think  the 
whole  idea  was  folly  and  madness, 
and  that  no  assistance  could  have 
effected  it. 

But  Mr.  O'Brien  did  the  contrary  ? 

—  Yes ;  he  retired  behind  the  box, 
and  I  did  not  see  him  afterwards. 
I  was  very  attenti\'e  to  the  whole 
of  it,  and  was  making  my  observa- 
tions with  the  high  sheriff",  who  more 
than  once  endeavored  to  persuade 
me  to  leave  the  witness  box,  and 
endeavor  to  quell  it. 

Did  you  see  lord  Thanet  at  the 
time  the  officers  rushed  in  ?  —  I 
did  not  see  him  till  the  time  he  was 
struck  ;    I  saw  him  struck. 

Did  he  return  the  blow,  or  show 
anything  like  activity,  or  a  disposi- 
tion to  activity  ?  —  I  saw  him  when 
he  was  first  pressed  upon.  It  was 
not  a  tumult  merely  near  the  dock, 
but  the  whole  court  was  a  scene  of 
general  tumult,  and  a  scene  of  panic, 
and  certainly  with  the  least  reason 

—  there  was  a  tumult  behind  us  in 
the  witness  l)Ox  ;  there  was  a  general 
calling-out  not  to  open  the  doors, 
some  calling  out  for  soldiers  and 
constables,  and  there  did  appear  to 
me  a  sincere  panic  and  apprehension 
that  there  was  a  planned  rescue.  I 
perceiverl  plainly  there  was  no  such 
thing,  and  endeavored  all  I  could 
to  persuade  them  so.  The  officers 
were  beating  down  everybody,  forc- 
ing their  way  and  pressing  upon 
everybody.  Lord  Thanet  had  a  stick 
in  his  h;itid,  with  which  he  was  parry- 


ing the  blows,  which  came  amazingly 
quick  ;  it  seemed  to  me  an  incredible 
thing  that  he  was  not  extremely  hurt, 
and  he  never  returned  a  blow,  but  re- 
tired from  the  scene  of  tumult  farther 
into  the  court  away  from  the  prison^ 
ers  ;  sir  Francis  Burdett  was  with  me ; 
and  by  this  time  Mr.  O'Connor  was 
stopped,  and  they  were  bringing  him 
back  again  ;  he  had  attempted  to 
go  towards  the  gate  with  the  wicket, 
and  I  obser\ed  everybody  to  put 
up  their  hands  and  stop  him ;  he 
might  as  well  ha\'e  attempted  to  get 
through  a  stone  wall ;  if  there  had 
been  six  or  eight  persons  there  who 
were  so  disposed,  he  might  perhaps 
have  got  as  far  as  the  door,  but  he 
could  not  possibly  have  got  farther. 
I  then  saw  a  person  upon  the  table,  ^ 
branflishing  Mr.  O'Connor's  scimitar 
over  the  heads  of  the  people ;  he 
seemed  very  much  alarmed,  and 
not  knowing  what  he  was  about ; 
I  am  sure  it  must  have  gone  very 
nearseveral  persons'  heads,  it  seemed 
quite  miraculous  that  he  did  not  do 
some  mischief ;  in  short,  it  was  diffi- 
cult to  discover  whether  he  meant 
to  keep  the  peace  or  break  the  peace. 
Sir  Francis  Burdett  saw  that  they 
had  collared  Mr.  O'Connor,  was 
frightened,  and  said  with  great  agi- 
tation to  me,  that  they  would  kill 
O'Connor,  and  he  jumped  over  the 
railing ;  he  could  not  go  from  where 
we  were  without  jumping  upon  the 
table,  and  he  ran  forward  ;  Mr.  Max- 
well followed  him,  or  went  at  the 
same  time  ;  they  both  went  towards 
Mr.  O'Connor ;  I  then  saw  very 
distinctly  Mr.  Fergusson  stop  sir 
Francis  Burdett,  and  use  some 
action,  saying,  "You  had  better 
keep  away,  and  not  come  into  the 
tumult  at  all : "  I  could  not  hear 
what  he  said,  but  it  appeared  so  to 
me. 

Did  you  see  Mr.  Fergusson  from 
the  beginning  of  this  scene,  when 
sentence  of  death  was  pronouncing  ? 
—  I  saw  him  plainly  in  his  place, 
after  the  judge  had  passed  .sentence 
of  death. 

Did  you  see  the  crowd  jjress  upon 


No.  332. 


EARL   OF    THANET's    TRIAL 


1071 


Mr.  Fergusson,  and  did  you  see  him 
get  upon  the  table?  —  /  did  not  see 
him  get  upon  the  table;  but  as  the  crowd 
pressed  upon  him,  he  teas  foreed  upon 
the  table. 

Did  Rii'ett  aftael:  lord  Thanet  before 
he  could  possibly  hare  attacked  Mr. 
Fergusson  and  ivrenched  a  stick  out 
of  his  hand?  —  He  came  immediately 
upon  lord  Thanet,  when  the  tumult 
began. 

He  could  have  had  no  conflict  with 
Mr.  Fergusson  till  after  the  conflict 
with  lord  Thanet  ?  —  Certainly  not. 

Do  vou  know  Mr.  Fergusson  ? — 
Perfectly. 

If  he  had  been  upon  the  table 
flourishing  and  waving  a  stick,  in  the 
manner  that  has  been  described,  in 
his  bar  dress,  must  you  not  have 
seen  it  ?  —  Yes  ;  it  must  have  been 
a  most  remarkable  thing,  indeed, 
for  a  counsel  in  his  bar  dress  to  have 
a  stick  flourishing  in  his  hand  —  he 

HAD  A  ROLL  OF  PAPER  IN  HIS  HAND. 

Docs  that  enable  you  to  swear  that 
Mr.  Fergujison  ivas  not  in  that  situa- 
tion ?  —  Certainly. 

Do  you  think  if  he  had  taken  such 
a  part  in  the  riot,  in  the  presence  of 
the  judges,  that  you  must  have  ob- 
served it  ?  —  I  must  have  observed 
it. 

Did  lord  Thanet  or  Mr.  Fergus- 
son  ever  go  nearer  to  Mr.  O'Connor 
after  he  had  jumped  out  of  the  dock, 
or  did  not  lord  Thanet  and  Mr.  Fer- 
gusson retire  farther  from  the  scene 
of  tumult  ?  —  They  certainly  did. 
Upon  some  farther  conversation  I 
got  o\er  this  place  myself,  and  went 
down,  and  the  flrst  thing  I  did  Avas 
to  speak  to  the  man  with  the  sword. 
I  told  him  I  thought  he  with  his 
sword  made  half  the  riot  himself ; 
and  he  put  it  away.  I  passed  lord 
Thanet,  who,  so  far  from  staying 
in  the  riot,  went  towards  the  judges, 
as  if  he  was  going  to  make  a  com- 
plaint. I  then  went  into  the  riot, 
and  endeavored  to  persuade  them 
that  there  was  no  such  thing  as  an  at- 
tempt to  rescue  O'Connor ;  and  a 
man  that  had  hold  of  him,  who 
knew  me,  said  there  was  ;  and  added. 


"  These  fellows  are  come  down  from 
London ;  they  are  Corresponding 
Society  people,  and  they  are  come 
down  on  purpose  to  rescue  him." 
One  person  in  particular  called  to 
them  not  to  believe  me,  and  I  laid 
hold  of  him,  and  said  he  should  go 
with  me  to  Mr.  Justice  Huller;  I 
insisted  upon  his  name  and  address, 
and  he  would  not  give  it  me.  I 
then  turned  to  the  judges,  and  he 
ran  away.  So  far  was  lord  Thanet 
from  going  towards  the  wicket, 
that  I  passed  him  going  up  to  the 
judges ;  and  Mr.  Fergusson  re- 
mained with  me,  desiring  them  not 
to  treat  Mr.  O'Connor  so,  and  gen- 
erally endeavoring  to  quiet  them ; 
the  only  moment  they  were  out  of 
my  eye  was  while  I  was  getting  over 
this  place. 

Richard  Brinsley  Sheridan, esq., cross- 
examined  by  Mr.  Law. 

You  saw  lord  Thanet  distinctly 
from  the  time  he  was  struck  ?  —  I 
do  not  mean  with  the  stick,  —  I 
corrected  that  by  saying,  from  the 
time  he  was  assaulted  and  driven 
from  the  seat  he  was  in  at  first. 

Can  you  take  upon  you  to  say 
whether  he  gave  a  blow  before  he  was 
struck  ?  —  I  said  from  the  time  he 
was  pressed  upon  or  assaulted. 

You  say  you  saw  lord  Thanet 
going  towards  the  judges,  as  if  he 
was  going  to  complain.  Did  you 
hear  him  make  any  complaint  to 
the  judges  ?  —  I  did  not  hear  him, 
certainly.   .   .   . 

I  ask,  as  an  inference  from  their 
conduct,  as  it  fell  under  your  obser- 
vation, whether  you  think  lord 
Thanet  or  Mr.  Fergusson,  or  either 
of  them,  meant  to  favor  Mr.  O'Con- 
nor's escape,  upon  your  solemn  oath  ? 
—  I'pon  my  solenm  oath  I  saw  them 
do  nothing  that  could  be  at  all 
auxiliary  to  an  escape. 

That  is  not  an  answer  to  my  ques- 
tion. —  I  flo  not  wish  to  be  under- 
stood to  blink  any  question.  .   .  . 

My  question  is,  whether,  from 
what  you  saw  of  the  conduct  of  lord 
Thanet  and  Mr.  Fergusson,  they  did 
not    mean    to    favor    the   escape   of 


1072 


PART    III.      PROBLEMS   OF   PROOF 


No.  392. 


O'Connor,  upon  your  solemn  oath  ? 
—  The  learned  coun.sel  need  not 
remind  me  that  I  am  upon  my  oath  ; 
I  know  as  well  as  the  learned  counsel 
does,  that  I  am  upon  my  oath  ;  and 
I  will  say  that  I  saw  nothing  that 
could  be  auxiliary  to  that  escape. 

After  what  has  passed,  I  am  war- 
ranted in  reminding  the  honorable 
gentleman  that  he  is  upon  his  oath : 
my  question  is,  whether,  from  the 
conduct  of  lord  Thanet  or  Mr.  Fer- 
gusson,  or  either  of  them,  as  it  fell 
under  your  observation,  you  believe 
that  either  of  them  meant  to  favor 
O'Connor's  escape  ?  —  I  desire  to 
know  how  far  I  am  obliged  to  answer 
that  question.  I  certainly  will  an- 
swer it  in  this  way,  that  from  what 
they  did,  being  a  mere  observer  of 
what  passed,  I  should  not  think  my- 
self justified  in  saying  that  either 
of  them  did.  Am  I  to  say  whether 
I  think  they  would  have  been  glad 
if  he  had  escaped  ?  that  is  what  you 
are  pressing  me  for. 

No  man  can  misunderstand  me ; 
J  ask,  whether,  from  the  conduct 
of  lord  Thanet  or  Mr.  Fergusson, 
or  either  of  them,  as  it  fell  under 
your  observation,  you  believe  upon 
your  oath  that  they  meant  to  favor 
the  escape  of  O'Connor  ?  —  I  repeat 
it  again,  that  from  what  either  of 
them  did,  I  should  have  had  no  right 
to  conclude  that  they  were  persons 
assisting  the  escape  of  O'Connor. 

I  ask  3^ou  again,  whether  you  be- 
lieve, from  the  conduct  of  lord  Thanet 
or  Mr.  Fergusson,  or  either  of  them, 
upon  your  oath,  that  they  did  not 
mean  to  favor  the  escape  of  O'Con- 
nor ?  —  I  have  answered  it  already. 

Lord  Kcnyon.  —  If  you  do  not 
answer  it,  to  be  sure  we  must  draw 
the  natural  inference. 

IVIr.  Sheridan.  —  I  have  no  doubt 
that  they  wished  he  might  escape ; 
but  from  anything  I  saw  them  do, 
I  have  no  right  to  conclude  that  thev 
did. 

Mr.  Law.  —  I  will  have  an  an- 
swer :  I  ask  you  again,  whether  from 
their  conduct,  as  it  fell  under  your 
observation,  you  do  not  believe  they 


meant  to  favor  the  escape  of  O'Con- 
nor ?  —  If  the  learned  gentleman 
thinks  he  can  entrap  me,  he  will 
find  himself  mistaken. 

Mr.  Erskine.  —  It  is  hardly  a  legal 
question. 

Lord  Ken  yon.  —  I  think  it  is  not 
an  illegal  question. 

Mr.  Law.  —  I  will  repeat  the 
question,  whether,  from  their  con- 
duct, as  it  fell  under  your  observa- 
tion, you  do  not-  believe  they  meant 
to  favor  the  escape  of  O'Connor  ?  — 
My  belief  is,  that  they  wished  him 
to  escape  ;  but  from  anything  I  saw 
of  their  conduct  upon  that  occasion, 
I  am  not  justified  in  saying  so. 

I  will  ask  you,  whether  it  was  not 
previously  intended  that  he  should 
escape  if  possible  ?  —  Certainly  the 
contrary. 

Nor  had  you  any  intimation  that 
it  was  intended  to  be  attempted  ?  — 
Certainly  the  contrary.  There  was 
a  loose  rumor  of  another  warrant, 
and  that  it  was  meant  that  he  should 
be  arrested  again,  which  was  after- 
wards contradicted.  Then  the  ques- 
tion was  mooted,  whether  the  writ 
could  be  issued  before  he  was  dis- 
missed from  custody  ?  Certa'inly 
there  was  no  idea  of  a  rescue.  There 
was  no  friend  of  Mr.  O'Connor's, 
I  believe,  but  saw  with  regret  any 
attempt  on  his  part  to  leave  the 
Court. 

From  whom  did  you  learn  that 
there  was  such  a  warrant  ?  —  It  was 
a  general  rumor. 

From  whom  had  you  heard  this 
rumor  ?  - —  I  believe  from  sir  Fran- 
cis Burdett ;    but  I  cannot  tell. 

At  what  time  was  that  ?  —  About 
four  or  five  o'clock. 

Have  you  ever  said  that  the  de- 
fendants were  very  blamable ;  lord 
Thanet,  Mr.  Fergusson,  or  any  of 
them  ?  —  Certainly  not. 

At  no  time  since  ?  —  Certainly 
never. 

Mr.  FJrskiiie.  —  You  were  asked 
by  Mr.  Law,  whether  you  believed 
that  the  defendants  wished,  or  meant 
to  favor  the  escape  of  Mr.  O'Connor ; 
/  ask  you,  after  what  you  have  sworn, 


No.  392. 


EARL    OF   THANET's    TRIAL 


1073 


whether  you  believe  these  gentlemen 
did  any  act  to  rescue  Mr.  O'Connor  f  — 
Certainly  not;  and  I  have  stated 
upon  my  oath,  that  every  man  in  the 
narrow  gateway  endeavored  to  stop 
him :  I  remarked  it  particularly ; 
because,  there  being  a  common  feel- 
ing amongst  Englishmen,  and  he 
being  acquitted,  I  thought  they 
might  form  a  plan  to  let  him  escape. 
You  have  stated  that  you  saw  no 
one  act  done  or  committed  by  any 
one  of  the  defendants,  indicative  of 
an  intention  to  aid  O'Connor's 
escape  ?  —  Certainly. 

I  ASK  YOU  THEN,  WHETHER  YOU 
BELIEVE   THEY   DID   TAKE   ANY   PART 

IN   RESCUING    Mr.    O'Connor  ?  — 
Certainly  not. 

[End  of  the  evidence  for  the  Defend- 
ants.] 

Reply 

Mr.  Attorney-General.  —  Gentle- 
men of  the  Jury :  At  this  late 
hour  of  the  day,  I  do  not  think  that 
the  duty  which  I  owe  the  public 
can  require  me  to  detain  you  any 
considerable  time  in  reply  to  the  ob- 
sefvations  of  my  learned  friend.  .  .  . 

Now,  with  respect  to  the  case  of 
my  lord  Thanet  and  the  case  of  Mr. 
Fergusson,  gentlemen,  I  declare  to 
you  most  solemnly,  that  I  respect 
the  high  situation  of  the  one,  as  I  re- 
spect the  professional  situation  of  the 
other ;  but  in  this  case,  gentlemen, 
the  question,  and  the  only  question, 
is,  "Did  they  make  a  riot?"  I 
desire  that  the  question  may  be  put 
upon  its  true  merits.  .  .  .  My 
learned  friend  says,  "What  motive 
could  lord  Thanet  have?"  Mr. 
O'Connor,  who  has  been  represented 
as  an  extremely  judicious  man  upon 
some  occasions,  was  certainly  so 
foolish,  as  to  think  such  a  project 
as  this  might  have  been  practicable ; 
but  is  it  in  fact  imputed  to  these 
persons,  that  they  meant  to  turn 
Mr.  O'Connor  loose,  in  order  to  sub- 
vert the  constitution  of  this  country 
(for  so  my  learned  friend  states  it)  ? 


and  to  do  all  this  mischief  which  he 
is  pleased  to  represent  to  you,  must 
ha\e  been  the  consequence  of  Mr. 
O'Connor's  escape?  He  seems  to 
have  forgot,  that  all  I  meant  to 
impute  (for  aught  I  know,  there  may 
be  men  in  the  country  who  know 
more  of  it  than  I  do),  that  all  I  am 
charging  upon  these  defendants  is, 
that  they  meant  to  rescue  Mr. 
O'Connor  from  any  farther  demand 
that  justice  might  have  upon  him. 
Whether  Mr.  O'Connor  was  im- 
mediately to  take  himself  out  of  this 
country,  into  a  situation  in  which 
he  could  do  no  mischief,  or  whether 
he  was  to  remain  in  this  country  to 
do  mischief,  is  a  question  with  which 
I  have  no  business.   .  .  . 

Gentlemen,  that  there  was  a  riot, 
is  clear  beyond  all  doubt.  Now  let 
us  see  how  it  is  occasioned :  Mr. 
O'Brien  knew  of  this  rumor,  at  the 
time  the  application  was  made  to 
the  Court,  by  Rivett  and  Fugion. 
He  was  aware,  that  Mr.  O'Connor 
was  not  discharged.  He  learned, 
and  lord  Thanet  learned,  and  I 
believe  nobody  doubts  the  fact 
that  everybody  learned  this  circum- 
stance, not  only  that  he  was  not 
then  to  be  discharged,  .  .  .  but  it 
was  publicly  taught  to  everybody  in 
court,  what  was  the  reason  and  what 
the  cause  for  which  his  discharge 
was  to  be  withheld  from  him.  .  .  . 
Gentlemen,  if  you  please,  I  will  put 
it  so,  not  to  give  Rivett  any  credit, 
if,  upon  any  other  part  of  the  case, 
he  is  contradicted ;  but  I  should  do 
that  with  great  reluctance,  till  I  am 
satisfied  that  he  is  not  worthy  of 
credit.  But  I  will  say  this,  that  you 
may  reject  the  whole  of  the  evidence 
of  Rivett,  with  respect  to  lord 
Thanet  and  Mr.  Fergusson,  out  of 
the  case,  and  say,  whether  out  of 
the  negative  evidence  given  on  the 
other  side,  you  can  get  rid  of  the 
facts  sworn  and  deposed  to  by  per- 
sons whose  characters  are  out  of 
the  reach  of  the  breath  of  suspi- 
cion. .  .  . 

Gentlemen,  I  will  not  go  into  a  de- 
tail of  the  evidence,  which  you  will 


1074 


PART    III.       PROBLEMS    OF    PROOF 


No.  392. 


hear  from  his  lordship ;  but  with 
reference  to  lorrl  Thanet  and  Mr. 
Fergusson,  I  cannot  part  with  the 
evidence  given  b^^  Mr.  Sohci tor- 
General  ;  but  I  shall  first  make  this 
observation  upon  the  evidence  of  Mr. 
Sergeant  Shepherd,  to  whose  credit, 
honor,  and  accuracy,  we  all  do  justice, 
that  where  that  evidence  presses 
upon  Mr.  O'Brien,  he  says,  that 
"Mr.  O'Brien  having  turned  round 
and  looked  up  at  ^Ir.  O'Connor,  it 
made  an  impression  upon  his  mind  ; " 
and  also  that,  as  far  as  he  observed, 
"  lord  Thanet  was  defending  himself . " 
He  judges,  therefore,  of  appearances, 
both  with  reference  to  lord  Thanet 
and  with  reference  to  Mr.  O'Brien ; 
and  what  he  says  of  the  appearances 
with  reference  to  Mr.  O'Brien  cer- 
tainly throws  a  great  degree  of 
credit  upon  his  accuracy  when  he 
speaks  with  respect  to  lord  Thanet. 
The  same  credit  is  due,  I  take  it,  to 
Mr.  Solicitor-General ;  and  you  will 
have  the  goodness  also  to  attend 
to  the  evidence  of  Mr.  Hussey ;  for 
if  you  believe  what  he  states,  that 
when  the  man  was  pressing  forward 
to  execute  the  warrant,  lord  Thanet 
inclined  towards  the  bar,  and  put 
his  person  in  the  way  ;  if  that  fact  is 
proved  to  your  satisfaction,  lord 
Thanet  is  guilty  upon  this  record. 
And  if  other  facts  are  proved  against 
lord  Thanet,  and  similar  facts  are 
proved  against  Mr.  Fergusson,  you 
must  decide  upon  all  the  evidence, 
and  not  from  what  other  men  did 
not  see  or  observe ;  you  are  not 
to  decide  upon  the  eloquence  of 
my  learned  friend,  but  upon  the 
oaths  of  persons  who  depose  posi- 
tively to  facts. 

Then  my  learned  friend  made  an 
observation  upon  the  evidence  of 
Mr.  Solicitor-General.  .  .  .  He 
states  upon  his  oath,  that  he  did 
most  distinctly  and  cautiously  at- 
tend to  the  conduct  of  Mr.  Fergus- 
son  and  Mr.  O'Connor  ;  and  then  he 
says  this:  "I  fixed  my  eye  upon 
O'Connor,  and  I  observed  Mr.  Fer- 
gusson, and  other  persons  whom  I 
did    not    know,    encouraging    Mr. 


O'Connor  to  go  over  the  bar." 
Encouraging  is  a  general  word  un- 
doubtedly ;  but  it  is  a  word  which 
expresses  the  impression  which  facts 
falling  under  his  eye  had  made  upon 
his  mind ;  and  when  he  was  asked 
what  he  meant  by  encouragement  ? 
he  describes  it  to  have  been  by  his 
actions.  But  he  not  only  gives  his 
evidence  in  this  way  as  to  that  partic- 
ular fact,  but  he  gives  it  also  with 
a  caution,  which  entitles  it  to  the 
same  degree  of  credit  which  Mr. 
Sergeant  Shepherd's  evidence  derives 
from  its  accuracy ;  for  when  he 
comes  to  speak  of  a  circumstance, 
with  reference  to  which  he  is  not 
certain,  he  tells  you,  "Mr.  O'Con- 
nor jumped  over  the  bar,  and  Mr. 
Fergusson  turned  himself  round  and 
appeared  to  me  to  follow  Mr.  O'Con- 
nor; but  I  cannot  say  that  he  did." 
He  qualifies  that  apprehension  in 
his  mind,  by  telling  you  that  he  may 
be  mistaken,  and  then  he  gives  you 
the  reason  why  he  doubts  whether 
that  apprehension  was  or  was  not 
justly  founded  ;  and  he  finally  states 
in  his  evidence  a  circumstance  re- 
specting lord  Thanet,  which  I  think 
will  deserve  a  great  deal  of  your 
consideration.   ... 

Whether  this  noble  peer  struck 
Rivett  first,  which  I  do  not  find 
Rivett  say  that  he  did,  is  of  no  im- 
portance. These  men  have  a  cer- 
tain temper  and  degree  of  spirit 
about  them,  which  might,  perhaps, 
induce  them  to  thrash  a  peer  more 
than  anybody  else,  if  they  felt  them- 
selves ill-treated ;  but  Mr.  Rivett 
may  take  this  advice  of  me  —  I  hope, 
in  future,  he  will  not  use  such  treat- 
ment if  he  can  avoid  it.  But  what 
presses  upon  my  mind  is,  that  if  lord 
Thanet,  treated  in  the  manner  he 
was  by  Rivett,  had  no  connection 
with  this  project  of  rescue ;  if  he 
had  not,  either  from  the  circum- 
stances that  fell  under  Mr.  Sheri- 
dan's observation,  or  from  other 
circumstances,  manifested  that  he 
meant  there  should  be  a  rescue,  is 
it  the  conduct  of  a  man  of  consid- 
erable   situation  —  is    it    the    con- 


No.  392. 


EARL   OF   THANEt's    TRIAL 


1075 


duct  of  a  man  of  common  sense, 
instead  of  making  a  serious  com- 
plaint upon  the  subject  ?  .  .  .  He 
is  perfectly  neutral ;  no  complaint 
is  made  upon  the  subject.  It  ap- 
pears to  me,  that  if  I  had  been  struck 
two  or  three  times  by  that  officer,  the 
manner  in  which  I  would  have  acted 
upon  that  occasion  would  certainly 
not  have  been  to  have  immediately 
stated  that  "it  was  fair  the  pris- 
oner should  have  a  run  for  it," 
but  to  have  made  some  application 
to  have  those  punished  of  whose 
conduct  I  had  a  right  to  com- 
plain.  .   .   . 

Then  when  you  have  heard  this 
evidence  on  the  part  of  the  prosecu- 
tion, I  mean  the  evidence  that  goes 
to  positive  facts,  it  will  be  for  you 
to  decide  whether  they  are  not  all 
reconcilable  with  the  negative  evi- 
dence given  on  the  part  of  the  de- 
fendants. .  .  . 

Gentlemen,  having  said  this  much, 
and  having  endeavored  to  discharge 
myself  of  my  duty,  you  will  be 
good  enough  to  say  what  is  due 
as  between  the  public  and  the  de- 
fendants. 

Summing  up 

Lord  Kenyon. — Gentlemen  of  the 
Jury  :  .  .  .  I  have  the  authority  of 
lord  Hale,  one  of  the  greatest  and 
best  men  that  ever  lived,  for  saying, 
that  juries  are  not  to  overlook  the 
evidence  —  that  they  are  not  to 
forget  the  truth,  and  to  give  way 
to  false  mercy  ;  but,  without  looking 
to  the  right  hand  or  the  left-,  they 
are  to  weigh  the  evidence  on  both 
sides,  and  then,  according  to  the  best 
of  their  judgment  and  understand- 
ing, to  do  justice  to  the  public,  as 
well  as  to  the  defendants. 

Before  I  proceed  to  sum  up  the 
evidence,  I  shall  only  make  one 
other  obser^'ation,  which  was  made 
by  Mr.  Whitbread  in  giving  his 
evidence,  the  tone  of  whose  voice 
I  never  heard  before.  Having  gone 
through  his  evidence,  he  gave  us 
this  legacy,  as  a  clew  to  direct  us  in 


the  decision  of  this  case  —  "  that, 
in  a  scene  of  so  much  confusion, 
there  are  many  things  which  must 
escape  the  observation  of  every 
individual."  Having  stated  thus 
much  to  you,  I  will  now  proceed  to 
sum  up  the  e\idence ;  and  when  I 
have  done  that,  I  shall  make  some 
few  observations  on  it. 
[His  lordship  here  summed  up  the 
evidence  on  both  sides,  and  then 
proceeded  as  foUoivs ;]  .  .  . 
I  have  stated  the  evidence  on  the 
one  side  and  the  other ;  and  al- 
though there  is  strong  contradic- 
tory evidence,  yet  I  think  there 
is  a  great  deal  of  evidence  which 
goes  in  support  of  the  charge. 
There  were  some  observations  made 
b}'  the  learned  counsel  for  the  de- 
fendants, which,  perhaps,  were  not 
altogether  warranted.  Counsel  are 
frequently  induced,  and  they  are 
justified  in  taking  the  most  favor- 
able view  of  their  clients'  case ;  and 
it  is  not  unfair  to  pass  over  any  piece 
of  evidence  they  find  difficult  to 
deal  with,  provided  they  cite,  fairly 
and  correctly,  those  parts  of  the 
evidence  they  comment  upon.  The 
learned  counsel  for  the  defendants, 
in  his  remarks  on  the  evidence, 
totally  forgot  the  evidence  of  Mr. 
Parker.  If  his  evidence  is  to  be 
believed,  and  I  know  no  reason  why 
it  is  not,  he  certainly  gave  important 
evidence  in  support  of  this  charge  — 
that  the  defendants  evidently  ap- 
peared to  be  attempting  to  stop  the 
officers,  and  assisting  the  escape  of 
Mr.  O'Connor.  The  learned  coun- 
sel for  the  defendants  did  not  choose 
to  deal  with  this  evidence,  though 
he  conducted  the  cause  with  all 
possible  discretion,  abilities,  and 
eloquence.  As  I  have  before  ob- 
served, there  is  apparently  a  great 
deal  of  contradiction  in  this  cause. 
I  must  again  state  the  observation 
of  Mr.  Whitbread,  and  which  was 
obvious  if  he  had  not  made  it,  that, 
"in  such  a  scene  of  tumult  and 
confusion,  many  things  must  pass 
which  escape  the  observation  of 
every  individual."     But  there  is  no 


1076 


PART    III.       PROBLEMS   OF   PROOF 


No.  392. 


doubt  of  one  thing  —  one  thing  is 
clear :  if  Rivett  had  not  the  scuffle 
which  he  swears  he  had  with  Mr. 
Fergusson  and  my  lord  Thanet,  and 
if  he  did  not  wrench  a  stick  out  of 
Mr.  Fergusson's  hand,  he  is  pal- 
pably forsworn,  and  grossly  per- 
jured. For  him  there  is  no  excuse 
in  the  world.  What  motive  he 
might  have,  I  do  not  know ;  he  has 
no  interest;  and  in  weighing  the 
testimony  of  witnesses,  I  cannot 
consider  the  rank  of  a  person,  nor 
his  station.  It  is  clear,  if  he  has 
not  told  the  truth,  he  is  guilty  of 
perjury.  In  this  scene  of  tumult, 
men's  minds  must  have  been  greatly 
distracted.  It  is  for  you  to  say 
what  degree  of  credit  you  will  give 
to  all  the  witnesses.  These  are 
the  observations  I  have  to  make ; 
and  I  should  retire  from  my  duty  if 
I  had  not  made  them  to  you.   .   .   . 

At  eleven  o'clock  at  night  the  jury 
retired ;  and  after  being  out  about 
an  hour,  they  returned  with  the 
following  verdict : 

The  earl  of  Thanet,  Robert  Fer- 
gusson, esq..  Guilty  ;  Dennis  O'Brien, 
esq..  Not  Guilty. 

Friday,  May  3d 

Mr.  Attorney-General.  —  In  this 
case  of  the  King  against  Sackville, 
earl  of  Thanet,  and  Robert  Fergus- 
son,  esq.,  I  have  to  pray  of  your 
lordships  the  judgment  of  the  Court. 

Lord  Kenyan  (to  Mr.  Erskine). 
—  Have  you  anything  to  say  for 
the  two  persons  convicted  ? 

Mr.  Erskine.  —  The  cause  having 
been  tried  at  bar,  your  lordships  are 
already  apprized  of  everything  I 
could  have  to  offer.  I  believe  lord 
Thanet  and  Mr.  Fergusson  wish  to 
say  something  to  your  lordships. 

Lord  Thanet. — My  lords,  before  the 
sentence  is  pronounced,  I  btg  leave 
to  address  a  few  words  to  the  Court ; 
not  for  the  purpose  of  impeach- 
ing the  veracity  of  the  witnesses  for 
the  prosecution,  or  of  arraigning 
the  propriety  of  the  verdict :  on 
those  points    I    shall    say  nothing. 


What  I  mean  to  submit  to  the  Court 
is,  a  short,  distinct  narrative  of  the 
facts,  as  far  as  I  was  concerned  in 
them. 

I  attended  the  trial  at  Maidstone 
in  consequence  of  a  subpoena.  When 
I  had  given  my  evidence,  I  retired 
from  the  court,  without  any  inten- 
tion of  returning,  until  I  was  partic- 
ularly requested  to  be  present  at  the 
defense  made  by  Mr.  Dallas,  the 
prisoners'  counsel.  At  that  time  I 
had  never  heard  of  the  existence  of 
a  warrant  against  Mr.  O'Connor,  nor 
of  any  design  to  secure  his  person 
if  he  should  be  acquitted.  The 
place  I  sat  in  was  that  which  Mr. 
Dallas  had  quitted,  when  he  removed 
to  one  more  convenient  for  address- 
ing the  jury.  W'hile  sitting  there, 
I  heard,  for  the  first  time,  from  Mr. 
Plumer,  that  he  had  reason  to  be- 
lieve there  was  a  warrant  to  de- 
tain Mr.  O'Connor.  When  the  ver- 
dict was  pronounced,  I  went  into 
the  solicitors'  box,  to  shake  hands 
with  Mr.  O'Connor,  which  I  did 
without  even  speaking  to  him.  Many 
others  pressed  forwards,  apparently 
for  the  same  purpose.  Upon  a  call 
for  silence  and  order  from  the  bench, 
or  from  one  of  the  officers  of  the 
court,  I  immediately  sat  down  on 
the  seat  under  that  part  of  the  dock 
where  Mr.  O'Connor  stood.  At  that 
period  some  confusion  arose,  from 
several  persons  attempting  to  get 
towards  him,  one  of  whom  said  he 
had  a  warrant  to  apprehend  him, 
for  which  he  appeared  to  me  to  be 
reprimanded  by  Mr.  Justice  Buller, 
in  some  few  words,  which  I  did 
not  distinctly  hear.  The  moment 
the  judge  had  passed  sentence  on 
O'Coigly,  a  most  violent  pushing 
began  from  the  farther'  end  of  the 
seat  on  which  I  sat.  From  the 
situation  I  was  in,  I  did  not  perceive 
that  Mr.  O'Connor  was  attempting 
to  escape.  He  was  a  good  deal 
above  me,  and  I  sat  with  my  back  to 
him.  I  continued  sitting  in  my 
place,  until  several  persons  on  the 
same  seat  were  struck,  among  whom, 
I  imagine  Mr.  Gunter  Browne  was 


No.  392. 


EARL    OF    THANET's    TRIAL 


1077 


one,  from  the  complaint  he  after- 
wards made  of  ill-treatment,  hut 
whom  I  never  saw  before  or  since  to 
my  knowledge.  I  then  began  to 
feel  the  danger  I  was  in  ;  but  the  tu- 
mult increased  about  me  so  rapidly, 
that  I  was  unable  to  get  over  the 
railing  before  me.  I  stood  up,  how- 
ever, and  used  all  the  efforts  in 
my  power  to  go  towards  the  judges, 
as  to  a  place  of  safety ;  but  at  that 
moment,  by  some  person  or  other, 
I  was  borne  down  on  the  table, 
where  a  man  (who  as  I  afterwards 
found  was  Rivett)  struck  at  me 
several  times  with  a  stick,  which 
I  warded  off,  as  well  as  I  was  able, 
with  a  small  walking-stick.  Rivett, 
as  he  struck  me,  charged  me  with 
striking  him  first,  which  I  denied, 
and  called  out  to  him,  as  loud  as  I 
could,  that  I  had  not  struck  him. 

I  have  now  detailed,  as  clearly  as  I 
am  able,  my  situation  and  conduct 
during  the  disturbance ;  and  I  do 
most  solemnly  declare  on  my  word 
of  honor,  which  I  have  been  always 
taught  to  consider  as  equally  sacred 
with  the  obligation  of  an  oath,  and 
am  ready  to  confirm  by  my  oath  if 
I  am  permitted  to  do  so,  that  I  never 
did  any  one  act  but  what  was 
strictly  in  defense  of  my  person.  It 
is  not  at  all  unlikely,  that,  in  such 
a  scene  of  confusion,  I  might  have 
pushed  others,  who  pressed  against 
me,  to  save  myself  from  being  thrown 
down ;  but  I  most  solemnly  deny 
that  I  lifted  my  hand  or  stick 
offen'sively,  or  used  any  kind  of 
violence  to  any  person.  I  declare 
upon  my  word  of  honor,  that  I  knew 
nothing  of  the  existence  of  a  warrant 
to  detain  Mr.  O'Connor,  until  I  heard 
it  from  Mr.  Plumer  ;  and  that,  even 
then,  it  never  entered  into  my  mind 
that  it  was  to  be  served  upon  him 
in  the  court,  until  some  person  called 
out  that  he  had  a  warrant.  I  de- 
clare upon  my  word  of  honor,  that 
the  obstruction  which  the  officers 
met  with  on  the  seat  where  I  sat,  was 
perfectly  unintentional  on  my  part, 
and  was  solely  owing  to  the  situation 
I  was    in :    that    I  did    nothing  of- 


fensively, but,  on  the  contrary,  was 
violently  attacked  and  assaulted; 
and  that  I  retired  from  the  scene  of 
confusion  as  soon  as  I  was  able. 
And,  finally,  I  do  most  solemnly 
declare  upon  my  word  of  honor,  that 
I  did  not  concert  with  any  person 
the  rescue  of  Mr.  O'Connor,  by 
violence,  or  by  any  other  means 
whatsoever;  that  I  had  no  idea  of 
doing  it  alone ;  and  that  I  was  not 
privy  to  any  consultation  of  other 
persons,  either  for  the  purpose  of 
rescuing  Mr.  O'Connor  out  of  the 
custody  of  the  Court,  or  of  prevent- 
ing the  execution  of  the   warrant. 

As  I  hold  myself  bound  to  state 
fairly,  not  only  what  I  did,  but  what 
I  said,  as  far  as  it  is  in  my  power  to 
recollect  what  passed,  with  the  agi- 
tation of  such  a  tumult  on  my  mind, 
I  acknowledge  that  some  words  may 
have  escaped  me,  which  I  ought  not 
to  have  spoken.  I  am  charged  with 
having  said,  "that  I  thought  it  fair 
that  he  should  have  a  run  for  it." 
I  will  rjot  dispute  about  the  exact 
words.  I  confess  they  were  ex- 
tremely inconsiderate.  Some  al- 
lowance, however,  I  think,  may  be 
made  for  the  instant  feelings  of  a 
man  so  ill  treated  as  I  had  been. 

My  lords,  I  am  not  sanguine 
enough  to  expect  any  immediate 
advantage  from  these  declarations. 
I  know  they  will  not  avail  me  against 
the  verdict :  but  the  truth  of  them 
will  not  be  suspected  by  those  who 
know  me ;  and  hereafter,  when  all 
the  circumstances  of  this  transac- 
tion shall  be  coolly  reconsidered,  I 
am  confident  they  will  have  weight 
with  the  public.   .   .  . 

Mr.  Fcryusson.  —  My  lords,  I 
have  nothing  to  offer  to  your  lord- 
ships, either  with  respect  to  the 
charge  itself,  the  manner  in  which  it 
was  proved,  or  with  respect  to  my 
own  peciiliar  situation.  .  .  . 

I  appear,  however,  before  your 
lordships,  to  receive  that  judgment 
which  your  duty  calls  upon  you 
to  pronounce,  in  consequence  of  the 
verdict  of  a  jury.  That  verdict  I 
do   not   mean    to   arraign :     it   was 


1078 


PART  III.   PROBLEMS  OF  PROOF 


No.  392 


given  on  contradictory  evidence,  the 
value  and  balance  of  which  it  was 
the  peculiar  province  of  the  jury  to 
weigh  and  to  decide. 

But  if  your  lordships'  long  practice 
in  courts  of  justice  shall  have  shown 
you  the  fallibility  of  human  testi- 
mony, —  if  it  shall  have  shown  you, 
still  more,  the  fallibility  of  human 
judgment  founded  upon  human  testi- 
mony, I  hope  I  may  meet  with  your 
indulgence,  if  I  here  make  a  solemn 
declaration  of  that,  with  respect  to 
which  I  alone  cannot  be  mistaken. 

My  lords,  upon  the  occasion  which 
has  given  rise  to  these  proceedings  I 
was  of  counsel  for  one  of  the  pris- 
oners who  was  tried  at  Maidstone. 
I  was  seated  in  the  place  which  was 
allotted  for  the  counsel  for  the  pris- 
oners ;  and  being  wholly  engaged  in 
the  discharge  of  my  duty,  I  solemnly 
aver,  that  whatever  might  be  the 
previous  consultations  or  conversa- 
tions of  others,  with  respect  to  the 
practicability  or  impracticability  of 
a  rescue,  I  never  had  even  beard  the 
rumor  that  a  fresh  warrant  was  in 
existence,  until  after  the  jury  had 
retired  to  consider  of  their  verdict. 
It  was  not  till  after  they  had  so 
retired,  and  very  shortly  before  they 
returned  into  court,  that  I  learned 
that  circumstance.  I  was  in  my 
place,  seated  where  I  had  been  dur- 
ing the  greater  part  of  the  day,  at 
the  moment  when  the  verdict  was 
delivered  :  and  I  do  most  solemnly 
aver,  that  from  that  moment,  until 
I  was  pressed  upon  by  the  crowd,  I 
did  not  stir  from  that  seat.  I  do 
farther  declare,  that  when  I  was 
forced  upon  the  table,  I  used  no 
violence  to  any  one  ;  that  the  whole 
of  my  endeavors  went  to  allay  the 
ferment,  and  to  remove  those  of  my 
friends  whom  I  lo\'ed  and  regarded, 
from  the  scene  of  disturbance,  in 
order  that  they  might  not  be  impli- 
cated in  any  charge  that  might  after- 
wards be  brought  against  those  who 
were  the  authors  of  it. 

I  can,  therefore,  say,  in  the  pres- 
ence of  this  court,  and  under  the 
eyes     of     my    countrymen  —  that 


which,  in  the  name  of  my  God,  I 
have  already  sworn  —  that  I  am 
innocent  of  this  charge.  .   .   . 

Mr.  Attorney-General.  —  My  lords, 
in  this  stage  of  the  business,  I  have 
very  few  observations  to  offer  to 
your  lordships'  attention.  .  .  . 

Lord  Kenyon.  —  You  have  not 
alluded  to  any  particular  punish- 
ment that  you  supposed  to  be  an- 
nexed to  the  offense.  .  .  .  We  wish, 
on  a  future  day,  to  have  it  argued, 
whether  the  Court  have  any  dis- 
cretion in  the  sentence  tbey  are  to 
pronounce  ?  If  there  is  a  specific 
sentence,  our  discretion  is  taken 
away.  .  .  . 

Monday,  June  10th 

Mr.  Attorney-General .  —  My  lords, 
I  have  the  honor  of  addressing  your 
lordships,  on  the  part  of  the  pros- 
ecution, in  the  case  of  lord  Thanet 
and  Mr.  Fergusson,  and  to  inform 
you,  that  since  my  last  address  to 
the  Court  on  this  subject,  I  have 
received,  and  have  now  in  my  hand, 
his  majesty's  royal  command  to 
cause  to  be  entered  a  nolle  prosequi 
on  such  parts  of  this  information  as 
have  in  fact  raised  any  doubt 
whether  the  judgment  of  the  court  is 
discretionary.  My  lords,  in  obedi- 
ence to  his  majesty's  royal  will  and 
pleasure,  I  have  accordingly  caused 
to  be  entered  a  nolle  prosequi  on  the 
first,  second,  and  third  counts  of  the 
information.  .  .  . 

My  duty  at  present,  in  obedi- 
ence to  his  majesty's  commands,  is, 
to  pray  judgment  on  the  fourth  and 
fifth  counts  of  this  information.  .  .  . 

Mr.  Jtistice  Grose.  —  Sackville  earl 
of  Thanet  and  Robert  Fergusson, 
you,  and  each  of  you,  have  been 
found  guilty  of  a  misdemeanor,  by 
«i  verdict  of  a  jury  of  ;\'our  country, 
on  an  information  filed  against  you 
by  his  majesty's  attorney-general, 
charging  you  with  a  riot,  and  an 
endeavor,  in  open  court,  before  his 
majesty's  justices  of  Oyer  and  Ter- 
miner, to  rescue  Arthur  O'Connor 
out  of  the  custody  of  the  sheriff', 


No.  392. 


EARL    OF   THANET  S    TRIAL 


1079 


in  which  he  had  been  detained 
during  and  after  the  trial  for  high 
treason,  and  thereby  to  enable  him 
to  go  at  large.  There  are  some 
counts,  stating  it  to  have  been  ac- 
companied with  violence ;  but  of 
those  I  have  no  occasion  to  take 
notice.  Other  counts  charge  you 
with  having  made  a  riot  and  dis- 
turbance in  one  of  his  majesty's 
courts  of  justice,  and  interrupting 
and  obstructing  his  justices  in  the 
lawful  and  peaceable  holding  of 
that  court.  .   .   . 

To  the  nature  of  your  case  the 
Court  has  paid  great  attention  ;  and 
upon  the  most  mature  deliberation 
on  the  offenses  contained  in  the  two 
last  counts  of  this  information,  this 
Court  doth  order  and  adjudge  : 

That  you,  Sackville  Earl  of 
Thanet,  pay  to  the  king  a  fine  of 
One  Thousand  pounds ;  that  you 
be  imprisoned  in  the  Tower  of  Lon- 


don for  the  term  of  one  year,  and 
that  you  give  security  for  your  good 
behavior  for  the  space  of  seven  years, 
to  be  computed  from  the  expiration 
of  that  period,  yourself  in  the  sum 
of  ten  thousand  pounds  and  two 
sureties  in  five  thousand  pounds 
each ;  and  that  you  be  farther 
imprisoned  till  such  security  be 
given. 

The  sentence  on  you,  Robert 
Fergusson,  is,  that  you  pay  a  fine 
to  the  king  of  One  Hundred  pounds  ; 
that  you  be  imprisoned  in  his  ma- 
jesty's jail  of  the  King's  bench 
for  the  term  of  one  year;  and  that 
you  give  security  for  your  good  be- 
havior for  seven  years,  to  be  com- 
puted from  the  expiration  of  that 
period,  yourself  in  five  hundred 
pounds  and  two  sureties  in  two 
hundred  and  fifty  pounds  each,; 
and  that  you  be  farther  imprisoned 
till  such  security  be  given. 


1080 


PART    III.      PROBLEMS    OF   PROOF 


No.  393. 


393.  KNAPP'S  TRIAL.  (W.  &  S.  B.  Ives'  edition,  Salem,  1830,  for 
the  first  trial  and  the  arguments.  Dutton  &  Wentworth's  edition, 
Boston,  1830,  for  the  added  testimony  at  the  second  trial. ^) 


At  the  Supreme  Judicial  Court 
for  the  Commonwealth  of  Massachu- 
setts, holden  at  Salem,  on  the  second 
Tuesday  in  July,  a.d.  1830,  pur- 
suant to  an  Act  of  the  Legislature, 
passed  June  5,  1830, 
Present, 
Hon.  Isaac  Parker,  LL.D.,  Chief 

Justice. 
Hon.  Samuel  Putnam,  L.LD., 
Hon.  Samuel  S.  Wilde,  LL.D., 
Hon.  Marcus  Morton,      Justices. 

The  Grand  Jury  being  impan- 
eled and   sworn.  .  .  . 

Friday  Morning 

The  Grand  Jury  came  into  Court 
with  the  bills  which  they  had  found. 

The  prisoners,  John  Francis 
Knapp,  George  Crowninshield,  and 
Joseph  Jenkins  Knapp,  junior,  were 
then  placed  at  the  bar  and  the  fol- 
lowing indictment  was  read  by  the 
Clerk.   .  .   . 

To  this  indictment  thej'  severally 
pleaded  Not  Guilty.  And  at  the 
request  of  John  Francis  Knapp,  and 
Joseph  Jenkins  Knapp,  Franldin 
Dexter  and  William  H.  Gardner, 
Esquires,  of  Boston,  were  assigned 
to  them  as  Counsel ;  and  Samuel 
Hoar,  Esq.  of  Concord,  and  Ebenezer 
Shillaber,  Esq.  of  Salem,  were  as- 
signed to  George  Crowninshield  as 
Counsel  at  his  request. 

Tuesday,  July  27,  was  assigned 
for  the  trial.  The  prisoners  desired 
separate  trials. 

Tuesday  Morning,  August  3 
Present,    Putnam,    Wilde,    and 
Morton,  Justices. 

The  Attorney-General,  Perez  Mor- 
ton, entered  a  nolle  prosequi  upon 
the  Indictment  which  had  l)een 
found  against  the  prisoners,  upon 
which  they  had  been  arraigned  ;  and 
the  following  Indictment  was  re- 
turned by  the  Grand  Jury  :  .  .  . 


John  Francis  Knapp  pleaded  Not 
Guilty. 

Before  the  others  pleaded,  Mr. 
De.vter  suggested  that  they  were  in- 
dicted only  as  accessaries,  and  there- 
fore were  not  obliged  to  plead  before 
the  conviction  of  a  principal. 

The  Court  said  they  need  not 
now  plead. 

The  Attorney-General  then  moved 
that  Mr.  Webster  might  be  per- 
mitted by  the  Court  to  take  part 
in  the  cause  on  behalf  of  the  govern- 
ment, stating  briefly  the  reasons. 

The  Court  said  there  could  be  no 
objection  at  all.  .  .  . 

Counsel  for  the  Commonwealth  — • 
Hon.  Perez  Morton,  x\ttorney-Gen- 
eral ;  Hon.  Daniel  Davis.  Solicitor- 
General  ;  Hon.  Dayiiel  Webster. 

Joseph  J.  Knapp,  jr.,  and  George 
Crowninshield  were  then  remanded. 

Solomon  Nelson,  Esq.,  was  ap- 
pointed by  the  Court,  Foreman  of 
the  Jury. 

The  Clerk  then  read  the  Indict- 
ment. 

The    Attorney-General     then     ad- 
dressed the  Jury,  as  follows  : 
Gentlemen  of  the  Jury, 

The  charge  against  the  prisoner 
at  the  Bar,  is  for  the  murder  of  the 
late  Mr.  Joseph  White.  .  .  . 

It  is  not  to  be  wondered  at  that 
such  a  crime  should  have  produced 
an  uncommon  excitement  among  the 
citizens  of  the  place  of  its  atrocity, 
for  who  of  them  could  have  felt 
himself  safe  in  retiring  to  his  rest, 
unless  the  authors  of  this  abominable 
murder  were  detected  and  punished  ? 
And  it  affords  me  satisfaction  to  say, 
that  much  credit  is  due  to  the  Com- 
mittee of  Vigilance,  chosen  on  the 
occasion,  for  their  unwearied  ex- 
ertions to  obtain  that  end.  .  .  . 

The  perpetrators  of  this  atrocious 
murder  remained,  for  a  long  time, 


1  [For  the  loan  of  the  Dutton  &  Wentworth  pamphlet,  the  Compiler  is  indebted  to  the 
courtesy  of  the  Social  Law  Library  of  Boston.] 


A Howard  Street  Church 

B^ Essex  CofFee-Honse 

C J.  A.  Southwick'g  Houso 

D ^T.  Downing's  Housa  . 

Ropewalk  and  Steps 

F J.  Potter's  House 

G B.  Henderson's  House  and  Barn 

n D.  Bray's  Houso 

J Reside.vce  op  J.  White,  Esq. 

K M.  Newport's  House 

Irlt  Foley's  or  Frenderga3t  Boose. 


J.  P.  Sannderi,  Suneyor. 


No.   393.      KNAPP'S  TRIAL 


Open 


Shed 


Ground   or  Lower  Floor 
of  the  house 
of  the  late  Joseph  White. 


41.9 


A Window  Entered 

B^— Cbambor  occupied  by  Capt.  Wliite, 
over  Uie  Keeping;  Room. 


J.  J*.  Suundcrc,  Siirvajor. 


S9.6 


On    EfifwjT    Street 


T.  Daknd'8 


No.    393.      KNAPP'S   TRIAL 


No.  393. 


KNAPP  S   TRAL 


1081 


veiled  in  darkness  and  mystery, 
notwithstanding  the  efforts  to  detect 
them.  The  circumstances  under 
which  it  appeared  to  have  been 
committed  were  such  as  naturally 
created  suspicions  against  the  in- 
mates of  the  family ;  for  it  was 
found  that  nothing  had  been  taken 
away,  that  no  actual  violence  had 
been  committed  in  entering  the 
house,  that  the  iron  bar,  with 
which  the  window  where  the  assas- 
sin entered  was  usually  fastened, 
was  taken  down  and  carefully  placed 
against  the  side  of  the  window.  .  .  . 

The  first  suspicion  fell  upon  the 
son  of  Mrs.  Beckford,  who  was  the 
niece  and  housekeeper  of  the  de- 
ceased ;  but  on  inquiry  it  was  found 
that  he  could  have  no  concern  in  it, 
not  having  been  in  a  situation  to 
render  it  possible. 

The  breath  of  scandal,  spread, 
no  doubt,  as  since  appears  to  have 
been  his  intention,  by  the  prime  in- 
stigator of  the  murder,  to  cover  his 
own  atrocity,  imputed  this  deed  of 
death  to  the  favorite  nephew  and 
'  principal  heir  of  the  deceased,  Mr. 
White ;  but  the  filial  and  parental- 
like  affection  which  was  known  to 
subsist  between  this  uncle  and 
nephew  .  .  .  soon  dissipated  this 
ephemeral  slander,  leaving,  how- 
ever, on  this  honorable  mind  an  em- 
bittered regret,  that  any  one  for  a 
moment,  could  suppose  him  capable 
of  so  dark  and  horrid  a  crime.   .  .  . 

But  not  a  conjecture  waswhispered, 
that  I  ever  heard,  against  the  real 
authors  of  the  murder,  until  a  letter 
was  handed  to  the  Committee,  under 
the  signature  of  one  Grant,  but 
really  written  by  Palmer,  whom  you 
will  have  as  a  witness  upon  the  stand, 
dated  at  Belfast,  May  12th,  post- 
marked May  13th,  directed  to  J.  J. 
Knapp,  not  having  the  addition  of 
junior  to  it ;  and,  by  that  means,  it 
was  handed  to  the  Committee  by 
the  father,  for  whom  it  was  not 
intended.  We  are  not  now  about 
to  give  any  account  of  the  contents 
of  this  letter,  but  only  to  say,  that  in 
consequence  of  it,  and  by  some  ad- 


<lress  of  management  by  the  Com- 
mittee, Palmer  was  arrested  at 
Belfast,  as  having  some  concern  in 
the  murder,  or  as  having  knowledge 
of  the  persons  who  were  the  per- 
petrators, and  the  two  Knapps  were 
arrested,  charged  with  being  deeply 
implicated  in  the  fact.  .  .  . 

After  the  two  Knapps  were  ar- 
rested, at  the  request  of  several  re- 
spectable citizens  of  Salem,  I  au- 
thorized in  writing  the  Ilev.  Mr. 
Colman  to  receive  the  free  and 
voluntary  disclosures  of  any  one 
of  the  individuals  charged,  without 
naming  any  one;  and  giving  him 
authority  to  say  that  on  condition 
of  his  disclosing  the  whole  truth  and 
nothing  but  the  truth  respecting 
the  murder,  I  would  call  him  as  a 
witness  on  the  trial,  and  that  being 
a  witness,  he  would  have  the  implied 
pledge  of  the  Government,  not  to 
be  prosecuted  for  that  offense. 
In  consequence  of  this  authority, 
Mr.  Colman  received  the  voluntary 
disclosure  of  J.  J.  Knapp,  jr.,  in 
writing :  accordingly,  to  redeem 
the  pledge  on  the  part  of  the  Govern- 
ment, I  have  called  him  before  the 
Grand  Jury,  at  this  term,  as  a 
witness,  to  give  evidence  as  he  has 
disclosed  :  but,  by  the  advice  of  his 
Counsel,  he  refused  to  testify  there, 
saying  he  was  not  bound  to  criminate 
himself.  .  .  . 

It  is,  however,  altogether  im- 
material, whether  the  prisoner  at 
the  Bar,  actually  gave  the  mortal 
blows,  provided  he  was  present, 
aiding  and  abetting  the  person,  who 
inflicted  them.  He  is  charged  both 
ways.  .  .  .  After  proving  the  nmr- 
der,  I  shall  move  that  J.  J.  Knapp, 
jr.,  be  brought  into  Court  as  a 
witness.  .   .   . 

Benjamin  White  was  then  sworn, 
and  testified  :  He  was  a  servant  of 
Capt.  White.  On  W' ednesday  morn- 
ing, 7th  of  April,  about  6  o'clock 
I  came  down  into  the  kitchen,  and 
on  opening  the  shutters  of  the 
eastern  window,  saw  the  back  win- 
dow of  the  northeastern  room 
open,   and   a  plank  put   up  to  the 


1082 


PART    III.       PROBLEMS    OF    PROOF 


No.  39.3. 


window.  I  went  into  the  front  room, 
but  .saw  no  appearance  of  any  one 
having  been  there.  I  then  went  to 
Miss  Kimball's  (the  maidservant's) 
room,  and  told  her,  and  then  went 
into  Mr.  White's  chamber  at  the 
back  door,  and  saw  that  his  door, 
opening  into  the  front  entry,  was 
open,  and  that  he  was  murdered. 
I  then  went  down,  and  told  Miss 
Kimball  that  Mr.  White  was  gone. 
His  face,  when  I  first  saw  him,  was 
very  pale  —  the  bedclothes  were 
turned  down.  I  think  I  saw  some 
blood  upon  the  side  of  the  bed,  or 
on  his  fiannel.  I  then  went  to  Mr. 
^Mansfield's  door,  who  lived  op- 
posite, and  knocked  —  then  to  Mr. 
Deland's,  then  to  Dr.  Johnson's,  and 
then  to  Mr.  Stephen  White's.  .  .   . 

On  the  afternoon  before  the  mur- 
der, I  was  at  the  farm,  in  Beverly, 
with  Mr.  White  —  we  were  there 
several  hours ;  came  home  a  little 
before  night,  about  o  o'clock.  The 
window  which  I  found  open,  was 
up  21  or  22  inches  —  the  shutter, 
which  opened  very  hard,  was  open 
some  way,  and  it  was  sometimes 
left  open  two  or  three  days  to- 
gether —  the  window  was  fastened 
by  a  screw,  and  the  shutter  by  a  bar. 
I  found  this  bar  standing  by  the 
right  side  of  the  window.  Mrs. 
Beckford  is  a  niece  of  Capt.  W'hite, 
and  lived  with  him.  She  is  a 
middle-aged  lady.  Miss  Kimball,  a 
domestic,  and  myself,  were  all  who 
lived  in  the  house  with  Mr.  White  — 
his  chamber  was  over  the  south- 
west parlor  fthe  keeping  room)  — 
the  house  faces  south,  on  E.ssex 
street,  is  three  stories  high  —  Mr. 
White's  chamber  has  two  doors,  one 
opening  from  the  end  entry,  and  the 
other  from  the  front  entry  —  it  has 
also  four  windows,  two  southern, 
one  western,  and  one  northern,  look- 
ing into  the  yard. 

Mr.  IVeh.fter  then  called  ,/.  P. 
Hnunders,  Esq.,  the  Surveyor,  wlio 
swore  that  the  plans  of  the  house  and 
premises  were  correct.  Mr.  Webster 
then  explained  these  to  the  Jury. 

(Witness  continued.)  —  I  was    at 


the  kitchen  window  when  I  saw  the 
back  parlor  window  up  —  that  room 
was  very  little  used.  The  room.s 
commonly  used  were  the  S.  W. 
parlor  —  Mr.  W'.'s  chamber  over 
that  —  the  maid's  over  Mr.  W'.'s. 
Mrs.  Beckford 's  chamber  over  the 
kitchen,  and  mine  over  Mrs.  B.'s. 
The  chambers  on  the  eastern  side 
were  unoccupied,  except  when 
strangers  were  at  the  house.  Mrs. 
B.  was  at  Wenham  on  the  night 
of  the  murder  —  she  went  away 
about  12  o'clock  that  day.  The 
window  which  was  opened,  and  at 
which  the  plank  was  put,  was  the 
one  nearest  the  back  door.  Mr. 
W.  went  to  bed  that  night  rather 
later  than  usual,  about  20  minutes 
before  10  —  his  usual  hour  was 
about  9.  He  was  82  years  old  and 
in  some  measure  deaf  —  the  left  ear 
was  deafer  than  the  right.  .  .   . 

The  head  of  his  bed  was  against 
the  eastern  wall  of  the  chamber, 
near  the  door  which  opened  into 
the  front  entry,  so  that  any  one 
entering  that  door  would  come  be- 
hind Mr.  W.  if  he  was  lying  upon  his 
right  side.  Mrs.  Beckford's  fur- 
niture was  in  the  back  parlor,  which 
was  entered.  In  Capt.  W.'s  cham- 
ber there  are  shutters  to  all,  and 
blinds  to  the  front  and  western 
windows  —  I  did  not  notice  the 
state  of  the  windows  that  morning, 
but  the  blinds  were  open  and  the 
room  was  light  enough  to  see  when 
I  entered.  I  knew  that  Mrs.  B. 
was  going  to  Wenham,  for  she  had 
spoken  of  it  two  or  three  days  be- 
fore. I  went  to  bed  the  night  of 
the  murder  immediately  after  Capt. 
White  went.  It  was  about  a  quarter 
before  10  o'clock.  I  went  without 
a  liglit.  I  left  Miss  Kimball  raking 
up  the  fire,  and  as  I  went  up  I  looked 
into  the  keeping  parlor  at  the  clock. 
There  is  an  avenue  and  two  doors 
on  the  west  end  of  the  hou.se,  and 
to  get  at  the  openerl  window,  one 
must  pass  along  that  and,  through 
the  avenue,  through  a  garden  gate, 
round  the  buildings,  and  up  the 
garden  to  it.     There  are  no  blind.s 


KNAPr  S   THIAL 


1083 


\o  my  rhaiiihor        thoiv  is  a  shutter 
at  my  rast  window,  luit  none  at  tlu' 

Wl'St. 

Cross-txamiiiatioii.  —  Mr.  \Vhiti> 
wont  t'ri>m  iho  kitvluMi  to  liis  sittiiij; 
roi>m,  ami  thnnigh  his  nuMii  to  hoih 
After  ho  hail  rotiri>il  1  know  what 
o'olook  it  was,  luwiuso  1  looked  at 
tlu-  olook,  N\>  one  ealloil  at  the 
house  on  the  e\  eniiiL;  |>re\i(>iis  to  the 
miiriler  do  no\  know  that  Mr. 
\\  .  sat  lip  laie  expei'tini;  any  one. 
The  street  door  was  usually  kept  fas- 
tened all  the  e\  eniuir,  exeopt  the  lat- 
ter part  o{  it.  tor  whott  Mr.  W.  eanie 
in  he  u-^ed  to  lea\e  it  nnfasten<.\l 
till  he  went  to  bed.  The  rolatixes. 
Mr.  .<.  ^Vhite's  family  and  Mrs 
Heekford's  friends,  passed  in  and 
out  without  knoekinj:;  —  I  saw 
Jost'ph  Knapp  there  onee  i">r  twiee 
within  two  months  before  the  nuu-- 
iler.  I'rank  Knapp  very  seldom 
eame  there.  Mr.  \V.  never  kept 
his  lamp  burning  all  ni^ht.  It  was 
not  (.'apt.  NVhiteV  habit  to  keep  a 
licht  or  hre  in  his  n>om  duritis:  the 
night  —  there  were  shutters  to  all 
his  windows,  and  to  the  north  win- 
dow shutter  there  is  a  bar.  and  this 
is  the  oitly  one  whieh  has  a  bar. 
The  weather,  when  1  went  to  beii. 
wtus  oxereast.  The  shovel  and 
tonp^  had  btHMv  renioveil  froni  the 
ehaiuber  and  thorv^  was  no  poker 
there  —  then^  wa:>  one  in  the  rooni 
below.  There  is  nothing  between 
my  ohaiubor  tmd  Capt.  W.'s  but 
an  entrx  and  stairea^te  —  I  heanl 
no  noise  during  the  night  —  I  don't 
rtHx^lUvt  telling  any  person  that 
some  gi^iitlemen  wert^  there  or  that 
any  one  wa.-^  ex^nx'tixl  on  the  day 
of  the  muriier  —  I  don't  know  who 
haii  Ihvu  then^  during  the  day 
—  did  Jiot  hear  or  stv  Mr.  AV.  after 
he  went  upstairs  —  Miss  Kimball 
had  nearl^v  raketl  up  the  fire  when 
I  went  up  —  I  did  not  hear  her  go 
to  IhhI  nor  see  a  Hght  in  lier  n>oin 
when  I  went  up  —  I  saw  Frank 
Knapp  a  day  or  two  after  tlie  nuir- 
der  —  he  ssU  up  with  the  Uxi\-  and 
was  in  the  house  some  time  every 
day  —  i  s;»t  up  with  him  one  night 


and  don't  remetnber.  who  else  ever 
sat  up  with  him  —  he  assisted  at 
the  fimeral.  There  was  nothing 
mi.ssiitg  from  the  house  after  the 
murder,  and  there  was  money  in 
Mr.  \\  .'s  ehamber.  about  a  week 
before  the  nun-tier.  1  foimd  the 
window  whieh  was  entered  fastened 

—  knew  that  it  was  so  by  putting 
my  finger  over  ami  feeling  the  serew^ 

—  it  had  not  boon  imbarred.  to  my 
knowledge,  before  the  mm*der. 

l\t(.ra»iiiiiii  hi/  Gorrnniinit.  —  I 
had  seen  Jos.  Knapp  there  within 
two  or  three  weeks  previous  to  the 

mm-dei he    usually     I'ame    when 

Mr.  White  was  not  at  home,  about 
fom-  in  the  afternoon  —  he  married 
a  daughter  of  Mrs.  Beokford  —  he 
had  free  access  to  all  the  rooms 
when  the  family  were  out  —  we 
usually  kept  fastened  both  front 
and  baek  doors  —  Joseph  eame  into 
Innh.   .   .   . 

Lijdia  Kiiiihall  {a  domestic')  was 
then  sworn.  I  diil  not  hear  any 
noise  during  the  night  —  the  man 
eame  to  my  docn-  and  told  me  that 
some  one  had  been  into  the  house, 
for  that  the  baek  window  was  up ; 
1  N\  out  down  into  the  front  room  to 
stv  if  anything  had  btvn  stolen  ;  told 
him  to  go  up  and  tell  Mr.  White — he 
eame  down  anil  told  me  to  be  calm 

—  that  Mr.  W.  had  gone  to  the 
eternal  world  —  he  then  went  to 
call  the  neighbors  —  I  did  not 
see  Mr.  \V.  till  I  was  called  before 
the  Jury  of  Inquest.  ^Irs.  Beckford 
left  the  house  on  Tuesday,  the  day 
previous  to  the  nuirtier.  about  half 
past  1 1  o'clock  —  she  told  me,  a  day 
or  two  before,  that  she  was  going 
to  W"enham  —  Mrs.  Knapp  came 
down  for  her.  I  went  to  bet!  that 
night  rather  before  10.  There  are 
blinds  and  shutters  to  my  room ; 
the  blind  on  the  west  side  was  shut, 
but  all  the  others,  and  all  the  shut- 
ters, were  open.  —  In  Capt.  W.'s 
nx>m  all  the  shutters  were  open 
except  one  half  of  the  one  nearest 
his  beil,  which  was  a  front  window 

—  that  day  when  I  made  the  bed 
all  the  blinds  were  open,  except  the 


1084 


PART    III.       PROBLEMS   OF    PROOF 


No.  393. 


western  ones,  and  I  have  not  seen 
them  since.  It  was  Mr.  W.'s  usual 
hal)it  to  have  all  the  shutters  open 
but  the  half  one  I  have  mentioned. 
He  usually  went  to  bed  about 
9.30.  I  lived  with  him  more  than 
sixteen  years.  I  could  generally 
tell  when  he  was  awake,  if  I  myself 
was  so,  by  a  kind  of  cough  or  hem 
which  he  had  when  awake,  which 
was  usually  in  the  latter  part  of  the 
night  —  I  don't  recollect  hearing 
him  ever  early  in  the  night  —  I  had 
nothing  to  do  with  the  room  which 
was  entered  —  it  was  Mrs.  B.'s, 
and  not  much  used  —  the  chambers 
over  that  side  of  the  house  were  un- 
occupied. Capt.  W.  was  deaf  in 
his  left  ear. 

Cross-examined.  —  I  think  Capt. 
White  went  to  bed  a  little  before 
ten,  on  the  night  of  the  murder  — 
the  northern  window  of  his  chamber 
was  shut  and  barred  in  the  winter 
and  opened  in  the  spring  —  I  can't 
say  exactly  what  time  it  was  un- 
barred this  spring  —  my  room  is 
over  Mr.  White's  and  has  the  same 
number  of  doors  and  windows  — 
no  one  called  at  the  house  that  day 
after  one  o'clock  —  the  gentleman 
who  called  then  did  not  say  he 
should  call  again.  Capt.  W.  did 
not  lock  his  door  usually,  but  there 
was  a  key  in  it  —  I  generally  heard 
him  shut  it  —  I  did  that  night  — 
he  usually  put  his  candle  on  the 
table  between  the  windows. 

Dr.  Samuel  Johnson  called  and 
sworn. 

I  was  called  about  6  o'clock, 
to  Capt.  White's  ^  was  told  that 
he  was  murdered.  I  went,  and 
entered  with  Mr.  Stephen  W^hite. 
I  went  to  Capt.  White's  chamber, 
and  found  him  lying  on  his  right 
side,  or  nearly  so,  and  nearly  diag- 
onally to  the  bed.  There  was  a 
mark  of  considerable  violence  on 
his  left  temple.  I  noticed  that 
the  bedclothes  were  laid  slantwise, 
square  across  the  body,  and  diag- 
onally to  the  bed.  He  lay  with 
his  feet  towards  the  left  lower  post 
of  the  bed,   and  his  head  towards 


the  right  head  post.  His  head  was 
towards  the  closet,  and  on  the  right 
side,  on  the  pillow ;  on  throwing  off 
the  bedclothes,  I  saw  that  the  back 
of  his  left  hand  was  under  his  left 
hip,  and  there  was  considerable 
blood  on  the  bed ;  he  also  had  bled 
a  little  from  the  nose.  Nothing 
further  was  then  done.  I  told  Mr. 
Stephen  White  that  an  inquest 
should  be  called.  In  presence  of 
the  Coroner's  Jury,  the  shirt  was 
stripped  off,  and  the  body  exposed. 
We  found  five  stabs  in  the  region  of 
the  heart,  three  in  front  of  the  left 
pap,  and  five  others,  still  farther 
back,  as  though  the  arm  had  been 
lifted  up,  and  the  instrument  struck 
underneath  it.  I  examined  a  num- 
ber of  the  stabs  with  a  probe,  and 
found  that  it  would  penetrate  from 
one  to  three  inches.  It  was  my 
belief  at  the  time,  that  either  the 
wound  on  the  head,  or  the  stabs, 
would  have  caused  death.  The 
wound  on  the  forehead  was  not 
very  perceptible,  except  to  touch. 
Upon  feeling  I  could  perceive  that 
the  bone  was  fractured.  I  was  con- 
vinced at  the  time,  that  it  was  suffi- 
cient to  cause  death.  Afterwards, 
a  more  minute  examination  was 
made ;  the  scalp  was  removed,  and 
we  found  a  fracture  of  an  oval  shape, 
in  the  temple,  three  and  three  fourth 
inches  long,  and  two  and  one  half 
inches  broad.  A  portion  of  the 
temple  was  broken  in,  some  fractures 
extending  upwards,  towards  the 
back  of  the  head,  and  another  down, 
towards  the  face.  Upon  opening  the 
chest,  it  was  found  that  two  of 
the  wounds  had  penetrated  the 
walls  of  the  heart,  without  reaching 
the  cavity  —  I  have  no  doubt  that 
either  would  have  produced  death. 
The  instrument  which  gave  the  blow 
on  the  head  was  probably  some 
smooth  instrument,  like  a  loaded 
cane,  that  would  give  a  heavy  blow, 
without  breaking  the  skin,  and  the 
instrument  used  in  giving  the  wounds 
in  the  side  was  probably  a  dirk. 
On  the  second  examination,  we 
found   thirteen  stabs,   six  in  front, 


No.  393. 


KNAPP  S   TRIAL 


1085 


and  seven  farther  back,  about  three 
inche.s  from  the  others,  near  to  the 
spine.  We  found  three  of  the  ribs 
fractured,  most  probably  done  by  the 
hilt  of  the  dirk.  There  was  no  ap- 
pearance of  a  struggle,  it  appeared 
a  case  of  instant  death.  I  was 
desired  by  Mr.  Stephen  White,  to 
look  on  and  see  the  iron  chest  and 
trunk  examined,  and  also  the  foot- 
print and  window.  The  window 
was  open.  I  saw  two  footprints, 
both  directed  towards  the  wall  of 
the  house.  There  was  a  plank  set 
up,  diagonally,  the  bottom  of  it 
about  two  feet  from  the  sill.  There 
were  no  marks  of  wet  feet,  but  a  little 
dampness  on  the  floor,  where  it  had 
rained  in. 

Cross-examined.  —  The  inquest 
was  holden  about  an  hour  after  I 
went  to  the  house.  The  second 
examination  took  place  thirty-six 
hours  after  death.  The  stabs  were 
grouped ;  one  group  of  five  was 
within  the  compass  of  three  inches. 
On  the  first  examination,  the  wound 
on  the  head  was  not  very  perceptible, 
except  to  the  touch.  On  the  second 
examination,  it  was  more  prominent ; 
there  then  appeared  to  be  more  air 
in  the  cellular  membrane. 

The  footprints,  I  believed  at  the 
time,  were  made  by  the  person  when 
he  put  up  the  plank  ;  they  were  not 
near  together,  and  were  those  of 
a  right  and  left  foot.  There  was  no 
appearance  of  more  than  one  weapon 
having  been  used  in  giving  the  stabs. 
The  front  wounds  gaped  more  than 
the  others,  and  were  three  fourths 
of  an  inch  wide.  The  first  examina- 
tion (that  before  the  Jury  of  Inquest 
was  held)  was  hasty.  The  head 
was  then  lying  on  its  right  side,  . 
partially,  but  not  fully,  and  a  little 
back.  I  suppose  the  arm  was 
drawn  back  when  the  stabs  were 
given,  because  it  covered  them 
when  I  first  saw  him.  The  bod}' 
was  nearly,  but  not  quite,  cold,  and 
there  was  no  pulse.  The  human 
body  retains  its  heat  for  some  time, 
if  covered  up.  Mr.  White  was  an 
old  man,  but  he  was  rather  fleshy. 


The  blow  on  the  head,  by  checking 
the  circulation,  probably  prevented 
the  loss  of  blood.  From  all  the 
circumstances,  my  first  opinion  was, 
that  it  had  been  done  three  or  four 
hours.  There  was,  however,  noth- 
ing to  prevent  its  having  been  done 
six  or  eight  hours.  My  first  im- 
pression was  that  he  had  lost  more 
blood  than  we  afterwards  found  he 
had. 

The  Attorney-General  then  called 
Joseph  J.  Knapp,  jr.,  as  a  witness, 
and  inquired  of  him,  if  he  was  willing 
to  be  sworn.  He  answered  in  the 
negative,  and  the  Attorney-General 
was  proceeding  to  inquire  the  rea- 
son, which  was  objected  to  by  Mr. 
Dexter. 

The  Court  said  he  was  not  obliged 
to  state  his  reasons  for  refusing.  It 
is  only  necessary  that  this  should  be 
understood,  so  that  there  may  be 
no  difficulty  hereafter.  The  Govern- 
ment say  thay  have  pledged  them- 
selves not  to  proceed  against  him 
if  he  would  testify ;  he  does  not 
testify,  and  now  that  pledge  is  re- 
called. .  .  . 

Benjamin  Leighton  sworn. 

I  have  lived  with  Mr.  Davis,  at 
Wenham,  at  the  house  where  Mrs. 
Beckford  and  Joseph  J.  Knapp 
jr.'s  family  live,  since  the  6th  of 
October  last.  Knapp's  family  came 
there  to  live  a  few  days  after  I  went. 
About  a  week  before  Capt.  White 
was  murdered,  I  went  down  to  the 
lower  end  of  the  avenue,  got  over 
the  wall,  and  sat  down  by  the  side 
of  the  gate,  that  is  across  the  avenue. 
I  sat  a  few  minutes,  and  then  heard 
men  talking  the  other  side  of  the 
wall.  I  looked  round  through  the 
slats  of  the  gate,  and  saw  the  two 
Knapps  coming  down  the  avenue. 
When  they  came  near  the  gate, 
Joseph  said,  "When  did  you  see 
Dick?"  Frank  said,  "I  saw  him 
this  morning."  Joseph  said,  "  When 
is  he  going  to  kill  the  old  man?" 
Frank  answered,  "I  don't  know." 
Joseph  said,  "  If  he  does  not  kill  him 
soon,  I  will  not  pay  him;"  —  then 
thev  turned    back,  and   I  did  not 


1086 


PART   III.      PROBLEMS   OF  PROOF 


No.  393. 


hear  anything  more.  This  was  about 
two  o'clock  in  the  afternoon ;  I  had 
been  to  dinner.  It  was  the  Fri- 
day before  C'apt.  White  was  mur- 
dered, I  think ;  it  was  within  the 
week  previous  to  the  murder.  They 
did  not  know  that  I  wa.s  there  ;  I  was 
waiting  for  Mr.  Davis,  to  go  to  work. 
I  shall  be  eighteen  years  old  the 
30th  of  next  December.  I  am  under 
no  mistake  about  the  conversation ; 
I  am  sure  of  the  persons.  Jos.  J. 
Knapp,  jr.,  has  lived  in  the  house 
where  I  lived.  John  Francis  Knapp 
came  to  the  house  frequently. 
Frank  came  up  to  Wenham  one 
evening,  after  the  murder,  in  a  chaise, 
about  nine  o'clock ;  this  was  about 
a  fortnight  or  three  weeks  after  the 
murder.  I  believe  Mrs.  Beckford 
was  living  there  then.  There  was  a 
gentleman  in  the  chaise  at  the  door; 
I  did  not  know  him,  but  he  was  a 
slim  man,  not  so  thick  as  Frank 
Knapp.  I  went  to  the  door  when 
the  chaise  drove  up  —  Frank  got 
out  and  went  in,  and  asked  if  his 
brother  Joseph  was  at  home.  Jo- 
seph Beckford  said  he  was.  Joseph 
Knapp  met  Frank  at  the  inner  door, 
and  they  went  into  the  room  to- 
gether, and  shut  the  door.  They 
were  together,  I  should  think,  an 
hour  ;  nobody  was  in  the  room  with 
them.  Frank  Knapp  knocked ;  I 
went  to  see  who  was  at  the  door. 
The  other  person  sat  in  the  chaise 
all  the  time ;  they  did  not  give  the 
horse  anything;  they  both  drove 
away  together,  down  the  avenue ; 
I  could  not  tell  which  way  they  went. 

Cross-cxaminvd. 

The  house  is  about  fifty  rods  from 
the  road ;  I  heard  the  conversation 
near  the  gate  to  the  pasture,  at  the 
lower  end  of  the  avenue.  I  had 
just  come  from  dinner;  Mr.  Davis 
was  in  the  house  at  the  time. 
Joseph  and  Frank  were  standing 
by  the  gate,  near  the  hou.se,  as  I 
passed  down  the  avenue  —  when  I 
got  down  the  avenue,  they  came 
down.  I  was  sitting  under  the 
wall,  to  wait  for  Mr.  Davis,  and  to 
take  a  little  nooning,  I  mean  a  little 


rest.  I  passed  them  and  went 
down  the  avenue,  went  through  the 
gate,  and  hasped  it,  and  sat  down 
behind  the  wall.  I  did  not  say  any- 
thing to  Mr.  Davis  about  the  con- 
versation I  had  heard.  I  have  been 
called  upon  to  tell  what  I  knew 
about  it,  by  Mr.  Waters  and  an- 
other gentleman  I  did  not  know ; 
they  sent  for  me  to  come  to  Mr. 
Waters's  office ;  I  told  them  I  could 
not  recollect,  at  that  time,  that 
I  had  ever  told  anything  about  it. 
I  did  not  tell  them  I  knew  nothing 
about  it.  I  was  in  his  office  in  the 
forenoon  and  afternoon,  and  stayed 
at  the  Lafayette  Coffeehouse  at 
noon. 

The  gate,  where  I  left  the  Knapps 
standing,  is  in  front  of  the  house, 
and  opens  into  the  avenue.  I  went 
down  the  avenue  towards  the  pas- 
tures, not  towards  the  road,  went 
out  of  the  avenue  over  the  wall,  by 
the  gate.  This  gate  could  not  be 
seen  from  the  place  where  the  Knapps 
stood.  The  house  makes  one  side 
of  the  avenue,  which  is  narrower  at 
that  place.  The  gate,  at  which  the 
Knapps  were  standing,  is  about 
forty  feet  from  the  house.  The 
gate,  where  I  got  over,  is  fifty 
rods  from  the  house.  They  could 
not  see  me  when  I  got  over  the  wall ; 
the  house  hides  the  place,  and  stands 
out  into  the  avenue,  or  the  fence 
retreats.  I  know  they  could  not 
see  me  get  over  the  wall,  because  I 
have  tried  since.  I  tried,  because 
if  they  did  see  me,  and  knew  I  heard 
them,  I  was  afraid  they  would  kill 
me. 

I  first  saw  Mr.  Waters  a  week  ago 
last  Thursday  :  I  was  summoned  by 
a  man  from  Lynn,  and  carried  to 
Mr.  Waters's  office.  They  asked 
me  if  I  recollected  telling  Mr, 
Starrett  anything.  I  told  them  I 
did  not.  I  believe  I  did  not  tell 
them  I  did  not  know  anything  about 
it.  I  went  to  Mr.  Waters's  office 
about  11  o'clock,  and  stayed  till 
2.  Mr.  Starrett  was  there,  and 
they  talked  with  him.  They  asked 
me  if  I  knew  anything  about  Frank 


No.  393. 


KNAPP'S   TRIAL 


1087 


Knapp.  I  told  them  I  did  not. 
I  was  asked  if  Richard  Crownin- 
shield  had  been  at  the  farm,  and  I 
said  I  did  not  know  him.  They 
asked  me  if  I  had  told  Starrett  any- 
thing about  it,  and  I  told  them  I 
did  not  recollect  telling  him  any- 
thing. I  did  not  then  remember 
that  I  had  told  Starrett  anything 
about  it,  and  I  told  them  so.  They 
bothered  and  frightened  me  talking 
to  me,  and  I  could  not  remember. 
Mr.  Starrett  told  Mr.  Waters  that 
I  had  told  him  something,  but  I 
could  not  recollect  it,  and  told  them 
so.  They  said  Mr.  Starrett  and 
Dr.  Kilham  were  in  the  shop  when 
I  said  so.  I  told  Mr.  Waters  I  did 
not  recollect  it,  but  if  he  would  come 
up  the  next  day,  I  would  tell  him 
all  that  I  knew.  I  then  remembered 
what  I  have  testified,  but  did  not 
calculate  to  tell  anything  about  it. 
I  went  to  Mr.  Waters's  office  again 
in  the  afternoon,  about  5  o'clock. 
From  2  to  5  I  was  at  the  Tavern. 
Mr.  Starrett  and  Mr.  Waters  were 
at  the  office  in  the  afternoon.  Mr. 
Starrett  asked  me  if  I  could  not 
recollect  what  I  said  in  his  shop. 
I  told  him  I  could  not.  They  said 
Dr.  Kilham  and  Mr.  Starrett  were 
in  the  shop,  and  heard  what  I  said. 
They  did  not  question  me  any  fur- 
ther. I  stayed  there  till  sun  about  an 
hour  high ;  I  was  there  an  hour  or 
more.  The}'  did  not  tell  me  any- 
thing would  be  done  to  me,  if  I  did 
not  tell  what  I  knew,  but  said  I  must 
come  to  Court. 

I  told  Starrett,  because  I  spoke 
before  I  thought.  I  saw  Mr.  Waters 
again  last  Saturday,  at  Lummus's 
tavern,  in  Wenham.  He  came  there 
with  Mr.  Choate  and  Mr.  Treadweil. 
They  wanted  me  to  tell  what  I 
knew.  I  told  them  I  had  been  down 
to  Salem,  but  could  not  recollect 
then  ;  I  was  in  a  strange  place,  and 
frightened.  They  talked  to  me  so, 
that  I  could  not  recollect.  Then  I 
recollected  what  I  had  told  Starrett, 
and  told  them  the  same  story  I  have 
told  to-day.  I  believe  they  asked 
nie  but  once.     I  told  them  at  once 


what  I  knew.  They  did  not  tell 
me  they  had  a  warrant  against  me. 
IVIr.  Davis  afterwards  told  me  they 
would  carry  me  ofi",  if  I  did  not  tell 
all  I  knew ;  they  did  not  threaten 
me. 

The  day  I  heard  the  conversation 
between  the  Knapps,  I  was  going  to 
splitting  rocks.  They  were  on  one 
side  of  the  wall  and  I  on  the  other. 
I  looked  round  beyond  the  wall, 
and  through  the  slats  of  the  gate. 
I  did  not  wish  they  should  not  see 
me.  They  were  halfway  between 
the  house  and  the  gate  when  I  heard 
their  voices,  and  looked  round  to  see 
M'ho  they  were.  They  walked  down 
to  within  three  or  four  feet  of  the 
wall.  I  heard  nothing  else,  that  I 
could  understand.  They  stood  by 
the  wall  two  or  three  minutes,  and 
then  went  back.  It  was  after  they 
stopped  that  I  heard  what  I  have 
testified.  I  did  not  tell  the  con- 
versation to  anybody  before  the 
murder.  I  could  not  think,  till 
after  the  murder,  what  it  was  about. 
I  stayed  by  the  wall  till  the  Knapps 
had  passed  out  of  sight.  Mr.  Davis 
came  down  after  I  had  gone  to  work. 

On  the  evening  when  F'rank  came 
to  Wenham,  with  another  person, 
it  was  dark,  and  the  chaise  top  was 
up.  I  could  see  that  the  man,  who 
sat  in  the  chaise,  was  a  slim  man. 

Reexamined.  —  On  the  day  after 
the  murder,  I  went  into  Starrett's 
shop,  and  he  said,  "  What  is  the  news 
about  the  murder?"  I  said,  they 
think  I  don't  know  anything  about 
it,  but  I  know  a  little  more  than  they 
think  I  do.  I  spoke  before  I  thought. 
I  was  unwilling  to  say  •  anything 
more  because  if  they  got  hold  of 
this,  I  was  afraid  they  would  kill 
me.  Frank  used  to  be  round  me, 
with  his  dirk,  and  pricking  me  with 
it  —  he  did  this  more  than  once, 
and  other  persons  saw  it.  Thomas 
Hart  saw  it.  The  first  time  I  told 
the  conversation  to  anybody,  it 
was  to  Hart,  and  it  was  not  long 
ago.  I  next  told  it  to  Mr.  Waters. 
I  told  Starrett  I  overheard  some- 
thing,  but  did  not  tell   him  what. 


1088 


PART   III.       PROBLEMS    OF    PROOF 


No.  398. 


This  was  when  going  home  from 
Salem  ;  before  this,  I  had  told  Hart, 
down  in  the  field.  No  threat  has 
been  used  to  make  me  testify.  I 
was  frightened  when  I  was  carried 
to  Mr.  Waters's  office,  for  I  was 
taken  suddenly,  and  from  the  field 
—  they  carried  me  by  the  Court- 
house, but  the  Grand  Jury  had 
been  dismissed.  The  officer  read 
the  summons  to  me  when  he  took 
me. 

Cross-examined  again.  —  The  first 
time  I  saw  Francis  Knapp  have  a 
dirk  was  after  he  was  attacked  at 
Wenham  Pond,  after  the  murder. 
Starrett  did  not  ask  me  what  I  knew, 
did  not  ask  me  what  I  had  overheard. 
I  am  afraid  now,  if  the  Knapps  get 
clear,  they  will  kill  me.  I  heard 
there  was  a  reward  offered.  I  told 
Mr.  Starrett  before  I  heard  of  the 
reward,  but  did  not  tell  the  con- 
versation till  afterwards.  I  did  not 
know  what  the  reward  was. 

Rev.  Henry  Colman,  sworn. 

I  had  no  personal  acquaintance 
with  the  prisoner  until  the  28th 
of  May,  when  he  was  examined  before 
Justice  Savage.  On  the  afternoon 
of  that  day,  I  went  to  his  cell  with 
his  brother,  Phippen  Knapp,  at 
his  (Phippen's)  request.  When  we 
went  in,  Phippen  said,  "Well,  Frank, 
Joseph  has  determined  to  make 
a  confession,  and  we  want  your  con- 
sent." I  am  not  able  to  give  the 
reply  of  the  prisoner,  in  his  precise 
words,  but  the  effect  was,  that  he 
thought  it  hard,  or  not  fair,  that 
Joseph  should  have  the  advantage 
of  making  a  confession,  since  the 
thing  was  done  for  his  benefit,  or 
advantage.  I  now  give  his  words, 
as  nearly  as  I  can  recollect  them. 
He  said,  "  I  told  Joseph,  when  he 
proposed  it,  that  it  was  a  silly  busi- 
ness, and  would  only  get  us  into 
difficulty."  Phippen,  as  I  supposed, 
to  reconcile  Frank  to  Joseph's  con- 
fession, told  him,  that  if  Joseph  was 
convicted,  there  would  be  no  chance 
for  him  (that  is  for  Joseph),  but 
if  he  (Frank)  was  convicted,  he 
might   have  some   chance   for   pro- 


curing a  pardon.  He  then  appealed 
to  me,  and  asked  me  if  I  did  not 
think  so  ?  I  told  him  "  I  did  not 
know,  I  was  unwilling  to  hold  out 
any    improper   encouragement." 

Dexter.  —  We  object  to  any  con- 
tinuation of  this  confession.  It  is 
now  in  evidence,  that  Phippen, 
with  a  view  to  reconcile  Frank  to 
Joseph's  confession,  told  him,  that 
if  he  were  convicted,  he  might  have 
a  chance  of  pardon.  This  was  a 
direct  inducement  to  a  confession. 

The  Court  said  they  would  hear 
the  Counsel  for  the  Government. . . . 

Putnam,  J.  — .  .  .  It  is  the  opinion 
of  the  Court  that  anything  said  by 
the  prisoner,  after  what  Phippen  said 
to  him,  is  not  admissible. 

Mr.  Colman  resumes. 

It  was  just  at  the  close  of  the  in- 
terview, that  Phippen  appealed  to 
me.  He  had  told  Frank,  more  than 
once,  in  the  course  of  the  conversa- 
tion, that  there  might  be  a  hope  of 
pardon. 

The  Court  direct  the  witness  to 
state  all  that  was  said  in  relation 
to  encouragement. 

Early  in.  the  interview,  Phippen 
said  that  Joseph  had  decided  to 
make  a  confession,  etc.  (as  above), 
and  afterwards  repeated  this,  and 
appealed  to  me.  Frank  then  asked 
me  to  use  my  influence,  or  interest, 
for  him.  I  told  him  that  I  could 
promise  nothing,  but  that  I  thought 
his  youth  would  be  in  his  favor. 

I  have  stated  all  the  encourage- 
ment that  was  given.  There  was 
not  the  least  encouragement  given 
to  him,  either  by  me  or  in  my  hear- 
ing, to  relate  facts  within  his  own 
knowledge.  Soon  after  this  inter- 
view, I  found  the  club  under  the 
north  steps  of  the  church,  in  How- 
ard Street.  I  went  there  on  the 
20th  of  May,  about  1  o'clock,  with 
Dr.  Barstow  and  Mr.  Fettyplace. 
The  steps  are  of  wood  —  under  the 
lower  one  there  is  a  rathole  —  in  it 
I   found   this   club. 

Webster.  —  Who  told  you  it  was 
there  ? 

Dexter.  —  I  object  to  this  question. 


No.  393. 


KNAPP  S   TRIAL 


1089- 


The  finding  of  the  club  is  all  that 
can  be  given  in  evidence.  .  .  . 

Court.  —  We  are  very  clear  that 
it  is  competent  for  the  Government 
to  prove  that  this  club  was  found 
in  consequence  of  information  from 
the  prisoner. 

(Mr.  Colman  resumes.) — Frank 
Knapp  gave  me  precise  directions 
where  to  find  the  club,  and  I  found 
it  as  nearly  as  possible,  in  the  place 
pointed  out  by  him. 

John  C.  R.  Palmer  called.  .  .  . 

Palmer.  —  I  have  seen  the  prisoner 
at  Crowninshield's,  in  Danvers.  The 
first  time,  he  came  on  the  afternoon 
of  the  2d  of  April,  about  2  o'clock, 
with  a  young  man  named  Allen  — 
they  came  on  two  white  horses. 
I  saw  the  prisoner  in  company  with 
George  Crowninshield.  Did  not  see 
them  in  the  house  ;  I  saw  them  from 
the  window  of  the  chamber;  they 
walked  away  together.  I  did  not 
see  them  again  till  after  4. 
Richard  was  with  Allen.  All  four 
returned  about  4.  Allen  and 
Frank  then  went  away  on  horse- 
back. George  and  Richard  imme- 
diately came  into  the  chamber 
where  I  was. 

Dexter  objects  to  asking  what 
agreement  the  Crowninshields  said 
they  had  made  with  Frank  Knapp. 

Court.  —  The  Government  intend 
to  prove  a  conspiracy  —  they  may 
begin  at  either  end. 

There  was  then  a  conversation 
between  us  about  the  proposed 
murder  of  Captain  White  —  both 
George  and  Richard  spoke  of  it.  — 
George,  in  the  presence  of  Richard, 
proposed  to  me  to  take  a  part  in  this 
murder.  The  object  of  the  murder 
was  something  that  Frank  Knapp 
had  told  them.  The  motive  held 
out  to  me  was  one  third  of  the  $1000 
they  were  to  receive  from  Joseph 
Knapp.  Richard  said  it  would  be 
easy  to  meet  him  that  night,  and 
overset  Mr.  White's  carriage,  for 
George  said  he  had  gone  out  to  his 
farm.  Joseph  Knapp's  object  in 
the  murder  was  to  have  a  Will 
destroyed.     George  said  to  me  that 


I  was  poor,  and  in  want,  and  had  no 
funds,  and  that  this  would  be  a  good 
time  to  supply  that  want.  George 
said  that  the  housekeeper  would  be 
away  at  the  time  of  the  murder. 
Frank  came  again  on  that  day, 
about  7  o'clock  in  the  evening,  in  a 
chaise,  and  alone.  He  stayed  then 
over  half  an  hour.  Richard  went 
away  with  him  in  the  same  chaise. 
I  did  not  see  Frank  afterwards, 
till  this  time,  but  Richard  came 
home  about  12  o'clock  that  night. 
I  do  not  know  by  what  convey- 
ance. I  left  Danvers  the  next  day, 
which  was  Saturday.  The  Will  was 
to  be  destroyed  by  Joseph  Knapp, 
who  could  get  the  keys  from  the 
housekeeper,  and  have  access  to  the 
trunk  in  which  it  was  kept.  I  under- 
stood that  the  Will  was  to  be  de- 
stroyed at  the  time  of  the  murder. 
This  Will  Joseph  wished  to  have  de- 
stroyed, because  it  gave  all  !Mr. 
White's  estate  to  a  Mr.  White,  then 
living  at  the  Tremont  House,  in 
Boston.  I  next  saw  the  Crownin- 
shields at  their  house,  in  Danvers, 
on  the  night  of  9th  of  April.  When 
Richard  went  away  with  Frank 
in  the  chaise,  as  above  stated, 
he  said  he  was  going  to  the  Lynn 
Mineral  Spring  Hotel.  On  the  9th 
of  April,  I  went  about  12  o'clock  to 
the  Crowninshields'  house,  and 
spoke  under  the  chamber  window  to 
George,  who  opened  it,  and  asked 
who  was  there.  I  told  him,  and 
asked  him  to  come  down.  He  came 
down,  and  asked  if  any  one  was  with 
me.  I  told  him  no.  He  then  let 
me  in,  and  asked  me  if  I  had  heard 
the  news  in  Salem. 

I  stayed  there  a  short  time,  and 
then  went  that  night  to  Lynnfield 
Hotel,  where  I  put  up.  Next  day  I 
went  to  Providence,  and  stayefl  two 
days.  On  the  evening  of  the  27th 
I  saw  the  Crowninshields  again  at 
their  house,  about  10  o'clock.  I 
stayed  till  29th.  Richard  gave 
me  four  5-franc  pieces ;  I  asked 
him  to  let  me  have  it,  and  promised 
to  return  it.  I  then  went  to  Lowell, 
then  to  Boston,  then  to  Roxbury, 


1090 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


then  to  Belfast  by  water,  with  Capt. 
John  Boyle.  While  at  Belfast,  I 
wrote  a  letter  to  Joseph  J.  Knapp. 

"  Belfast,  May  12,  1S30. 
"Dear  Sir — I  have  taken  the 
pen  at  this  time  to  address  an  utter 
stranger,  and  strange  as  it  may  seem 
to  you,  it  is  for  the  purpose  of  re- 
questing the  loan  of  three  hundred 
and  fifty  dollars,  for  which  I  can 
give  you  no  security  but  my  word, 
and  in  this  case  consider  this  to  be 
sufficient.  My  call  for  money  at 
this  time  is  pressing  or  I  would 
not  trouble  you ;  but  with  that 
sum,  I  have  the  prospect  of  turning 
it  to  so  much  advantage,  as  to  be 
able  to  refund  it  with  interest  in 
the  course  of  six  months.  At  all 
events  I  think  that  it  will  be  for 
your  interest  to  comply  with  my 
request,  and  that  immediately  — 
that  is,  not  to  put  v^ff  any  longer 
than  you  receive  this.  Then  set 
down  and  inclose  me  the  money  with 
as  much  dispatch  as  possible,  for 
your  own  interest.  This,  sir,  is  my 
advice,  and  if  you  do  not  comply 
with  it,  the  short  period  between 
now  and  November  will  convince 
you  that  you  have  denied  a  request, 
the  granting  of  which  will  never 
injure  you,  the  refusal  of  which  will 
ruin  you.  Are  you  surprised  at  this 
assertion  —  rest  assured  that  I  make 
it,  reserving  to  myself  the  reasons 
and  a  series  of  facts,  which  are 
founded  on  such  a  bottom  as  will 
bid  defiance  to  property  or  quality. 
It  is  useless  for  me  to  enter  into 
a  discussion  of  facts  which  must  in- 
evitably harrow  up  your  soul  —  no 
—  I  will  merely  tell  you  that  I  am 
acquainted  with  j'our  brother  Frank- 
lin, and  also  the  business  that  he  was 
transacting  for  you  on  the  2d  of 
April  last ;  and  that  I  think  that 
you  was  very  extravagant  in  giving 
one  thou.sand  dollars  to  the  person 
that  would  execute  the  business  for 
you  —  but  you  know  best  al)out  that, 
you  see  that  such  things  will  leak 
out.  To  conclude,  sir,  I  will  inform 
you,  that  there  is  a  gentleman  of  my 


acquaintance  in  Salem,  that  will 
observe  that  you  do  not  leave  town 
before  the  1st  of  June,  giving  you 
sufficient  time  between  now  and  then 
to  comply  with  my  request ;  and 
if  I  do  not  receive  a  line  from  you, 
together  with  the  above  sum,  before 
the  22d  of  this  month,  I  shall  wait 
upon  you  with  an  assistant.  I  have 
said  enough  to  convince  you  of  my 
knowledge,  and  merely  inform  you 
that  you  can,  when  you  answer, 
be  as  brief  as  possible.  Direct 
yours  to  Charles  Grant,  jun.,  of 
Prospect,  Maine." 

Dexter.  —  I  object  to  reading  the 
letter. 

Putnam,  J.  —  Its  bearing  upon  the 
prisoner  should  appear. 

Webster.  —  It  was  received  by 
his  father,  and  the  prisoner,  to  divert 
suspicion,  caused  two  other  letters 
to  be  written. 

Court.  —  Let  these  first  be  proved. 

Wm.  H.  Allen  sworn. 

I  put  these  letters  into  the  Salem 
Post  Office,  on  Sunday  afternoon. 
May  16th,  between  5  and  6,  at 
the  request  of  J.  J.  Knapp,  jr.  He 
gave  them  to  me,  and  said  that  his 
brother  Phippen  and  his  father  came 
up  to  Wenham  the  day  before,  and 
brought  an  anonymous  letter  from 
a  fellow  down  East,  and  which  con- 
tained a  devilish  lot  of  trash,  such  as 
"  I  know  your  plans,  and  your 
brother's,  and  will  expose  you  if  you 
don't  send  me  money."  He  said 
that  they  had  a  good  laugh  upon  it, 
that  he  reciuested  his  father  to  give 
it  to  the  Committee  of  Vigilance. 
"What  I  want  to  see  you  now  for, 
is  to  have  you  put  these  letters  into 
the  Post  Office,  in  order  to  nip  this 
silly  affair  in  the  bud."  He  said 
several  other  things,  but  I  don't 
remember  all.  He  said  that  his 
mother  Beckford  was  getting  old. 

Webster  reads  the  letters. 

May  13,  1830. 

"  Gentlemen  of  the  Committee  of 
Vigilance  : 

"  Hearing  that  you  have  taken  up 
four  young  men  on  suspicion  of  being 
concerned    in    the    murder    of    IVIr. 


No.  393. 


KNAPP  S   TRIAL 


1091 


White  I  think  it  time  to  inform  you 
that  Steven  White  came  to  me  one 
night  and  told  me  if  I  would  remove 
the  old  gentleman,  he  would  give 
me  $5000 ;  he  said  he  was  afraid  he 
would  alter  his  will  if  he  lived  any 
longer.  I  told  him  I  would  do  it, 
but  I  was  afeared  to  go  into  the 
house,  so  he  said  he'd  go  with  me, 
that  he  would  try  to  get  into  the 
house  in  the  evening  and  open  the 
window,  would  then  go  home  and 
go  to  bed  and  meet  me  again 
about  11.  I  found  him  and  w^e  both 
went  into  his  chamber.  I  struck 
him  on  the  head  with  a  heavy  piece 
of  lead  and  then  stabbed  him  with 
a  dirk,  he  made  the  finishing  strokes 
with  another.  He  promised  to  send 
me  the  money  next  evening,  and  has 
not  sent  it  yet,  which  is  the  reason 
that  I  mention  this. 

Yours  &c.  Grant. 

[This  letter  was  directed  on  the 
outside  to  the  "  Hon.  Gideon  Bars- 
tow,  Salem,"  and  put  into  the  Post 
Office,  on  Sunday  evening.  May  16, 
1830.] 

Lynn,  May  12,  1830. 

Mr.  White  will  send  the  S5000  or 
a  part  of  it  before  to-morrow  night, 
or  suffer  the  painful  consequences. 
N.  Claxton  4th. 

[This  letter  was  directed  on  the 
outside  to  the  "  Hon.  Stephen  White, 
Salem,  Mass.,"  and  put  into  the 
Post  Office  in  Salem,  on  Sunday 
evening.  May  16th.] 

{Allen  resumes).  —  I  went  to  Dan- 
vers,  with  Frank,  on  the  2d  of  April, 
on  horseback  —  on  white  horses. 

Palmer  recalled  and  cross-exam- 
ined. 

On  the  night  of  the  murder  I  was 
at  Babb's,  the  Halfway  House  in 
Lynn.  I  was  there  from  7  in  the  even- 
ing, till  9  in  the  morning,  and  then 
went  to  Lynnfield,  to  meet  John 
Dearborn,  of  Chester,  New  Hamp- 
shire. We  had  appointed  a  meeting 
there.  I  expected  to  go  to  New  York 
with  him  to  go  into  business  —  I  had 
no  particular  business  in  view.  I 
first  came  to  Salem  three  years  ago, 
and  from  there  went  to  Danvers  to 


see  the  C.'s.  I  had  an  invitation 
from  George  at  New  York.  I  came 
back  to  Salem  last  March.  I  can't 
tell  every  place  I  have  lived  in  be- 
tween my  visits  to  Salem  —  at  New 
York  part  of  the  time  and  at  home 
in  Belfast.  I  lived  at  Thomastown 
two  years.  I  was  there  occupied 
in  cutting  stone  for  the  State.  I  don't 
know  who  employed  me  in  behalf  of 
the  State.  While  in  Salem,  at  the 
Lafayette  Coffeehouse,  I  bore  the 
name  of  Carr  —  preferred  that  name 
at  the  time  —  stayed  at  the  Coffee- 
house two  weeks. — While  at  Dan- 
vers I  lived  with  the  C.'s  in  their 
room,  apart  from  the  rest  of  the 
family.  I  came  from  jail  to-day.  I 
have  been  there  since  June  last,  and 
have  been  visited  by  Mr.  Colman, 
Mr.  Stephen  White,  my  father,  etc. 
I  was  brought  up  from  Belfast  in 
irons.  I  made  the  disclosure  from 
my  own  wish,  and  was  not  compelled 
to  do  it.  I  knew  the  flannels  were 
stolen  in  Danvers  —  saw  it  in  the 
paper  —  (he  declined  answering  any 
more  about  the  flannels).  I  told 
Mr.  Waters  that  I  did  not  want 
Counsel.  While  at  Babb's  I  bore 
the  name  of  George  Crowninshield. 
I  have  been  told  that  I  should  not 
get  the  reward  and  have  no  expecta- 
tion of  it  —  perhaps  I  expected  part 
of  the  reward  when  I  wrote  the  letter 
which  I  wrote  to  see  if  Joseph  Knapp 
was  connected  with  the  murder. 
I  was  told  by  the  C.'s  that  it  was 
only  a  joke  when  they  proposed  it, 
and  did  not  think  them  serious  until 
after  the  murder. 

Reexamined  by  Government.  —  I 
have  never  complained  of  the  officers 
of  Government,  and  have  refused  a 
pardon  from  them  in  this  case. 

Wm.  H.  Allen  recalled. 

Frank  proposed  the  visit  to  the 
C.'s.  We  first  met  Dick  —  he  in- 
vited us  in,  and  in  a  few  minutes 
George  came  in.  Dick  went  to  show 
me  the  factory  and  we  separated 
from  George  and  Frank  at  the  house. 
After  going  through  the  factory 
George  and  Frank  rejoined  us, 
and    after    talking    a    few    minutes 


1092 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


Frank  and  I  left  them  and  came 
home.  We  visited  them  also  once 
last  winter. 

One  evening,  about  three  weeks 
after  the  murder,  Frank  and  I  met 
Dick  in  Bath  Street.  I  thought  they 
might  have  something  private  and 
was  walking  away,  when  F.  said 
"Stop  a  minute  and  FU  join  you." 

Cross-examined.  —  Dick  and  I 
were  in  the  factory  fifteen  or  twenty 
minutes.  Frank  did  not  request  to 
be  left  alone  with  George.  We  were 
separated  one  half  or  three  quarters 
of  an  hour. 

Reexamined. — Frank's  usual  dress 
was  a  dark  frock  coat,  and  a  glazed 
cap  with  a  large  glazed  star  on  the 
top,  and  a  camblet  cloak. 

Cross-examined.  —  Glazed  caps 
and  camblet  cloaks  were  a  com- 
mon dress.  I  wore  such  a  one. 
Wm.  Peirce  also  had  a  glazed  cap, 
and  a  Scotch-plaid  cloak. 

IVilliam  Osborne  sworn. 

I  keep  a  livery  stable  in  Salem. 
Francis  Knapp  has  been  accustomed 
to  hire  horses  of  me.  The  charges 
on  my  book  against  him  from  April 
1,  are  as  follow  : 

April  1.  Horse  and  Gig  to  Lynn 
Mineral  Spring.  April  2.  Saddle 
horse  to  Dustin's,  in  Danvers. 
W' illiam  H.  Allen  had  a  saddle  horse 
same  afternoon.  Francis  Knapp 
had  a  chaise  same  day,  in  the  even- 
ing. I  find  the  charge  of  horse  and 
gig  to  Spring  altered,  the  word 
Spring  erased,  and  ride  substituted, 
I  think  the  alteration  was  made  by 
Francis  Knapp,  it  is  in  his  hand- 
writing. April  3.  Saddle  horse  to 
Wheeler's,  which  is  about  half  a  mile 
from  Dustin's,  and  the  same  dis- 
tance from  Crowninshield's.  Do 
not  recollect  the  time  of  day.  The 
last  charge  on  that  day  is  a  saddle 
horse  to  Francis  Knapp,  to  Wheeler's. 
April  5.  Saddle  horse  to  Wenham. 
April  f).  Horse  and  Gig  to — . 
This  is  in  my  own  handwriting. 
Do  not  know  where  he  went.  No 
price  is  put  down.  Have  never 
ascertained  where  he  went.  April 
19.     Horse    and    Gig    to    Wenham. 


April  21.  Horse  and  Gig  to  Wen- 
ham, and  over  that  I  find  the  name 
of  Joseph  J.  Knapp.  April  23. 
Horse  and  Gig  to  Wenham.  April 
24.  Horse  and  Gig  to  Wenham. 
This  is  the  last  charge  on  the  book 
that  day  —  there  are  eleven  pre- 
vious charges.  April  25.  One  half 
Horse  and  Gig.  April  27.  Horse 
and  Gig  to  Wenham. 

Cross-examined.  —  I  make  charges 
when  horses  are  given  out.  Don't 
know  when  Francis  Knapp  came 
from  sea.  He  rides  considerable. 
Don't  know  where  they  go.  I  leave 
a  blank  till  I  ascertain.  Always 
trusted  him.  March  30.  Horse 
and  Gig  to  Wenham.  March  29. 
Half  of  the  charge  of  Horse  and  Gig 
to  Spring.  March  28.  Quarter  of 
charge  of  Carryall.  He  hired  horses 
and  chaises  frequently.  Not  often 
hired  horses  in  the  evening,  but  did 
afternoons.  Can't  tell  much  about 
the  time  of  day  by  my  method  of 
charging.  The  father  of  the  pris- 
oner failed  on  the  6th  of  April. 
No  charge  to  prisoner  from  that 
time  to  April  19.  There  are  on  my 
book  ten  charges  before  his  on 
April  5.  I  have  four  white  saddle 
horses,  and  others  used  occasionally. 
I  have  one  horse,  called  Nip-Cat, 
of  sorrel  color,  slim,  and  a  smart 
trotter  —  rather  remarkable. 

Thomas  Hart  sworn. 

I  live  with  Mrs.  Beckford,  at 
Wenham,  and  am  hired  to  work  on 
the  farm.  I  went  there  on  the  9th 
of  last  April,  and  was  hired  by 
Capt.  Joseph  Knapp.  Mrs.  Beck- 
ford  came  there  to  live  about  the 
loth  of  April,  and  Frank  Knapp 
about  the  28th. 

One  Saturday  evening,  about  25th 
of  April,  Frank  came  there.  Mr. 
Davis  and  Joseph  Knapp  had  been 
to  Salem,  and  had  returned  about 
half  an  hour.  Frank  came  about 
7  o'clock,  knocked,  and  Joseph  Beck- 
ford  went  to  the  door,  and  asked 
him  how  he  came  there  at  that  time 
of  night.  Joseph  Knapp  went  out 
with  him  to  the  chaise,  and  remained 
a    quarter   of   an  hour.     I  think  I 


No.  393. 


KNAPP'S   TRIAL 


1093 


heard  the  voice  of  a  third  person  in 
the  chaise.  They  then  came  into 
the  house,  and  went  into  a  room  by 
themselves,  and  stayed  about  ten 
minutes.  The  chaise  came  a  httle 
after  7,  and  stayed  a  little  more 
than  half  an  hour.  Mr.  Davis  and 
Benjamin  Leighton  were  there.  It 
was  dark,  dull,  cloudy  weather. 
Frank  had  on  a  camblet  cloak,  and 
leather  cap.  Frank  went  in  where 
Joseph  was,  and  no  one  went  with 
him.  I  was  in  Mr.  Davis's  kitchen. 
Joseph,  on  the  Tuesday  after  this 
Saturday,  gave  me  some  5-franc 
pieces  to  buy  meal  with.  It  had 
been  dark  half  an  hour,  I  should 
think,  when  Frank  came.  Joseph 
and  Frank  were  pretty  near  the 
chaise,  while  talking  together,  and 
near  the  N.  W.  corner  of  the  house. 
I  heard  three  voices,  which  all  came 
from  where  the  chaise  was.  They 
did  not  move  from  that  place  while 
talking.  F.  Knapp  has  worn  a 
dagger,  and  I  have  seen  him  several 
times  prick  Benjamin  Leighton  with 
it,  while  out  in  the  field.  And  one 
night  after  we  had  gone  to  bed, 
Frank  came  up  and  pricked  Ben 
through  the  bedclothes.  Ben  asked 
him  not  to,  and  he  said  "lay  still, 
you  will  not  feel  it  after  a  little 
time."  .  .  . 

Josiah  Dewing  sworn. 

I  came  home  from  sea  last  spring, 
and  brought  from  three  to  four  thou- 
sand 5-franc  pieces.  About  five  hun- 
dred were  for  Joseph  Knapp,  jr.,  and 
were  brought  from  Point  Petre,  Gua- 
daloupe,  and  paid  to  him.  So  far  as 
I  know,  all  but  his  went  into  the 
bank,  as  a  deposit.  The  distribution 
of  them  was  about  the  21st  of  April 
last,  and  I  have  the  receipt  of  Jo- 
seph for  his  portion. 

Cross-examined.  —  I  have  been  a 
ship  master  several  years.  It  is 
nothing  unusual  to  bring  home  5- 
franc  pieces.  Don't  recollect  bring- 
ing home  any  lately,  on  any  other 
occasion. 

Daniel  Marston  sworn. 

I  know  George  Crowninshield, 
and  in  the  course  of  last  spring  I  re- 


ceived from  him  two  5-franc  pieces. 
This  was  on  Saturday,  the  day  be- 
fore his  arrest. 

Cross-examined.  —  I  keep  a  victu- 
aling cellar.  Five-franc  pieces  are 
not  a  common  currency.  I  do  not 
often  take  them  —  not  so  often  as  I 
do  hard  dollars. 

George  Snilth  sworn. 

I  attend  Mr.  Chandler's  grocery 
store.  On  the  evening  before  the 
Crowninshields'  arrest,  I  received 
from  some  person,  and  in  the  pres- 
ence of  George  Felton,  a  5-franc 
piece. 

Cross-examined.  —  I  have  fre- 
quently received  them  from  other 
persons. 

George  Felton  sworn. 

I  know  George  Smith  —  I  went 
into  Mr.  Chandler's  store  with 
George  Crowninshield,  when  he  paid 
Smith  a  piece  of  silver.   .  .   . 

Nehemiah  Brown  sworn. 

I  am  the  Keeper  of  the  Salem 
Jail.  On  the  15th  of  June,  a  little 
before  2  o'clock  in  the  afternoon,  I 
had  occasion  to  go  into  George  and 
Richard's  room,  to  carry  notes. 
Called  at  Richard's  room,  but  had 
no  answer.  After  calling  for  him  a 
second  time,  I  looked  over^the  top 
of  his  door,  and  saw  him  hanging  at 
the  grate.  Called  turnkey  and  went 
in.  He  was  hanging  by  two  hand- 
kerchiefs. Took  him  down.  Called 
in  physicians.  They  attempted  to 
restore  life,  but  without  success.  I 
then  sent  for  a  Coroner. 

The  Attorney-General  then  read 
the  inquisition  on  the  body  of  Richard 
Crowninshield,  jr.  The  verdict  of 
the  jury  was/r/o  de  se. 

Mr.  Broum  cross-examined. — The 
Rev.  ]Mr.  Colman  visited  the  cells  of 
the  two  Knapps.  Which  first  do  not 
know  —  but  l)oth  on  the  same  day. 
Richard  Crowninshield's  ( "ounsel  had 
constant  access  to  him,  wlien  they 
chose.  Richard  Crowninshield  was 
usually  supplied  with  newspapers. 

Mr.  Pr////Y;// called  again.  —  I  pub- 
lished a  number  of  the  Essex  iiegi.sfer 
on  twenty-first  May,  containing  the 
disclosure  of  Joseph  J.  Knapp,  jr. 


1094 


PART    III.      PROBLEMS   OF   PROOF 


No.  393. 


Cross-cva mined.  —  I  published  an 
article  respecting  the  finding  of  the 
flannels  in  Danvers.  Should  think 
it  was  three  or  four  days  before  Rich- 
ard Crowninshield's  death. 

Richard  Burnham,  sworn. 

On  the  evening  of  the  murder  saw 
George  Crowninshield,  with  two 
others,  in  Essex  Street,  near  Frank- 
lin Building,  about  sixty  rods  from 
Capt.  White's  house  —  near  New- 
bury Street.  They  were  going  to- 
wards the  eastward.  One  of  the 
persons  with  him  was  Chase.  Did 
not  know  the  other.  It  was  about 
eight  o'clock. 

John  McGluc  sworn. 

On  the  night  before  the  murder, 
saw  Richard  Crowninshield,  jr., 
standing  opposite  Capt.  White's 
house.  Found  him  standing  there. 
He  was  not  doing  anything.  I  was 
going  up  along,  on  the  south  side 
of  Essex  Street,  and  when  I  came  up 
to  the  brick  house  next  to  Dr. 
Barstow's,  I  found  him  standing  near 
a  post,  he  had  his  head  turned  up, 
so  as  to  look  up  towards  Coffee- 
house, or  that  way,  so  that  I  could 
see  side  of  his  face.  Think  that 
where  he  was  standing  was  a  little 
higher  up  than  the  house  of  Capt. 
W.  It  was  about  half  past  eight 
in  the  evening.  Crowninshield 
walked  up  with  me,  as  far  as  the 
Post  Office.  Asked  me,  if  I  was 
going  further.  I  told  him  no,  and 
he  continued  on. 

Cross-examined.  —  Lafayette  Cof- 
feehouse is  west  of  Capt.  White's 
house,  a  short  distance.  Rich- 
ard Crowninshield,  jr.,  was  oppo- 
site upper  end  of  the  house.  He 
might  have  been  there  an  hour,  for 
all  I  know  —  did  not  see  him  till 
I  came  up.  Do  not  know  whether 
there  was  a  party  of  girls  opposite. 
This  was  Monday  night.  Richard 
Crowninshield,  jr.,  was  by  brick 
building  next  to  Dr.  Barstow's. 

Benjamin  S.  Newhall  sworn. 

I  saw  George  Crowninshield  on 
the  evening  of  the  murder,  April 
6th,  passing  down  W'illiams  Street. 
It  was  a    little   before    10  o'clock. 


There  was  a  person  with  him,  whom 
I  did  not  know.  He  had  on  a  glazed 
cap.  Do  not  know  particularly 
other  parts  of  his  dress.  He  was  a 
little  shorter  than  George. 

Cross-examined.  —  It  was  between 
half  past  9  and  10  o'clock. 

Thomas  W.  Taylor  sivorn. 

I  saw  George  Crowninshield  on  the 
evening  of  the  murder,  at  from  fifteen 
to  twenty  minutes  after  9,  pass- 
ing by  door  of  my  store  in  Newbury 
Street  which  runs  down  by  the  Com- 
mon. A  man  was  with  him,  whom 
I  did  not  know.  Store  in  northwest 
corner  of  Franklin  Building.  He 
was  on  the  east  side  of  Newbury 
Street.  Some  person  spoke  to  him 
at  corner  of  Newbury  and  Essex 
streets,  and  asked  him,  where  he  was 
going.  George  said,  "You  know, 
all  the  way  down  town." 

Cross-examined.  —  He  was  going 
down  towards  Williams  street,  from 
Capt.  White's  house.  W'hen  I  first 
saw  him,  he  was  in  Newbury  Street 
going  towards  Williams  Street.  Do 
not  know  whether  he  came  up  or 
down  Essex  Street. 

Joseph  Anthony  sworn. 

On  the  evening  of  murder,  I  saw 
George  Crowninshield  going  from 
Essex  Street  into  Central  Street. 
Two  other  persons  were  with  him. 
One  was  Chase ;  the  other  I  did  not 
know.  George  had  on  a  short  jacket 
and  fur  cap.  They  were  talking,  as 
they  passed. 

Benjamin  Horton  sworn. 

A  year  ago  last  spring,  I  saw 
Richard  and  George  Crowninshield  at 
Lynn  Mineral  Spring  Hotel.  Chase 
was  sitting  near  Richard  Crownin- 
shield. Saw  dirk  in  Richard  Crown- 
inshicld's  bosom.  Dick  told  me  it 
was  his  nurse  child. 

Prisoner's  Counsel  objected  to  the 
statement  of  what  Richard  Crownin- 
shield said.  The  Court  observed,  that 
they  could  not  see  but  that  it  might 
tend  to  prove  that  Richard  Crownin- 
shield usually  wore  a  dirk,  that  instru- 
ment being  alleged  to  have  been  used 
in  the  murder,  and  they  therefore 
thought  the  evidence  admissible. 


No.  393. 


KNAPP  S   TRIAL 


1095 


The  Witness  proceeded. — Richard 
Crowninshield  commonly  curried  it 
with  him.  I  examined  it,  and  should 
think  the  blade  was  from  five  to 
six  inches  long.  The  handle  was 
bone  or  ivory.  Had  a  cross  hilt 
about  three  quarters  of  an  inch  long. 
Called  on  them  about  a  fortnight 
after  murder,  to  see  if  they  would 
say  anything  about  murder.  Saw 
Richard  Crowninshield  near  work- 
shop. He  went  into  the  house,  when 
he  saw  me.  Afterwards  came  out, 
and  we  bid  each  other  "  Good  morn- 
ing." George  came  out  soon  after, 
and  asked,  when  I  came  from  Port- 
land, and  if  any  kind  of  gaming 
could  be  carried  on  down  there, 
as  he  and  Dick  thought  about  going 
down  there  —  said  they  intended  to 
go  down,  but  meant  first  to  make  a 
raise  at  Election.  Inquired  of  me 
about  steamboat.  Showed  me  some 
false  props,  they  had  been  making. 
I  agreed  to  meet  them  on  the  next 
Thursday  evening,  at  Salem  Hotel. 
They  were  arrested  on  the  following 
Sunday.  I  had  recei\ed  informa- 
tion in  Boston,  that  I  was  .suspected 
of  the  murder  of  Capt.  White.  I 
immediately  w^rote  a  letter  to  Dr. 
Barstow  about  it,  but  received  no 
answer.  Went  to  Hotel,  saw  there  the 
two  Crowninshields  and  Chase.  They 
were  whispering  among  themselves. 
Everybody  seemed  to  look  at  me 
with  suspicion.  I  wanted  to  see  if 
they  (the  Crowninshields)  knew  any- 
thing, and  made  them  think  I  would 
go  with  them.  Said  they  had  good 
game  all  winter  at  their  room  in 
South  Salem. 

Cross-examined.  —  Mr.  White  sug- 
gested to  me  the  expediency  of  going 
out  to  Danvers,  to  see  the  Crownin- 
shields. Went  to  see  if  they  would 
tell  me  who  murdered  Capt.  White, 
but  did  not  tell  them  so.  Went 
partly  on  my  own  account.  Told 
Mr.  White,  in  Boston,  that  I  thought 
of  going  out  to  Danvers,  to  see  the 
Crowninshields.  I  wanted  to  see 
if  they  would  say  anything  about 
murder.  It  was  after  con\ersation 
with  Mr.  Stephen  White,  but  don't 


know  whether  he  or  I  proposed  it 
first. 

Don't  know  how  I  came  to  be 
suspected.  Know  no  cause  —  heard 
a  check  was  drawn  b\'  Mr.  White  for 
$1000  on  a  Bank  in  Boston.  I  had 
asked  Mr.  Stephen  White  to  loan 
me  $50,  which  he  did.  Having 
occasion  to  pay  Mr.  Leavitt  SI. 37, 
I  asked  him  to  change  this  check. 
He  could  not,  and  went  into  the 
Bank,  at  the  back  door,  as  the  front 
was  shut.  I  borrowed  money  of 
Mr.  Stephen  White  two  or  three 
months  before  the  murder.  Mr. 
Theophilus  Sanborn  said,  I  had  a 
check  of  Mr.  White  for  SIOOO.  On 
the  night  of  the  murder  I  was  at 
Windham,  fourteen  miles  from  Port- 
land. 

Cross-examined.  —  When  in  Port- 
land saw  that  a  reward  was  offered. 
It  was  Thursday  morning,  at  about 
10  o'clock.  I  was  not  to  have  any- 
thing, if  I  obtained  information  from 
Crowninshields. 

Stephen  Mirick. 

I  live  directly  opposite  to  the 
corner  of  ]\Irs.  Andrew's  yard,  on 
north  side  of  Brown  Street.  About 
fifteen  minutes  before  9,  on  the 
evening  of  the  6th  of  April,  I  saw 
a  man  standing  at  a  post,  directly 
opposite  my  shop,  on  the  opposite 
side  of  the  street.  He  stood  with 
his  arms  on  the  post,  and  facing  the 
common.  I  had  a  fair  view  of  him. 
I  did  not  know  him.  He  remained 
there  apparently  waiting  for  some 
one — this  led  me  to  be  more  partic- 
ular, in  noticing  him.  He  stood 
thus,  till  the  bell  rang  for  9,  chang- 
ing his  situation  a  little.  After 
the  bell  rang,  I  went  out  as  usual 
and  shut  my  shutters,  but  did 
not  put  up  the  slide  to  my  door, 
so  that  I  might  see  if  any  one  came 
to  meet  him.  He  walketl  back  and 
forth  twice,  certainly,  if  not  more. 
When  any  one  came  down  Brown 
Street,  he  went  into  Newbury 
Street,  and  then  turned  so  as  to 
meet  him  at  the  corner ;  and  if  any 
one  came  down  Newbury  Street,  he 
went  into  Brown  Street,  and  turned 


1096 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


to  meet  him  in  the  same  manner. 
From  this  post  he  could  see  up 
Newbury  and  Brown  Street,  al)out 
as  far  up  one  street  as  the  other. 
I  stood  to  see  if  any  one  should  come 
to  meet  him.  He  remained  there 
till  twenty  or  thirty  minutes  after 
9.  I  did  not  see  him  go  away,  and 
he  was  there  when  I  shut  up  and 
went  home.  He  had  on  a  frock  coat 
which  came  round  him  very  tight, 
was  very  full  at  top  and  bottom  ; 
it  was  of  a  dark  color.  I  can't  say 
what  he  had  on  his  head.  I  did 
not  obser\e  his  face  at  all.  I  never 
saw  the  prisoner  till  he  was  brought 
before  the  Grand  Jury.  It  is  my 
belief  that  he  was  the  man  at  the 
post.  .  .  . 

Webster.  —  Have  you,  as  you 
know,  or  believe,  seen  that  person 
since  ? 

Ans.  —  I  think  I  have  seen  him 
since. 

Webster.  —  Where  have  you  seen 
him,  and  what  name  did  he  bear  ? 

Ayis.  —  I  think  I  saw  him  when 
he  was  brought  up  before  the  Grand 
Jury,  and  when  he  was  brought  up, 
once  or  twice  since.  I  think  it  was 
Francis  Knapp.  Can't  swear  posi- 
tively, but  I  believe  it  was  he. 

Court. — Was  this  belief  derived 
from  personal  observation,  or  from 
what  you  have  heard  from  others  ? 

Ans.  —  From  both  —  that  is, 
from  my  observation  at  the  time, 
and  from  the  description  of  the  per- 
son seen  that  evening. 

Court. — From  your  own  observa- 
tion alone,  do  you  say,  it  was  Frank 
Knapp  ? 

Ans.  —  No,  I  should  not.  Can't 
say  positively,  from  my  own  ob- 
servation. But  the  size  and  height 
of  the  man  I  saw,  correspond  very 
nearly  to  prisoner.  His  dress  is 
different  now. 

Webster.  —  I  suppose,  we  may  ask, 
what  description  of  dress  has  been 
given  to  him. 

Court.  —  His  belief  arises  from 
two  sources.  What  he  had  from 
others,  is  not  evidence. 

Cross-examined.  —  I  saw  the  pris- 


oner when  he  was  brought  up  to 
be  arraigned,  week  before  last,  on 
Tuesday  I  think.  Don't  know  what 
part  of  the  day.  The  first  time,  I 
saw  him,  was  one  day,  when  he  was 
brought  in  to  hear  indictment.  I 
was  in  County  Street  —  the  prisoner 
was  in  a  chaise.  There  were  three 
chaises ;  he  was  in  one  of  them,  do 
not  know  which.  Saw  him  get  out 
of  the  chaise  at  the  door.  Did  not 
see  him,  in  this  room. 

He  had  on  a  light  coat  —  they 
were  all  pointed  out  to  me,  as  they 
rode  up.  Don't  know  who  pointed 
them  out. 

Reexamined. — Prisoner  at  the  Bar 
is  the  same  person  who  got  out 
from  the  chaise,  and  was  pointed 
out  to  me,  as  Francis  Knapp. 

Cross-examined.  —  I  can't  say 
whether  I  asked  which  was  Frank 
Knapp.  I  heard  some  person,  who 
stood  by,  say  this  is  such  an  one, 
and  this  is  such  an  one.  Believe  I 
did  not  inquire  which  was  Frank 
Knapp,  or  speak  to  any  one. 

Peter  K.  Webster  sworn. 

I  live  in  Bridge  Street,  corner  of 
Pleasant  Street.  My  place  of  busi- 
ness is  in  Essex  Street,  nearly  op- 
posite Newbury  Street.  I  have  oc- 
cupied for  purposes  of  trade  several 
buildings.  Always  have  more  or 
less  property  about  Branch  Meeting- 
house. Occupy  the  cellar  of  it.  I 
went  home  about  half  past  9  in 
the  evening  of  April  0th ;  from  half 
past  9  to  10.  I  generally  go  to 
Post  Office  first.  I  went  through 
Howard  Street  on  my  way  home. 
About  a  quarter  of  the  way  down 
Howard  Street,  saw  two  persons  — 
overtook  them,  at  the  bottom  of 
street,  near  new  road.  They  were 
walking  about  the  middle  of  the 
street.  This  is  a  narrow  street. 
They  were  walking  down  towards 
river.  Passefl  them  at  the  lower 
end,  where  it  goes  out.  I  took  one 
of  them  to  be  Frank  Knapp,  and 
mentioned  it  once  or  twice.  Did 
not  think  anything  about  it,  more 
than  if  I  had  seen  anybody  else. 
Have  always  known  Frank  Knapp. 


No.  393. 


KNAPP  S   TRIAL 


1097 


for  a  dozen  years.  When  at  home 
generally  see  him  every  day  or  two. 
He  is  sometimes  at  sea.  I  passed 
nearest  to  him,  and  I  supposed  him 
to  be  Frank  Knapp.  I  then  took 
him  to  be  Frank,  and  I  have  never 
altered  my  mind.  The  other  person 
I  did  not  notice.  They  were  walk- 
ing slowly.  I  turned  to  the  right. 
They  were  going  same  way.  They 
followed  me.  When  I  last  saw  them, 
they  were  about  a  dozen  or  twenty 
rods  from  the  bottom  of  the  street. 
They  did  not  pass  my  house.  Did 
not  see  them,  after  they  got  to  the 
rise  of  the  hill.  Capt.  Knapp, 
the  father,  lives  in  Essex  Street, 
near  my  store.  The  prisoner  stays 
at  his  father's,  w^hen  at  home. 

Cross-examined.  —  I  did  not  see 
the  face  of  the  man.  Knew  him  by 
his  air  and  walk.  Passed  within 
six  or  eight  feet.  Did  not  speak  to 
him,  nor  he  to  me.  I  sometimes 
speak,  and  sometimes  do  not  speak 
to  him  when  I  meet  him.  Both 
men  had  dark  wrappers,  and  glazed 
caps.  Night  was  cloud^s  and  a  little 
damp.  Don't  know  Richard  or 
George  Crowninshield.  I  know  it 
was  6th  April.  Took  notice  of  the 
men,  because  unusual  to  see  men 
in  that  street.  Don't  know  that 
it  is  a  street  where  assignations  are 
made.  I  mentioned  it  to  Mr.  Foster, 
Cashier  of  Asiatic  Bank.  Do  not 
recollect  how  soon.  Do  not  know, 
whether  before  the  Knapps  were 
taken  up,  or  afterwards.  I  thought 
it  was  Frank,  whom  I  saw  there, 
before  they  were  taken  up.  Told 
Mr.  Foster  one  of  them  was  Frank 
Knapp.  The  Post  Office  generally 
opens  at  half  past  9.  My  usual 
hour  of  going  to  Post  Office  was  a 
little  after  9. 

Could  not  say  positively  who  the 
person  was,  without  seeing  his  face. 
Thought  they  were  waiting  for 
somebody  because  they  walked  so 
slow.  I  know  that  night — recollect 
the  appearance  of  the  night  on 
account  of  the  weather.  I  some- 
times go  home  other  way.  I  did 
not  go  that  way  the  night  before. 


Do  not  recollect  what  the  weather 
was  the  night  before.  Heard  of 
murder  next  morning.  Sometimes 
take  5-franc  pieces  —  not  very 
common  —  take  more  or  less  every 
week. 

John  A.  Southwick  sworn. 

I  live  in  Brown  Street,  next  house 
but  two  to  the  westward  abo\e  rope- 
walk.  Mr.  Downing's  Jiouse  makes 
the  corner  of  Howard  Street.  On 
the  evening  of  the  murder,  I  left 
my  father's  hou.se  in  Essex  Street, 
about  half  past  10  to  go  home ;  as 
I  passed  up  by  ropewalk,  I  saw  a 
young  man  sitting  there ;  as  I  passed 
him,  he  dropped  his  head.  I  stopped 
at  Downing's  door,  then  walked 
back,  I  think  that  time,  then  re- 
turned to  Downing's  house,  and  then 
to  my  own.  Dropped  his  head 
every  time  I  passed  him.  I  felt 
very  sure  it  was  Mr.  Knapp.  Passed 
him  three  times,  when  on  the  steps ; 
he  had  a  brown  camblet  cloak,  and 
glazed  cap.  I  then  took  that  person 
to  be  Mr.  Knapp.  I  was  brought 
up  alongside  of  him,  within  a  few 
houses  of  him,  from  his  boyhood. 
When  I  passed  the  third  time,  I  went 
into  my  house  —  my  wife  was  up. 
One  time,  when  I  went  in,  I  spoke 
to  her.  The  same  person  was  in  my 
mind,  all  the  evening,  after  I  saw 
him.  I  came  out  of  my  house,  and 
walked  to  the  corner  of  Downing's 
house,  looking  for  this  person,  down 
Howard  Street,  when  Capt.  Bray 
came  up.  He  asked,  what  I  was 
out  there  .so  late  for.  Told  him 
I  had  seen  a  person  on  ropewalk 
steps,  and  about  there,  tiiat  looked 
suspicious,  or  whom  I  thought  sus- 
picious. He  said  he  had  seen  one 
also,  and  pointed  up  to  old  Mrs. 
Shepherd's  house,  and  said,  there  he 
is  now,  on  the  opposite  side  of  the 
street,  further  up.  Looked  and  saw 
a  person  standing  there.  He  came 
down  by  us,  and  went  to  the  post 
nearly  opposite  Capt.  Bray's  door, 
and  leaned  over  the  post.  When  he 
passed  us,  we  were  near  Downing's 
house,  on  that  side.  This  man  passed 
down    on    the   opposite    side.      We 


1098 


PART   III.       PROBLEMS   OF   PROOF 


No.  393. 


walked  down  some  ways,  perhaps 
as  far  as  Dr.  Johnson's  house.  While 
he  was  at  the  post,  we  went  in,  at 
the  west  end  of  Bray's  house,  and 
went  into  the  house,  at  the  end  door. 
Front  door  is  on  the  nortli  side  of 
the  house,  the  side  nearest  post. 
Went  Into  his  chamber.  When  Ave 
went  in,  only  half  of  one  shutter 
open.  I  stood  back.  Mr.  Bray 
watched.  In  a  short  time  he  said, 
another  one  has  come  up.  Now 
they  have  passed  along  to  the  west 
corner  of  the  house,  and  that  in- 
duced him  to  go  to  the  window  to 
look  out.  Saw  one  of  the  persons 
running  across  the  street.  (Here 
the  witness  referred  to  the  plan 
which  had  been  exhibited  to  the 
Court.)  He  run  round  ropewalk 
corner.  The  other  went  down  to- 
wards Common.  Thought  he  went 
round  corner.  Then  Mr.  Bray  and 
I  came  out,  went  down  Howard 
Street,  round  up  Williams  Street, 
and  back  home.  We  parted  in  front 
of  Bray's  house.  Mentioned  to 
my  wife,  what  I  had  seen.  Told 
her,  I  had  seen  a  person,  that  I  sup- 
posed was  Frank  Knapp,  without 
making  any  further  observation. 
Do  not  recollect  dress  of  person  lean- 
ing on  post. 

Cro,s.s--e.raminrd. — The  time,  when 
I  first  saw  this  person,  was  about 
half  past  10.  I  know,  because  I 
knew  at  what  time  I  left  my  father's 
house.  It  is  two  or  three  minutes' 
walk.  My  impression  is,  that  I 
looked  at  my  watch  when  I  w^as  at 
my  father's,  and  thought  it  was  time 
to  be  walking  up.  It  was  about  half 
past  10. 

The  man  upon  the  steps  was  two 
or  three  feet  off,  when  I  was  nearest 
to  him.  I  difl  not  speak  to  him 
because  I  had  nothing  to  say  to  him, 
and  he  hid  his  face.  Perhaps  I 
should  not  speak  to  him  three  quar- 
ters of  the  time,  when  I  met  him, 
owing  more  to  his  manner  than 
mine ;  he  rather  evaded  speaking ; 
I  don't  know  that  I  saw  his  face; 
his  dress  was  a  camblet  cloak,  I  can 
swear  to  it. 


I  judge  it  was  Frank  Knapp,  from 
the  general  appearance  of  the  man. 
He  was  not  wrapped  up,  for  I  could 
see  that  he  sat  cross-legged.  It  was 
a  cloudy  night,  but  moon  was  at  the 
full.  I  don't  recollect  its  raining ; 
it  did  not  rain  then  ;  it  was  misty  at 
times. 

I  did  not  see  the  man  on  the  steps 
get  up  and  go  aw^ay  ;  but  it  is  on  my 
mind  that  it  was  the  same  man  I  saw 
at  the  post.  I  did  not  think  it 
important  to  go  out,  though  it  looked 
suspicious  in  the  man  to  drop  his 
head  when  I  passed  and  to  be  sitting 
on  the  steps  at  that  time. 

I  have  no  doubt  he  had  on  a  glazed 
cap ;  did  not  see  any  fur  about  the 
cap.  I  went  out  the  second  time 
from  suspicions  expressed  in  the 
house,  when  I  told  what  I  had  seen. 
They  said  in  the  house,  they  should 
like  to  have  me  go  out,  though  I  had 
said  who  I  thought  the  man  was. 
I  have  not  known  that  Howard 
Street  is  a  place  of  assignations  for 
the  last  six  months.  I  cannot  say 
that  I  suspected  the  man  was  there 
for  that  plirpose.  I  cannot  say 
what  I  suspected  him  of.  W^hen  I 
met  Capt.  Bray,  I  told  him  my 
suspicions.  He  said  there  was  a 
suspicious-looking  person  on  the 
other  side  the  street  by  the  post. 
Don't  recollect  seeing  the  man  by 
the  post  till  Capt.  Bray  pointed 
him  out  to  me.  He  did  this  when  we 
were  standing  by  Downing's  house. 
W^e  saw  him  pass  down  the  street. 
Can't  say  whether  the  man  Capt. 
Bray  pointed  out  to  me  had  a  cloak 
and  cap.  I  thought  it  was  the  same 
I  had  seen  on  the  steps,  because  I 
had  seen  no  other  in  the  street.  I 
had  the  same  suspicions  about  the 
man  who  walked  down  the  street 
that  I  had  of  the  man  on  the  steps. 
Don't  recollect  stating  before  the 
magistrate  that  I  took  the  person 
on  the  steps  for  Frank  K.  from 
nothing  but  his  dress. 

I  cannot  describe  the  dress  of  the 
person  who  came  up  and  joined  the 
man  standing  at  the  post,  when 
we  were  in  Capt.   Bray's  chamber. 


No.  393. 


KNAPP  S   TRIAL 


1099 


The  post  might  be  six  or  eight  feet 
from  the  window.  I  can't  swear  to 
the  dress  of  either.  My  impression  is 
that  one  of  them  had  on  a  light  coat. 
Can't  recollect  the  other's  dress. 

I  don't  recollect  that  I  have  told 
any  person  that  I  could  not  tell  who 
the  person  was  on  the  steps.  Have 
no  recollection  of  telling  any  person 
that  I  could  not  distinguish.  I 
never  said  the  man  on  the  steps  was 
Wm.  Peirce,  but  compared  him  to 
Wm.  Peirce  in  size  and  appearance. 
I  don't  recollect  telling  Capt.  Bray 
that  he  looked  like  Wm.  Peirce; 
never  told  him  I  thought  the  man 
was  Wm.  Peirce. 

I  cannot  tell  how  the  man  running 
across  the  street  was  dressed ;  I 
knew  it  was  one  of  the  same  persons, 
because  they  appeared  to  be  watch- 
ing, and  engaged  in  the  same  busi- 
ness. 

We  were  looking  out  of  the  window 
four,  five,  or  six  minutes.  I  can't 
say  the  dress  spoken  of  is  a  common 
dress,  but  many  young  men  wear 
glazed  caps  and  camblet  cloaks. 

I  cannot  tell  when  I  was  first 
examined  before  the  Committee 
of  Vigilance,  or  that  I  ever  was 
particularly.  I  have  been  sent  for 
and  questioned  about  this  matter ; 
cannot  say  whether  before  or  after 
the  Knapps  were  arrested. 

The  observation  of  Capt.  Bray, 
that  the  man  had  gone  to  the  west 
end  of  the  house,  was  made  before 
I  looked.  I  did  not  continue  to  look, 
but  looked  away.  When  I  was 
looking  out  of  the  W.  window,  and 
saw  one  of  the  men  running  to  the 
eastward,  I  did  not  know  where 
he  went  to. 

I  never  said  either  of  these  per- 
sons was  Crowninshield  or  Selman 
or  Chase. 

I  was  at  Ipswich  before  the  Grand 
Jury ;  did  not  state  to  them,  that  I 
supposed  the  person,  that  I  saw  on 
the  steps,  was  Frank  K.  I  was 
sworn  to  tell  the  whole  truth.  I  did 
not  say  that  it  was  Selman  or  that 
it  was  not.  I  said  I  thought  that 
it  looked  some  like  Selman. 


When  I  passed  the  man  on  the 
steps,  I  went  halfway  to  the  Com- 
mon ;  the  first  time  I  passed  him  I 
went  as  far  as  Downing's  corner, 
then  turned  and  went  back  halfway 
to  the  (vommon,  then  repassed  him 
and  went  home.  I  was  watching 
the  man  twenty  minutes  before  I 
went  into  the  house ;  stayed  in  the 
house  a  few  minutes ;  Capt.  Bray 
and  I  watched  him  five  or  six  min- 
utes ;  we  were  in  Bray's  house  six 
or  eight  minutes ;  in  going  down 
Howard  Street,  we  went  pretty  quick 
the  first  part  of  the  way ;  looked 
over  into  the  burying  ground  by 
the  Branch  Meetinghouse,  to  see  if 
the  person  was  there ;  we  stayed  to- 
gether perhaps  two  minutes  after  we 
came  back,  then  went  home.  I  did  not 
hear  the  clock  strike  after  I  got  home ; 
It  was  about  ten  minutes  past  11 
by  the  timepiece,  when  I  got  home. 
I  have  not  said  that  I  heard  the 
clock  strike  11  that  night, 

Daniel  Bray,  jr.,  sworn. 

I  live  in  Brown  Street,  and  in  the 
lowest  house  on  the  S.  side. 

On  the  evening  of  the  6th  of 
April  I  was  passing  down  Brown 
St.  from  St.  Peter's  St.  and  when  I 
passed  the  4th  house,  I  saw  a  man 
dressed  in  a  dark  full  frock  coat, 
dark  pantaloons,  and  shining  cap 
standing  at  a  post.  The  frock  was 
very  full  at  bottom. 

I  was  on  the  north  side  of  the 
street  and  he  on  the  S.  As  I  passed 
on  I  saw  another  man  looking  or 
peeping  down  Howard  Street,  who 
I  found  was  Mr.  John  Southwick. 
I  think  I  asked  him  what  he  was 
about  there  so  late.  He  said  that 
when  he  went  into  his  house  a  man 
was  sitting  on  the  ropewalk  steps. 
I  turned  round  and  observed,  "  there 
stands  the  man  now."  (I  could  see 
him  very  plainly  up  towards  Shep- 
ard's  house  —  it  was  so  light.)  Mr. 
Southwick  then  said  that  he  did 
not  like  the  looks  of  the  man  when 
he  went  in.  I  walked  on  with  him 
clo.se  to  the  ropewalk,  and  stood  so 
as  to  get  out  of  the  wind,  when  the 
man  passed  along  on  the  south  side 


1100 


PART    III.       PROBLEMS    OF   PROOF 


No.  393. 


and  took  his  station  at  the  post  next 
the  bounds  between  my  house  and 
that  of  Mrs.  Andrew.  I  asked  South- 
wick  to  go  with  me  into  my  house, 
to  see  what  he  was  about.  We 
passed  about  twenty  feet  from  him 
and  entered  my  west  door,  and  went 
up  into  my  chamber,  because  the 
sliding  shutters  in  the  room  below 
were  closed,  and  we  could  not  un- 
close them  without  noise.  I  looked 
out  of  the  window  and  by  pressing 
my  face  against  the  glass,  I  could  see 
the  man  at  the  post,  and  never  lost 
sight  of  him  while  he  stood  there, 
which  was  five  or  six  minutes,  when 
another  man  came  from  eastward  — 
in  the  middle  of  the  road  and  not 
on  the  sidewalk.  I  saw  him  when 
he  was  150  or  200  feet  off.  From 
my  window,  I  could  see  down  Brown 
Street,  and  the  Common,  so  the  man 
must  have  come  through  Newbury 
Street,  or  we  could  have  seen  him 
sooner.  He  came  up  to  the  post 
close  to  the  other  without  bowing, 
as  near  as  he  could  get,  and  stopped. 
They  then  went  together  into  the 
street  ten  or  eleven  feet  toward  the 
N.  W.  and  stood  there  not  more  than 
a  foot  apart,  and  not  more  than  a 
minute.  I  could  then  see  them 
better  from  the  western  window. 
The  man  that  came  from  the  E.  had 
on  light  clothes  —  he  then  run  as 
hard  as  he  could  down  Howard 
Street.  The  other  at  the  same  time 
started  off  in  the  opposite  direction, 
and  was  out  of  sight  towards  the  E. 
I  know  he  did  not  go  up  Brown 
Street,  for  he  turned  round  and  went 
to  the  east.  When  we  got  into 
the  street  we  could  see  no  one. 
We  then  went  down  Howard  Street 
immediately,  and  as  soon  as  we  came 
to  the  Graveyard,  we  looked  over 
the  fence  several  times,  but  saw 
nothing ;  we  looked  over  the  fence 
repeatedly.  Before  we  got  down 
to  the  New  Road  we  saw  a  light  open 
wagon  with  a  man  in  it  passing 
along  that  Road  towards  Beverly. 
We  went  on  round  through  Williams 
Street  and  came  home.  I  don't 
know   the  prisoner  now  —  but   did 


know  him  four  years  ago.  I  have 
seen  him  since  in  prison,  and  at  the 
bar.  I  can't  tell  whether  he  was  one 
of  those  I  saw  that  night ;  the  size 
and  general  appearance  agree  very 
well.  I  had  heard  the  clock  strike 
ten,  and  should  think  that  it  was 
thirty  or  forty  minutes  after  when 
I  met  Southwick.  After  the  murder 
I  went  up  on  Downing's  steps,  and 
could  see  all  the  north  and  west 
windows  of  Capt.  White's  house, 
and  a  light  in  the  chamber  where  he 
slept  —  the  windows  of  the  room 
over  that,  those  of  the  room  on  the 
same  floor  over  the  kitchen,  and 
those  of  the  room  over  this.  These 
cannot  now  be  seen  because  of  leaves 
on  the  trees. 

Cross-examined'. — The  steps  of 
Downing's  house  is  the  only  place 
where  I  looked  from.  The  windows 
could  not  be  seen  from  the  rope- 
walk  steps,  or  from  Shepard's  post, 
or  from  the  post  near  my  house,  or 
while  walking  down  under  the  fence 
on  the  S.  side.  I  saw  the  man  before 
I  came  to  Southwick  and  it  ap- 
peared singular  that  one  should  be 
standing  there.  He  did  not  then  tell 
me  that  it  was  Frank  Knapp,  but  he 
has  since  told  me  —  I  believe  after  the 
arrest.  I  did  not  then  hear  South- 
wick say  that  the  man  looked  like 
William  Peirce,  and  believe  I  did 
not  hear  him  say  so  when  examined 
by  Justice  Savage. 

Mrs.  Southwick  sworn. 

On  the  night  of  the  murder  Mr. 
S.  came  home  after  10,  went  out 
again  and  returned  just  before  or 
just  after  11.  I  had  looked  at  the 
timepiece  just  before. 

Capt.  Bray  recalled  by  Counsel 
for  Prisoner. 

My  dress  was  a  dark  frock  coat, 
dark  pantaloons.  Southwick's  was 
reddish  pantaloons,  and  we  both 
wore  hats. 

Miss  Elizabeth  Potter  sworn. 

I  live  in  Brown  Street.  The  even- 
ing of  the  uight  of  the  murder,  about 
half  past  10,  I  saw  a  person  stand- 
ing at  the  corner  of  Howard  Street, 
looking  down  Howard  Street.     He 


No.  393. 


KNAPP  S   TRIAL 


1101 


turned  and  looked  towards  the  house, 
when  I  opened  the  door.  The  house 
is  nearly  opposite  the  rope  walk. 
His  dress  was  light  pantaloons, 
cinnamon  drab,  I  thought,  and  dark 
coat ;  I  don't  recollect  what  he  had 
on  his  head.  I  know  ]Mr.  Southwick 
and  do  not  think  it  was  he. 

Isaac  H.  Frothingham  sworn. 

I  was  in  Brown  Street  on  the  even- 
ing of  the  6th  of  April.  I  was  at 
Mr.  James  Potter's,  nearly  opposite 
the  rope  walk.  It  was  about  half 
past  10  o'clock,  when  I  came  away ; 
I  looked  at  the  clock.  When  I 
opened  the  door,  I  saw  a  person 
walking  up  the  street  slowly.  He 
had  passed  the  door  when  I  opened 
it.  He  turned  and  looked  over, 
and  remained  there  after  I  walked 
up  the  south  side  of  the  street.  He 
was  on  the  opposite  sidewalk,  within 
a  few  paces  of  the  ropewalk,  when 
he  first  stopped.  He  then  advanced 
a  little  farther,  and  that  brought 
him  to  the  corner  of  the  ropewalk 
on  Howard  Street.  I  went  on  the 
same  side  of  the  street,  and  looking 
back,  thought  he  was  joined  by  an- 
other person.  One  of  them  was 
dressed  in  a  dark  coat  and  light 
pantaloons  and  hat.  The  person 
who  joined  him  must  have  come  up 
Howard  Street  or  Brown  Street,  or 
I  should  have  seen  him.  They  were 
standing  there  the  last  I  saw  of 
them. 

Cross-examined.  —  My  first  im- 
pression was,  that  it  was  Mr  South- 
wick ;  but  afterwards  came  to  a  dif- 
ferent conclusion,  because  I  thought 
he  was  too  tall,  and  if  it  had  been 
Southwick,  I  thought  he  would  have 
spoken  to  me.  I  thought  his  panta- 
loons were  of  a  cinnamon  drab  color. 

Joseph  Burns  sworn. 

I  was  born  in  old  Spain ;  have 
lived  here  about  twenty-five  years. 
My  place  of  business  is  in  St.  Peter 
Street.  I  keep  horses  to  let  —  my 
stable  is  near  the  head  of  Brown 
Street.  I  know  Francis  Knapp. 
Had  a  conversation  with  him  in  the 
stable,  after  the  murder,  and  after 
the    Committee    of    Vigilance    was 


appointed.  It  was  just  after  the 
Wenham  robbery.  He  came  into 
the  stable,  and  asked  if  anybody  was 
in  the  stable  besides  me.  I  told 
him  no.  He  asked  me  whether  I 
had  any  loft,  or  place  upstairs ;  I 
told  him  yes.  He  said  "the  best 
way  is  for  us  to  go  up,  as  I  want  to 
say  something  particular  to  you." 
We  went  up  —  then  he  asked  me 
if  I  knew  anything  about  Capt. 
White's  murder.  I  told  him  "no  — 
I  wished  to  the  Lord  I  should,  be- 
cause I  would  make  it  known  pretty 
quick."  He  said  the  Committee 
had  heard  I  was  out  on  the  night  of 
the  murder,  till  about  10  o'clock; 
and,  said  he,  "if  you  saw  any  one, 
any  friend,  out  that  night  in  the 
street,  don't  you  let  the  Committee 
know  it,  for  they  will  try  to  pump 
something  out  of  you."  He  said  his 
brother  Joseph  was  a  friend  of  mine, 
and  he  himself  too  was  a  friend  to 
me.  He  said  the  Committee  wanted 
to  pump  me,  to  see  if  they  could 
catch  me,  in  one  thing  or  another. 
I  then  said  that  I  knew  all  the  mem- 
bers of  the  Committee,  and  if  they 
wanted  me  any  time,  I  was  ready 
to  answer  them  to  anything.  Then 
I  asked  Knapp  what  he  thought  of 
the  Crowninshields,  who  were  in 
jail.  Mr.  Knapp  said  they  were  as 
innocent  of  that  as  he  and  I.  I 
asked  him  who  did  it,  then  ?  He 
said  Capt.  Stephen  White  must 
be  the  one.  I  said,  "  Don't  you  tell 
me  such  a  thing  as  that.  I  know 
Capt.  Stephen  White,  and  have 
known  him  ever  since  he  was  eighteen 
or  nineteen  years  old."  Then  he 
put  his  hand  untler  his  waistcoat, 
where  he  had  a  dirk,  and  showed  the 
handle.  I  said,  "D — n  you,  I  don't 
care  for  you,  nor  twenty  dirks." 
Then  he  said  that  he  was  a  friend  to 
me,  and  had  come  to  give  me  this 
information,  that  I  need  not  get 
into  difficulty.  I  know  Joseph  J. 
Knapp,  jr.,  —  he  used  to  come  to 
my  stable  to  hire,  and  to  put  up 
horses.  He  was  there  on  the  week 
before  the  murder.  He  sometimes 
wore  a  cap,   and  sometimes  a  hat. 


1102 


PART    III.       PROBLEMS    OF   PROOF 


No.  393. 


He  usually  left  one  of  them  there. 
He  wore  also  a  cloak,  or  surtout,  and 
likewise  left  one  or  the  other  of  these. 
His  clothes  were  sometimes  left  in 
the  entry,  and  .sometimes  in  the 
chaise,  and  I  put  them  into  the 
entry. 

Nathaniel  Kinsman  called  again. 

I  reside  in  Brown  Street.  A  few 
days  after  the  murder,  I  went  out 
to  see  from  what  part  of  that  street 
I  could  distinguish  the  window  in 
the  chamber  of  Capt.  ^Yhite.  I 
could  see  the  window  from  the  south- 
east corner  of  Mr.  Downing's  house, 
at  the  corner  of  Howard  and  Brown 
streets.  I  could  see  the  north  win- 
dow of  Capt.  White's  sleeping  cham- 
ber, and  that  of  the  chamber  above. 
I  have  no  doubt  that  I  might  have 
seen  the  windows  in  the  chamber 
of  Mrs.  Beckford,  but  my  object 
then  was  to  ascertain  whether  I 
could  see  the  window  in  Capt. 
White's  chamber.  There  is  no  build- 
ing to  interfere  with  the  range  of 
the  second  story.  As  far  west  as  the 
next  house  to  Mr.  Downing's,  which 
is  the  one  in  which  I  reside,  and  is 
eighteen  or  twenty  paces  farther  up, 
I  could  still  see  the  window,  and 
also  in  all  the  intermediate  space. 
P^ast  of  the  southeast  corner  of  Mr. 
Downing's  house,  could  not  see  it.  — 
There  is  one  passageway  from  Essex 
Street  to  Brown-  Street.  It  is  not 
public  —  it  comes  through  to  where 
the  Sun  Tavern  used  to  stand,  and 
is  nearl}'  as  far  west  as  the  church. 
There  are  two  passageways,  with 
a  gate  to  each,  which  you  must  open. 
It  would  be  nearer  to  go  from  the 
ropewalk  steps  to  Capt.  White's 
house  by  Newbury  Street,  than 
through  either  of  these. 

Cross-examined.  —  I  could  see  the 
windows  very  plain,  without  getting 
upon  the  steps  of  Downing's  house. 

Philip  Chase  affirmed. 

Early  after  the  murder  of  Capt. 
White,  I  heard  of  a  suspicious  man's 
having  been  seen  on  ropewalk  steps. 
Thought  he  might  be  watching. 
1  went  to  .see  if  anything  could  be 
seen  from   steps.      A   little   to   the 


west  from  the  opening  of  Howard 
Street,  I  could  see  Capt.  White's 
chamber  window.  I  think  it  was 
rather  more  than  halfway  across 
Howard  Street,  that  I  first  saw  the 
window.  But  on  Downing's  steps 
could  .see  it  very  plain.  Don't 
know  how  far  west  of  the  steps 
I  might  have  seen  it.  —  Could  see 
range  of  windows. 

Cross-examined.  —  I  don't  know 
which  was  Mrs.  Beckford 's  chamber, 
don't  know  that  I  examined  that. 
I  had  no  suspicion,  of  any  particular 
person  having  been  concerned  in 
murder,  when  I  went  to  look  at  this 
window.  It  was  before  the  Knapps 
were  arrested.  I  had  no  suspicions 
of  the  Knapps,  before  I  heard  of  the 
Wenham  robl)ery. 

Mary  Jane  Weller  sworn. 

I  know  George  Crowninshield. 
About  three  weeks  before  the  mur- 
der, he  was  at  my  house.  It  was  in 
the  morning.  I  went  into  his  room 
where  he  slept.     Mary  Bassett  and 

I  found  a  dagger  under  the  pillow  of 
Mary's  bed.  He  had  been  sleeping 
with  Mary  that  night.  I  asked 
George  why  he  carried  a  dirk.  He 
said  it  was  because  it  had  once  saved 
his  life,  and  some  Salem  fellows  were 
going  to  flog  some  Danvers  fellows. 
On  the  evening  of  April  6,  between 
10  and  11  o'clock,  he  came  to  my 
house.      I    heard    the   clock   strike 

II  after  he  came  in.  Saw  him 
there  next  morning.  I  went  out  and 
heard  of  the  murder.  Then  went 
into  George's  room  and  told  him. 
He  appeared  to  be  alarmed,  and 
Mary  was  alarmed.  I  wanted  to 
go  down  to  Capt.  White's  to  see 
the  body,  and  asked  Mary  to  go. 
George  was  unwilling. to  have  her 
go.  He  told  me  that  morning  not 
to  say  anything  about  that  dirk ; 
he  said  every  scrape  was  laid  to  the 
Oowninshields.  He  stayed  there 
all  day,  and  did  not  go  away  until 
the  evening.  The  hour  he  came  at, 
was  between  10  and  11.  He  had 
been  accustomed  to  come  there 
at  dark,  and  to  go  away  again 
and    come    back    between    12    and 


No.  393. 


KNAPP  S   TRIAL 


1103 


1.  He  had  stayed  there  once  all 
day,  a  very  cold  day.  This  time,  he 
said  he  had  a  bad  headache,  and  laid 
abed  nearly  all  day.  He  a,sked,  if 
we  went  down,  not  to  say  anything 
about  his  being  there,  and  not  to  say 
anything  about  the  dirk.  Went 
away  about  dark,  day  after  the  mur- 
der. The  dirk  was  about  as  long 
as  a  case  knife  —  it  had  an  ivory  or 
bone  handle. 

Cross-examined.  —  Counsel  for  pris- 
oner. —  What  sort  of  weather  was  it 
the  next  day  ? 

Witness.  —  You  know,  as  well  as  I 
do.  I  am  not  going  to  answer  any 
such  silly  questions.  I've  told  my 
story  and  I  don't  want  to  be  made 
fun  of.  .  .  . 

Miss  Catharine  Kimball  sworn. 

I  was  at  Capt.  Wliite's  house, 
on  the  next  day  after  the  murder. 
I  found  the  key  of  his  chamber  door 
under  the  sofa  covering.  It  is  a  com- 
mon door  key.  Mrs.  Stanley  was 
with  me,  don't  recollect  what  she 
did  with  it.  I  think,  though  I  am 
not  positive,  that  Mr.  Deland  was 
present. 

Benjamin  White  called  again. 

The  last  time  Joseph  J.  Knapp,  jr., 
was  at  Capt.  W^hite's  house,  before 
the  murder,  was  Sunday  before. 
Mrs.  Knapp  was  with  him.  Took  tea 
there.  Capt.  W.  not  at  home. 
He  took  tea  at  Mrs.  Stone's,  Chest- 
nut Street.  Mr.  Knapp  did  not 
come,  till  towards  night.  Mrs. 
Knapp  came  first. 

Cross-examined. — The  plank, found 
under  the  window,  came  from  be- 
fore the  garden  gate.  It  is  just 
beyond  the  shed.  It  opens  into  the 
yard  fronting  Essex  Street.  You 
go  along  the  yard  to  garden  gate. 

Reexamined.  —  Plank  so  near 
doorstep  that  one  might  step  on  it 
from  the  door. 

Cross-examined.  —  The  small  gate 
was  not  usually  fastened,  but  gener- 
ally shut.  I  was  examined  by  Com- 
mittee of  Vigilance,  as  if  suspected. 

Henry  R.  Deland  sworn. 

I  was  at  the  house  of  Capt. 
White  on  the  day  after  the  murder, 


after  the  body  was  laid  out.  I  saw 
the  key  of  the  chamber  on  the  sofa. 
We  looked  for  it  to  fasten  the  floor. 
Miss  Kimball  was  there.  I  callerl 
at  Capt.  White's  liouse,  on  the 
day  before  the  uiurder.  between 
half  past  12  and  1.  Lydia  Kimball 
came  to  the  door. 

Hon.  Gideon  Barstow  sworn. 

I  went  with  Mr.  Colman,  on  the 
29th  May,  at  his  request,  to  the 
meetinghouse,  in  Howard  Street. 
Mr.  Colman  went  to  the  further 
steps  of  the  house,  put  his  hand 
under  the  step,  and  drew  out  the 
bludgeon,  and  said  this  killed  Capt. 
White.  .  .  . 

Jedediah  II.  Lathrop  sworn. 

I  live  in  Beverly  on  the  farm 
owned  by  Capt.  White.  He  was 
there  on  the  day  before  he  was  mur- 
dered. His  young  man  came  with 
him.  It  was  after  dinner.  He  re- 
turned home,  about  5  o'clock.  The 
next  time  before  that,  he  was 
there  on  Friday,  April  2.  He  came 
up  in  his  wagon.  He  then  came  up 
after  dinner.  Usual  hour  for  din- 
ing 1  o'clock.  He  started  to  come 
home  about  sunset.  Generally  went 
through  Dan\ers.  Would  go  across 
North  Bridge.  But  whether  he  went 
that  way,  on  that  day,  do  not  know. 

Jonathan  Very  sworn. 

I  live  with  Mr.  Osborn,  and  have 
the  care  of  his  stable.  I  know 
Francis  Knapp  very  well.  One  time 
Francis  came  to  me,  and  asked 
me,  if  I  would  bring  him  a  horse 
and  chaise  behind,  or  near  the  Court- 
house. He  gave  no  reason  for  it. 
I  brought  the  horse  and  chaise, 
between  the  Courthouse  and  Mr. 
Chase'.s.  Nobody  got  in  with  him. 
Do  not  know  which  way  he  went. 
It  was  between  1  and  2  o'clock.  I 
had  just  come  from  dinner.  Some 
grain  was  brought  up  from  wharf 
same  day.  Had  been  drawing  grain. 
This  was  the  last  day  of  our  (h'aw- 
ing  it.  It  was  on  the  Friday  after- 
noon before,  that  we  began  to  draw 
it.  I  never  carried  a  chaise  to  him 
before. 

Cross-examined.  —  He    asked    me 


1104 


PART   III.       PROBLEMS    OF    PROOF 


No.  393. 


to  harness  Nip  Cat,  in  the  chaise, 
and  bring  him  as  soon  as  I  could. 

William  Osborn  called  again. 

I  have  with  me  a  bill  of  the  grain, 
bought  of  Mr.  Hacker.  It  is  dated 
2d  of  the  fourth  month.  We  began 
to  remove  the  grain  on  the  same 
day,  and  finished  drawing  it  on 
Tuesday. 

Cross-examined.  —  Am  positive, 
that  the  day  we  finished  drawing 
the  grain  was  Tuesday. 

William  E.  Hacker  affirmed. 

I  made  an  agreement  with  Mr. 
Wm.  Osborn  for  the  sale  of  a  quan- 
tity of  oats  to  him  on  the  2d  of  April 
last,  and  he  commenced  taking  them 
away  immediately.  He  took  away 
the  last  of  them  on  Tuesday,  April 
6th. 

Cross-examined.  —  I  know  that 
the  agreement  was  made  on  the 
2d  of  iVpril  and  that  they  were 
several  days  in  measuring  the 
oats. 

John  W.  Trcadwell,  Esq.,  sworn. 

I  am  cashier  of  the  Merchants' 
Bank.  .  .  .  Mrs.  Beckford  was  a 
niece  of  Capt.  White,  an  only  sister's 
daughter,  and  housekeeper  in  his 
family.  She  had  two  daughters,  one 
married  to  Joseph  J.  Knapp,  jr., 
the  other  to  Mr.  Davis  of  Wenham. 
Capt.  W.  had  nephews  and  nieces, 
children  of  his  late  brother  Henry. 
Mr.  Stephen  W.  and  family  were 
at  Boston  last  winter  at  Tremont 
House. 

Cross-examined.  —  I  am  one  of  the 
Committee  of  Vigilance.  The  com- 
mittee consulted  Mr.  Choate  as 
Counsel.  They  did  not  retain  any 
other  Counsel,  to  my  knowledge. 
They  did  think  proper  to  take  an 
oath  not  to  divulge  their  proceedings. 
I  do  not  know  how  the  expenses  of 
the  committee  were  paid.  A  letter 
was  received  from  Mr.  Stephen  W. 
offering  them  $1000  —  to  pay  ex- 
penses, if  their  investigations  should 
not  lead  to  the  detection  of  the  mur- 
derers. 

William  Osborn  called  again. 

I  commenced  removing  the  oats, 
bought  of  Mr.  Hacker  on  the  day  I 


made  the  agreement,  and  finished 
the  Tuesday  following. 

Cross-examined.  —  It  was  on  that 
day  that  ostler  mentioned  to  me  that 
he  carried  a  chaise  to  the  Court- 
house for  Frank  Knapp,  and  I 
thought  strange  of  it.  The  horse 
he  had  was  Nip-cat. 

J.  C.  R.  Palmer  called  again. 
And  inquired  of  more  particularly 
as  to  prisoner's  visit  to  the 
Crowninshields  on  9th  of  April. 

George  asked  me  at  that  time  if 
I  had  heard  of  the  murder,  and  said, 
they  had  no  hand  in  it.  Richard 
afterwards  asked  me  if  I  had  heard 
of  the  " music"  in  Salem  ?  He  said, 
people  supposed  they  had  some  hand 
in  it  —  they  said  they  should  leave 
home.  I  told  him  I  thought  it  a 
bad  plan  if  they  were  suspected. 
George  told  me  he  took  his  dirk  down 
to  the  machine  shop  and  melted  it 
down ;  for  a  committee  was  ap- 
pointed to  examine  houses,  and  it 
would  be  a  bad  sign  to  have  it  found. 
Richard  agreed  to  meet  me  at  Lowell 
on  the  1st  of  May.  He  said  he  had 
to  finish  some  cloths  and  could  dis- 
pose of  them  and  get  some  money 
and  go  to  New  York.  He  gave  me 
$5  —  bill  on  Newburyport  Bank. 

Cross-examined.  —  I  never  have 
stated  that  the  murder  was  com- 
mitted with  a  hatchet  —  I  said  I 
found  a  hatchet  in  the  machine  shop 
and  threw  it  into  one  of  two  places, 
did  not  recollect  which.  I  told  Jones 
I  had  seen  a  hatchet  and  suspected 
it  had  been  used,  because  I  saw  an 
account  in  the  newspapers  that  the 
murder  was  probably  committed 
with  a  hatchet  —  I  put  it  away  so 
that  it  might  be  found  if  called  for. 
It  had  the  handle  newly  sawed  off 
and  had  clay  on  the  head  of  it,  but 
was  just  like  any  other  hatchet. 
George  said  he  had  melted  the  dirk 
because  a  committee  was  appointed. 
I  am  positive  that  this  was  on  the 
9th  of  April. 

David  Starrett  sworn. 

...  I  heard  of  the  robbery  of 
the  Knapps,  last  spring.  There  was 
nothing  done  to  detect  the  robbers. 


No.  393. 


KNAPP's   TRIAL 


1105 


I  saw  the  prisoner  at.  my  store  on  the 
afternoon  before  the  murder,  about  4 
o'clock.  My  store  is  about  one  quar- 
ter of  a  mile  from  Joseph  Knapp's 
house. 

Abraham  True  sworn. 

I  live  in  Williams  Street,  pass 
through  Brown  Street  several  times 
every  day.  I  took  particular  notice, 
soon  after  the  murder,  of  Capt. 
White's  house,  and  the  back  win- 
dows of  the  two  upper  stories  are 
perfectly  visible  from  Brown  Street 
when  the  trees  are  not  covered  with 
leaves.  I  am  a  retail  grocer,  do  not 
take  a  dozen  5-franc  pieces  in  a 
year. 

Cross-examined.  —  The  windows 
are  not  visible  from  all  parts  of 
Brown  Street,  but  they  may  be  seen 
from  Howard  Street  and  several 
rods  above,  westerly.  They  cannot 
be  seen  from  the  ropewalk  steps, 
but  can  be  seen  from  a  point  six  or 
eight  feet  west  of  the  steps,  I  should 
think.  The  western  windows  of 
the  front  chamber  may  also  be  seen. 

A  majority  of  The  Court  having 
decided  that  the  confession  of  the 
prisoner  could  not  be  given  to  the 
jury,  Mr.  Webster  submitted  to  the 
Court  an  application  on  behalf  of 
the  Government  for  reargument  of 
the  question.  .  .  , 

After  this  decision,  Mr.  Webster 
stated  to  the  Court  —  that  the 
question  appeared  to  be  not  fully 
settled,  and  proposed  to  call  the 
witness  and  ask  him  certain  ques- 
tions of  a  different  character  from 
those  already  proposed  to  him. 
He  proposed  to  ask  the  witness 
whether  the  prisoner  did  assent  to 
J.'s  confession,  suggesting  that  it 
would  probably  appear  that  he 
never  did  assent. 

Wilde,  J.  —  That  would  mate- 
rially vary  the  case. 

Morton,.!.  —  Itwould  bemostim- 
portant  evidence.  My  opinion  was 
founded  on  the  supposition  that  he 
assented.  .  .   . 

Mr.  Cobnan  called  again. 

Wilde,  J.  —  It  becomes  necessary 
to  ask  one  question  which  was  not 


proposed  to  you  before.  The  fact 
the  Court  wish  to  ascertain  is, 
whether,  before  the  confession,  there 
was  any  assent  to  the  proposition 
made  to  the  prisoner  by  his  brother 
Phippen  Knapp  ? 

Ans.  —  There  was  neither  assent 
nor  refusal. 

Morton,  J.  —  The  fact,  upon 
which  my  whole  opinion  turned, 
that  is,  the  prisoner's  assent  to  his 
brother's  confession,  is  varied.  It  is 
now  said  that  there  was  no  assent. 
The  burden  of  proof  is  upon  the 
prisoner  to  show  that  the  case  is 
within  the  exception  to  the  general 
rule.  As  the  evidence  now  stands, 
it  does  not  appear  that  there  was 
any  improper  influence.  There  is 
no  evidence  of  assent. 

Mr.  Cobnan  goes  on. 

I  had  been  informed  that  the  mur- 
der was  committed  at  a  very  early 
hour  in  the  evening  —  I  thought  it 
incredible,  and  asked  the  prisoner 
at  what  time  it  was  done.  He 
told  me  between  10  and  11.  I  had 
been  incredulous  about  there  having 
been  but  one  person  in  the  house. 
He  told  me,  that  Richard  Crownin- 
shield  alone  was  in  the  house.  I 
asked  him  if  he  was  at  home  that 
night.  He  said  he  went  home  after- 
wards. I  asked  him,  in  regard  to  the 
weapon  —  the  place  where  it  was 
concealed.  He  told  me  under  the 
steps  [as  before],  and  said  that  if  I 
went  there,  I  should  find  it.  I  asked 
what  became  of  the  dagger  or 
daggers  —  I  am  not  certain  which. 
He  replied  that  it  or  they  had  l)een 
worked  up,  at  the  factory. 

Cross-examined.  —  The  principal 
part  of  the  conversation  was  between 
Phippen  and  Frank.  I  went  into 
the  cell  a  little  before  7  o'clock 
and  suppose  that  I  came  out  at 
half  after  7.  This  was  Friday  after- 
noon, 2Sth  of  May,  I  first  visited 
him  —  I  had  never  spoken  to  him 
before.  I  had  some  conversation 
with  him  at  another  time  at  his 
window.  I  went  immediately  from 
the  cell  of  Joseph  to  that  of  Frank. 
Phippen    was    not    in   Jo.seph's    cell 


1106 


PART   III.       PROBLEMS    OF    PROOF 


No.  393. 


with  me.  AYhile  I  was  in  the  latter, 
some  one  knocked  at  the  door.  —  I 
looked  out  at  the  scuttle  of  the  door 
and  saw  Phippen — he  asked  to  come 
in.  I  told  him  "not  yet."  I  had 
not  finished  my  business  with  his 
brother.  I  went  to  Boston  to  see 
the  Attorney-General.  I  started  for 
Boston  about  10  p.m.  and  arrived 
at  the  Attorney-General's  between 
12  and  1   o'clock. 

I  was  at  Joseph's  cell  three  times 
on  that  day,  and  again  on  the  day 
following — once  with  Dr.  Barstow, 
and  Stephen  C.  Phillips,  Escj.  I 
recollect  beyond  a  doubt,  which  time 
I  went  from  Joseph's  to  Frank's  cell 
—  it  was  after  the  third  ^•isit  to 
Joseph's,  and  the  same  evening,  on 
which  I  visited  the  xVttorney-Gen- 
eral.  Frank  was  told  that  Joseph 
had  decided  etc.  [as  before],  and 
nothing  more.  I  did  not  hear  it 
stated,  that  Joseph  had  made  a  full 
confession.  I  never  said  that  I 
would  not  mention  what  Joseph  had 
told  me  unless  Frank  consented  to 
the  disclosure.  I  never  stated  to 
Frank  that  there  was  no  chance,  if 
both  refused  to  confess.  I  never 
told  him  that  there  was  evidence 
enough  to  hang  both.  He  never 
stated,  that  he  had  no  confession  to 
make.  I  already  knew  that  the 
club  was  under  the  church  steps, 
but  lohich  steps  I  did  not  know,  until 
Frank  told  me.  I  don't  recollect 
telling  the  prisoner  that  Palmer 
was  arrestefl,  or  that  application  was 
made  for  his  pardon.  I  don't  rec- 
ollect that  it  was  stated  to  Frank 
that  Palmer  would  receive  a  pardon, 
though  I  think  it  not  improbable, 
that  it  was  stated.  The  jailer  had 
called  and  told  us  that  it  was  time 
to  go,  and  repeated  his  call ;  then 
Phippen  appealed  to  me,  and  Frank 
said,  "I  suppose  you  will  u.se  your 
influence,"  etc. 

I  said,  this  is  your  deliberate 
assent  (to  Joseph's  di.sclosure),  he 
said, "  I  don't  see  that  it  is  left  for  me 
to  choose.  I  miist  consent."  I  have 
stated  all  that  I  so  well  recollect,  as 
to  be  willing  to  state  under  oath.     I 


think  1  stated  to  Mr.  Stephen  White 
in  Boston,  at  the  Tremont  House, 
and  also  at  the  office  of  Phippen 
Knapp,  when  Mr.  Dexter  was  pres- 
ent, that  Frank  had  confirmed  Joe's 
confession. 

Phippen  Knapp  was  present  dur- 
ing the  whole  interview  and  might 
Jiave  heard  it.  I  didn't  tell  Mr. 
Stephen  White  that  Frank  had  told 
me  where  the  club  was.  I  haNe  no 
recollection  of  telling  any  one  where 
it  was,  till  I  had  found  it,  except 
that  I  spoke  of  it  to  Phippen  Knapp 
as  we  came  up  from  the  jail.  I  told 
him  that  I  should  rely  upon  his 
honor  that  he  should  not  go  for 
the  club. 

On  Saturday,  29th  IVIay,  a  little 
before  1  o'clock,  I  found  the  club. 
I  went  to  Frank's  cell  at  the  request 
of  Phippen  Knapp  —  his  conduct 
was  an  example  of  filial  and  fraternal 
affection.  At  the  request  of  Joseph, 
Avhen  I  went  out  of  his  cell,  I  asked 
his  father  and  brother  Phippen  to 
go  to  him.  Frank  did  not  tell  me 
that  he  knew  where  the  club  was, 
of  his  own  knowledije,  or  that  any 
one  told  him  it  was  there.  He  an- 
swered the  question  directly. 

Here  the  testimonj^  on  the  part 
of  the  Government  closed,  and  the 

Defense 

was  opened  by  Mr.  Gardiner,  junior 
Counsel  for  the  prisoner. 

Mr.  Gardiner,  in  introducing  the 
grounds  of  defense,  which  he  ex- 
pected to  establish  for  the  prisoner, 
referred  to  his  situation  as  being 
peculiarly  embarrassing.   . " .  . 

He  called  the  attention  of  the 
Jury  to  the  state  into  which  the 
public  mind  had  been  thrown  by  the 
publication  of  the  confession  of  one 
of  the  persons  implicated.  So  de- 
termined seemed  to  be  the  com- 
munity to  establish  the  guilt  of  the 
persons  accused,  that  he  might  almost 
say,  it  was  hazardous  for  him  to 
appear  in  the  defense.  The  cry  of 
the  people  is  for  blood.  He  con- 
sidered it  truly  an  alarming  state 
of  things,  if  to  be  accused  was  to 


No.  393. 


KNAPP  S   TRIAL 


1107 


he  convicted,  if  rumors,  generated 
by  suspicion,  were  to  be  the  evi- 
dence upon  which  the  Hfe  of  the 
prisoner  was  to  be  put  in  jeopardy. 
But  he  had  no  fear  on  this  account. 
He  did  not  despair  of  a  fair  trial, 
even  in  this  case.  .  .  . 

The  whole  evidence  of  the  con- 
spiracy rests  on  two  conversations. 
One,  overheard  by  Leighton,  be- 
tween the  prisoner  and  his  brother, 
at  Wenham,  the  other  heard  by 
Palmer,  between  the  Crowninshields. 
So  far  as  these  conversations  tend 
to  anything,  it  is  to  disprove  the 
charge.  As  to  the  weight  of  this 
testimony,  he  intended  to  show  that 
these  witnesses  were  not  entitled  to 
credit.  .  .   . 

The  only  question  is,  was  J.ohn 
Francis  Knapp  constructively  pres- 
ent ?  Even  if  he  were  in  Brown 
Street,  he  was  not  present,  except  by 
a  mere  fiction  of  law.  To  make  a 
man  liable  as  constructively  pres- 
ent, he  must  be  in  a  capacity  to 
render  assistance,  and  must  be  there 
for  that  purpose,  and  must  actually 
assist.  .   .   . 

Mr.  Gardiner  went  on  to  state 
that  they  proposed  to  introduce 
evidence  to  show  that  the  man  seen 
in  Brown  Street  was  not  the  prisoner 
at  the  bar,  but  some  other  person ; 
that  the  prisoner  was  in  a  different 
place  during  the  evening ;  and  that 
Brown  Street  was  not  a  situation  in 
which  aid  and  assistance  could  be 
given  to  the  murderer.  .  .   . 

The  witnesses  for  the  prisoner 
were  then  called. 

Jona.  P.  Saunders,  Esq. 

The  distance  from  Brown  Street 
to  Essex  Street,  through  the  garden 
of  Capt.  White,  is  about  295  feet. 

I  have  no  affidavit,  made  by  J.  C. 
R.  Palmer,  before  me.  I  saw  it  last 
in  the  possession  of  Palmer.  He  had 
it  when  I  left  his  cell.  It  was  sworn 
to  before  me.  I  cannot  tell  in  whose 
handwriting  it  was;  don't  know 
how  much  it  contained.  I  received 
it  folded,  with  Palmer's  signature, 
and  did  not  see  its  contents,  but 
merely    administered    the    oath.     I 


have  never  seen  it  since.  I  don't 
know  in  whose  possession  it  is  now. 

Daniel  Bray,  Jr. 

I  have  stated  that  when  I  first 
saw  the  second  man,  he  was  in  the 
middle  of  the  street.  I  have  not 
examined  to  see  which  way  he  could 
have  come.  If  he  had  come  from 
the  north  side  of  the  arched  gate 
of  the  Common,  I  could  have  seen 
where  he  came  from,  but  not  if  he 
came  from  the  south  side.  I  could 
have  seen  him  fifteen  feet  farther 
south  than  I  did.  There  are  several 
paths  across  the  Common,  leading 
to  both  sides  of  the  arch.  I  first 
saw  this  man  100  or  150  feet  off. 
I  could  not  tell  whether  he  came 
round  the  corner  or  across  the  Com- 
mon. 

Cross-examined.  —  From  where  I 
was  I  could  see  any  one  come  out 
either  side  the  arched  gate.  If  the 
man  had  come  round  the  corner,  on 
the  sidewalk,  I  could  not  have  seen 
him  until  he  was  within  four  or  five 
feet  of  the  other  man  at  the  post. 
I  don't  think  I  saw  him  when  he 
first  came  in  sight.  The  post  is  ten 
or  fifteen  feet  from  the  N.  W.  corner 
of  the  house.  When  the  men  were 
standing  at  the  post,  the  one  most 
westerly  was  periFectly  in  sight,  the 
other  could  be  seen  by  pressing  my 
face  hard  against  the  glass.  .  .  . 

Joseph  Burns. 

Frank  Knapp's  dirk  had  a  plated 
handle,  which  looked  like  silver. 
T  am  not  certain  whether  or  not  it 
had  a  guard.  It  had  a  crosspiece  on 
the  handle.  It  was  not  drawn.  I 
don't  know  how  long  the  handle 
was. 

Win.  II.  Allen. 

I  have  known  Frank  Knapp  from 
childhood,  and  have  been  intimate 
with  him.  I  can't  say  whether  he 
had  a  dirk  before  the  Wenham 
robbery.  The  first  time  I  saw  it  was 
about  the  time  that  dirks  were  sell- 
ing in  Salem.  I  iiave  no  dirk,  my- 
self, but  I  have  known  a  few  young 
men  w4io  have  had  them  —  this  was 
sometime  after  the  murder.  [He 
identifies    the     dirk     shown     him.] 


1108 


PART    III.       PROBLEMS    OF   PROOF 


No.  393. 


This  was  Frank's.  Mr.  Newhall 
made  it  for  him. 

Bctijamin  Lrighton. 

Frank's  dirk  had  a  gilt  handle, 
with  a  little  jog  to  prevent  its  going 
into  the  scal)l)ard.  The  one  pro- 
duced looks  like  it. 

Dudley  S.  Newhall  sworn,  and 
dirk  shown  him. 

I  was  making  this  when  prisoner 
came  into  my  shop  and  wished  to 
purchase  it,  and  I  sold  it  to  him  on 
the  day  before  the  Wenham  robbery. 
I  was  making  it  for  my  own  amuse- 
ment. It  was  several  days  before 
it  was  delivered,  that  he  said  he 
should  like  to  buy  it.  This  is  not 
my  regular  business  —  I  am  a  jew- 
eler. There  was  a  particular  de- 
mand for  dirks  at  that  time. 

William  Peirce  sworn. 

My  usual  dress  at  the  time  of  the 
murder  was  similar  to  prisoner's.  It 
was  a  plaid  cloak  and  a  black  glazed 
cap.  This  was  a  common  dress  — 
almost  all  the  young  men  wore 
glazed  caps.  Before  the  murder,  it 
was  not  usual  to  wear  dirks.  Since 
that  time  many  use  sword  canes, 
but  I  don't  know  as  to  dirks. 

The  appearance  of  my  cloak  was 
very  different  from  a  camblet  one  — 
it  was  a  dark-green  color  and  shaded. 

Cross-examined.  —  I  was  not  on 
the  ropewalk  steps  on  the  night 
of  the  murder,  but  I  was  in  Brown 
Street,  for  I  live  there.  I  don't 
know  what  time  —  I  did  not  stand 
leaning  over  a  post. 

Asa  Wig  gin  sworn. 

I  am  a  tailor.  Camblet  cloaks 
were  the  most  common  last  winter. 
—  From  the  1st  of  September  to 
April,  I  made  twenty-four.  I  did 
not  make  any  plaid  cloaks  last  win- 
ter. I  made  as  many  mandarins 
as  I  did  cloaks. 

Israel  Ward,  jr.,  sworn. 

I  am  a  tailor,  and  made  aliout  fifty 
cloaks  last  winter.  Two  thirds  of 
this  number  of  })lue  and  brown  imi- 
tation camblet  —  the  other  third 
principally  of  German  caml^let.  I 
made  also  a  few  of  cloth,  and  two 
or  three  of  plaid. 


Cross-examined.  —  I  have  made 
clothes  for  the  prisoner,  and  between 
the  20th  and  last  of  January  I  made 
him  a  frock  coat,  of  olive  or  dark- 
brown  color,  single  breasted,  snug 
al)out  the  body,  and  quite  full  in  the 
skirts. 

Reexamined.  —  I  have  made  sim- 
ilar garments  for  others  —  prob- 
ably from  the  same  piece  of  cloth. 
I  did  not  make  so  many  mandarins 
last  year  as  I  did  the  year  before  — 
then  I  made  about  thirty.  The 
prisoner's  frock  was  made  in  the 
fashion  of  the  day. 

Stephen  Osborne  sworn. 

I  am  a  hatter,  and  live  in  Salem. 
Within  the  last  year  I  have  sold 
1600  or  1700  head  co^'erings  —  more 
than  500  caps,  of  all  kinds,  within 
the  year  ending  about  three  weeks 
since ;  and  of  glazed  and  leather 
caps,  200  in  all.  I  know  the  cap 
produced,  and  sold  one  like  it  to 
the  prisoner,  as  much  like  it  as 
two  articles  can  be.  I  have  sold  200 
of  the  same  general  appearance  as 
this,  men's  and  boys'.  There  are 
other  hatters  in  this  town.  It  was 
a  common  article  of  dress  last  winter. 

Cross-examined.  —  Of  this  partic- 
ular kind  I  sold  last  winter  from 
one  to  three  dozen  —  none  of  the 
same  kind  to  boys. 

Reexamined.  —  I  have  sold  from 
one  to  three  dozen  of  this  kind,  but 
without  fur,  and  the  rest  of  the  200 
were  of  glazed  leather,  but  had  not 
a  star  like  this,  on  the  top. 

The  counsel  for  the  prisoner  here 
read  copies  of  two  warrants  against 
J.  C.  R.  Palmer  —  one  dated  the 
8th  of  June,  by  which  he  was  ar- 
rested and  committed  for  further 
examination,  upon  the  same  charge 
as  that  against  the  prisoner ;  and 
one  of  July  10,  by  which  he  was 
committed  by  the  magistrate  to 
answer  to  the  same  charge,  at  the 
present  term  of  this  court. 

They  then  read  a  copy  of  a  record 
of  the  Court  of  Common  Pleas  of 
Maine,  of  a  conviction  of  Palmer  for 
breaking  a  shop,  with  intent  to 
steal  —  the  judgment  and  sentence, 


No.  393. 


KNAPP  S   TRIAL 


1109 


which  was  confinement  to  hard  hihor 
for  two  years,  in  Thomastown  State 
Prison. 

William  Babh  sworn. 

I  keep  a  house  of  Entertainment, 
called  the  "Halfway  House,"  be- 
tween Boston  and  Salem.-  I  know 
Palmer,  but  from  the  time  he  was 
at  my  house  until  last  Friday  I  have 
not  seen  him.  I  am  not  certain 
when  he  was  at  my  house ;  my  im- 
pression is,  that  he  came  there  on 
the  9th  of  April,  and  went  away  on 
the  morning  of  the  10th.  I  heard 
of  the  murder  on  the  7th,  in  the 
after  part  of  the  day,  I  think.  He 
never  slept  there  at  any  other  time, 
unless  he  got  into  the  house  unknown 
to  me.  My  impression  is,  that  it  was 
after  the  murder,  that  he  slept  there. 
I  am  not  positive  that  I  had  heard  of 
the  murder  before.  I  know  that  it 
was  the  9th,  because  I  had  a  man 
(George  Green)  who  "  took  too 
much,"  and  I  turned  him  away,  and 
he  signed  a  receipt  the  next  morning. 
Palmer  came  out  while  he  was 
signing  and  asked  for  his  bill,  and 
said  he  had  no  money.  It  was  at 
this  time,  I  think,  and  the  receipt  is 
dated  the  10th. 

Green  was  paid  for  four  days'  la- 
bor. He  worked  on  the  10th,  and 
left  the  house  on  Sunday,  the  11th. 
I  am  not  certain  that  Green  was 
present.  He  is  now  covered  up  in 
the  earth. 

Palmer  called  himself  George 
Crowninshield,  and  left  with  me  a 
plaid  silk  handkerchief  marked  with 
that  name,  and  offered  me  a  note 
for  the  amount  of  his  bill,  signed 
George  Crowninshield,  and  said  that 
he  should  be  along  in  a  day  or  two, 
and  would  pay  the  bill.  I  asked 
him  if  his  name  was  George  Crownin- 
shield —  he  kept  his  head  down  very 
much,  and  I  said,  "You  don't  re- 
semble the  family;  I  know  Rich- 
ard very  well  —  but  you  may  be 
a  younger  brother"  —  he  said,  "It 
might  be  the  case."  I  carried  back 
the  note  and  threw  it  on  the  desk, 
because  my  wife  said  that  it  was 
good     for     nothing.     I     went     out, 


came  back  and  never  saw  the  note 
afterwards.  I  don't  know  what 
became  of  it. 

Cross-examined.  —  The  receipt  I 
left  at  my  house.  I  saw  it  last 
Friday.  I  can't  swear  that  the  re- 
ceipt was  dated  the  10th,  and  if  it 
were,  I  can't  swear  that  this  was 
right.  But  I  am  positive  that  it 
reads  10th.  The  time  of  day  was 
7  or  8  P.M.  when  he  came  there, 
and  it  was  after  7  in  the  morn- 
ing, after  the  usual  time  of  going 
to  work,  that  he  went  away.  I 
can't  fix  the  time  any  nearer.  I 
don't  know  which  way  he  came. 
He  went  to  the  east.  .  .  . 

James  W.  Webster  sworn. 

I  live  in  Belfast  (Me.).  I  have 
known  Palmer  these  eight  years. 
As  to  his  general  reputation  for 
truth  I  don't  know  that  he  has  any 
at  all.  I  have  always  heard  a  bad 
character  of  him.  I  ha\'e  heard 
perhaps  an  hundred  people  say,  that 
he  would  not  be  belie\ed  at  all,  in 
any  case  in  which  he  was  interested. 
His  general  character  is  not  good. 

William  F.  Angier  sworn. 

I  live  at  Belfast  and  was  admitted 
to  the  practice  of  the  law  about  a 
week  ago.  I  have  known  Palmer 
eight  or  nine  years.  I  have  never 
heard  his  general  character  for  truth 
and  veracity  questioned.  .   .  . 

Alfred  Welles  sworn. 

I  reside  in  Boston,  and  import 
hardware  and  fancy  goods.  I  sell 
arms.  I  have  sold  small  arms,  such 
as  pocket  pistols  and  small  dirks,  in 
greater  quantities  within  two  months 
than  usual.  I  have  had  orders 
from  Salem  for  quantities  —  from 
]\Ir.  Johnson.  After  the  murder 
I  received  orders  for  short  dirks 
from  respectable  persons  here  and  in 
Jioston,  as  long  as  I  had  any  left. 
My  drawers  were  emptied  of  these 
instruments  once  or  twice  within 
two  months. 

Major  Petty  sworn. 

I  live  in  Danvers,  about  a  quarter 
of  a  mile  from  Crowninshield's.  I 
remember  being  at  work  for  George 
Crowninshield,    trimming    a    couple 


1110 


PART  III.   PROBLEMS  OF  PROOF 


No.  393 


of  trees.  I  can't  tell  whether  before 
or  after  the  murder.  While  at  work, 
Richard  and  two  young  men,  whom 
I  didn't  know,  came  up  to  u.s,  I  heard 
the  name  of  one  called  Allen.  I  can't 
say  whether  the  prisoner  at  the  bar 
was  one  of  them  —  one  was  a  man 
about  his  size,  and  one  of  them  had 
a  whip,  but  I  don't  know  how  they 
came.  The  trees  which  I  was  trim- 
ming were  within  eight  or  ten  rods 
of  the  house.  These  young  men 
went  towards  the  house,  and  George 
wentwiththem.  Ican't  tell,  whether 
they  went  into  the  house.  The 
front  door  was  open.  I  am  pretty 
sure  that  I  saw  two  on  the  steps,  but 
I  am  not  sure  who  went  in.  They 
were  gone  but  a  short  time,  and  came 
back  to  within  one  and  a  half,  or 
two  rods,  of  the  place  where  I  was 
at  work  —  all  four  together.  I  heard 
talking,  but  couldn't  hear  what  was 
said.  I  could  if  I  had  attended.  I 
think  that  George  and  one  of  the 
others  went  a  little  before  the  rest, 
when  going  to  the  house,  but  I 
should  say  not  a  rod  ahead — all  four 
came  back  together.  They  stayed 
perhaps  ten  or  twenty  minutes,  and 
then  started  to  go  to  the  factory 
together.  The  time  of  day  was, 
as  nearly  as  I  can  recollect,  after 
dinner.  I  can't  say  whether  Mr. 
Allen  was  the  man. 

William  II.  allien  recalled. 

The  first  time  I  went,  I  saw  a  man 
at  work  —  it  was  six  or  eight  weeks 
before  the  murder. 

Petty  resumes. 

I  was  not  trimming  trees  in  Febru- 
ary, merely  cutting  them  away,  so 
that  the  meetinghouse  might  be 
seen.  I  should  .say  that  this  was  in 
April.  I  can  fix  the  time  by  the 
work  I  was  then  employed  on.  I 
did  not  see  the  young  man  any  more 
on  that  day.  There  was  frost  in 
the  ground  at  this  time. 

Cross-examined. — This  was  not  in 
March  —  I  should  think  that  it  was 
in  the  fore  part  of  April.  I  don't 
know  whether  it  was  just  before  or 
just  after  the  Gth  of  April.  I  think  I 
heard  George  call  one  of  them  Allen. 


Ehenezer  Shillaber,  Esq.,  sworn. 

I  have  had  a  conversation  with 
Mr.  Southwick  respecting  the  man 
in  Brown  Street.  I  inquired  of  him 
after  the  arrest  of  the  Knapps,  about 
the  men  he  saw  in  Brown  Street. 
He  told  me  he  recollected  seeing  a 
young  man  there.  That  he  went 
into  Bray's  house  with  him,  and  that 
after  having  got  there  they  saw  an- 
other join  the  first.  Mr.  South- 
wick said  that  he  could  not  see  so 
well  as  Bray  could,  he  said  that  he 
thought  that  the  man  who  came 
from  Xewl^ury  Street  was  taller 
than  the  man  who  was  in  Brown 
Street.   .  .   . 

Gardiner.  —  We  propose  to  ask 
the  witness,  generally,  what  descrip- 
tion Mr.  Southwick  gave  to  the 
witness,  of  the  persons  whom  he  saw 
in  Brown  Street.  .   .  . 

Witness.  —  I  don't  recollect, 
whether  Mr.  Southwick  gave  me 
any  description  of  the  persons  whom 
he  saw  in  Brown  Street.  I  asked 
him  whether,  for  aught  he  knew,  the 
person  who  came  from  Newbury 
Street  might  not  have  been  Francis 
Knapp,  and  the  person  in  Brown 
Street  Richard  Crowninshield  ?  He 
said  he  could  not  tell,  but  for  aught 
he  knew,  it  might  be  so.  I  had  no 
conversation  with  him  about  the  man 
on  the  steps.  My  only  object  was 
to  satisfy  myself,  that  it  might 
have  been  Richard  Crowninshield  in 
Brown  Street. 

Cross-examined.  —  I  was  Counsel 
for  Richard  and  George  Crownin- 
shield, when  I  made  the  inquiry. 

Mrs.  Burns  sworn. 

On  the  night  of  the  murder  of 
Mr.  White,  I  .saw  Selman  and  Chase 
at  my  house.  It  was  about  8 
o'clock.  They  came  in  a  chaise. 
They  tied  their  horse  in  the  yard, 
and  went  away.  Mr.  Burns  was 
not  at  home.  Chase  came  back 
again  about  half  past  9  —  stopped 
about  five  minutes  for  Selman,  then 
took  his  chaise  and  went  away. 
Selman  came  back  about  five  min- 
utes after  Chase  had  gone,  and 
asked  for  him.     A  young  man  was 


No.  393. 


KNAPP  S   TRIAL 


nil 


with  Selman,  at  the  bottom  of  the 
yard.     I  did  not  know  who  it  was. 

Sehiian  said  he  expected  Chase  to 
call  for  him  there.  He  then  went 
away,  and  returned  in  about  a  quar- 
ter of  an  hour,  to  see  if  Chase  had 
called  for  him.  The  last  time  they 
were  there,  the  young  man  that  was 
with  him  left  a  message  to  tell  Chase, 
when  he  should  come,  that  he  should 
be  at  Pendergrass's.  .   .  . 

Cross-examined.  —  I  know  George 
Crowninshield.  I  did  not  know  the 
voice  of  the  one  who  spoke  to  Selman 
—  he  did  not  speak  loud,  but  in  a 
tone  of  moderate  conversation. 

John  Ncedham  sworn. 

I  saw  George  CroAvninshield,  on 
the  night  of  the  murder,  in  South 
Fields,  the  first  time  about  7 
o'clock,  at  the  news  room,  at 
Pendergrass's.  Richard  Crownin- 
shield paid  the  rent  for  that  room. 
Chase  and  a  young  man,  introduced 
to  me  as  Col.  Selman,  came  in, 
and  George  a  few  minutes  after. 
They  stayed  there  about  half  or 
three  quarters  of  an  hour,  and  then 
went  away,  all  together.  I  saw 
them  again  there  between  9  and 
10  o'clock.  Chase  then  came  alone 
in  a  chaise,  and  George  Crown- 
inshield and  Selman  came  on  foot 
afterwards.  George  was  there  all 
the  time,  except  about  ten  minutes, 
that  I  was  out.  Joseph  Burns, 
Austin,  and  Osborn  were  also  there, 
and  stayed  some  time.  Chase  and 
Selman  w^ent  off  together,  in  the 
chaise,  and  afterward  George,  Austin, 
Osborn,  and  myself  came  away  to- 
gether. I  said  that  I  was  going  home 
the  nearest  way  and  George  said, 
"I'm  going  to  Mary's,  and  will  go 
with  you."  We  went  by  Malloon's 
Mills.  When  I  got  to  the  gate  of  our 
house,  at  the  corner  of  High  and 
Summer  streets,  we  parted.  This 
was  before  11,  because  I  went  to 
bed  immediately,  and  soon  after 
heard  the  clock  strike  11.  Mother 
asked  me  whom  I  spoke  to  at  the 
gate,  and  I  told  her  George  Crownin- 
shield. 

Cross-examined.  —  At    this   read- 


ing room  we  took  many  papers,  and 
its  general  use  was  for  reading. 
Richard  Crowninshield  paid  for  the 
papers.  We  h;vd  some  from  .\labama, 
and  the  "Trutii  Teller,"  from  New 
York.  Sometimes  we  had  gambling 
of  all  kinds.   .   .   . 

There  is  a  game  called  props. 
I  have  never  seen  any  other  played. 
Ours  was  not  a  gambling  house  —  a 
gambling  house  is  a  cheating  house. 
—  There  was  some  liquor  kept  there 
sometimes. 

Matthew  Newport  sworn. 

I  keep  a  victualing  cellar  at  the 
corner  of  Union  and  Derby  streets. 
George  Crowninshield  and  Benjamin 
Selman  came  there  on  the  night 
of  the  murder,  between  9  and  10 
o'clock  and  stopped  about  ten  or 
fifteen  minutes.  They  inquired  if 
John  McGlue  had  been  there. 

Joseph  Fairfield  sworn. 

I  live  in  Danvers  and  keep  a  pub- 
lic house.  I  saw  George  on  the 
evening  of  the  6th  of  April  about 
9  o'clock  with  Chase  and  Selman 
at  my  house.  They  stopped  there 
about  ten  or  fifteen  minutes,  came 
in  and  took  somethinj-  to  drink, 
two  glasses  of  brandy  and  one  glass 
of  gin.  They  came  and  went  in  a 
chaise  towards  Salem. 

WiUiam  Austin  sworn. 

I  saw  George  Crowninshield  on  the 
night  of  the  murder  at  Pender- 
grass's about  half  past  9.  I  am  a 
tanner  and  currier.  George  Crown- 
inshield came  about  half  past  8. 
He  stopped  in  Pendergrass's  shop 
a  little  while,  then  went  into  his 
room.  I  was  there  with  him  — 
when  he  went  away  he  went  towards 
Marblehead.  He  came  out  with 
me  and  John  Needham.  I  and 
Osliorn  came  over  the  south  bridge. 
Joseph  Burns  and  two  others  were 
there  that  night  besides.  I  did 
not  know  who  they  were.  The  clock 
struck  11  just  as  I  got  home.  I 
live  in  Boston  Street.  I  flid  not 
know  Selman  and  Chase  at  that  tinu\ 
It  takes  me  about  nineteen  mimites 
to  walk  home  from  the  "reading 
room."    I  have  walked  it  since  al)out 


1112 


PART    III.       PROBLEMS   OF    PROOF 


No.  333. 


as  fast  as  I  did  that  evening.  Chase 
and  Sehnan  went  away  five  or  ten 
minutes  before  I  (hd.  After  they 
went  away,  Osborn  and  I  proposed 
to  go.  George  ("rowninshiehl  and 
John  Xeedhana  came  out  when  we 
did.  They  came  immediately  be- 
hind us  —  as  we  turnetl  towards  the 
south  bridge,  thev  turned  up  the 
hill. 

Benjamin  Sclman  sworn. 

I  saw  George  Crowninshield  on 
the  night  of  the  murder.  I  came 
over  to  Salem  from  Marblehead  with 
Mr.  Chase.  We  went  up  to  the 
factory  and  saw  George  Crownin- 
shield. Chase  wantefl  to  see  him, 
and  I  wanted  to  see  Clark  Read  in 
Salem.  We  went  into  the  factory 
and  saw  George  between  5  and  6 
o'clock.  George  wanted  to  go  to 
Salem  to  see  John  McGlue,  to  get 
some  money.  He  went  with  us  in 
the  chaise.  We  stopped  at  the 
tavern  opposite  to  Dustin's  in  Dan- 
vers,  and  then  came  to  Salem. 
George  got  out  at  the  post  office. 
Chase  and  I  went  into  Burns's  with 
the  chai.se.  After  leaving  the  horse 
at  Burns's  shed,  I  then  came  out 
and  met  George  opposite  the  post 
office.  George  proposed  taking  a 
walk.  We  went  to  Pendergrass's 
and  stopped  near  an  hour.  We 
got  there  about  half  past  7,  and 
stayed  till  after  8.  We  then  came 
over  into  Salem,  and  went  down  to 
the  Franklin  l)uilding  on  the  Com- 
mon, and  Chasefound  a  friend  there — 
a  female  —  and  went  away  with  her, 
and  said  that  he  would  join  me  in 
fifteen  minutes  at  Burns's  stable. 
I  then  went  with  George  down  to 
Newport's  cellar,  and  stayed  there 
near  an  hour.  George  said  that 
he  wanted  to  see  Mr.  McGlue  who 
owed  him  some  money  —  'twas  9 
o'clock,  when  we  came  away,  and 
then  came  up  to  Franklin  building 
again.  I  wanted  to  see  Read,  and 
he  said  he  would  go  with  me. 
Read's  is  in  Williams  Street,  he 
stopped  at  the  gate  and  waited  for 
me  there  near  half  an  hour.  We 
then  went  through  Brown  Street  to 


Burns's  stable,  without  stopping  in 
Brown  Street.  We  went  to  Burns's 
shed  and  found  the  chaise  was  gone. 
I  knocked  at  the  door  and  asked 
Mrs.  Burns  if  Mr.  Chase  had  been 
there,  she  said  he  had  been  gone 
fifteen  minutes.  She  did  not  know 
where.  I  went  up  into  Essex  Street 
in  front  of  the  Coffeehouse  and 
waited  a  few  minutes,  and  then  went 
over  to  Central  Street,  when  the 
clock  struck  10.  George  then  went 
over  the  bridge,  while  I  went  and 
told  Mrs.  Burns  that  I  was  going 
over  the  bridge ;  if  Chase  called,  to 
tell  him  George  was  with  me. 

When  I  got  there.  Chase  was  there 
with  a  chaise,  and  said  he  had  been 
waiting  half  an  hour  for  me,  and 
said  he  had  agreed  to  be  there.  I 
took  a  cigar  and  stayed  till  a  quarter 
after  10.  We  then  took  our  chaise 
and  went  home  to  Marblehead.  We 
left  George  Crowninshield  in  the 
yard  and  got  home  five  or  ten  min- 
utes before  the  clock  struck  11.  It 
is  four  and  a  half  miles  from  Salem 
to  Marl)lehead.  I  have  been  in 
jail  eighty-five  days  on  suspicion  of 
having  been  concerned  in  the  mur- 
der. I  had  on  a  hat  and  Chase  had 
a  glazed  leather  cap. 

Clark  Read  sworn. 

I  live  in  Williams  Street.  Mr. 
Selman  came  to  my  house  just  after 
9  o'clock  on  the  evening  of  the 
Gth.  I  was  just  going  to  bed  and 
was  nearly  undressed.  He  stayed 
there  ten  or  twenty  minutes.  I  went 
down  to  the  door  with  him  and  saw  a 
person  there  who  spoke  to  me,  and 
who  I  thought  was  Chase.  At  the 
time  he  said  Chase  would  be  waiting 
for  him,  but  did  not  say  that  he  was 
at  the  gate. 

Nathaniel  Phippen  Knapp  sworn. 

Do  ^,•ou  know  what  has  been  testi- 
fied in  this  case. 

Ans.  —  I  have  been  told  as  to  one 
point,  as  to  finding  the  club. 

I  have  heard  something  that  Mr. 
Colman  has  testified  —  but  only 
casually  in  the  street,  and  this  was 
confirmed  by  Mr.  Dexter.  The 
person   who   told  me  in  the  street 


KNAPP  S   TRIAL 


1113 


was,  I  believe,  Mr.  Miller.  T  can't 
remember  that  any  other  person  has 
told  me.  Mr.  Dexter  has  told  me 
that  Mr.  Colman  had  stated  that  it 
was  by  the  prisoner's  direction  that 
the  club  was  found.   .  .   . 

Mrs.  Sally  Need  ham  sworn. 

John  Needham  is  my  son,  he  came 
home  on  the  night  of  the  murder 
about  fifteen  minutes  before  11.  I 
heard  him  speak  to  some  person  at 
the  gate.  I  asked  him  who  he  was 
talking  with.  He  had  come  into 
my  chamber  to  light  his  lamp. 

Cross-examined.  —  I  knew  the  time 
because  I  have  a  watch  in  my  cham- 
ber, and  heard  the  clock  strike,  and 
I  looked  at  the  watch  when  I  went 
to  bed. 

(A".  P.  Knapp  resumes.)  —  I  was 
present  at  a  conversation  between 
Mr.  Colman  and  the  prispner,  at 
his  cell.  I  went  to  the  prison  with 
Mr.  Colman,  and  went  to  my 
brother  Jo's  cell.  When  we  came 
out  from  there,  I  went  to  my  brother 
Frank's  (the  prisoner's)  cell.  As  I 
was  going  in,  I  observed  that  Mr. 
Colman  looked  anxious  to  be  ad- 
mitted, and  I  asked  him  if  he  would 
go  in.  He  said  yes,  and  came  in. 
There  was  a  conversation  at  the 
door  of  Joseph's  cell.  He  said,  Mr. 
Knapp,  I  wish  that  you  would  not 
disturb  the  club.  I  will  get  a  wit- 
ness, and  go  and  get  it  myself,  for 
my  own  security.  After  we  went 
into  my  brother  Frank's  cell,  I  ad- 
dressed him  in  this  way  —  "  Mr. 
Colman  says  that  the  committee 
have  evidence  enough  to  convict  you 
and  your  brother,  that  the  only 
chance  of  salvation  is  for  you  to 
confess ;  that  Palmer  has  applied 
for  a  pardon,  on  condition  of  being 
a  witness,  and  that  a  promise  of 
pardon  has  been  dispatched  to  him 
from  the  officers  of  Government ; 
that  the  messenger  would  pass 
through  town  that  evening  in  the 
mail  stage,  and  that  if  they  did  not 
confess  before  the  mail  stage  passed 
through,  it  would  be  too  late ;  that 
if  either  of  them  would  confess,  the 
committee  would  stop  that  message. 


and  apply  for  a  pardon  in  faxor  of 
him,  whichever  it  might  be."  I  told 
him,  also,  that  the  subcommittee  had 
severall\-  assured  my  father  that 
Palmer  knew  every  circumstance 
relating  to  that  transaction,  and  that 
the  only  chance  to  save  his  sons  was 
to  induce  them  to  confess.  I  then 
asked  Mr.  Colman  if  what  I  had 
related  as  coming  from  him  was  not 
true  ?  He  said  yes,  and  then  went 
on  to  state,  "  I  have  seen  your 
brother  (addressing  prisoner).  I 
have  made  him  these  assurances, 
and  offered  him  a  pardon  in  case  he 
would  be  willing  to  confess.  I  also 
assured  him  that  if  he  committed 
anything  to  me  in  confidence,  it 
never  should  be  revealed,  unless  he 
should  choose  to  become  a  witness. 
I  am  authorized  by  the  committee 
to  offer  this  pardon  to  either  of  you." 
I  then  said,  "  Mr.  Colman  thinks  Jos. 
had  better  confess,  for  if  you  shoulfl 
be  convicted  after  his  confession, 
you  would  have  a  greater  chance  of 
pardon  than  he  would."  I  applied 
to  Mr.  Colman,  and  asked  him  if 
he  did  not  think  so.  He  said,  "yes, 
undoubtedly  —  your  youth  will  be 
very  much  in  ;s'our  favor  —  \o\\t 
case  will  excite  great  sympathy, 
especially  if  it  shall  appear  that  you 
were  persuaded  to  do  what  you  did 
by  your  elder  brother."  He  then 
said,  "  but  I  don't  insist  on  the  pref- 
erence, I  leave  that  for  you  to 
settle  between  you."  My  brother 
hesitated,  and  said  nothing.  Mr. 
Colman  then  said,  "you  know  the 
condition,  if  you  stand  a  trial,  you 
will  both  l)e  inevital)ly  convicted 
—  if  either  of  you  chooses  to  confess, 
he  will  save  himself.  If  Jos.  con- 
fesses, and  you  should  be  convicted, 
you  will  have  a  good  chance  of  par- 
don, but  if  Jos.  should  be  con- 
victed on  your  confession,  his  chance 
would  not  be  so  good.  At  all 
events,  your  chance  will  be  nuich 
greater  than  if  you  stood  a  trial, 
and  were  convicted!  on  Palmer's 
testimony."  He  then  reininde«l 
him  that  he  had  but  a  few  moments 
to  choose.     ]Mv  brother  then  said, 


IIU 


PART    III.       PROBLEMS   OF   PROOF 


No.  393. 


"  I  have  nothing  to  confess.  It  is 
a  hard  case ;  but  if  it  is  as  you  say, 
Jos.  may  confess  if  he  pleases. 
I  shall  stand  trial."  I  recollect 
nothing  more  than  that.  Nothing 
was  said  about  the  club  in  Frank's 
cell  in  my  presence  and  hearing. 
This  conversation  in  the  prisoner's 
cell  was  on  Friday  evening  after 
the  arrest  on  the  2Sth  of  May.  Mr. 
Colman  stated  to  me  that  he  had 
been  at  Jo's  cell  that  day  two  or 
three  times.  Nothing  was  said  in 
my  presence  or  hearing  about  the 
time  when  the  murder  was  com- 
mitted. .  .  . 

My  father  failed  7th  of  April. 
The  instrument  is  dated  7th  of 
April.  I  was  occupied  in  preparing 
it  on  the  evening  of  the  6th.  My 
brother,  the  prisoner,  rode  less  after 
the  failure.  1  had  cautioned  him 
about  it  in  consequence  of  the 
failure.  This  was  after  the  7th 
of  April.  He  was  in  the  habit  of 
riding  much.  My  brother  wore  a 
glazed  cap,  like  this  in  every  par- 
ticular. I  remember  the  dirk  —  I 
never  saw  my  brother  have  any 
before  this. 

I  was  up  all  night  of  the  6th  of 
April,  preparing,  with  Mr.  Waters, 
my  father's  assignment.  I  went 
home  at  half  past  1  o'clock.  1 
left   my  office  at  some   time  after 

9,  with  my  father.  I  went  to 
Mr.  Waters's  house,  stayed  there 
till  a  few  minutes  before  10,  then 
went  with  Mr.  Waters  to  his  office, 
in  Washington  Street.  My  father 
went  home.     A  few  minutes  before 

10,  went  to  Mr.  Waters's  office. 
We  were  at  his  office  ten  minutes, 
perhaps.  We  did  nothing  but  strike 
a  light  and  get  a  book.  From  there 
we  came  directly  down  Fssex  Street, 
to  go  to  Mr.  Waters's  house  again  ; 
on  the  way,  we  stoppefl  at  my  own 
house  to  get  my  umbrella.  It  rained 
when  we  left  Mr.  Waters's  office, 
and  when  I  got  to  the  house.  When 
I  came  out,  it  had  ceased  raining.  I 
went  to  Mr.  Waters's  house,  and 
stayed  there  till  1  o'clock.  I  got 
from  the  house,  also,  a  key  of  one 


of  the  doors,  that  I  might  come  in 
from  jNIr.  Waters's  house.  I  went 
directly  home.  When  I  got  home, 
I  found  my  father  in  the  entry  — 
he  had  just  come  in  himself.  I  told 
my  father  he  had  better  retire,  and 
I  sat  up  all  night,  and  finished  my 
writing.  I  saw  nothing  of  the 
prisoner  during  the  night.  I  saw 
him  the  ne.xt  morning,  about  8 
o'clock. 

Frank's  usual  hour  of  going  to 
bed  was  10  o'clock.  He  was  the 
most  regular  person  in  the  family 
in  this  respect.  My  father's  house 
is  in  Essex  Street,  a  few  rods  below 
Newbury  Street.  I  passed  Mr. 
White's  house  at  a  quarter  past  10, 
and  saw  a  light  in  his  chamber.  I 
heard  the  clock  strike  ten  minutes 
before  we  arrived  at  Mr.  W^aters's 
office  — i  stayed  there .  about  ten 
minutes.  I  believe  I  called  Mr. 
Waters's  attention  to  the  light, 
but  I  am  not  certain.  I  was  in 
Derby  Street  or  the  street  above  it, 
when  the  clock  struck  10. 

Cross-examined. — When  I  went 
to  the  prisoner's  cell  with  Mr.  Col- 
man, I  went  from  my  brother 
Joseph's  cell.  We  went  to  Joseph's 
cell  together,  to  make  the  state- 
ments to  Joseph,  that  the  com- 
mittee had  made  to  Mr.  Colman, 
to  see  whether  he  would  confess. 
This  was  on  Friday  evening,  be- 
tween 6  and  7  o'clock.  I  had  not 
been  to  the  cell  of  either  brother 
before.  We  both  went  into  Joseph's 
cell,  and  a  conversation  was  had 
about  confessing.  I  don't  know 
whether  Joseph  agreed  to  become  a 
witness  for  the  State. 

It  was  not  positively  agreed  that 
he  was  to  become  a  witness  for  the 
State;  it  was  agreed  on  certain 
conditions.  The  conditions  were, 
that  he  should  have  the  preference. 
It  was  not  agreed  that  he  should  have 
the  preference,  unless  his  brother 
chose  that  he  should.  I  understood 
that  Joseph's  becoming  State's  wit- 
ness depended  upon  Frank's  con- 
sent. Mr.  (^olman  said  he  should 
go  to  Joseph's  cell  at  this  time,  and 


No.  393. 


KNAPP  S   TRIAL 


1115 


I  asked  him  to  let  me  go  with  him, 
to  which  he  agreed. 

I  went  into  the  prison  with  him. 
I  cannot  recollect  from  what  place. 
"When  I  left  Joseph's  cell,  it  was  my 
purpose  to  go  to  Frank's  cell.  I 
presumed  Mr.  Colman  intended  to 
go  out  of  the  prison,  but  as  I  en- 
tered the  door  of  Frank's  cell,  I 
thought  he  wished  to  come  in,  and 
I  asked  him  to  come  in.  .  .  . 

During  this  time,  we  had  the 
conversation  concerning  the  club. 
I  had  been  in  Joseph's  cell  all  the 
time  that  Mr.  Colman  had  been 
there  —  heard  all  the  conversation 
between  Joseph  and  Mr.  Colman. 
I  was  there  ten  or  fifteen  minutes  ; 
at  this  time,  I  presume,  I  heard 
all  that  was  said,  because  nothing 
was  said  in  a  whisper.  There 
was  an  understanding  that  Joseph 
should  turn  State's  evidence,  but  if 
Frank  did  not  assent,  it  should  be 
offered  to  him.  Joseph  would  not 
accept  that  offer  unless  Frank  would 
assent.  I  understood  he  was  de- 
termined not  to  assent  to  Mr. 
Colman's  proposition,  unless  Frank 
were  willing  —  don't  recollect  how 
it  was  arranged  that  Mr.  Colman 
should  find  that  out. 

When  Mr.  Colman  told  me  not 
to  get  the  club,  I  was  in  front  of  the 
door  of  Joseph's '  cell.  I  heard 
nothing  said  about  the  daggers,  in 
Frank's  cell  —  do  not  recollect  hear- 
ing anything  said  about  its  being 
a  hard  thing  that  Joseph  should 
"  have  the  privilege  to  confess,  since 
the  thing  was  done  for  his  benefit." 
Frank  said  it  was  a  hard  case  — 
a  hard  alternative.  I  will  not  swear 
that  he  did  or  did  not  say  this.  I 
don't  recollect  that  it  was  said  that 
it  was  a  hard  case,  since  the  thing 
was  undertaken  on  Joseph's  account. 
I  will  not  swear  that  it  was  not  said 
—  I  will  swear  that  I  did  not  hear 
anything  saifl  about  melting  up  the 
daggers.  There  was  no  secret  con- 
versation between  Mr.  Colman  and 
Frank.  I  have  no  doubt  that  if  it 
had  been  said  "  the  thing  was  done 
on    Joseph's     account,"    I    should 


have  heard  it.  T  can  swear  I  did 
not  hear  anything  said  about  its 
being  done  on  Joseph's  account. 
I  heard  notiiing  said  about  its  being 
"a  silly  l)usiness,"  nor  that  it  wouhl 
bring  liim  into  diflicuhy.   .   .   . 

I  will  not  undertake  to  swear  that 
he  did  not  say  "  I  told  Jo  it  was 
silly  business,  and  would  only  get 
us  into  difficulty."  I  will  swear 
that  hedid  not  say  that  he  went  home 
after  the  murder, — or  "afterwards." 
I  can  swear  that  there  was  no  con- 
versation about  the  time  of  the 
murder  —  that  Mr.  Colman  did 
not  ask  him  about  the  time  of  the 
murder  —  that  nothing  was  said 
about  the  dirk,  and  nothing  about 
the  club.   .   .   . 

My  brother,  the  prisoner,  had 
been  an  acquaintance  of  the  two 
Crowninshields  three  or  four  years 
back.  He  had  been  to  New  York 
with  them.  .  .   . 

Solomoji  Giddings  sworn. 

I  reside  in  Beverly  and  was  in 
Salem  on  the  night  of  the  murder. 

I  passed  Mr.  WJiite's  house  about 

II  o'clock  and  saw  and  heard 
nothing  which  attracted  my  at- 
tention. I  was  going  from  the 
wharves  to  Beverl}-,  and  the  clock 
struck  11  while  I  was  in  Essex 
Street. 

William  F.  Gardner  sworn. 

I  live  in  the  next  house  to  Capt. 
White's.  I  passed  there  twenty-five 
or  thirty  minutes  after  10  in  coming 
from  Mr.  Deland's,  which  is  the 
next  house  to  Capt.  White's  on 
the  other  side  and  on  the  corner  of 
Essex  and  Newbury  streets  —  there 
was  a  party  there  tliat  night,  which 
was  just  breaking  up  at  that  time. 
I  heard  no  noise,  nor  anything 
which  attracted  my  attention.  Mr. 
Deland's  windows  look  into  Capt. 
White's  front  yard.  There  were 
three  persons  with  me. 

Strplicn  1).  F////('r,  Surveyor,  sworn. 

The  plan  made  by  me  is  correct. 
I  have  been  a  surveyor  fourteen 
years,  live  in  the  city  of  Boston. 
The  distance  from  Essex  Street  to 
Brown  Street  through  Capt.  White's 


1116 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


garden,  is  about  300  feet.  [Explains 
upon  the  plan  the  variou.s  ob.strurfioiis 
between  Brown  Street  and  Mr.  White's 
garden,  and  the  difference  between  his 
plan  and  that  made  by  Mr.  Saunders.] 

Nothing  could  be  seen  of  Mr. 
White's  house  from  the  ropewalk 
steps ;  nor  from  the  post  by  Mrs. 
Shepard's  house ;  nor  from  the 
post  by  Capt.  Bray's  house ;  nor 
from  any  part  of  the  space  between 
the  two  posts  on  the  south  side  of 
Brown  Street,  except  that  through  a 
small  opening  between  Mr.  Potter's 
and  Mr.  Henderson's  houses,  a  part 
of  the  rear  of  Capt.  White's  house, 
but  not  the  part  in  which  he 
slept.  Between  the  avenue  from 
Brown  Street  to  Essex  Street,  and 
Capt.  White's  house  there  are 
houses  and  other  buildings ;  but 
from  some  parts  of  the  avenue  the 
upper  western  windows  may  be  seen. 

Charles  0.  Page  sworn. 

I  saw  the  prisoner  on  the  6th  of 
April,  about  7  o'clock,  p.m.,  in 
Essex  Street,  near  the  Salem  Hotel 
—  Forrester,  Burchmore,  Balch,  and 
I  were  together,  and  he  asked  us  into 
the  Hotel  to  take  some  refreshment. 
We  stayed  there  about  five  minutes, 
then  came  out,  and  I  left  them.  I 
am  a  student  of  Harvard  University. 
Glazed  caps  were  at  that  time  worn 
by  almost  all  the  students  who 
belong  here.  Our  caps  were  mostly 
bought  in  Boston.  Sixteen  of  my 
Salem  classmates  have  them.  Cam- 
blet  cloaks  are  also  very  common 
among  students. 

Cross-e.rarnined.  —  I  recollect  the 
night,  for  on  the  morning  after  the 
murder  I  was  accoimting  for  my- 
self, as  was  natural,  and  thinking 
what  company  I  had  been  in.  I 
had  some  doubt  as  to  what  evening 
this  was,  when  I  was  first  called 
upon.  I  then  did  not  recollect  the 
circumstances  by  which  I  could  fix 
the  time,  l)ut  have  recalled  them 
since.  I  have  never  said  that  I  did 
not  recollect,  but  when  first  called 
upon  I  wished  time  for  consideration. 

Moses  Batch  sworn. 

I  live  in  Lynde  Street.     On  the 


evening  of  the  murder,  I  think,  but  I 
am  not  positive,  I  was  with  the 
prisoner,  and  Burchmore,  and  Page, 
and  Forrester.  I  first  saw  him  in 
Essex  Street,  between  6  and  7 
o'clock.  I  was  with  him  three 
quarters  of  an  "hour.  I  saw  him 
again  between  8  and  9.  He 
came  into  Remond's,  in  Derby 
Square.  Burchmore,  I  think,  and 
Forrester,  and  Page,  were  with  me 
when  he  came  in.  W^e  left  that 
place  about  9  o'clock,  and  all  went 
to  walk  in  Essex  Street.  I  left 
the  prisoner  at  the  corner  of  Court 
and  Church  streets,  about  10 
o'clock,  to  go  home.  My  impression 
is  that  he  went  down  Church  Street. 
I  was  with  him  all  the  time,  from 
9,  until  10.  Forrester  left  us  at 
the  corner  of  the  Franklin  Building. 

I  know  that  dirks  were  very  com- 
mon after  the  murder.  I  know  one 
or  two  young  men  who  wore  them 
before.  I  wore  a  glazed  cap  at  that 
time. 

Cross-examined.  —  I  cannot  say 
positively  that  this  was  on  the  night 
of  the  murder.  It  was  either  on 
Monday  or  Tuesday  evening.  I 
cannot  tell  any  nearer.  .   .   . 

The  Court  overruled  the  objec- 
tion, and  witness  resumes. 

The  evening  on  which  we  were 
walking  was  dark  and  cloudy.  We 
were  at  Remond's,  smoking,  when 
Frank  came  in.  Remond's  is  an 
oyster  house.  We  were  at  the 
Salem  Hotel  the  first  part  of  the 
evening.  W'hen  I  got  home,  the 
folks  had  gone  to  bed  ;  so  it  must 
have  been  10  when  I  left  the 
prisoner. 

Zachariah  Burchmore,  jun.,  sworn. 

On  the  evening  preceding  the 
murder,  I  went  with  the  prisoner, 
and  Page,  and  Forrester,  to  the  Salem 
Hotel,  about  7  o'clock.  We  stayed 
there  about  a  cjuarter  of  an  hour, 
-and  the  prisoner  left  us.  About  an 
hour  after,  Forrester,  Balch,  and  I 
were  sitting  and  smoking  at  Re- 
mond's when  he  came  in — about  half 
past  8.  We  all  went  out  together  just 
before  9.     I  don't  remember  whether 


No.  393. 


KNAPP  S   TRIAL 


1117 


Forrester  went  out  with  us,  or  be- 
fore. We  walked  in  Essex  Street 
about  half  an  hour,  and  I  left  him 
about  half  past  9,  at  Franklin  Build- 
ing, or  opposite. 

Cross-examined.  —  To  the  liest  of 
my  belief,  this  was  on  the  night 
of  the  murder. 

Reexamined.  —  I  am  not  sure 
whether  it  was  before  or  after  the 
murder;  but  my  belief  is  that  it 
was  the  same  night. 

I  generally  wear  a  hat. 

Cross-examined.  —  I  can  only  rec- 
ollect that  it  was  on  the  evening 
that  we  were  in  the  Hotel  that  I  saw 
the  prisoner.  I  don't  remember  what 
the  weather  was. 

John  Forrester,  jun.,  sworn. 

I  took  a  walk  with  the  prisoner,  I 
think,  on  the  evening  of  the  murder. 
I  met  him  in  company  with  Balch, 
Burchmore,  and  Page,  and  was  in- 
troduced to  him  —  this  was  about 
7  o'clock.  I  was  with  him  about 
twenty  or  thirty  minutes.  We  went 
to  the  Salem  Hotel.  He  left  us,  and 
I  saw  him  again  in  about  an  hour 
at  Remond's. 

C ross-examined .  —  It  was  on  the 
night  of  the  murder,  or  the  night 
before,  or  the  night  after,  that  I 
walked  with  the  prisoner  and  the 
others.  I  never  walked  with  them 
all  but  once. 

Judson  Murdoch  sworn. 

I  live  in  Brighton,  and  keep  a 
public  house,  and  saw  a  man  whose 
name  I  have  since  understood  was 
Palmer,  but  he  then  wrote  his  name 
J.  C.  Hall.  He  came  there  on 
Monday,  3d  of  April,  at  9  in  the 
morning,  I  do  not  know  from  where, 
and  stayed  till  the  next  day  at  .3 
or  4  P.M.  and  then  went  towards 
Boston  on  foot.  It  is  five  miles 
from  Brighton  to  Boston  —  from 
there  to  Charlestown  five  miles  — 
and  about  thirteen  miles  to  the  half- 
way house. 

Joseph  J.  Knapp  sworn. 

I  am  the  father  of  the  prisoner, 
and  made  an  assignment  of  my 
property  on  the  6th  of  April.  I  was 
at  home  that  night  a  little  before  ten. 


I  came  from  Mr.  Waters's  house  in 
Derby  Street.  I  saw  the  prisoner 
ju.",t  after  10.  He  entered  my  front 
northern  parlor  al)out  five  minutes 
after  10,  and  asked  me  if  he  should 
bolt  the  door.  I  told  him  no,  for 
Phippen  was  out,  and  1  should 
wait  for  him.  I  told  him  that  I  was 
very  glad  that  he  was  at  home  in 
good  season.  He  asked  me  if  I 
wanted  any  assistance.  I  told  him 
no.  I  asked  how  the  weather  was, 
and  he  said  that  it  blew  fresh  from 
the  east.  I  asked  him  if  he  knew  the 
time,  and  he  told  me  that  it  was  just 
10.  He  then  retired  to  his  chamber, 
and  left  me  in  the  parlor.  I  did  not 
go  to  bed  till  after  2  o'clock.  His 
chamber  was  in  the  west  end  of  the 
third  story.  There  is  only  one  stair- 
case up  to  the  third  story.  My 
door  opens  into  the  entry.  To 
come  out  of  Frank's  chamber,  one 
must  pass  my  door.  He  usually 
keeps  his  cap,  when  in  the  house, 
upon  the  window  of  the  keeping 
room.  I  saw  it  there  that  night ; 
he  threw  it  there  when  he  came  in. 
No  person  moved  in  the  house  that 
night,  except  Phippen,  when  he  came 
in.  I  saw  Frank  again  the  next 
morning,  between  7  and  8  o'clock, 
when  he  came  from  his  chamber. 
He  usually  put  his  boots  in  the 
kitchen  ;  I  don't  know  where  he  put 
them  that  night.  His  usual  hour 
of  coming  home  was  iil)Out  10 ;  he 
was  very  regular.  He  will  be  twenty 
years  old  next  month.  My  son 
Phippen  was  with  me  until  near  10. 
I  left  him  at  Mr.  Waters's  house.  I 
again  saw  him  about  twenty  or 
twenty-five  minutes  after  10,  when 
he  came  in  to  take  the  key,  that  he 
might  enter  after  he  had  finished 
his  business.  He  was  assisting  Mr. 
Waters  in  making  an  assignment  of 
my  property,  and  he  rejoined  me  just 
after  1  o'clock.  He  went  to  bed 
before  I  did,  and  at  about  2,  im- 
mediately after  he  came  in.  I  did 
not  see  either  of  my  sons  in  the 
chamber  that  night. 

Cross-examined.  —  I     saw     Mr. 
Michael  Shepard  that  night,  at  my 


1118 


PART   III.      PROBLEMS   OF   PROOF 


No.  393. 


son's  office,  about  a  quarter  after 
9  o'clock.  I  did  not  see  him  after 
that  time.  When  I  went  home  I 
had  come  from  Mr.  Waters's  house, 
about  ten  minutes  before  10  o'clock, 
and  left  my  son  with  Mr.  Waters. 
I  saw  Mr.  Shepard  again  the  next 
day  ;  I  am  not  certain  where,  whether 
at  his  house  or  in  the  street.  I  be- 
lieve that  it  was  at  his  dwelling 
house  after  breakfast.  I  had  no 
conversation  with  him  about  Frank's 
being  at  home  on  the  evening  pre- 
vious. I  next  saw  him  the  same  day, 
at  the  Mercantile  Insurance  Office, 
but  had  no  conversation  with  him 
about  it  then.  I  saw  him  also  again 
in  the  evening  of  the  same  day, 
abreast  of  the  Asiatic  Bank.  I  then 
had  a  conversation  with  him,  and 
told  him  that  my  son  was  at  home 
before  half-past  10  o'clock.  We 
had  then  no  particular  conversation, 
excepting  he  asked  me  if  he  could 
credit  what  was  in  circulation  — 
the  arrest  that  had  been  made. 
Joseph  and  Frank  had  been  arrested 
then.  The  CroAvninshields  had  been 
arrested  before.  I  remembered  so 
as  to  tell  Mr.  S.  all  that  happened 
the  night  before. 

I  have  mistaken  the  questions  — 
that  conversation  took  place  after 
the  arrest. 

I  saw  Mr.  Shepard  on  the  evening 
of  that  day  at  the  Asiatic  Bank. 
Nothing  was  then  said  about  the 
time  that  Frank  was  at  home.  The 
first  conversation  on  that  subject 
with  Shepard  might  have  been  the 
day  of  the  arrest,  or  the  day  after 
the  arrest  of  Joseph  and  Frank.  I 
am  sure  that  they  had  been  arrested 
when  I  had  this  conversation  with 
Mr.  Shepard,  abreast  the  Oriental 
Insurance  Office.  It  was  on  the 
evening  of  the  arrest,  and  no  other 
person  was  present.  This  was  the 
only  conversation  I  had  with  Mr. 
Shepard  on  the  subject.  Mr.  Shep- 
ard introduced  it.  I  told  Mr. 
Shepard  that  my  son  was  at  home 
in  bed  before  half  past  10  o'clock, 
and  that  I  was  at  home  so  as  to  know 
when   he   came   in.     I    told    him    I 


knew  that  the  clock  had  not  struck 
10  when  I  left  Waters's  house,  and 
that  he  was  at  home  and  had  retired 
before  twenty  minutes  after  10.  I 
told  him  that  F'rank  came  in  and 
asked  whether  he  should  bolt  the 
door.  I  did  not  tell  him  that  I  rec- 
ollected seeing  Frank  throw  his 
cap  upon  the  window  seat. 

I  don't  recollect  any  conversation 
with  Mr.  J.  W.  Treadwell,  about 
the  time  that  Frank  came  home  on 
the  night  of  the  murder,  and  have 
no  knowledge  of  ever  having  talked 
with  Mr.  Treadwell  on  the  subject ; 
or  of  having  said  to  him  that  I  did 
not  know  what  time  Frank  came 
home ;  or  of  having  said,  that 
"  they  said  he  came  home  at  half  past 
10."  I  did  nothing  about  the 
assignment  till  Mr.  Shepard  went 
away ;  he  was  to  be  my  assignee. 
W'e  talked  about  business  in  the 
street. 

I  was  sitting  up  late  to  prepare  a 
schedule  of  property.  I  did  not  see 
the  assignment  till  the  next  day, 
when  I  signed  it.  I  was  collecting 
memorandums  and  papers  necessary 
for  the  assignment.  .  .  . 

James  Savary  sworn. 

I  board  at  the  Lafayette  Coffee- 
house. I  work  for  the  Salem  and 
Boston  Stage  Company.  I  was 
in  the  street  on  the  morning  of  the 
7th  of  April.  I  went  about  twenty 
minutes  before  4  o'clock  from 
the  Lafayette  Coffee-house  to  the 
stable  in  Union  Street.  I  saw  some 
person  turn  out  of  Capt.  White's 
yard  and  come  up  street  towards  me. 
He  came  as  far  as  Mr.  Gardner's 
yard  and  then  turned  and  ran.  I 
was  then  between  the  two  Peabodys' 
hou.ses.  I  saw  him  rimning  down 
as  far  as  Walnut  Street.  As  far  as  I 
can  judge  he  was  a  man  about  my 
size.  It  was  dark  and  misty.  He 
had  on  a  dark  dress. 

Nathaniel  Kinsman  called  again. 

I  have  testified  to  an  observation 
I  made  of  the  windows  on  the  second 
or  third  day  after  the  murder,  I 
could  then  see  the  whole  of  Capt. 
White's  chamber  window  distinctly. 


No.  393. 


KNAPP  S   TRIAL 


1119 


twenty  paces  W.  of  the  S.  E.  corner 
of  Downing's  house.  I  paced  off 
the  distance  to  ascertain. 

Silas  Walcutt  sworn. 

I  lived  with  Caleb  M.  Ames  in 
lower  end  of  Daniel  Street,  on  the 
6th  of  April.  It  leads  into  Derby 
Street.  I  was  out  on  the  morning 
of  the  7th  between  3  and  4.  I 
was  going  to  call  Mr.  Ames,  who 
lives  in  Palfray's  Court,  because  one 
of  his  horses  was  cast  in  the  stal)le. 
When  I  was  going  up  the  Court,  I 
saw  a  man  nearly  opposite  Mr. 
Prince's  house  in  Derby  Street.  He 
was  walking  easterly  when  he  saw 
me,  he  then  turned  round  and 
walked  back  westerly  seven  or  eight 
rods  off.  The  last  I  saw  of  him  was 
when  he  was  just  above  Mr.  Prince's 
house.  He  was  a  middling-sized 
man.  The  morning  was  pleasant 
though  rather  foggy. 

John  McGliic  called  again. 

At  the  time  of  the  murder,  I  owed 
Richard  Crowninshield,  jr.,  some 
money.  I  do  not  know  how  much. 
Perhaps  it  was  $30  or  .S40.  It  was 
for  work  he  had  done  at  the  factory 
for  me.  It  was  for  caps  and  turned 
axletrees.  He  asked  me  for  the 
money  before,  and  after  the  murder. 
He  wanted  fifteen  or  twenty  dollars. 
I  did  not  then  pay  him  any  part  of 
it.  On  the  Friday  night  before  he 
was  taken  up,  I  paid  him  $7.  He 
called  me  out,  and  I  went  down  to 
the  Franklin  building,  and  he  told 
me,  if  I  would  pay  him,  he  would  let 
me  have  it  back,  if  I  wanted  it  — 
I  told  him  I  would  pay  him  on  the 
next  week.  After  the  murder  he  came 
to  Newport's  to  find  me  and  I  gave 
him  an  order  for  $10.  He  told  me 
a  man  was  going  to  give  him  money 
and  did  not.  This  was  Friday' 
before,  he  was  arrested.  Then 
George  came  for  some  mone}^  and 
asked  for  me. 

Warwick  PaJfray,  jr.,  called  again. 

I  published  in  my  paper  of  Mon- 
day an  account  of  the  finding  of  some 
flannels,  in  Danvers,  which  was  on 
the  Saturday  previous  to  the  publi- 
cation.    Richard  Crowninshield,  jr., 


hung  himself,  I  believe,  on  the  next 
Wefinesday. 

Nathaniel  P.  Knapp  called  again. 

When  my  brother  started  for 
Wenham,  at  the  time  of  the  robbery, 
I  was  not  at  home.  I  don't  recollect 
hearing  them  speak  of  arming  them- 
selves i)efore  they  went.  I  never 
heard  a  syllable  of  their  saying 
jocosely,  they  might  be  robbed.  I 
never  said  I  did.  I  never  gave  a 
different  account  of  Mr.  Colman's 
con\ersation.  I  never  gave  a  dif- 
ferent account  of  the  light  in  Mr. 
White's  chamber. 

For  the  Government 

George  Wheatland  sworn. 

On  the  day  before  the  arrest  of  the 
Crowninshields,  10  o'clock,  a.m., 
Phippen  came  to  my  office.   .   .   . 

A  few  days  after  the  murder,  he 
said  that  on  the  night  of  the  murder 
he  saw  a  light  in  Capt.  White's 
chamber.  He  stayed  in  his  office  till 
near  10  then  went  down  to  consult 
Mr.  Waters,  at  his  house.  He  went 
up  with  Mr.  Waters  to  his  office,  and 
stayed  there  till  near  11  o'clock. 
He  could  not  tell  when  it  was  he 
saw  the  light,  as  he  passed  Capt. 
White's  house  four  times.  He  spoke 
of  the  interview  between  himself, 
Mr.  Colman,  and  Prisoner.  I  asked 
Phippen  why  Air.  Colman  went  to 
Frank's  cell.  He  stated  that  Islv. 
Colman  was  a  very  intimate  friend  of 
the  family,  and  married  Joseph.  .  .  . 

Michael  Shepard  sworn. 

I  had  a  conversation  with  Capt. 
Knapp,  senior,  soon  after  the  mur- 
der, while  passing  from  the  offices  to 
my  store,  and  I  asked  if  Frank 
associated  much  with  two  young 
men  that  I  suspected.  He  said 
that  he  did  not,  but  had  kept  very 
good  hours  of  late,  and  that  on  the 
night  of  the  murder  Frank  came 
home  and  went  to  bed  at  half 
past  10  o'clock  —  "so  Phippen 
told  me,"  said  he.  Capt.  Knapp 
did  not  tell  me  as  from  his  own 
knowledge  at  what  time  Frank  came 
home.  This  was  before  the  arrest 
of  his  sons,  and  I  think  before  the 


1120 


PART   III.      PROBLEMS   OF   PROOF 


No.  393. 


arrest  of  the  Crowninshields,  and 
while  we  were  walking  from  the 
site  of  the  old  Sun  Tavern  to  the 
head  of  Union  Street. 

He  did  not  tell  nie  that  he  was  at 
home  that  e\'ening  and  knew  at  what 
time  Frank  came  in.  I  don't  rec- 
ollect that  he  told  me  that  he  came 
in  at  five  minutes  after  10  o'clock. 
He  did  not  tell  me  of  the  conversa- 
tion between  Frank  and  him  about 
bolting  the  door,  nor  that  he  heard 
the  clock  strike  10  before  he  left 
Waters 's  house. 

Cross-examined.  —  I  did  not  ask 
him  as  to  his  own  knowledge  con- 
cerning what  time  Frank  came  in, 
and  don't  think  that  I  put  any 
question  to  him  except  as  to  his  son's 
associating  with  these  two  young 
men. 

John  W.  Treadwrll  called  again. 

On  Friday  morning,  the  28th  of 
May,  I  had  a  conversation  with 
Capt.  Knapp,  senior.  I  took  him 
into  the  private  room  at  the  Bank, 
and  told  him  that  I  was  entirely 
sati-sfied  of  the  guilt  of  his  sons,  and 
advised  him  to  go  to  the  jail,  and 
get  a  confession  from  one  of  them  if 
he  wished  to  save  either.  He  said 
he  would  go.  I  then  asked  him  if  he 
knew  where  Frank  was  that  night. 
He  said  no.  I  then  put  the  ques- 
tion, "At  what  time  did  he  come 
home?"  He  said,  "I  don't  know, 
but  I  believe  about  the  usual  time," 
and  added  that  he  himself  was  up 
that  night  till  v^-y  late,  arranging 
his  papers. 

Mr.  She  par  d  again. 

Capt.  Knapp  was.  at  that  time 
probably  a  good  deal  agitated.  He 
hafl  found  it  necessary  to  assign  his 
property.  I,  however,  saw  notiiing 
unusual.  He  was  a  little  disturbed 
and  perhaps  mortified. 

George  W.  Teal  sworn. 

I  live  in  Danvers,  and  attend  the 
Bar  at  Dustin's.  I  saw  the  man 
now  called  Palmer  there  at  about 
6  o'clock,  P.M.,  on  the  9th  of  Aj)ril. 
He  stayed  there  near  an  hour  and  a 
half.  It  was  the  day  after  ('apt. 
White's    funeral.     I    was    told    to 


watch  him  as  a  suspicious  person. 
He  left  there  about  7  o'clock. 

Stephen  Brown  sworn. 

I  lived  at  the  Hotel  in  Lynn- 
field  last  April.  I  saw  Palmer  there 
on  Wednesday  before  the  "fast." 
He  came  there  about  9  in  the 
morning,  and  stayed  until  7  or 
8  o'clock  on  Saturday  morning, 
except  that  he  was  away  on  Friday 
afternoon. 

Cross-examined.  —  I  saw  him  in 
the  barroom  on  Saturday  morning, 
and  he  talked  as  if  he  had  been  at 
a  public  meeting  in  Salem  on  the 
night  before. 

For  the  Prisoner 

Elizabeth  Benjamin  sworn. 

I  am  a  domestic  at  Capt.  Knapp's, 
senior.  On  the  night  of  the  murder, 
Frank  must  have  slept  at  home,  or  I, 
who  make  the  bed,  should  have  re- 
marked it.  I  saw  him  come  down 
in  the  morning  as  usual.  I  myself 
went  to  bed  about  9  o'clock.  Phip- 
pen  did  not  go  to  bed  that  night. 
I  found  him  in  the  morning  writing 
in  the  keeping  parlor.  I  got  up 
about  5  o'clock  in  the  morning.  .  .   . 

N .  Phi p pen  Knapp  recalled. 

I  remember  conversing  with  Mr. 
Wheatland  a  few  days  after  the  re- 
port of  the  confession.  I  inquired 
of  him  about  Counsel  for  my  brothers, 
and  he  made  some  suggestions.  .  .  . 

After  I  came  from  W^aters's,  on 
the  night  of  the  murder,  I  conversed 
some  time  with  father,  and  then  went 
into  the  cellar  to  get  something  to 
eat,  and  while  I  was  gone,  father 
went  to  bed.  I  then  wrote  till  day- 
break, copying  the  assignment. 

I  never  gave  any  other  account  of 
the  light  in  Mr.  White's  chamber, 
than  I  liave  already  given  on  the 
stand.  I  did  not  tell  Mr.  Wheat- 
land what  took  place  in  Frank's 
cell,  as  he  stated.   .   .   . 

After  the  conclusion  of  the  evi- 
dence, the  cause  was  argued  for  the 
prisoner  by  Mr.  Dexter,  and  for  the 
government  by  Mr.  Webster. 

The  Jury  were  charged  by  his 
honor  Judire  Putnam. 


No.  3'j3. 


KNAPP  S   TRIAL 


1121 


After  deliberating  twenty-four 
hours,  the  Jury  returned  into 
Court,  unable  to  agree  upon  a  ver- 
dict, and  were  discharged  from  fur- 
ther consideration  of  the  cause. 

The  Solicitor-General,  on  behalf 
of  the  Government,  then  moved  that 
a  Jury  be  impaneled  to  try  the 
prisoner  again  upon  the  same  in- 
dictment. .  .  . 

[On  Saturday,  Aug.  14,  1830,  the 
prisoner  was  again  put  on  trial.  The 
testimon}^  adduced  was  substantially 
the  same  as  before,  with  the  follow- 
ing additions  :] 

For  the  Government 

Judith  Jaquith  sworn. 

On  Friday  evening,  the  2d  of 
April,  about  10  o'clock,  I  was  pass- 
ing down  Brown  Street,  from  a 
meeting  which  I  had  been  attend- 
ing in  the  Vestry  of  the  first  Baptist 
church,  in  Marlborough  Street. 
When  I  got  to  Capt.  Kinsman's 
liouse,  I  saw  a  group  of  men  stand- 
ing by  the  ropewalk  steps,  and  one 
of  them  was  pointing  towards  Capt. 
White's  house.  As  I  passed  by  Mr. 
Downing's  gate,  I  saw  that  there 
were  three  persons,  one  sitting  down, 
and  one  standing  each  side  of  him. 
The  one  who  stood  on  the  eastern 
side  had  something  in  his  hand ;  I 
could  not  tell  what  it  was,  but  at 
the  moment  thought  it  an  instru- 
ment of  music,  or  something  of  that 
kind.  As  I  passed,  the  one  that 
was  sitting  took  it  out  of  the  hand 
of  the  other,  and  put  it  behind  his 
back,  and  I  passed  on.  The  two 
persons  standing  had  on  cloaks,  or 
wrappers,  with  capes,  and  the  one 
sitting  had  on  a  hat,  and  a  surtout 
without  a  cape.  I  could  not  tell 
what  the  instrument  was. 

Cross-examined.  —  I  saw  no  other 
person  in  the  street  than  those  three 
individuals.  I  walked  fast  by  them, 
did  not  run.  I  told  of  it  the  next 
day  ;  have  mentioned  it  something 
like  a  hundred  times.  I  was  not 
summoned  to  attend  on  the  former 
trial   of   this   cause.     When   I   first 


saw  them  pointing,  I  was  by  Capt. 
Kinsman's  house  ;  when  I  saw  them 
concealing  the  instrument,  I  was  by 
Mr.  Downing's  house.  I  know  it 
was  Friday  evening.  I  mentioned 
it  the  next  day.  I  thought  what 
I  saw  was  an  instrument  of  music. 
There  is  a  meeting  every  Friday 
evening  through  the  year.  I  always 
attend. 

Lewis  Endicott  sworn. 

I  had  a  conversation  with  Joseph 
J.  Knapp,  jr.,  in  January  last,  about 
the  time  that  Capt.  White  had 
an  ill  turn.  He  said  if  he  had  been 
in  town,  Mrs.  Beckford  would  not 
have  sent  to  Boston  for  Mr.  Stephen 
White,  for  he  could  destroy  all  his 
own  notes.  He  said  that  Capt. 
White  had  made  a  will,  and  that 
Mr.  Stephen  White  was  not  executor, 
but  Mr.  John  W.  Treadwell  alone ; 
that  black  and  white  would  not  lie; 
that  Mr.  Lambert  was  the  only 
witness.  I  asked  him  if  he  had  seen 
the  will ;  he  said  he  had.  I  asked 
him  if  Capt.  W'hite  did  not  keep 
his  will  locked  up  ?  he  said  yes ; 
but  there  was  such  a  thing  as  having 
two  keys  to  a  lock. 

Cross-c.vamined.  —  He  said  there 
was  only  one  witness  to  the  will. 

Miss  Sanborn  and  Miss  Kimball, 
on  this  trial  stated  that,  on  the 
morning  after  the  murder,  a  cloak 
was  left  at  Capt.  White's  house 
by  a  young  man,  whom  they  did  not 
know,  who  said,  "This  is  my 
brother's  cloak."  It  was  afterwards 
proved  that  this  cloak  was  left  by 
Stephen  Stratton,  a  ser\'ant  of  Mr. 
White. 

Mr.  Phillip  Chase's  tesfimoni/.  — 
He  had  been  through  Brown  Street 
for  the  purpose  of  ascertaining 
whether  Capt.  White's  win- low 
could  be  seen  from  the  neighborhood 
of  Howard  Street,  and  found  that 
it  could  be  .seen  distinctly.  Witness 
visited  Palmer  in  prison,  in  the  room 
directly  under  Richard  Crownin- 
shield.  While  there  a  string  was 
let  down  through  the  ceiling  with 
a  lead  pencil  —  soon  after  a  piece  of 
paper    with    two    lines    of    poetry, 


1122 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


and  a  request  that  if  he  was  ac- 
quainted with  the  poetry,  he  would 
complete  the  verse  and  send  it  back. 
Witness  pulled  the  string,  and  it 
was  drawn  hack.  Then  he  heard 
a  shrill  whistle,  after  that,  the  per- 
son above  called,  in  a  hard  whisper 
—  "Palmer,"  "Palmer."  Thinks 
Palmer  knew  who  was  above  him.  .  .  . 

For  the  Prisoner 

Daniel  Potter  sworn. 

I  have  conversed  twice  with 
Leighton  about  the  murder,  once 
last  Friday  afternoon  while  the  jury 
were  out.  He  then  said  that  Frank 
Knapp  came  to  Wenham  soon  after 
breakfast,  on  the  day  that  he  over- 
heard the  conversation  that  he  had 
testified  to.  As  I  questioned  him, 
some  one  told  him  to  stop.  I  saw 
him  again  two  hours  afterward.  He 
said  Frank  was  viewing  the  farm 
that  morning;  he  said  nothing  of 
the  conversation  that  he  had 
heard. 

Cross-examined.  —  I  live  in  Salem  ; 
-—  am  a  blacksmith.  My  meeting 
with  Leighton  was  accidental.  I 
had  a  bet  on  the  last  trial,  —  on  the 
verdict  while  the  jury  was  out  the 
first  time.     I  have  none  now. 

Stephen  Field,  jun.,  sworn. 

I  overheard  the  conversation  be- 
tween Leighton  and  Potter,  as  he 
has  testified  to  it.  I  had  no  con- 
versation with  Leighton  myself.  .   .   . 

Stephen  P.  Webb  sworn. 

I  left  Mr.  Deland's  house,  which 
is  next  to  ('apt.  White's,  on  the 
evening  of  the  murder,  at  half 
past  10  o'clock ;  did  not  see  or 
hear  anything  unusual.  From  the 
appearance  of  the  pavement,  it  had 
rained  a  little,  though  it  did  not 
rain  at  that  time. 

James  Sarary  sworn. 

In  addition  to  his  former  testi- 
mony, this  witness  stated,  that  he 
thought  the  person  who  came  out  of 
Mr.  White's  yard,  was  the  prisoner ; 
he  said,  "  I  mentioned  it  to  a 
person,  that  I  was  carrying  to  over- 
take the  Boston  stage  a  few  days 
afterward.     I   also  mentioned  it  to 


Mr.  E.  Maxon,  at  the  Coffeehouse, 
the  morning  after  the  murder." 

John  Chapman  sworn. 

The  weather  on  Monday  evening 
l)efore  the  murder  was  very  pleas- 
ant. It  was  a  clear,  moonlight  night. 
There  was  a  public  meeting  at  the 
South  ^Meetinghouse.  It  was  a  very 
full  meeting. 

Affida\'its  were  read,  stating  that 
Samuel  H.  Knapp,  a  brother  of  the 
prisoner,  would  testify,  if  present, 
that  on  the  night  of  the  murder,  the 
prisoner  came  home  about  10  o'clock 
and  opened  the  door  of  the  chamber 
where  he  was,  and  spoke  to  him  at 
ten  minutes  after  10,  and  then  he 
spoke  to  the  prisoner,  and  that  he 
heard  the  prisoner  go  immediately 
to  his  own  room  and  as  he  supposed 
to  bed.  .  .  . 

Dr.  Abel  L.  Peirson  sworn. 

On  Thursday,  8th  of  April,  I  was 
requested  to  examine  the  body  of 
Capt.  White.  Doctor  Johnson, 
some  of  my  pupils,  and  several 
spectators  were  present.  It  was  the 
first  time  that  I  had  seen  the  body 
after  the  murder.  The  wounds  on 
the  head  have  been  correctly  de- 
scribed by  the  other  physician.  On 
examination,  we  found  two  groups  of 
wounds  on  the  body.  There  were 
six  stabs,  three  inches  from  the  left 
pap,  and  near  together,  each  of 
which  measured  exactly  half  an 
inch  in  length,  and  gaped  about  a 
quarter  of  an  inch,  and  resembled 
somewhat  the  figure  made  by  a 
parenthesis  [  ()  ].  About  six  inches 
further  down,  there  was  another 
series  of  wounds,  seven  in  number. 
These  wounds  were  all  mere  slits, 
having  the  edges  together,  and  not 
gaping  at  all.  One  of  them  was 
three  quarters  of  an  inch  in  length  : 
the  other  varied  from  half  to  three 
quarters.  Four  or  five  wounds  pene- 
trated the  substance  of  the  heart, 
though  none  of  them  reached  the 
cavity.  The  second  group  of 
wounds  had  a  downward  direction, 
nearly  at  right  angles  with  the  first. 
(The  diaphragm  was  perforated  by 
them.)     The  fifth,  sixth,  and  seventh 


No.  393. 


KNAPP  S   TRIAL 


1123 


ribs  were  broken,  by  the  blows  which 
formed  the  first  group  of  wounds. 
These  two  series  of  wounds  differed 
in  so  many  particulars,  that  I  in- 
ferred that  they  were  made  by 
different  instruments.  The  instru- 
ment by  which  the  ribs  were  broken 
must  have  been  about  five  inches 
in  length,  as  the  ribs  were  probably 
broken  by  the  guard  or  hilt,  and  it 
did  not  appear  to  have  been  long 
enough  to  reach  so  far  as  the  in- 
strument that  passed  through  the 
diaphragm. 

Cross-examined.  —  I  cannot  ex- 
plain satisfactorily  the  different  ap- 
pearance of  the  wounds,  without 
supposing  two  instruments.  .  .   . 

Dr.  Johnson  called  again  by  pris- 
oner's counsel. 

I  did  not  observe  such  a  difference 
in  the  appearance  of  the  wounds  as 
to  lead  me  to  believe  that  more 
than  one  instrument  had  been  used. 

Mr.  Dexter  then  addressed  the 
Jury  as  follows  : 

Gentlemen  of  the  Jury : 
Is  You  have  now  heard  all  the  evi- 
[dence  on  which  you  are  to  form 
your  judgment  of  life  or  death  to 
the  prisoner.  He  stands  before  you 
for  that  judgment  under  terrible 
disadvantages.  I  will  not  repeat  to 
you  what  has  already  been  stated  on 
that  subject.  I  have  neither  time 
nor  strength  to  expend  on  anything 
but  the  law  and  the  evidence.  You 
see  around  you  proofs  of  the  power 
against  which  the  accused  has  to 
struggle  in  his  defense.  .  .  . 

What,  then,  is  the  crime  of  which 
the  prisoner  stands  indicted  ?  It  is, 
that  he  was  present,  aiding  and 
abetting  in  the  murder.  Not  that 
he  is  guilty  of  the  murderous  intent, 
or  that  he  procured  the  murder  to 
be  committed,  but  that  he  was  pres- 
ent at  the  perpetration  of  it,  and 
gave  his  assistance  to  the  murderer. 
These  are  the  facts  of  which  you 
are  to  be  satisfied  by  the  evidence 
you  have  heard  before  you  can  re- 
turn a  verdict  against  him.  But  we 
admit  the  law  to  be  well  settled, 


that  an  actual  presence  is  not  neces- 
sary to  constitute  the  prisoner  a 
principal.  We  admit  that  any  place 
from  which  actual  pliysical  aid  can 
be  given  in  the  commission  of  the 
murder,  is  presence  within  the  mean- 
ing of  the  law.   .   .   . 

This,  then,  and  this  only,  is  tlie 
question  that  you  are  to  try  on  the 
evidence  you  have  heard,  and  from 
your  own  view  of  the  scene  of  the 
murder :  Was  the  prisoner,  with 
such  intent,  under  such  an  agree- 
ment, in  such  a  situation,  that  he 
could  render  actual  aid  at  the  mo- 
ment when  the  murder  was  com- 
mitted ?  With  this  view  of  the 
case,  I  will  now  ask  your  attention 
to  the  evidence  on  the  part  of  the 
prosecution. 

Sensible  of  the  weakness  of  the 
evidence  of  the  prisoner's  presence 
in  Brown  Street  (especially  as  it 
stood  on  the  first  trial)  the  prosecu- 
tors have  relied  much  on  the  aid  of 
the  conspiracy.  ...  If,  then,  as  the 
prosecutors  contend,  the  evidence  of 
Leighton  is  sufficient  to  indicate  the 
object  of  the  conspiracy  —  if  the 
words  he  so  ingeniously  overheard 
can,  as  is  said,  mean  nothing,  but 
that  the  two  Knapps  and  Richard 
Crowninshield  had  agreed  that  the 
latter  should  murder  Capt.  White, 
then  all  the  remaining  proof  of  the 
conspiracy  is  superfluous.  The  only 
object  for  which  it  could  legally  be 
used  was  accomplished  at  the  first 
step.  The  Wenham  robbery,  the 
robbery  of  the  Knapps'  house,  the 
preceding  letters  of  Joseph  Knapp  to 
Stephen  White  and  to  the  committee, 
and  such  other  circumstantial  stuff 
that  has  been  introduced,  may  be 
used  to  aggravate  the  general  ap- 
pearance of  the  whole  transaction  ; 
but  they  have  no  bearing  on  the  case 
of  the  Prisoner.  The  letters  may 
be  proof  that  Joseph  Knapp  was 
guilty,  but  what  is  that  to  the  Pris- 
oner? He  is  not  to  stand  or  fall  by 
the  subsequent  and  independent  acts 
of  Joseph.  Why  are  these  evidence 
against  him,  more  than  Joseph's 
confession   given   to   Mr.    Colman  ? 


1124 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


They  are  but  confessioiLs  made  after 
the  fact  and  without  the  knowledge 
of  the  Prisoner.  As  to  the  robbery, 
it  may  have  been  real  or  pretended. 
But  whether  real  or  pretended,  what 
has  it  to  do  with  the  murder  of  Capt. 
White  ?  .  .  .  Considering  these 
things  as  of  no  weight  in  the  cause, 
I  shall  pass  by  them  without  fur- 
ther remark.  Some  other  circum- 
stances may  be  dispatched  in  the 
same  manner.  The  conspirators 
wore  daggers  —  the  proof  is  that 
the  Crowninshields  habitually  wore 
them  before  the  murder  —  and  that 
the  Prisoner  never  had  one  until 
long  after.  And  whether  he  then 
wore  it  for  murder,  or  in  boyish 
bravado,  you  may  judge  from  Lay- 
ton's  account  of  the  manner  in  which 
he  used  it  upon  him.  Pleased  with 
his  new  weapon,  he  "  pricked  me 
Bull  Calf  till  he  roared";  and  how 
much  of  Layton's  testimony  is  to 
be  ascribed  to  that,  is  matter  of  no 
great  consequence,  so  incredible  is 
the  whole. 

So  of  the  5-franc  pieces.  The 
proof  is  that  Joseph  received  five 
hundred  on  the  21st  of  April  — 
and  that  George  and  Richard  Crown- 
inshield  spent  nine  between  that 
time  and  their  arrest  —  nine  5- 
franc  pieces  !  Richard  was  to  re- 
ceive, according  to  Palmer,  one 
thousand  dollars  for  the  murder ! 
and  we  are  called  upon  to  account  for 
nine  of  these  pieces,  when  the  whole 
five  hundred  would  not  have  been 
half  of  the  price  agreed  to  be  paid. 
And  why  should  not  the  whole  five 
hundred  have  been  paid  ?  and 
if  they  were,  why  are  not  more  than 
nine  traced  to  the  Crowninshields  ? 
The  coin,  besides,  is  no  uncommon 
one  —  they  carry  no  ear  mark  — 
the  witnesses  tell  you  they  pass 
currently  —  commonly  —  here. 
They  are  the  regular  return  from 
Point  Petre  ;  and  in  large  quantities 
they  go  into  the  Bank  —  in  small 
quantities  they  go  into  circulation. 
But  suppose  it  otherwise,  how  does 
this  prove  Francis  Knapp  guilty 
of   this   murder  ?     Is   he   shown   to 


have  any  of  this  pernicious  coin  ? 
All  the  evidence  about  them  is  of 
the  nine  spent  by  the  Crownin- 
shields and  that  Joseph  Knapp  gave 
Hart  three  to  buy  meal  for  the 
family.  .  .  . 

One  word  al)out  George  Crownin- 
shield ;  he  has  been  shown  by  the 
government's  witnesses  to  have  been 
in  Salem  that  evening  and  to  have 
gone  to  I  ed  at  the  house  of  Mrs. 
Weller  about  11.  The  prosecution 
has  proved  an  alibi  for  him  and  we 
shall  not  disturb  it.  On  the  con- 
trary we  have  shown  you  by  evi- 
dence, which  is  unnecessary  to 
recapitulate,  that  he  came  to  Salem 
with  Selman  and  Chase  on  other 
business,  and  we  have  traced  him 
from  place  to  place  through  the  whole 
evening.  It  seems  to  be  the  object 
of  the  government  to  show  that  he 
could  not  be  the  man  in  Brown 
Street.  We  agree  that  he  was  not ; 
but  we  think  it  material  to  show  you 
also  that  neither  was  he  anywhere 
in  the  neighborhood  of  Mr.  White's 
house  at  the  supposed  time  of  the 
murder.  The  testimony  of  Selman, 
corroborated  as  it  is  at  every  step, 
establishes  that  fact.  Whoever,  then, 
was  the  man  in  Brown  Street,  he  was 
the  only  one  in  the  vicinity  of  the 
house,  and  that  will  become  a  ma- 
terial fact  when  we  consider  the 
purpose  for  which  he  was  there. 

Much  use  was  made  on  the  former 
trial  of  the  testimony  and  books  of 
Osborne,  the  stable  keeper.  It  ap- 
pears by  them,  that  the  prisoner 
was  in  the  daily  habit  of  riding,  and 
often  to  Danvers,  and  to  Wenham, 
early  in  the  month  of  April.  That 
he  went  to  Danvers  on  the  2d  of 
April,  as  testified  by  Palmer  and 
Allen,  and  afterwards  on  the  same 
day  hired  a  chaise  ^o  go  to  the 
Springs.  That  on  the  ()th  of  April 
he  went  to  Danvers  and  after  that 
did  not  ride  till  the  19th.  We  see 
little  that  can  fairly  be  inferred 
from  all  this  but  that  there  was  a 
frequent  intercourse  between  the 
Prisoner  and  the  Crowninshields,  — 
a    circumstance    undoubtedlv     un- 


No.  393. 


KNAPP'S    TRIAL 


1125 


favorable  though  slight,  and  be- 
tween him  and  his  brother  Joseph's 
family,  a  matter  from  which  nothing 
can  be  inferred.  Two  or  three  cir- 
cumstances, however,  attending  these 
rides,  have  been  selected  as  highly 
suspicious.  In  the  first  place  the 
frequency  of  them  just  previous  to 
the  time  of  the  murder  and  the  in- 
terruption of  them  just  after.  If 
the  books  are  examined,  it  will  be 
found  that  these  rides  are  as  fre- 
quent in  the  months  of  February  and 
March  as  in  April,  making  due  allow- 
ance for  the  difference  of  weather. 
The  Prisoner  returned  from  sea  in 
January  and  he  appears  to  have 
hired  Osborne's  horses  almost  every 
day  from  that  time  until  the  6th 
of  April.  That  evening  was  marked 
by  the  failure  of  his  father,  as  well  as 
by  the  murder  of  Capt.  White  — 
a  circumstance  quite  sufficient  to 
account  for  the  discontinuance  of  his 
visits  to  the  stable,  and  also  for 
another  fact,  somewhat  relied  upon. 

The  place,  it  seems,  for  which  the 
chaise  was  hired  on  the  6th  of  April, 
is  still  blank  in  the  book.  Now  Mr. 
Osborne  testified  that  it  was  the 
habit  of  the  prisoner  to  fill  out  and 
rectify  the  charges  against  him  by 
his  own  memorandum  book ;  but 
this  he  had  no  opportunity  of  doing 
after  the  6th  until  the  19th;  and 
it  does  not  appear  that  he  ever  was 
asked  where  he  had  been  on  the  6th  ; 
so  too  of  the  entry  on  the  2d.  The 
chaise  was  hired  for  the  Springs;  but 
those  words  were  afterwards  struck 
out,  and  to  ride  put  in  their  place, 
in  the  prisoner's  handwriting.  But 
the  first  words  are  not  so  erased  as 
to  be  concealed ;  they  are  merely 
crossed  out  with  a  single  line  of  the 
pen ;  and  this  was  in  conformity 
with  the  practice  permitted  by  INIr. 
Osborne,  who  tells  you  he  had  per- 
fect confidence  in  the  prisoner, 
and  suffered  him  to  have  free  access 
to  his  books  to  make  his  own  charges. 
One  circumstance  more,  and  I  have 
done  with  these  minor  points. 

It  is  thought  very  strange,  that 
on  the  6th  the  prisoner  ordered  his 


chaise  brought  to  the  Courthouse, 
instead  of  getting  in  at  the  stable. 
A  hundred  innocent  rea.sons  may  be 
imaginefl  for  that,  while  it  is  hardly 
possible  to  think  of  one  in  any  way 
connected  with  the  murder.  He  was 
much  more  likely  to  be  noticed  if 
seen  getting  into  a  chaise  in  Court 
Street,  than  at  the  stable,  because 
one  was  a  usual,  the  other  an  un- 
usual, thing.  The  fact  that  he  had 
a  chaise  was  as  much  known  at  the 
stable;  and  if  he  wished  to  conceal 
the  direction  in  which  he  rofle,  a 
much  simpler  expedient  would  have 
answered  the  purpose.  Why  did  he 
not  start  the  contrary  way,  and 
drive  round  the  town  until  he  could 
e.scape  unnoticed  ?  He  may  have 
had  an  errand  in  Court  Street;  he 
may  not  have  wished  to  .  be  seen 
leaving  the  stable  on  the  day  of 
his  father's  failure.  It  is  so  simple 
a  thing  that  any  reason  is  enough, 
and  none  need  be  sought  for.  But 
the  most  indifferent  acts  of  the  pris- 
oner have  been  tracefl  out  with  in- 
quisitorial diligence,  and  magnified 
into  proofs  of  crime.  Is  there  any- 
thing in  all  these  circumstances  in- 
consistent with  the  prisoner's  in- 
nocence ?  It  is  not  enough  that 
they  are  consistent  with  his  guilt. 
Before  circumstantial  evidence  can 
amount  to  proof,  it  must  be  im- 
possible to  explain  it  without  sup- 
posing guilt.  So  far,  certainly,  all 
may  be  as  well  explained  without 
that  supposition.  And  yet,  from 
the  way  in  which  these  things  have 
been  heretofore  insisted  on,  it  would 
seem  that  they  we're  looked  upon 
as  conclusive  evidence.  It  seems 
to  be  enough  if  the  prisoner  can 
be  found  anywhere  or  doing  any- 
thing on  the  day  of  the  murtler, 
which  might,  by  any  supposition, 
connect  him  with  it.  A  thousaml 
suspicions,  it  has  been  well  said,  do 
not  make  one  proof.  .\nd  what  are 
the.se  but  possibilities  ?  There  is 
not  one  among  them  that  deserves 
the  name  of  a  prol)al)ility.  .\  tliou- 
sand  such  po.ssibilities  would  hardly 
make  one  suspicion. 


1126 


PART   III.       PROBLEMS   OF   PROOF 


No.  393. 


But  one  thing  that  has  a  little 
more  show  of  proof,  or  rather  of  sus- 
picion, must  be  disposed  of,  before 
we  come  to  the  direct  evidence  of 
the  conspiracy.  I  mean  Mr.  Burns's 
story.  Burns  is  a  Spaniard ;  and 
although  I  would  not  discredit  him 
on  that  ground  alone,  I  cannot  have 
the  same  confidence  in  his  oath,  I 
should  in  that  of  one  of  our  own 
citizens.  He  hardly  speaks  English 
intelligibly,  and  there  is  some  doubt 
whether  he  was  finally  understood  as 
he  meant.  His  story  is  intrinsically 
improbable,  and  he  has  discredited 
himself  by  his  own  contradictions. 
He  tells  you  the  prisoner  called 
at  his  stable  and  asked  if  he  were 
alone;  being  assured  that  no  one 
was  there,  he  wished  to  be  yet  more 
private,  and  asked  if  he  could  speak 
with  him  in  the  chamber.  And 
all  this  secrecy  was  to  tell  Burns, 
that  the  Committee  had  heard  that 
he  [Burns]  was  out  on  the  night  of 
the  murder,  and  that  they  suspected 
him  —  and  that  if  he  saw  any  friends 
that  night,  he  had  better  hold  his 
tongue  about  it,  and  that  Joseph 
Knapp  and  the  prisoner  were  his 
friends  ;  and  then  follows  an  idle  tale 
about  the  prisoner's  accusing  Stephen 
White  of  the  murder,  and  then 
threatening  Burns  with  his  dagger 
because  he  woidd  not  believe  it. 
Now  what  possible  object  could  the 
prisoner  have  in  all  this  but  to 
bring  himself  into  suspicion  ?  No 
one  had  at  that  time  whispered  a 
suspicion  against  him.  Burns  had 
not  pretended  to  have  seen  or  heard 
anything  of  him  that  night,  near 
the  scene  of  the  murder.  But  it 
may  be  asked,  what  motive  could 
Burns  have  to  fabricate  this  story  ? 
It  is  in  vain  to  deny  that  there  is 
a  sufficient  motive.  We  have  seen 
the  operation  of  it  on  more  than  one 
witness,  and  that  Mr.  Burns  is  above 
its  influence  I  see  no  special  reason 
to  believe.  You  observed  the  man- 
ner in  which  he  testified,  —  how 
zealously  he  flefended  Mr.  Stephen 
White  from  the  aspersions  of  the 
prisoner,  —  and   how   impossible   it 


was  for  the  Counsel  to  obtain  any- 
thing from  him  but  impertinence  by 
the  mildest  cross-examination.  Such 
a  man  as  Burns  well  understands 
what  is  the  source  of  favor  in  this 
trial.  He  as  well  as  others  sees  that 
the  prisoner  is  a  helpless  and  friend- 
less culprit,  pursued  by  all  the  wealth 
and  respectability  of  the  town.  And 
can  you  see  in  this  no  motive  that 
could  lead  such  a  man  as  Burns  to 
claim  his  share  in  the  merit  of  his 
conviction  ? 

But  be  his  story  ever  so  probable, 
you  cannot  believe  it  —  he  swore 
positively  on  the  first  trial  that  this 
happened  after  the  Wenham  rob- 
bery, and  on  this  he  has  sworn 
positively  that  it  was  nearly  three 
weeks  earlier  —  he  has  described 
the  prisoner's  dagger  as  totally  un- 
like any  one  he  ever  had,  and  dif- 
ferently at  his  two  examinations. 
liCt  him  and  his  story  go  for  what 
they  are  worth  —  I  trust  that  the 
prisoner  is  in  no  danger  from  them. 

I  come  now  to  what  is  called  the 
direct  evidence  of  the  conspiracy. 
It  rests  on  two  witnesses,  Leighton 
and  Palmer;  or  rather  it  rests  on 
Leighton  alone,  for  without  his 
testimony  that  of  Palmer  would  not 
be  admissible.  Palmer  pretends 
only  to  have  had  a  conversation  be- 
tween the  two  Crowninshields  in  the 
absence  of  the  prisoner.  Now  to 
make  this  admissible  against  Frank 
Knapp,  a  conspiracy  must  first  be 
established  between  him  and  the 
Crowninshields.  For  that  purpose 
Leighton  overhears  the  two  Knapps 
tell  each  other  the  whole  story,  while 
he  listens  behind  a  stone  wall.  Now 
it  may  be  supposed  that  this  very 
deficiency  in  Palmer's  story  is  proof 
of  its  truth.  Not  so.  Palmer's 
story  was  first  told  and  put  in 
writing  to  convict  Richard  Crownin- 
shield,  and  it  would  well  enough 
stand  alone  for  that.  But  when 
Richard  was  out  of  the  way,  and 
Frank  became  the  principal,  a  con- 
necting link  was  wanting ;  and  to 
furnish  this  is  Leighton's  office. 

And    what    is    Leighton's    story  ? 


No.  393. 


KNAPP  S   TRIAL 


1127 


Of  all  the  gross  improbabilities  that 
ever  were  laid  at  the  foundation  of 
a  cause,  this  is  the  most  gross.  It  is 
just  the  clumsiest  contrivance  of  a 
play,  where  the  audience  is  informed 
of  what  has  taken  place  behind  the 
scenes  by  the  actors  telling  each 
other  what  they  have  been  doing 
together.  If  it  were  told  with  the 
utmost  consistency,  could  you  be- 
lieve it  for  a  moment  ?  Wh}', 
gentlemen,  do  but  listen  to  it.  He 
tells  you  that  Frank  Knapp  came 
to  Wenham  about  10  o'clock  (and 
Potter  says  he  told  him  he  came 
there  immediately  after  breakfast, 
which  would  be  about  7),  —  that 
he  and  Joseph  were  together  all  the 
morning  in  the  fields,  and  that  after 
dinner  he  left  them  together  talking 
at  the  gate  by  the  house,  while  the 
witness  went  down  the  avenue  to  his 
work.  There  was  abundant  op- 
portunity, then,  for  them  to  talk 
in  private  about  what  most  con- 
cerned them  ;  but  after  the  witness 
had  passed  through  the  gate  at  the 
end  of  the  avenue,  and  taken  his 
place  behind  the  wall,  he  heard 
voices  in  the  avenue  ;  without  rising, 
he  peeped  through  the  gate,  and  saw 
the  two  Knapps  about  twenty-five 
rods  off,  coming  towards  him  ;  that 
they  ceased  talking  until  they  ar- 
rived within  three  feet  of  the  wall, 
and  then  began  this  dialogue :  Said 
Joseph,  "When  did  you  see  Dick?" 
"This  morning."  "When  is  he 
going  to  kill  the  old  man  ?"  "I  don't 
know."  "If  he  don't  do  it  soon,  I 
won't  pay  him,"  —  and  they  then 
turned  up  the  avenue  and  walked 
away ;  and  this  is  all  the  witness 
heard. 

Now  is  anything  more  than  a  bare 
statement  of  this  story  necessary 
to  show  its  falsehood  ?  For  what 
purpose,  under  Heaven,  could  the 
Knapps  have  postponed  all  con- 
versation on  this  most  interesting 
subject  till  that  very  time  ?  They 
had  been  together  all  the  morning ; 
they  were  plotting  a  murder;  and 
Frank  had  been  that  very  day  to  see 
the   perpetrator;     and    yet   neither 


Joseph  had  the  curiosity  to  ask,  nor 
Frank  the  disposition  to  speak  of 
the  matter,  until  just  as  they  reached 
the  place  of  Leighton's  ambuscade ; 
and  there  in  an  al)rupt  dialogue  of 
one  minute's  duration,  they  disclose 
the  whole  secret,  and  walk  l)ack 
again.  Not  a  word  more  is  heard 
by  the  witness.  The  conversation 
evidently  began  and  ended  with 
these  words.  Really  it  is  too  miser- 
able a  contrivance  to  deserve  much 
comment.  But  there  is  a  remark- 
able mistake  about  this  story  which 
stamps  it  with  falsehood.  Leighton 
fixes  the  conversation  on  Friday,  the 
2d  of  April.  And  why  on  that 
day  ?  Because  he  knew,  as  well  as 
ever^'  person  who  has  rear!  the  news- 
papers, that  on  that  day  Frank  did 
see  Richard.  But  unluckily  he  fixes 
him  at  Wenham  at  the  ve^ry  hour 
in  which  it  now  appears,  from  the 
testimony  of  Allen  and  Palmer,  that 
he  was  at  Danvers.  Leighton  says 
that  Frank  came  to  Wenham  at  10, 
and  said  he  had  seen  Dick  that  morn- 
ing; but  it  now  appears  that  Frank 
did  not  go  to  Danvers  until  2 
o'clock,  and  at  that  very  hour 
Leighton  pretends  to  have  heard 
this  conversation  at  Wenham. 
Again,  Palmer  tells  you  that  at  that 
interview  at  Danvers,  the  plan  was 
first  proposed  to  the  Crowninshields 
—  that  George  spoke  of  it  to  Richard 
and  himself  as  what  he  had  just 
heard  from  Frank ;  and  yet  from 
this  dialogue  at  Wenham  it  seems 
that  Joseph  was  impatient  at  the 
long  delay  of  Richard.  "  When  is 
Dick  going  to  kill  the  old  man?" 
"  If  he  don't  soon,  I  won't  pay  him." 
Hov.'  are  these  things  to  be  reconcile<l  ? 
Leighton  tells  you  too  that  he  never 
mentioned  this  conversation  until 
after  the  murder.  And  why  not  ? 
Why,  forsooth,  "lie  did  not  think 
of  it."  He  had  heard  a  plain  pal- 
pable plot  of  murder  contrived  by 
his  own  master,  and  yet  he  did  not 
think  of  it  !  He  did  not  tell  it  to 
Mr.  Davis  when  he  joined  liim  at  his 
work,  nor  to  Hart  who  slept  in  the 
same  room  with  him  ;    and  when  he 


1128 


PART   III.      PROBLEMS   OF   PROOF 


No.  393. 


hinted  after  the  murder  to  Starrett 
at  two  different  times,  that  he 
"knew  something,"  and  had  "over- 
heard something  about  the  murder," 
Starrett  had  not  the  curiosity  to  ask 
him  what  it  was  !  He  is  directly 
contradicted  by  Hart,  both  at  the 
time  when  he  told  him  of  it  and  as  to 
the  circumstances  of  Richard's  sup- 
posed visit  to  Wenham.  Hart  says 
he  never  heard  of  this  conversation 
until  after  Leighton's  examination 
at  Salem,  and  that  Leighton  told 
him  the  Committee  brought  out 
a  warrant  to  commit  him  to  jail  if 
he  did  not  tell  what  he  knew  — 
facts  both  of  which  Leighton  denied 
on  the  stand.  Now  what  account 
does  he  give  of  the  manner  in  which 
his  evidence  was  brought  out  ?  He 
says  he  was  summoned  to  attend 
court,  taken  out  of  the  field  where 
he  was  at  work,  and  carried  to  Mr. 
Waters's  office  —  he  was  kept  there 
forenoon  and  afternoon,  more  than 
four  hours,  closely  questioned  and 
threatened,  but  he  told  nothing. 
Why  did  he  not  tell  ?  On  the  first 
trial  he  swore  he  remembered  well 
enough,  but  did  not  choose  to  tell  — 
to  be  sure  he  swore  both  ways  about 
it,  but  he  finally  said  he  did  remem- 
ber and  would  not  tell ;  and  on  this 
statement  a  most  ingenious  argu- 
ment was  built  by  the  counsel  in  his 
favor.  "He  would  not  betray  his 
employer ;  improper  as  it  was  to 
deny  what  he  knew,  he  had  fidelity 
enough  to  refuse."  But  on  this 
last  trial  he  takes  all  that  back ; 
he  swears  positively  he  did  not  re- 
member a  word  al)out  it.  Equally 
regardless  of  his  own  oath  and  the 
argument  of  the  counsel,  he  denies 
the  whole.  He  says  it  all  came  into 
his  mind  about  two  days  after  his 
return  to  Wenham  —  the  very  words. 
What  brought  it  to  his  mind  he  can- 
not tell.  Now  what  credit  can  you 
give  to  this  boy  and  his  story  ?  But 
one  of  the  most  remarkable  improb- 
abilities of  it  is  yet  to  come.  He 
says  he  told  the  gentlemen  at  Mr. 
Waters's  office  that  if  they  would 
come    to    Wenham    the    next   day. 


he  would  tell  them  all  he  could 
remember.  That  was  on  the 
22d  of  July.  Now  do  you  be- 
lieve if  that  were  true,  they  would 
not  have  gone  ?  When  ever^'body 
in  Salem  was  inquiring  about  the 
murder,  and  some  of  the  gentlemen 
at  Mr.  Waters's  office  had  been 
doing  nothing  else  for  months  before, 
and  when  they  had  taken  all  these 
pains  to  extract  from  Leighton  what 
he  knew,  do  you  believe  that  after 
such  a  promise  they  would  neglect 
to  follow  him  up  ?  And  yet  he  tells 
you  he  heard  nothing  from  them 
until  ten  days  after  that  time. 
Then  they  came  to  Wenham  and 
he  told  them  all  about  it.  Now, 
gentlemen,  if  you  had  seen  as 
much  as  we  have  of  the  diligence  of 
the  Committee  and  Subcommittee 
in  looking  up  testimony  in  this  cause, 
you  would  not  think  this  the  least 
improbability  in  Leighton's  story. 
Consider  how  important  his  testi- 
mony is.  Without  it.  Palmer's,  and 
the  whole  evidence  of  the  conspiracy, 
would  be  useless.  It  is  the  very 
corner  stone  of  the  prosecution. 
And  yet  it  was  not  thought  worth 
looking  after  for  ten  days  imme- 
diately preceding  the  trial.  Again, 
we  shall  be  asked,  what  motive  has 
Leighton  to  swear  falsely  ?  and  we 
answer.  Fear,  favor,  and  hope  of 
reward.  He  was  told  at  Waters's 
office  he  should  be  made  to  remem- 
ber —  he  said  he  was  threatened 
with  a  warrant,  and  he  knows  of  the 
immense  rewards  that  have  been 
offered.  He  remembers  the  prick- 
ing with  the  dagger,  and  he  swears 
now  to  you  that  if  Knapp  escapes 
hanging,  he  expects  he  will  kill  him. 
Under  all  these  circumstances,  I  put 
it  to  yoiu"  consciences  to  say  if  you 
can  take  this  boy's  word  against  the 
life  of  the  prisoner.  If  you  dis- 
believe it,  then  you  must  wholly  re- 
ject Palmer's  testimony,  and  all 
evidence  of  what  was  said  and 
done  by  any  one  but  the  pris- 
oner, or  in  his  presence.  There 
is  absolutely  no  other  evidence 
to  connect  the  prisoner  with  Joseph 


No.  393. 


KNAPP  S   TRIAL 


1129 


or     the     Crowninshields     in     this 
matter. 

But  who  is  this  Palmer,  this  mys- 
terious stranger  who  has  been  the 
object  of  so  much  curiosity  and 
speculation?  He  is  a  convicted 
thief.  We  produce  to  you  the  record 
of  his  conviction  of  shop-l)reaking 
in  Maine.  He  is  an  unrepenting 
thief,  for  he  tells  you  on  the  stand  he 
cannot  speak  of  the  stealing  of  Mr. 
Sutton's  flannels  in  Danvers,  com- 
mitted since  his  discharge  from  the 
State  Prison,  without  criminating 
himself.  Mr.  Webster  (the  witness) 
tells  you  his  character  among  his 
neighbors  in  Belfast  is  as  bad  as  it 
can  be.  He  tells  you  himself  that 
he  has  passed  in  his  wanderings 
from  tavern  to  tavern,  sometimes 
by  the  name  of  Palmer,  sometimes 
that  of  Carr,  sometimes  that  of  Hall 
(the  alias  of  the  notorious  Hatch), 
and  sometimes  that  of  George  Crown- 
inshield.  The  latter  name  he  gave 
at  Babb's  house  v/hen  he  was  called 
on  to  settle  his  bill ;  and  whether  he 
settled  by  a  note  he  cannot  remem- 
ber ;  but  Mr.  Babb  remembers  that 
he  did,  and  signed  that  note  George 
Crownbishield!  And  how  came  Mr. 
Palmer  a  witness  before  you  ?  He 
was  arrested  as  an  accomplice  in 
the  murder  at  Prospect ;  committed 
to  Belfast  jail ;  brought  up  by  land 
from  Belfast  in  chains ;  put  into 
a  condemned  cell  in  Salem  — 
remained  in  jail  two  months,  neither 
committed  for  trial,  nor  ordered  to 
recognize  as  a  witness  ;  but  kept  for 
further  examination  at  his  own  re- 
quest, until  he  is  brought  out  and 
made  a  free  man  on  the  stand. 
Now  what  is  this  man's  credibility  ? 
If  his  conviction  had  been  in  ^lassa- 
chusetts.  he  would  have  been  in- 
competent; he  could  not  have 
opened  his  mouth  in  court.  But  the 
crime  is  the  same  —  the  law  violated 
is  the  same  —  and  the  infamy  and 
the  punishment  are  the  same  in 
Maine  as  in  Massachusetts  —  and 
his  credibility  is  the  same.  Add  to 
that  conviction,  his  subsequent  theft, 
falsehood,  and  forgery,  and  you  ha\e 


left  in  him  but  a  bare  possibility 
that  he  may  .speak  the  truth.  As 
to  his  temptation  to  testify  against 
the  prisoner,  ^\ou  see  how  he  was 
brought  here,  under  what  lial)ilities 
he  stands,  and  what  is  the  j)rice 
of  his  discharge.  He  tells  you  him- 
self that,  though  a  disinterested 
love  of  pul)lic  justice  first  moved 
him  to  inquire  into  the  matter,  he 
thinks  he  deserves  some  little  pecu- 
niary reward  for  his  exertions;  and 
doubtless  he  thinks  that  reward  will 
depend  something  on  the  success  of 
them.  But  what  is  his  story  '{  It  is 
that  being  himself  concealed  at  the 
house  of  the  Crowninshields  in 
Danvers,  he  saw  Frank  Knapp  and 
Allen  come  there  on  Friday,  April 
2,  about  2  o'clock ;  that  Frank 
and  George  walked  away  together, 
and  after  their  return  Frank  and 
Allen  rode  off  —  that  the  Crown- 
inshields then  came  into  the  cham- 
ber where  he  was,  and  George  de- 
tailed to  him  and  Richard  the  whole 
design  and  motive  of  the  murder  as 
a  matter  then  for  the  first  time  com- 
municated. Now  perliaps  there  is 
nothing  intrinsically  very  incredible 
about  this  stor\-,  except  its  too  great 
particularity.  If  it  be  false,  it  is 
so  artfully  ingrafted  on  the  truth, 
that  Frank  Knapp  was  there  at  that 
time,  and  had  an  interview  with 
George  alone,  that  it  would  be  al- 
most impossible  to  detect  it.  Palmer 
too  must  be  allowed  the  credit  of 
ingenuity,  whether  his  story  be  true 
or  false.  It  is  impossil)le  for  any 
one  in  his  situation  to  have  testified 
with  a  more  artful  simplicity.  And 
I  admit,  too,  that  he  has  had  the 
good  sense  to  tell  no  unnecessary 
falsehood.  The  only  instance  in 
which  he  has  tripped,  is  his  saying 
that  George  Crowninshield  told  him 
on  the  9th  of  .\pril  that  he  had 
melted  the  daggers  the  day  after 
the  nun-der  for  fear  of  tlu'  Com- 
mittee of  \'igilance;  whereas,  that 
ccnimittee  was  not  appointed  until 
late  in  the  evening  of  the  9th. 
How  that  little  impossil)ility  is  to 
be  disposed  of  is  not  very  material. 


1130 


PART   III.       PROBLEMS    OF    PROOF 


No.  393. 


But  this  conversation  is  too  partic- 
ular. Like  Leighton's  it  goes  too 
much  into  all  that  the  case  requires. 
Why  should  the  Crowninshields  tell 
all  this  to  Palmer  without  first 
sounding  him  ?  He  says  he  re- 
jected their  offier  immediately. 
Would  they  risk  detailing  the  whole 
plan  to  him  before  securing  any  in- 
dication on  his  part  of  assent  ?  Nay, 
after  having  communicated  it  to 
him  and  after  he  had  refused  to  have 
any  part  in  it,  would  Richard  have 
gone  on  to  execute  it  ?  He  was  not 
a  man  to  trust  his  life  to  the  keeping 
of  such  a  witness  as  Palmer,  who 
had  refused  to  become  an  accom- 
plice. 

There  is  one  circumstance  in 
which  the  story  is  a  little  too  in- 
genious. George  speaks  to  Richard 
and  Palmer  of  Stephen  White  as  a 
certain  Mr.  White  that  lived  at 
Treniont  House  in  Boston  ;  and  then 
witnesses  are  brought  in  to  prove  that 
Mr.  Stephen  White  actually  lived 
there  at  that  time.  This  is  too  shal- 
low. Did  not  the  Crowninshields, 
with  their  Salem  connections,  know 
Stephen  White  by  name?  There 
is  not  a  man  in  the  county  that  does 
not  know  him.  This  is  meant  to 
look  like  corroi)oration  ;  but  it  looks 
much  more  like  contrivance.  Now 
such  a  story  from  such  a  man  de- 
serves no  manner  of  credit  unless 
corroborated  by  other  testimony. 
Is  Palmer  corroborated  ?  In  the  im- 
material circumstances  of  his  story 
in  which  he  had  the  sense  to  tell 
the  truth,  and  no  temptation  to  lie, 
he  is  confirmed  by  other  witnesses. 
But  on  the  only  important  point 
he  stands  alone  and  vmconfirmed. 
The  conversation  ])etween  him  and 
the  Crowninshields  rests,  and  must 
of  necessity  rest,  on  his  single  state- 
ment. But  it  has  been  said  that 
his  letter  corroborates  his  story. 
How  can  that  be?  Would  he  be 
such  a  fool  as  to  swear  now  to  any- 
thing inconsistent  with  his  letter  of 
which  we  had  a  copy  ?  The  mere 
fact  that  his  testimony  is  consistent 
with  his  own  letter  amounts  to  noth- 


ing. But  does  that  letter  contain 
anything  which  he  might  not  well 
have  known  whether  his  story  be 
true  or  false,  and  which  is  now  con- 
firmed by  any  other  witness  ?  Not 
a  word.  It  states  that  he  knew  what 
J.  Knapp's  brother  was  doing  for 
him  on  the  2d  of  x\pril,  and  that  he 
was  extravagant  to  give  a  thousand 
dollars  for  such  a  business  ;  and  that 
is  all.  The  rest  is  but  vague  and 
unmeaning  menace.  Now  it  is  un- 
doubtedly true  that  Frank  Knapp 
was  at  Dan  vers  on  the  2d  of  April, 
and  had  a  private  conversation 
with  George ;  and  that  Palmer  was 
at  Danvers  and  saw  him.  And  that 
single  fact  is  the  only  one  contained 
in  the  letter  which  is  corroborated 
by  any  other  witness.  That  he  was 
there  to  engage  the  Crowninshields 
in  this  business  and  that  they  were 
to  have  a  thousand  dollars,  comes 
from  Palmer  himself  and  from 
him  alone.  Even  Leighton's  story, 
though  intended  to  corroborate  it, 
contradicts  it  by  inconsistency  in 
time,  and  in  the  age  of  the  plot. 
But  he  says  nothing  of  the  thousand 
dollars.  But  why  should  Palmer 
venture  to  mention  a  thousand 
dollars  if  that  was  not  the  sum 
offered  ?  And  why  should  he  have 
written  the  letter  at  all,  if,  he  knew 
nothing  about  Frank's  business  at 
Danvers  ?  The  solution  is  easy.  It 
supposes,  indeed,  some  skill  in 
Palmer,  but  we  have  seen  enough  of 
that.  Consider  when  this  letter 
was  written.  Not  until  after  the 
arrest  of  the  Crowninshields.  If  he 
had  really  heard  this  plot  laid,  why 
did  he  not  give  information  of  it 
immediately  on  hearing  of  Capt. 
White's  death,  and  of  the  immense 
rewards  offered  for  the  discovery  of 
the  murderer  ?  He  tells  j^ou  he 
wrote  that  letter  to  bring  the  matter 
to  light ;  from  a  pure  love  of  public 
justice.  Pul)lic  justice  has  been 
rather  a  hard  mistress  to  Palmer ; 
but  he  is  not  the  less  faithful  to  her. 
Now  why  did  not  that  love  of  public 
justice  induce  him  to  inform  against 
the     Crowninshields     and     Knapps 


No.  393. 


KNAPP  S   TRIAL 


ii;3i 


before  anybody  else  suspected  them, 
and  while  public  justice  had  some 
thousands  of  dollars  to  give  him  to  ob- 
literate the  remembrance  of  her  casti- 
gations  ?  He  had  the  whole  matter 
in  his  own  breast.  He  had  heard 
every  word  of  the  plot.  If  they  were 
guilty  he  had  information  enough  to 
lead  to  their  detection.  Yet  he 
waits  five  weeks  after  the  murder 
and  a  fortnight  after  the  arrest  of  the 
Crowninshields  and  then  writes  this 
letter  to  Knapp,  demanding  money 
—  but  in  fact,  as  he  tells  you,  to  get 
evidence  against  him.  Is  this  credi- 
ble ?  But  what  led  him  to  sus- 
pect the  Knapps  ?  What  was  more 
easy  ?  He  probably  knew  that  J. 
Knapp's  mother-in-law  was  an  heir 
of  White  —  he  saw  F.  Knapp  in 
private  conversation  with  George 
Crowninshield  four  days  before  the 
murder,  and  he  saw  in  the  papers 
that  the  Crowninshields  were  ar- 
rested as  the  murderers.  It  required 
less  than  Palmer's  shrewdness  to 
put  these  things  together.  As  to 
the  thousand  dollars,  it  may  be  his 
own  pure  invention,  —  there  is  no 
other  evidence  of  it,  —  or  it  may  be 
that  he  heard  the  Crowninshields  say 
after  Frank  left  them  that  they  ex- 
pected a  thousand  dollars  without 
saying  from  what  source.  His  let- 
ter is  therefore  no  corroboration  at 
all.  It  does  not  contain  a  fact 
proved  by  anybody  but  himself 
except  that  Frank  was  at  Danvers 
on  the  second  ;  nor  is  Palmer's  story 
on  the  stand  corroborated  by  any 
other  witness  in  a  single  fact,  that 
had  not  been  published  in  every 
newspaper  in  the  State,  weeks  before 
he  testified. 

This  is  the  evidence  of  the  con- 
spiracy. I  have  but  two  remarks  to 
make  on  it.  If  you  could  believe 
it  on  such  evidence,  the  only  effect 
of  it  would  be  to  show  that  Frank 
Knapp  was  an  accessory  ;  and  makes 
nothing  said  or  done  by  J.  Knapp 
or  the  Crowninshields  e\idence 
against  the  prisoner.  For  the  very 
proof  relied  on  to  establish  the  fact 
of  the  conspiracy  proves  equally  well 


all  that  of  which  such  acts  and  dec- 
larations are  legal  evidence ;  that 
is,  the  design  and  object  of  the  con- 
spiracy. 

The  most,  then,  that  can  possibly 
be  inferred  from  this  evidence,  bad 
as  it  is,  is  that  the  prisoner  was  an 
accessory  before  the  fact ;  and  that 
if  he  were  in  Brown  Street  at  the 
moment  of  the  murder,  and  in  a 
situation  in  which  he  could  give  as- 
sistance, there  would  be  a  presump- 
tion that  he  was  there  for  that  pur- 
pose. We  are  willing  to  meet  the 
government  on  that  ground.  We 
deny  that  he  was  there;  and  we 
deny  that  the  man  who  was  there 
could  by  possibility  have  given  any 
assistance. 

Two  men  were  seen  in  Brown 
Street  at  half  past  10,  of  whom  one  is 
alleged  to  have  been  the  murderer, 
and  prisoner  the  other.  But  what 
proof  is  there  that  the  murder  was 
committed  at  that  hour  ?  If  that 
fails,  the  whole  case  fails.  Was 
there  anything  in  the  conduct  of 
the  men  to  show  it  ?  One  man  was 
seen  waiting  half  an  hour  in  Brown 
Street,  and  a  little  before  ele\en  he 
was  joined  by  another  who  came 
either  from  the  common  or  from 
Newbury  Street ;  and  might  as  well 
have  come  from  one  as  from  the 
other,  as  he  was  first  seen  in  the 
middle  of  the  street.  The  man  that 
came  from  the  eastward  did  not 
run ;  he  walked  directly  up  to  the 
other,  held  a  short  conference  with 
him  ;  they  moved  on  together  a  few 
feet  —  stopped  again  ;  talked  a  few 
moments  and  then  parted ;  one 
stepping  back  out  of  sight  and  the 
other  running  down  Howard  Street. 
Of  the  two  witnesses  that  saw  them, 
Bray  thought  they  were  about  to 
rob  the  graveyard;  Southwick  sus- 
pected ;  but  what  to  suspect  he  did 
not  know,  and  his  wife  suspected 
that  he  had  better  go  out  again  to 
watch  them.  A  murder  was  com- 
mitted that  night  in  the  next  street, 
and  this  is  all  the  proof  that  these 
were  the  murderers.  A  club  indeed 
was    afterwards    found    in    Howard 


1132 


PART    III.       PROBLEMS    OF    PROOF 


No.  3C3. 


Street ;  but  neither  of  these  men  hud 
any  visible  weapon. 

What  say  the  tloetors  ?  Dr.  Jolni- 
son  says  he  saw  the  body  at  six  and 
then  thought  it  had  been  dead  be- 
tween three  and  four  hours  —  Dr. 
Hub'bard  now  thinks  longer;  but 
says  at  the  time  he  agreed  with 
Johnson.  There  is  pretty  strong 
proof  that  the  murder  was  in  fact 
committed  about  three  o'clock. 

Savary  saw  a  man  between  three 
and  four  come  out  of  Capt.  White's 
yard  and  walk  up  Essex  Street ;  but 
meeting  the  witness  he  turned  about 
and  ran  down  as  far  as  Walnut  Street. 
Walcutt  about  the  same  time,  and 
near  the  lower  end  of  Walnut  street 
met,  probably,  the  same  man,  coming 
towards  him ;  on  seeing  him  he 
turned  about  and  walked  the  other 
way.  Now  which  was  most  likely 
to  be  the  murderer,  the  man  who 
might  have  come  either  from  New- 
bury Street  or  from  the  Common, 
at  eleven,  or  the  maji  who  was 
actually  seen  to  leave  W^hite's  yard 
at  half  past  three,  and  twice  turned 
l)ack,  and  once  ran  away  to  escape 
observation  ?  But  here  we  are  met 
with  a  dilemma  on  the  second  trial. 
What  I  have  stated  was  the  whole 
of  Savary's  testimony  on  the  first 
trial.  He  was  then  asked  whether 
he  had  ever  heard  of  that  man  since 
and  he  said,  no.  Now  he  is  asked 
whether  he  has  seen  that  man  since, 
and  to  the  utter  astonishment  of 
every  one,  after  giggling  like  an 
idiot,  he  saj'^s  he  thinks  it  was  the 
prisoner !  And  this  is  seriously 
taken  up  by  the  counsel  for  the 
prosecution,  and  Dr.  Peirson  is 
examined  to  prove  that  the  stabs 
were  made  with  different  instru- 
ments. You  have  heard  his  reasons 
for  it.  His  opinion  is  that  some  of 
the  lower  wounds,  being  longer  than 
the  upper,  must  have  been  made 
by  a  broader  dagger  or  a  sword  cane ; 
these  lower  woimds  were  oblique 
and  of  various  lengths,  but  he  thinks 
that  a  dagger,  however  sharp  at  the 
edges,  driven  o})liquely  into  the 
body,  will  not  make  a  wound  longer 


upon  the  surface  than  the  breadth 
of  the  dagger.  This  seems  very 
much  like  saying  that  the  human 
skin  may  be  pierced,  but  cannot  be 
cut.  It  is  certainly  contrary  to 
common  observation  if  not  to  com- 
mon sense.  Dr.  Johnson  says  he 
saw  no  proof  of  more  than  one  sharp 
instrument.  But  for  what  possible 
purpose,  if  Frank  Knapp  had  met 
the  murderer  in  Brown  Street,  and 
heard  that  the  deed  was  done  at 
ele^^en,  should  he  have  gone  into 
the  house  again,  and  stabbed  the 
dead  body  ?  Like  another  Falstaff 
did  he  envy  the  perpetrator  the 
glory  of  the  deed  and  mean  to  claim 
it  as  his  own  ?  or  was  it  for  plunder  ? 
No  —  for  the  money  was  not  taken. 
The  two  suppositions  that  the  pris- 
oner was  engaged  in  the  murder 
at  half  past  ten,  and  that  he  visited 
the  house  at  half  past  three,  are 
totally  irreconcilable.  We  deny 
that  he  was  in  Brown  Street,  and 
we  will  take  all  the  risk  of  Savary's 
testimony.  This  is  but  one  of  the 
many  examples  of  the  rapid  growth 
of  evidence  in  a  popular  cause. 
Savary's  first  story  was  true ;  he 
has  told  it  so  from  the  first  day  after 
the  mmxler,  and  it  is  confirmed  by 
Walcutt ;  but  this  last  edition  of  it 
is  as  foolish  as  it  is  wicked,  and  needs 
no  refutation  or  comment  to  those 
who  saw  and  heard  him  on  the  stand  ; 
the  manner  was  as  indecent  as  the 
matter  was  absurd.  The  govern- 
ment must  satisfy  you  beyond  reason- 
able doubt  either  that  the  murder 
was  committed  at  half  past  ten,  or 
that  the  prisoner  was  the  man  who 
left  the  house  at  half  past  three. 
You  cannot  believe  both  ;  and  can 
you  say  that  you  are  satisfied  of 
either  ?  Is  there  not  a  great,  a  very 
reasonable,  doubt  of  both  ?  You 
must  not  convict  the  prisoner  be- 
tween the  two.  You  must  be  as 
well  satisfied  of  one  as  if  the  other 
did  not  exist.  Which,  then,  will 
you  take  ?  That  he  was  the  man 
seen  by  Savary  ?  If  Savary  were 
honest  and  credible,  you  would  have 
but  his  opinion  from  a  glance  in  a 


No.  393. 


KNAPP'S   TRIAL 


1  i;i;i 


dim  and  misty  night  (for  it  grew 
more  dark  and  cloudy  towards  morn- 
ing) ;  a  thing  certainly  not  to  be 
relied  upon,  standing  alone,  as  it 
does.  Was  the  murder  committed 
at  half  past  ten  ?  What  is  the  proof 
of  it  ?  and  what  was  the  man  doing 
in  White's  .\ard  at  half  past  three  ? 
and  why  did  he  run  when  he  was 
seen  ?  Which  acted  most  like  a 
murderer,  the  man  that  came  into 
Brown  Street,  or  the  man  that  ran 
from  the  \ard  ?  Which  was  the 
hour  most  appropriate  to  so  horrible 
a  deed  ?  That  at  which  a  party 
was  breaking  up  at  Mr.  Deland's, 
the  next  house  to  White's,  or  the 
still  hour  before  daylight,  when  no 
person  was  abroad  but  by  accident  ? 
And  what  is  the  fair  result  of  the 
doctors'  opinions  on  the  view  of  the 
body  ?  All  these  things  concur  to 
fix  the  murder  on  the  man  who 
left  the  yard  in  the  morning.  If  you 
believe  that  was  Frank  Knapp ; 
if  you  can  say  on  your  oaths  that 
Savary's  testimony  satisfies  you  of 
it  beyond  a  reasonable  doubt,  be  it 
so  —  but  it  will  satisfy  nobody  else. 
I  have  no  fear  of  it. 

There  remains,  then,  only  the  sup- 
position that  the  murder  was  com- 
mitted at  half  past  ten  ;  and  then  the 
question  is.  Was  the  prisoner  the 
man  in  Brown  Street  ?  And  on  this 
point  we  have  the  most  deplorable 
examples  of  the  fallibility  of  human 
testimony,  and  of  the  weak  stand 
that  even  common  integrity  can 
make  against  the  overwhelming 
current  of  popular  opinion.  The 
witnesses  are  four.  Webster  and 
Southwick  swore  the  same  on  both 
trials ;  Bray  and  Myrick  have  varied 
most  essentially.  As  it  now  stands, 
Myrick  and  Webster  are  of  little 
importance;  Myrick  saw  a  man 
in  a  frock  coat  who  he  now  thinks 
was  the  prisoner,  standing  at  the 
corner  of  Brown  and  Newlniry 
streets  from  twenty  minutes  before 
to  twenty  minutes  after  nine.  The 
man  appeared  to  be  waiting  for 
some  one ;  and  when  any  person 
approached  his  post  he  walked  away 


and  then  turned  and  met  him  ;  he  did 
this  several  times.  Now  whether 
that  was  or  was  not  the  prisoner 
is  not  in  itself  of  any  importance. 
It  is  hardly  to  be  i)elieve(l  that  a  man 
who  was  to  be  engaged  in  a  murder 
at  half  past  ten  would  be  seen  linger- 
ing near  the  spot  for  forty  minutes 
at  the  early  hour  of  nine.  It  would, 
if  true,  be  no  unfavorable  circum- 
stance. For  what  purpose  con- 
nected with  the  min-der  was  he  there 
at  that  hour?  Did  the  nnn-derers 
take  their  measures  so  ill  that  one 
was  on  the  watch  for  the  other  in 
a  public  corner  near  the  scene  of  the 
murder  an  hour  and  a  half  before 
the  time?  Besides,  where  are  the 
persons  whom  Myrick  saw  meet  the 
prisoner  at  the  corner?  he  spoke 
Qf  several.  Why  are  they  not  found 
and  produced  ?  It  is  impossible 
they  should  not  be  found.  We  ha\e 
been  lotidly  and  gravely  called  upon 
to  produce  the  man  in  Brown  Street 
if  Frank  Knapp  was  not  he. 

It  is  thought  very  strange  that 
if  it  were  not  he,  some  friend  of 
justice  should  not  come  forward  and 
own  himself  to  be  the  man,  at  the 
risk  of  taking  the  prisoner's  place 
at  the  bar  as  a  principal  in  the  mur- 
der. So,  too,  it  was  asked,  if  Richard 
Crowninshield  was  not  the  man  that 
joined  him  in  Brown  Street,  why 
don't  the  prisoner  show  where 
Richard  was  ?  And  yet  we  are 
told  that  the  prisoner  stood  half 
an  hour  at  a  corner,  and  was  met 
by  various  persons,  but  not  one  of 
those  persons  is  produced  to  prove  it. 
When  it  is  the  very  question, 
whether  it  was  the  prisoner  or  not, 
and  Myrick  tells  you  himself  that 
others  saw  him  where  they  certainly 
would  have  recognized  him.  Now 
it  is  a  principle  of  law  that  no  evi- 
dence is  good,  which  of  itself  sup- 
poses better  in  existence,  not  pro- 
duced. Myrick's  evidence,  then, 
is  good  for  nothing  until  those  who 
met  the  prisoner  at  the  post  are 
produced.  Besides,  how  did  IMyrick 
recognize  liini  ?  He  had  never 
known    him  —  he    never   knew  liiui 


1134 


PART    III.       PROBLEMS   OF    PROOF 


No.  393. 


until  he  was  brought  up  for  trial  — 
nearly  four  months  after  the  night 
of  the  murder,  and  in  a  different 
dress.  He  was  then  told,  by  a  by- 
stander, which  was  Frank  Knapp. 
Being  asked  at  the  first  trial,  who 
he  thought  the  man  at  the  corner 
was,  he  said  he  thought  it  was  the 
prisoner,  not  from  what  he  had  ob- 
served, alone,  but  partly  from  what 
he  had  heard  about  him.  Now  this 
was  obviously  no  evidence  at  all. 
What  a  man  thinks  from  what  he 
hears,  is  nothing.  What  he  hears, 
is  no  evidence ;  and  still  less,  what 
he  thinks  about  it.  But  at  this 
trial,  Mr.  Myrick  makes  another 
step  :  he  says  he  thinks  it  was  the 
prisoner,  from  his  own  observation 
alone,  making  allowance  for  the 
difference  of  dress.  Now  how  much 
of  an  allowance  that  is,  depends  on 
how  much  of  the  appearance  of  a 
man,  seen  four  or  five  rods  off  by  a 
perfect  stranger,  in  a  light,  but 
cloudy  evening,  consists  in  his  dress. 
It  can  consist  of  nothing  but  dress, 
figure,  and  manner.  Mr.  Myrick's 
evidence,  therefore,  amounts  to  this 
and  no  more  :  "  I  think  the  prisoner's 
figure  and  manner  the  same  as  those 
of  a  man  I  saw  four  months  ago, 
under  the  circumstances  above  de- 
scribed." This  is  so  slight,  that  the 
difference  in  his  testimony  is  not 
worth  mentioning,  except  to  show 
the  growing  tendency  of  the  whole 
evidence. 

About  the  time  that  Myrick  leaves 
the  prisoner  in  his  frock  at  the  cor- 
ner, Mr.  Webster  overtakes  him 
in  Howard  Street,  in  a  wrapper.  He 
passed  him  without  much  observa- 
tion ;  he  did  not  see  his  face,  but  he 
thinks  it  was  the  prisoner.  It  is  of 
no  consequence  whether  it  was  or 
not.  The  probability,  from  the 
change  of  dress  is,  that  it  was  not. 
And  this  reminds  me  of  a  remark 
made  on  the  last  trial,  that  such 
differences  and  sudden  changes  of 
dress  were  to  be  expected  for  the 
purposes  of  disguise  when  such 
business  was  on  foot.  With  great 
deference  to  the  learned  counsel,  it 


seems  to  me  highly  improbable. 
What  is  the  evidence  on  this  point  ? 
The  prisoner  is  supposed  to  have 
had  on  his  usual  frock  and  cap,  at 
the  corner,  from  a  quarter  before 
to  a  quarter  after  nine ;  at  half  past 
nine  to  have  walked  in  Howard 
Street,  in  the  same  cap  and  a  wrap- 
per ;  to  have  sitten  on  the  steps  of 
the  ropewalk,  in  his  own  cap  and 
camblet  cloak  at  half  past  ten,  and 
in  five  minutes  after,  to  have  been 
seen  in  the  same  street,  in  his  frock. 
Now  I  agree  with  the  learned  counsel 
that  on  such  an  occasion,  disguise  is  to 
be  expected  ;  and  further,  that  it  is 
entirely  incredible  any  one  should 
go  undisguised.  But  what  dis- 
guise is  here  ?  The  wrapper  does 
not,  indeed,  correspond  with  any 
known  dress  of  the  prisoner ;  but 
in  every  other  situation  in  which  he 
is  seen,  he  is  recognized  by  his  usual 
dress,  and  by  that  alone.  Now  it  is 
incredible  enough  that  a  man  should, 
in  a  light  evening,  be  out  in  his  usual 
dress,  to  commit  murder  in  his  native 
town ;  but  that  he  should  think  to 
disguise  himself  by  putting  on  and 
off  his  own  cloak,  as  well  known  as 
his  own  coat,  and  thus  be  seen  in 
two  of  his  habitual  dresses,  is  a  little 
too  much  to  ask  you  to  believe. 
Why  not  assume  one  effectual  and 
complete  disguise  ?  Or,  if  he  feared 
being  seen  too  often  in  one  dress, 
why  not  put  a  strange  cloak  over  a 
strange  coat  ?  And  why  wear  his 
own  cap  the  whole  evening?  The 
counsel  has  said  this  was  a  murder, 
planned  with  great  skill  —  nothing 
could  be  more  unskillful  tium  the 
prisoner's  part,  if  he  was  there. 

But  let  us  come  to  the  more  ma- 
terial part  of  this  testimony.  Mr, 
Southwick  swears  positively  to  hav- 
ing seen  the  prisoner  on  the  rope- 
walk  steps  at  half  past  ten,  in  his 
own  cap  and  cloak  —  that  he  passed 
him  three  times,  and  watched  him 
twenty  minutes.  He  has  known  the 
prisoner  from  childhood.  He  did 
not  speak,  though  he  felt  ver\' 
suspicious  of  him.  That  he  went 
into  the  house  and  took  off  his  coat 


No.  393. 


KNAPP  S    TRI.\L 


1  1.35 


and  came  out  again,  and  the  man 
was  gone.     He  met  Mr.  Bray,  who 
pointed    out    a    man    standing    at 
Shepard's  post,  on  the  other  side  of 
the  street,  in  a  frock  and  cap  Hke  the 
prisoner's.    Bray  and  he  stopped  and 
observed  him  till  he  left  Shepard's 
post,    walked    down    the    opposite 
side  of  the  street,  and  passed  them 
and  stood  at  the  post  under  Bray's 
window.     They    then   crossed   over 
and  entered  Bray's  house,  passing 
within  twenty  feet  of  him.     South- 
wick  says  he  did  not  recognize  the 
man  in  the  frock  coat,  but  supposed 
him  to  be  the  same  he  had  seen  on 
the    steps,    because    there    was    no 
other  person  in  the  street ;  and  be- 
cause he  had   the  same  suspicions 
of  him  !  —  Now   this   testimony  of 
Mr.    Sovithwick  is  open   to  two   or 
three  important  objections.     In  the 
first  place,  if  Frank  Knapp  were  on 
the  steps  to  aid  in  a  murder,  at  that 
moment  in  execution,  and  expecting 
to  be  joined  by  the  murderer,  would 
he    have    permitted    Southwick    to 
pass  him  three  times  and  watch  him 
twenty  minutes  ?     He  knew  South- 
wick as  well  as  Southwick  knew  him. 
Southwick  says  he  dropped  his  head 
each  time,  as  he  passed  him,  so  that 
he  could  not  see  his  face.     So  there 
is  a  foolish  bird  that  puts  its  head 
in  a  hole  and  thinks  itself  safe  if  it 
cannot  see  its  pursuers.     Murderers 
are  apt  to  be  more  cautious.     He 
says  he  knew  it,  then,  to  be  Frank 
Knapp  and  told  his  wife  so.     But 
though  he  thought  the  man,  he  and 
Bray  saw,  was  the  same,  and  both 
wondered  what   mischief   he  could 
be  about,  he  never"  told  Mr.  Bray, 
who  he  thought    it  was.      Is  that 
possible  ?     Yes,  both  he  and  Bray 
agree  in  it.     But    the  greatest  im- 
possibility of  all   is,  that  he  should 
not  have  recognized  the  prisoner,  if 
it  was  he,  in  his  usual  dress,  while 
walking  down  the  opposite  side  of 
this  narrow  street.     Chadwick  tells 
you  it  was  so  light,  he  easily  dis- 
tinguished Mr.   Saltonstall,   farther 
off,   the  same  evening.     Now  how 
inconsistent  is  this  story  with  the 


supposition  that  that  was  the  pris- 
oner.      He     knew     Frank     Knapp 
familiarly,  he  saw  him  and  recognizi'd 
him  in  his  cloak  on  the  steps  —  he 
saw  a  man  on  the  opposite  side  of 
the  street  five  minutes  after,  who  he, 
for  some  reason,  not  connected  with 
his    appearance,   thought    was  the 
same :    and  yet,  though    that   man 
wore  the  usmd  dress  of  the  prisoner, 
and    walked    down    the    street    by 
Southwick,  when  it  was  light  enough 
to    distinguish    persons    across    the 
street,  and  though  Soutliwick  passed 
within  twenty  feet  of  him  to  go  into 
Bray's  house,  he  did  not  recognize 
him    as    the    prisoner.     Again,    he 
thought  the  man  in  the  frock  was 
the  same  as  the  man  in  the  cloak ; 
he  knew  the  man  in  the  cloak  was 
Frank    Knapp,    yet    he    and    Bray 
wondered  who  the  man  in  the  frock 
could    be,     and     Southwick    never 
thought  of  telling  Bray  it  was  Frank 
Knapp.     Now  if  Southwick's  testi- 
mony   were    believed,    it    not    only 
would  not  prove   that   the  prisoner 
was   the  man   at  the   post,   but   it 
would    prove    almost    conclusi\'ely 
that   it  was   not.     It   is   impossible 
that    Southwick  should    not    have 
known  him  if  it  were  he,  and  should 
not  have  told  Bray  if  he  knew  him 
on    the  steps.     Besides,   Southwick 
is  contradicted  by  Mr.  Shillaber  — 
he  told  Shillaber  that  "for  ought  he 
knew  the  man  in  BroAvn  Street  might 
be     Richard      Crowninshield,      and 
Frank  Knapp  the  other  —  he  could 
not  tell  who  they  were."     And  how 
does    Southwick    explain    this  ?    he 
says  Mr.  Shillaber's  question  was, 
"might   not   the    man    that    came 
from    Newbury  Street   be    Richard 
Crowninshield  ?"     A  probable  ques- 
tion  indeed   for  Richard's   Counsel 
to  ask  !     But  one    word  more  witn 
Mr.  Southwick.  — When  Chase  and 
Selman  were  indicted  for  this  murder, 
he  went  before  the  Grand  Jury  as 
a    witness    at    Ipswich  —  he    there 
swore  that  the  man  he  saw  in  Brown 
Street  was  about  the  size  and  height 
of  Selman,  and  said  not  one  word 
about  P^rank  Knapp  !     On  this  testi- 


1136 


PART    III.      PROBLEMS   OF   PROOF 


No.  393. 


mony,  and  that  of  Hatch  the  convict, 
was  Selman  indicted  and  iriiprisoned 
as  a  felon,  eighty-five  days ;  until 
another  Grand  Jury  assembled,  and 
as  Hatch's  oath  was  inadmissible, 
and  Southwick  had  turned  his  testi- 
mony against  Knapp,  Selman  was 
discharged.  Now  when  was  there 
anything  more  abominable  than 
this  except  in  form  ?  It  is  not,  to  be 
sure,  within  the  reach  of  the  law,  but 
how  is  it  in  conscience  ?  He  swears 
now  that  he  then  knew  it  was  Frank 
Knapp  ;  and  yet  he  indirectly  swore 
then  that  it  was  Selman,  and  what  is 
the  contemptible  evasion  by  which 
he  tries  to  escape  !  Why,  that  it  is 
true  that  he  was  about  the  size  of 
Selman,  and  he  was  not  asked 
whether  it  was  Frank  Knapp  !  If 
he  tells  truth  now,  he  knew  then, 
that  by  one  word  of  truth  he  could 
clear  Selman  of  all  suspicion  of  being 
in  Brown  Street ;  and  he  willfully 
suppressed  that  truth.  Now  why  is 
he  a  more  credible  witness  than  if  he 
had  been  convicted  of  perjury  ?  It 
is  said  he  told  his  wife  it  was  Frank 
Knapp.  She  says  so,  and  it  may  be 
true;  but  it  is  not  the  very  best 
corroboration.  It  is  not  of  one 
half  the  weight  of  the  fact  that  he 
did  7wt  tell  it  to  Bray.  Still  that 
only  goes  to  the  identity  of  the  man 
on  the  steps.  It  leaves  the  man  at 
the  post  still  nameless,  and  that  is 
the  important  question.  South- 
wick does  not  pretend  to  identify 
him.  Besides,  where  was  his  cloak  ? 
It  seems  that  Joseph  Knapp  left 
his  cloak  at  Burns'  stable  in  St. 
Peters'  Street,  and  it  is  suggested 
that  Frank  might  have  got  there 
the  one  that  he  wore.  But  South- 
wick swears  the  cloak  was  a  brown 
camblet  and  Joseph's  is  a  plaid. 
Besides,  how  could  he  have  gone  to 
Burns'  stable  without  meeting  Bray, 
who  came  down  St.  Peters'  Street  ? 
Now  this,  with  the  addition  of  a 
statement  from  Bray,  that  he  could 
not  tell  who  the  man  in  Brown  Street 
was,  though  he  was  about  the  size 
and  shape  of  the  prisoner,  and  wore 
a  cap  and  full  skirted  coat,  such  as 


the  hatters  and  tailors  say  Frank 
Knapp  and  a  hundred  others  wear, 
was  absolutely  all  the  evidence  on 
the  first  trial  that  the  prisoner  was 
in  Brown  Street.  Two  remarkable 
facts  have  happened  since ;  one  is 
that  Mr.  Bray,  one  of  the  most 
honest  witnesses  in  the  cause,  has 
on  this  trial,  to  the  same  question, 
answered  that  he  had  no  doubt  the 
man  he  saw  in  Brown  Street  was 
the  prisoner.  Now  I  have  no  dis- 
position to  accuse  Mr.  Bray  of  any 
intentional  misstatement  or  over- 
statement ;  but  here  is  a  direct  and 
flat  contradiction.  One  week  he 
says,  "  I  have  seen  the  prisoner  in 
jail  and  in  court,  and  I  cannot  say 
he  was  the  man  in  Brown  Street;" 
and  the  next  week  he  says,  "  I  have 
seen  him  in  jail  and  in  court,  and 
I  have  no  doubt  he  is  the  man." 
And  I  am  interrupted  to  say  that 
this  is  no  contradiction.  Let  the 
gentleman  reconcile  it  as  he  can ;  I 
do  not  misquote  the  witness ;  such 
is  and  such  was  his  testimony. 
Nay  more ;  though  he  said  that  he 
had  thought  more  of  it  since  the  last 
trial,  and  become  more  certain  —  a 
strange  way  of  correcting  an  opin- 
ion formed  on  what  was  seen  four 
months  ago  —  he  said  too  that  when 
he  first  saw  the  prisoner  in  jail  he 
recognized  him  by  his  dress  and 
motions.  Now  there  is  no  reconcil- 
ing these  things,  let  them  be  ex- 
plained as  they  may.  Both  cannot 
be  true ;  which  will  you  believe  ? 
That  he  does  or  does  not  recognize 
him  ?  Mr.  Bray  is  one  of  the  Com- 
mittee of  Vigilance  —  let  that  go  for 
what  it  is  worth  and  no  more.  But 
which  is  most  likely  to  be  right  ? 
his  first  testimony,  the  result  of  the 
reflection  of  three  months,  l)ef()re 
he  knew  what  would  be  the  event  of 
the  trial  ?  or  that  result  corrected 
by  the  revision  of  a  week,  when  he 
knew  that  the  first  trial  had  failed 
on  that  very  point?  I  repeat  that 
I  accuse  Mr.  Bray  of  no  wrong. 
But  I  cannot  acquit  him  of  that 
subjection  to  the  power  of  imagi- 
nation   which    has     brought    others 


No.  393. 


KNAPP  S   TRIAL 


1137 


here,  as  honest  as  himself,  to  swear 
positively  to  things  that  never  did 
and  never  could  happen .  We  shall 
see  that  presently.  We  claim  his 
first  as  his  true  testimony.  He 
cannot  say  that  it  was  the  prisoner 
who  was  in  Brown  Street.  He  did 
not  know  the  prisoner  until  he  saw 
him  arrested  on  suspicion  of  this 
crime.  He  then  went  to  see  him 
to  compare  his  appearance  with  that 
of  the  man  he  had  seen  in  Brown 
Street  nearly  two  months  before. 
Of  what  value  is  an  opinion,  formed 
under  such  circumstances?  And 
which  of  his  two  statements  would 
it  be  most  safe  for  Mr.  Bray  to  stand 
l)y  ?  Can  any  man,  with  such  means 
of  judging,  say  with  propriety  he  has 
no  doubt  ?  The  rest  of  Bray's  testi- 
mony I  need  not  repeat ;  I  have 
already  stated  the  substance  of  it 
in  speaking  of  the  time  of  the  mur- 
der, and  it  is  not  material  on  this 
point. 

The  other  of  the  two  remarkable 
facts  which  I  have  mentioned,  is  a 
most  wholesome  lesson  as  to  the 
credibility  of  the  testimony  in  this 
case,  and  of  the  value  of  circum- 
stantial evidence.  It  is  worth  hours 
of  argument,  and  peals  of  eloquence. 
It  is  a  fact,  a  stubborn  fact ;  and 
there  is  no  explaining  it,  nor  getting 
away  from  it.  Miss  Lydia  Kimball 
and  Miss  Sanborn,  two  elderly 
respectable  females,  as  credible  per- 
sons as  any  that  have  testified,  have, 
under  the  influence  of  the  madness 
that  seems  to  have  possessed  almost 
everybody  in  Salem,  testified  dis- 
tinctly and  positively  to  a  thing  as 
within  their  own  knowledge,  which 
is  absolutely  impossible.  They  both 
swore  that  on  the  morning  after  the 
murder,  a  person  whom  they  did 
not  know,  brought  into  Capt. 
White's  house  an  old  cloak,  and  left 
it,  saying,  "  this  is  my  brother's  clonic.'" 
Miss  Kimball  can't  say  it  was  the 
prisoner  who  brought  it,  for  neither 
of  them  knew  him  at  that  time,  but 
Miss  Sanborn  thinks  he  had  a  cap 
on.  And  Miss  Katherine  Kimball 
says  that  Joseph  Knapp  afterwards 


took  the  cloak  as  his  own.  Now 
here  seemed  to  be  confirmation 
strong.  Here  was  the  prisoner, 
driven  by  the  folly  that  always  at- 
tends guilt,  carrying  into  the  very 
house  of  the  murder  the  disguise  he 
had  worn  the  night  before.  How 
perfectly  this  corresponded  with 
the  testimony  of  Burns  that  Joseph 
Knapp  left  his  cloak  at  the  stable, 
and  with  the  suggestion  of  the  coun- 
sel that  Frank  Knapp  had  gone  there 
to  get  it  as  a  disguise  !  How  wonder- 
ful is  the  force  of  circumstantial 
evidence !  Men  may  lie,  but  cir- 
cumstances cannot  !  Now  what  is 
the  fact  about  that  cloak  ?  It  was 
Joseph's  cloak ;  Stratton,  Stephen 
White's  coachman,  went  out  to 
Wenham  with  a  chaise  that  morn- 
ing to  bring  in  Mrs.  Beckford,  and 
she  brought  that  cloak  in  with  her. 
Stratton  left  Mrs.  Beckford  at 
Joseph  White's,  but  by  accident 
carried  the  cloak  to  Stephen  White's 
in  the  chaise.  And  he  afterwards 
folded  it  up  and  carricfl  it  to  Joseph 
White's  house.  He  was  the  stranger 
with  the  cap,  that  did  /jo^say,  "this 
is  my  brother's  cloak,"  —  for.  how 
could  he  say  so  ?  he  knew  it  was 
Joseph  Knapp's  cloak.  Now  what 
becomes  of  the  truth  of  Miss  Kim- 
ball's and  Miss  Sanborn's  story, 
and  of  the  force  of  circumstances  ? 
"Circumstances  cannot  lie,"  but 
women,  and  men  too,  that  swear  to 
them,  may  be  mistaken  —  and,  with 
the  help  of  a  heated  imagination, 
and  a  few  leading  suggestions,  may 
honestly  invent  the  most  outrageous 
fictions.  Now  this  was  detected  by 
mere  accident.  We  questioned 
Lathrop  about  it  —  he  did  not  know 
—  but  he  said  Stratton  brought  Mrs. 
Beckford  in  from  Wenham.  We 
called  for  Stratton  —  he  was  not 
to  be  found  —  his  examination  was 
postponed  until  the  prosecutors  had 
put  in  their  additional  testimony. 
We  called  for  him  again,  and  then 
the  whole  matter  was  distinctly  ad- 
mitted. •  And  this  is  the  way  that 
evidence  is  got  up  against  th^  pris- 
oner.     And     how     much      more    of 


1138 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


equally  plausible  testimony  might 
be  explained  away  in  like  manner  we 
shall  never  know.  Not  a  single 
fact  in  the  cause  is  better  vouched 
than  this,  —  few  so  well ;  and  yet 
the  only  material  part  of  it  is  utterly 
false. 

Now  take  Bray  and  Southwick, 
the  only  material  witnesses ;  make 
what  allowances  for  error  you  think 
ought  to  be  made,  and  can  you  say 
you  are  satisfied  that  the  prisoner 
was  in  Brown  Street  ? 

There  is  one  more  piece  of  evi- 
dence that  may  apply  to  it ;  and  that 
will  bring  me  to  an  inquiry  im- 
portant for  other  reasons.  I  mean 
the  testimony  of  Mr.  Colman. 

But  let  us  first  look  for  a  few 
moments  at  the  proof  of  the  pris- 
oner's alibi.  It  is  applicable  to  two 
different  times.  .The  first  between 
seven  and  ten,  and  the  second  after 
ten.  The  first  depends  on  the  testi- 
mony of  Page,  Balch,  Burchmore, 
and  Forrester.  Now  Page  says  he 
knows  it  was  Monday  or  Tuesday 
evening;  he  said  on  examination  he 
knew  it  was  not  Saturday,  because 
he  came  home  from  college  that  day, 
and  spent  the  evening  at  home. 
Burchmore  is  positive  it  was  on 
Tuesday ;  and  though  uncertain 
before,  has  since  remembered  that 
he  told  Wm.  Pierce  so  the  day  or 
day  but  one  after  the  murder.  We 
offer  Pierce  as  a  witness  to  the  fact. 
Balch  and  Forrester  both  strongly 
believe  that  it  was  on  Tuesday,  and 
all  agree  it  was  cloudy,  though  light, 
and  Monday  was  fair  and  bright. 
Now  what  is  there  against  this  ?  It 
is  said  they  have  expressed  doubts 
and  uncertainty  heretofore.  This 
is  no  contradiction  ;  three  of  them 
give  now  only  their  belief ;  but  it  is 
a  very  strong  one  in  all  —  Burch- 
more, however,  is  positive,  and  he 
gives  a  good  reason  for  it  —  and 
good  proof  of  his  correctness.  Here 
stands  William  Pierce  ready  to 
swear  that  Burchmore  told  him  so 
the  next  day  or  the  day  after ;  we 
cannol  examine  him,  and  the  prose- 
cutors will   not.     We  have   a  right 


then  to  take  it  as  proved  by  Pierce. 
But  it  is  said  that  on  the  evening 
spoken  of,  Frank  said  he  had  a  horse 
from  Osl)orne's,  and  none  is  oharged 
on  that  evening,  and  one  is  charged 
on  Saturday  evening ;  and  this  is 
thought  sufficient  to  overthrow  the 
whole  testimony.  But  he  may  ha\e 
had  a  horse  and  not  be  charged  with 
it  —  or  he  may  have  told  a  false- 
hood when  he  said  he  had  one.  You 
remember  the  purpose  for  which  he 
said  he  was  going  out  of  town ;  per- 
haps he  chose  to  make  a  pretense 
of  riding  the  better  to  conceal  his 
motions ;  it  all  depends  on  the 
accuracy  of  Osborne's  books ; 
Osborne  was  not  examined  on  that 
point.  But  after  all  it  is  of  no  im- 
portance, except  to  show  that  My- 
rick  and  Webster  are  mistaken  and 
they  are  not  very  material  Avitnesses. 
The  other  branch  of  the  alibi  is 
more  important,  because  it  em- 
braces the  supposed  time  of  the 
murder.  Capt.  Knapp,  the  father, 
swears  that  he  went  home  a  few  min- 
utes before  ten,  and  that  Frank  came 
in  and  went  to  bed  a  few  minutes 
after.  And  there  is  a  particularity 
about  this  account  that  marks  it 
either  as  truth,  or  as  willful 
and  cunning  perjury ;  and  Capt. 
Knapp's  character  is  enough  to 
shield  him  from  such  a  charge.  He 
says  he  commended  Frank's  return 
at  the  prescribed  hour ;  that  Frank 
asked  him  if  he  should  bolt  the  door, 
and  he  said  no,  that  Phippen  was  out ; 
that  Frank,  seeing  him  looking  over 
his  papers  (for  he  failed  the  very 
night),  asked  if  he  should  help  him 
—  then  threw  his  cap  on  the  window 
seat  near  his  own  hat,  and  went  up 
to  bed.  Capt.  Knapp  sat  up  till 
after  one,  and  Phippen  Knapp  re- 
turned at  that  hour,  and  sat  up  the 
rest  of  the  night.  Samuel  H.  Knapp's 
evidence  is  that  a  few  minutes  after 
ten  the  prisoner  opened  his  chamber 
door,  spoke  to  him,  and  then  went 
into  his  own  room ;  and  nobody 
heard  him  leave  the  house  afterwards. 
He  came  down  to  breakfast  as  usual 
in   the  morning.     Now  this  is   im- 


No.  393. 


KNAPP  S   TRIAL 


1139 


peached  by  testimony  of  certain  con- 
versations and  statements  of  Capt. 
Knapp  and  Samuel  H.  Knapp. 
It  is  said  Capt.  Knapp  told  Shep- 
ard  that  Frank  came  home  and 
went  to  bed  before  half  past  ten,  "  as 
Phippen  told  him,"  —  if  he  said,  as  I 
told  Phippen,  that  would  corrob- 
orate instead  of  contradicting  him. 
And  it  is  said  further  that  he  told 
Treadwell  that  he  did  not  know  what 
time  Frank  came  home,  but  believed 
about  the  usual  hour.  And  that 
Samuel  H.  Knapp  told  Webb  he  did 
not  know  at  what  time  Frank  came 
home.  Now  these  are  not  con- 
tradictions :  and  their  apparent  in- 
consistency depends  wholly  on  the 
accuracy  with  which  these  con- 
versations are  remembered  and  re- 
ported. Of  all  kinds  of  evidence 
reports  of  conversations  are  the  most 
uncertain.  You  have  seen  in  this 
very  case,  that  neither  counsel,  nor 
the  reporters,  nor  even  the  judges 
agree  as  to  the  words  used  by  the 
witnesses  on  the  last  trial  of  this 
cause,  only  a  week  since  —  although 
the  greatest  attention  was  paid  and 
careful  notes  were  taken.  Then 
what  is  the  probability  that  acci- 
dental conversations  which  took 
place  two  or  three  months  ago,  can 
now  be  accurately  stated  ?  Which 
is  most  probable ;  that  Capt.  Knapp 
remembers  the  facts  he  states  so 
circumstantially,  or  that  Shepard 
and  Treadwell  remember  his  words  ? 
And  he  is  confirmed  by  Phippen 
Knapp  and  Eliza  Benjamin  as  far 
as  they  could  know. 

But  there  is  one  piece  of  evidence 
that  meets  all  the  deficiencies  of  this 
case  with  a  wonderful  felicity.  What- 
e^•er  the  Government  cannot  other- 
wise prove,  Mr.  Colman  swears  the 
prisoner  has  confessed  and  nothing 
more.  Of  half  an  hour's  conversa- 
tion with  the  prisoner  he  cannot  re- 
member a  word  but  what  turns  out 
to  be  indispensable  to  the  case  of  the 
prosecution.  I  no  more  mean  to 
accuse  Mr.  Colman  of  willful  mis- 
statement than  I  do  Mr.  Bray,  or 
Miss    Kimball,    or    Miss    Sanborn. 


But  he  is  ten  times  as  likely  to  be 
mistaken  as  either  of  them.  The 
old  cloak  story  was,  until  exploded, 
ten  times  more  credil)le  than  Mr. 
Colman's  account  of  the  confession 
—  the  witnesses  for  aught  we  know 
are  equally  respectable  in  character, 
and  the  testimony  intrinsically  more 
probable.  What  but  the  contagion 
of  an  unexampled  popular  frenzy 
could  have  so  deluded  these  women  ? 
They  have  not  been  more  exposeil 
to  it  than  others.  But  Mr.  Colman 
has  been  living  in  its  focus  and 
breathing  its  intoxicating  air  for 
months.  No  man  in  the  com- 
munity has  been  so  much  excited  by 
this  horrible  event  as  Mr.  Colman. 
No  man  has  taken  a  more  active 
part  in  inquiring  into  its  mysteries. 
Shall  he  then  claim  an  exemption 
from  the  power  that  has  either  pros- 
trated the  integrity  or  strangely 
confounded  the  memory  of  witnesses 
as  credible  as  himself  ?  He  had 
visited  Joseph's  cell  three  times 
that  very  day  before  he  went  into 
Frank's,  and  at  the  last  time,  passed 
directly  from  one  cell  where  he  had 
received  a  full  verl^al  confession,  to 
the  other,  where  he  now  thinks  he 
heard  what  he  has  testified.  To  a 
man,  so  excited  as  he  was,  and  is  to 
this  day,  here  is  ample  cause  for 
confusion  and  mistake.  The  witness 
is  a  clergyman,  and  whatever  credi- 
bility that  office  may  claim  for  him,  I 
am  willing  he  should  enjoy.  In  my 
mind  it  is  no  more  than  belongs  to 
any  man  of  honest  reputation ;  and 
on  one  account  something  less,  for 
I  cannot  think  the  clerical  office 
so  well  fits  a  man  to  endure  and  resist 
the  excitement  to  which  the  witness 
has  been  subjected,  as  a  secular  em- 
ployment. It  is  the  experience  of 
the  world,  that  clergymen,  when 
they  mingle  iji  worldly  business,  are 
more  powerfully  acted  upon  by  it 
than  others.  Now  every  material 
word  of  his  testimony  is  contradicted 
by  Mr.  N.  P.  Knapp,  the  prisoner's 
brother.  He  went  into  the  cell 
with  Mr.  Colman,  and  must  have 
heard  all  that  was  said  :  he  had  not 


1140 


PART   III.       PROBLEMS   OF    PROOF 


No.  3&3. 


been  in  Joseph's  cell  during  any  part 
of  his  confession,  anfl  was  not  there- 
fore liable  to  any  misunderstanding. 
His  attention  was  early  called  to  it 
by  a  dispute  with  ISIr.  Cohnan  about 
the  club,  and  by  consultations  with 
counsel  for  his  brother's  defense. 
He  has  always  borne  an  unsus- 
pected character.  IMr.  Cohnan  him- 
self testifies  to  the  propriety  of  his 
conduct  before  the  trial ;  —  he 
trusted  him  with  the  knowledge  of 
the  place  where  the  club  was  hidden, 
and  depended  on  his  honor  not  to 
remove  this  witness  of  his  brother's 
guilt ;  and  the  trust  was  not  be- 
trayed. Now  here  stand  two  wit- 
nesses, equal  in  character,  directly 
opposed  to  each  other  on  a  matter 
known  only  to  themselves  and  to 
the  prisoner. 

It  is  said,  Mr.  Knapp  is  contra- 
dicted by  Mr.  Wheatland;  that 
is,  ]\Ir.  \Yheatland  .swears  that  in 
casual  conversations  held  some 
months  ago,  Mr.  Knapp  made 
statements  to  him  contrary  to  what 
he  now  swears.  I  have  already  re- 
marked on  the  value  of  this  kind 
of  evidence.  It  depends  on  the  thing 
least  of  all  to  be  depended  on : 
the  accuracy  with  which  words  are 
remembered.  The  change  of  a  word 
changes  the  whole  meaning.  Make 
the  case  your  own.  Can  you  pre- 
tend to  remember  casual  conver- 
sation held  with  your  neighbors 
three  months  ago,  so  that  you  can 
now  swear  to  them  ?  And  if  they 
should  now  swear  to  the  facts 
differently  from  your  present  rec- 
ollection of  those  conversations, 
would  you  charge  them  with  perjury'  ? 
Or  do  you  think,  if  we  had  an  in- 
vestigating committee  of  twenty- 
seven,  and  the  whole  bar  and  popu- 
lation of  Salem,  looking  up  evidence 
for  the  prisoner,  we  could  not  find 
witnesses  who  have  understood  or 
misunderstood  Mr.  Cohnan  to  give 
accounts  different  from  what  he  now 
swears  to  ?  With  such  means  any 
man  may  be  contradicted.  But 
Mr.  Wheatland  candidly  tells  you 
on  this  trial,  that  he  cannot  speak 


with  certainty  as  to  these  conversa- 
tions, how  much  related  to  what  was 
said  by  Joseph,  and  how  much  to 
what  was  said  by  PVank.  That  once 
admitted,  the  whole  force  of  the 
contradiction  is  gone.  .  .   . 

I  iuive  said  that  Mr.  Colman  had 
confessions  of  the  exact  facts  which 
the  case  required  and  no  more.  See 
how  that  is,  and  how  probable  it  is. 
The  prisoner  makes  no  general  con- 
fessions ;  claims  no  right,  and  ex- 
presses no  hope,  to  be  admitted 
State's  evidence.  But  to  four  dis- 
tinct questions  respecting  the  details 
of  the  miuxler,  he  gives  four  direct 
answers  criminating  himself.  Now 
what  were  those  answers  ?  That 
the  murder  was  committed  between 
ten  and  eleven  —  a  fact  as  you  have 
seen  wholly  without  other  sufficient 
evidence,  but  all-important  to  the 
case.  That  Richard  Crowninshield 
was  the  actual  murderer.  A  thing 
without  the  shadow  of  other  proof, 
except  that  McGIue  saw  him  the 
evening  before  near  White's  house, 
and  looking  away  from  it.  That 
the  club  was  hidden  under  a  certain 
step  of  the  Branch  meeting  house  — 
the  only  proof  that  the  club  had  any- 
thing to  do  with  the  murder  —  and 
that  the  dirk  was  worked  up  at  the 
factory  —  and  lastly  that  Frank 
was  absent  from  home  at  the  time  — 
to  fortify  the  Brown  Street  evidence 
and  destroy  the  alibi.  And  there 
is  one  fact  about  this  last  which  de- 
serves notice  :  Mr.  Colman,  in  giving 
his  reasons  for  asking  these  ques- 
tions, said  he  had  heard  that  the 
friends  of  the  prisoner  said  he  was 
at  home  that  night  at  the  time  of 
the  murder.  This  is  strong  con- 
firmation of  the  alibi,  for  Mr.  Col- 
man had  heard  of  it  the  second  day 
after  the  arrest.  But  is  it  not  re- 
markable that  so  little  should  be 
remembered  of  a  half  hour's  con- 
versation and  that  so  very  distinctly  ? 
Is  it  not  remarkable,  that  finding 
Frank  so  commimicative,  IVIr.  Col- 
man should  not  have  gone  on  to 
verify  Joseph's  whole  confession 
in  the  same  way  ?      He  tells  you  he 


No.  393. 


KNAPP's   TKI.\L 


1141 


has  Joseph's  confession  covering 
nine  sheets  of  paper,  and  yet,  though 
Frank  answered  so  freely,  he  had 
the  curiosity  to  ask  him  only  these 
four  questions.     It  is  truly  incredible. 

Now  what  improhahihty  is  there 
in  N.  P.  Knapp's  account  of  this 
interview?  Not  the  least.  He 
agrees  with  Mr.  Colman,  that  Frank 
said  it  was  hard  that  Joseph  should 
confess,  and  he  cannot  positi\ely 
swear  that  what  Mr.  Colman  adds 
as  to  its  being  done  for  Joseph's 
benefit,  did  not  follow,  because  he 
remembers  the  first  part  of  the  sen- 
tence, and  he  may  have  forgotten 
the  rest.  But  he  swears  that,  to  the 
best  of  his  belief,  it  was  not  so.  As 
to  the  four  questions  and  answers, 
he  swears  positively  that  no  such 
things  were  said  ;  because,  if  said,  he 
must  have  remembered  them.  And 
is  not  this  a  perfectly  proper  dis- 
tinction ?  His  account  too  of  the 
conversation  with  Mr.  Colman,  on 
the  turnpike  and  in  Central  Street, 
of  the  note  to  Mr.  Stephen  White, 
and  of  all  the  other  circumstances  re- 
lating to  the  subject,  is  perfectly  con- 
sistent, natural,  and  credible. 

But  what  is  the  amount  of  all 
these  confessions  ?  If  true,  they 
prove,  indeed,  that  he  knew  too 
much  of  this  guilty  deed.  But  they 
imply  no  presence  at  all ;  all,  but 
his  own  absence  from  home,  are  facts 
that  he  might,  and  some  that  he  must, 
have  learned  afterwards  from  others. 
And  what  does  the  fact,  that  he  was 
absent  from  home,  prove  ?  At  most 
it  is  but  a  circumstance  corroborative 
of  the  Brown  Street  evidence.  He 
may  have  been  there,  or  he  may 
have  been  elsewhere.   .  .  , 

One  point  only  remains ;  but  it 
is  the  great  and  important  one. 
Believe  the  Prisoner  —  if  you  will 
believe  anything  on  such  testimony 
as  Leighton's  and  Palmer's  —  a  con- 
spirator and  a  procurer  of  the  mur- 
der —  believe  him  in  Brown  Street 
at  half  past  ten,  and  that  the  mur- 
der was  committed  at  that  hour, 
against  the  manifest  weight  of  all 
the    evidence    but    the    confession. 


Believe  the  confession  too,  and  the 
whole   of   it,    impr<)bai)le   and    con- 
tradicted as  it  is  ;   and,  whatever  the 
Prisoner  may  deserve  in  your  moral 
judgment,  he  stands  as  clear  of  this 
indictment  as  a  principal,   present, 
aiding  and  abetting,  as  Joseph  Knapp 
does,  who  wasinbedat  Weniiam.  .  .  . 
Could   the  man   in  Brown   Street 
give    that    help    to    the    murderer, 
without  the  hope  of  which  the  mur- 
der would  not  have  been  committed  ? 
This  is  a  question  of  fact  for  you  to 
try  on  the  evidence  and   the  view. 
You  must  be  satisfied  of  this  beyond 
any  reasonable  doubt,  or  \'our  ver- 
dict of  Guilty  will  be  against  your- 
selves.    Now,   what   assistance  did 
the  case  admit  ?     It  was  a  secret  as- 
sassination.    If    the    prisoner    had 
been  actually  present  in  the  room  or 
in  the  house,   that   alone  woidd   be 
enough.     The    mode    of    assistance 
would   then   be  obvious.      It  would 
have  been  the  part  of  the   accom- 
plice to  beat  down  the  strong  old 
man,  if  he  waked  before  the  fatal 
blow ;  to  murder  any  one  of  the  in- 
mates   who    should    approach    the 
chamber  —  give   an    alarm,    or    in- 
tercept the  retreat.     But  when  you 
find  but  one  accomplice,  and  him  at 
adistancein  another  street,  you  must 
inquire    why    he    was    there.      You 
must  be  satisfied  that  he  was  posted 
there  with  some  power,  and  there- 
fore with  the  purpose,  to  aid.   .   .   . 
Could  he  give  an  alarm  ?     An  alarm 
of  what  ?     You  see  that  he  could  not 
know  of  the    approach    of    danger. 
If  the  enterprise  had  failed,  Richard 
might   have  been  discovered,   over- 
powered,   and  removed,    before  his 
accomplice  could   have  been   aware 
of  any  difficulty.     But  if  it  had  been 
his    ol)ject    to    intercept    relief,    or 
to   give   an   alarm    if   he   could    not 
intercept   it,   where  would   he  have 
been  ?     At    that  point    from    which 
relief  might   be  feared,   and   where 
early  and   certain  intelligence  of  it 
might    be   had.     Where   was   that  ? 
Certainly     in    Esse.x     Street.     Who 
wxjuhl    come    to    the    relief?     The 
inmates     of     ("apt.     White's     own 


1142 


PART    III.       PROBLEMS   OF   PROOF 


No.  393. 


house  or  of  the  adjoining  liouses  of 
Deland  and  Gardner,  or  of  tlie  op- 
posite houses,  or  some  casual  pas- 
senger. Now,  against  all  these,  the 
post  of  observation  was  in  Essex 
Street,  and  near  the  house.  Or  if 
he  wanted  to  watch  the  adjoining 
street*s,  why  not  stand  at  the  corner 
of  Newbury  Street  ?  Why  not  any- 
where but  at  the  places  where  he 
was  seen  during  the  whole  time  ? 

But  one  thing  remains.  Could 
he  in  Brown  Street  help  the  mur- 
derer to  escape  ?  If  he  had  been 
waiting  with  a  swift  horse,  to  convey 
him  away,  that  might  do.  But 
one  man  on  foot  can  no  more  help 
another  to  run  away,  than  one  can 
help  another  to  keep  a  secret.  One 
could  only  embarrass  and  expose  the 
other.  Was  he  then  to  defend  him 
in  his  flight  ?  Resistance  was  not 
to  be  depended  on  or  expected ; 
besides,  the  accomplice  was  un- 
armed, and  of  what  a^■ail  would  he 
have  been  in  Brown  Street,  where  no 
force  could  l^e  expected,  unless  the 
alarm  had  become  general  ?  [Much 
of  this  argument  consisted  of  ref- 
erence to  the  plans  and  cannot  be 
reported.]  Now  we  call  on  the 
Prosecutors  to  satisfy  you  of  some 
one  mode  in  which  aid  could  be 
afforded.  On  the  former  trial  two 
ways  only  were  suggested.  First, 
that  Richard  might  have  gone  into 
the  garden  early  in  the  evening,  and 
waited  for  a  signal  from  Frank  in 
Brown  Street  to  indicate  the  time 
when  the  lights  were  extinguished 
in  Capt.  White's  house.  And  sec- 
ond, that  Frank  was  in  Brown 
Street  to  see  that  the  coast  was  clear 
in  Howard  Street,  that  Ricliard 
might  go  there  to  hide  the  club. 
Now  these  things,  absurd  as  they 
seem,  were  really  said  and  insisted 
on.  And  they  are  the  best  hypoth- 
eses that  the  best  of  counsel  can 
make  for  the  government.  We  want 
no  better  proof  of  the  utter  weakness 
of  the  point.  If  Richard. was  in  the 
garden  under  the  very  windows, 
would  he  want  P^rank  to  tell  him 
when  the  lights  were  put  out  '!     He 


could  have  watched  ever^'  inmate  of 
the  house  to  his  bed  —  he  could  have 
traced  every  light  up  the  stairs  until 
they  were  extinguished  in  the  cham- 
bers.—  He  could  have  heard  every 
noise,  and  know  when  it  ceased  in 
the  sleep  of  those  within.  As  to 
Frank's  watching  Howard  Street,  it 
would  be  enough  to  say  that  he  was 
watched  all  the  time,  and  that  he 
did  not  once  look  down  Howard 
Street.  Frank  had  been  standing 
from  five  to  ten  minutes  at  Bray's 
post  where  he  could  not  see  a  foot 
into  Howard  Street,  and  then  Rich- 
ard having  finished  his  conference, 
without  any  caution  or  examination, 
started  and  ran  into  tliat  street  with 
the  speed  of  a  deer.  Did  this  look 
like  watching  ?  And  for  what  pur- 
pose was  Howard  Street  to  be 
watched  ?  That  Richard  might 
hide  his  club  in  a  particular  place 
selected  —  a  club  that  nobody  had 
ever  seen  and  that  could  not  be 
traced  to  him  if  found. 

For  what  purpose  then  was  the 
man  in  Brown  Street  ?  W' e  are  not 
bound  to  prove  or  to  guess.   .  .   . 

And  now,  Gentlemen,  as  the  last 
question  in  this  cause,  you  are  to  say 
on  3'our  consciences,  are  you  satisfied 
beyond  a  reasonable  doubt  that  the 
man  in  Brown  Street,  whoever  he 
was,  could  have  given  any  effectual 
aid  in  the  actual  commission  of  the 
murder,  and  selected  that  as  the 
most  proper  place  for  that  purpose. 
If  you  doubt  about  that  upon  the 
whole  evidence,  do  your  duty,  and 
acquit  the  Prisoner.  ... 

I  would  urge  you  not  to  sacri- 
fice him  against  law,  that  those 
more  guilty  than  himself  may  be 
reached  through  him.  His  life  is 
in  your  hands  and  in  the  hands  of 
each  one  of  you.  May  you  and 
each  of  you  give  no  verdict  and  con- 
sent to  none,  but  such  as  your  hearts 
can  approve  now  and  forever. 

After  Mr.  Dexter  had  concluded 
his  argument,  Mr.  Webster  ad- 
dressed the  Jury  as  follows  : 

I   am   little   accustomed,   Gentle- 


So.  393. 


KNAPP  S   TRIAL 


1143 


men,  to  the  part  which  I  am  now 
attempting  to  perform.  Hardly 
more  than  once  or  twice,  has  it 
happened  to  me  to  be  concerned,  on 
the  side  of  the  Government,  in  any 
criminal  prosecution  whate\er ;  and 
ne^•er,  until  the  present  occasion,  in 
any  case  affecting  life."^  .   .  . 

Gentlemen,  let  us  now  come  to 
the  case.  Your  first  inquiry,  on  the 
evidence,  will  be,  —  Was  Capt. 
White  murdered  in  pursuance  of  a 
conspiracy,  and  was  the  defendant 
one  of  this  conspiracy  ?  If  so,  the 
second  inquiry  is,  Was  he  so  con- 
nected with  the  murder  itself  as 
that  he  is  liable  to  be  convicted  as  a 
principalf  The  defendant  is  in- 
dicted as  a  principal.  If  not  guilty 
as  such,  you  cannot  convict  him. 
The  indictment  contains  three  dis- 
tinct classes  of  counts.  In  the  first, 
he  is  charged  as  having  done  the 
deed,  with  his  o^\Tl  hand  ;  —  in  the 
second,  as  an  aider  and  abettor  to 
Richard  Crowninshield,  jr.,  who  did 
the  deed  ;  —  in  the  third,  as  an  aider 
and  abettor  to  some  person  unknown. 
If  you  believe  him  guilty  on  either 
of  these  counts,  or  in  either  of  these 
ways,  you  must  convict  him. 

It  may  be  proper  to  say,  as  a  pre- 
liminary remark,  that  there  are  two 
remarkable  circumstances  attending 
this  trial.  One  is,  that  Richard 
Crowninshield,  jr.,  the  supposed  im- 
mediate perpetrator  of  the  murder, 
since  his  arrest,  has  committed 
suicide.  He  has  gone  to  answer 
before  a  tribunal  of  perfect  infal- 
libility. The  other  is,  that  Joseph 
Knapp,  the  supposed  origin  and 
planner  of  the  murder,  having  once 
made  a  full  disclosure  of  the  facts, 
under  a  promise  of  indemnity,  is, 
nevertheless,  not  now  a  witness. 
Notwithstanding  his  disclosure,  and 
his  promise  of  indemnity,  he  now 
refuses  to  testify.  He  chooses  to 
return  to  his  original  state,  and  now 
stands  answerable  himself,  when 
the  time  shall  come  for  his  trial. 
These   circumstances   it   is   fit   you 

[I  At  this  point  Mr.  Webster  delivered  the 
soul  which  cannot  keep  its  own  secret  "  {ante, 


should  remember,  in  your  investi- 
gation of  the  case.   ,  .   . 

And  now.  Gentlemen,  in  examin- 
ing this  evidence,  let  us  begin  at  the 
begimiing,  and  see  first  what  we 
know  independent  of  the  dis{)uted 
testimony.  This  is  a  case  of  cir- 
cumstantial evidence.  .\nd  these 
circumstances,  we  think,  are  full  and 
satisfactory.  The  case  mainly  de- 
pends upon  them,  and  it  is  common, 
that  offenses  of  this  kind  nuist  be 
proved  in  this  way.  Midnight  a.s- 
sassins  take  no  witnesses.  The  evi- 
dence of  the/rtc/.v  relied  on  has  been 
somewhat  sneeringly  denominated  by 
the  learned  counsel,  "'circumstantial 
stuff,''  but,  it  is  not  i^uch  stuff  jus 
dreams  are  made  of.  Why  does  he 
not  rend  this  stuff f  Why  does  he 
not  tear  it  away,  with  the  crush 
of  his  hand  ?  He  dismisses  it,  a 
little  too  summarily.  It  shall  be 
my  business  to  examine  this  stuff 
and  try  its  cohesion. 

The  letter  from  Palmer  at  Belfast, 
is  that  no  more  than  Himsy  stuff  f 

The  fal)ricated  letters,  from 
Knapp  to  the  Committee,  and  Mr. 
White,  are  they  nothing  but  stuff f 

The  circumstance,  that  the  house- 
keeper was  away  at  the  time  the 
mm-der  was  committed,  as  it  was 
agreed  she  would  be,  is  that  too 
a  useless  piece  of  the  same  stuff? 

The  facts,  that  the  key  of  the 
chamber  door  was  taken  out  and 
secreted ;  that  the  window  was  un- 
barred and  unbolted  ;  are  these  to 
be  so  slightlv  and  so  easih-  disposed 
of  y 

It  is  necessary.  Gentlemen,  now 
to  settle,  at  the  commencement,  the 
great  question  of  a  couspirac;/.   .   .   . 

Let  me  ask  your  attention,  then, 
in  the  first  place,  to  those  appear- 
ances, on  the  morning  after  the 
murder,  which  have  a  tendency  to 
show,  that  it  was  done  in  pursuance 
of  a  preconcerted  plan  of  operation. 
What  are  they  ?  A  man  was  fo.ind 
nuirdered  in  his  l)ed.  —  No  stranger 
had    done   the   deed  —  no   one   un- 

nnw  relebrated  passage  upon  "  the  guilty 
No.  27b).     Ed.]. 


1144 


PART   III.      PROBLEMS   OF    PROOF 


No.  393. 


acquainted  with  the  house  had  done 
it.  —  It  was  apparent,  that  some- 
body from  within  had  opened,  and 
somebody  from  without  had  en- 
tered. —  There  had  been  there,  ob- 
viously and  certainly,  concert  and 
cooperation.  The  inmates  of  the 
house  were  not  alarmed  when  the 
murder  was  perpetrated.  The  as- 
sassin had  entered,  without  any  riot, 
or  any  violence.  He  had  found  the 
way  prepared  before  him.  The 
house  had  been  opened.  The  win- 
dow was  unbarred  from  within,  and 
its  fastening  unscrewed.  There  was 
a  lock  on  the  door  of  the  chamber, 
in  which  ]\Ir.  White  slept,  but  the 
key  was  gone.  It  had  been  taken 
away,  and  secreted.  The  footsteps 
of  the  murderer  were  visible,  out- 
doors, tending  toward  the  window. 
The  plank  by  which  he  entered  the 
window,  still  remained.  The  road 
he  pursued  had  been  thus  prepared 
for  him.  The  victim  was  slain, 
and  the  murderer  had  escaped. 
Everything  indicated  that  some- 
body from  tvithiri  had  cooperated 
^vith  somebody  from  icitJiout.  E\er\,'- 
thing  proclaimed  that  some  of  the 
inmates,  or  somebody  having  access 
to  the  house,  had  had  a  hand  in  the 
murder.  On  the  face  of  the  cir- 
cumstances, it  was  apparent,  there- 
fore, that  this  was  a  premeditated, 
concerted,  conspired  murder.  Who, 
then,  were  the  conspirators  ?  If  not 
now  found  out,  we  are  still  groping  in 
the  dark,  and  the  whole  tragedy  is 
still  a  mystery. 

If  the  Knapps  and  the  Crownin- 
shields  were  not  the  conspirators,  in 
this  murder,  then  there  is  a  whole 
set  of  conspirators  yet  not  discovered. 
Because,  independent  of  the  testi- 
mony of  Palmer  and  Leighton,  in- 
dependent of  all  disputed  evidence, 
we  know,  from  uncontroverted  facts, 
that  this  murder  was,  and  must 
ha\e  been,  the  result  of  concert  and 
cooperation,  between  two  or  more. 
W'e  know  it  was  not  done,  without 
plan  and  deliberation  ;  we  see,  that 
whoever  entered  the  house,  to  strike 
the  blow,  was  favored  and  aided  bv 


some  one,  who  had  been  previously 
in  the  house,  without  suspicion,  and 
who  had  prepared  the  way.  This 
is  concert,  this  is  cooperation,  this 
is  conspiracy.  If  the  Knapps  and 
the  Crowninshields,  then,  were  not 
the  conspirators,  who  were  ?  Jo- 
seph Knapp  had  a  motive  to  de- 
sire the  death  of  Mr.  White,  and 
that  motive  has  been  shown. 

He  was  connected  by  marriage  in 
the  family  of  Mr.  White.  His  wife 
was  the  daughter  of  Mrs.  Beckford, 
who  was  the  only  child  of  a  sister 
of  the  deceased.  The  deceased  was 
more  than  eighty  j'ears  old,  and  he 
had  no  children.  —  His  only  heirs 
were  nephews  and  nieces.  —  He 
was  expected  to  be  possessed  of  a 
very  large  fortune,  —  which  would 
have  descended,  by  law,  to  his  several 
nephews  and  nieces  in  equal  shares, 
or,  if  there  was  a  will,  then  according 
to  the  will.  But  as  Capt.  White 
had  but  two  branches  of  heirs  —  the 
children  of  his  brother  Henry  White, 
and  of  Mrs.  Beckford  —  according 
to  the  common  idea  each  of  these 
branches  woidd  have  shared  one 
half  of  Mr.  White's  property. 

This  popular  idea  is  not  legally 
correct.  But  it  is  common,  and 
very  probably  was  entertained  by 
the  parties.  According  to  this,  Mrs. 
Beckford,  on  Mr.  White's  death 
without  a  will,  would  have  been  en- 
titled to  one  half  of  Mr.  W'hite's 
ample  fortune ;  and  Joseph  Knapp 
had  married  one  of  her  three  chil- 
dren. There  was  a  will,  and  this 
will  ga\'e  the  bulk  of  the  property  to 
others ;  and  we  learn  from  Palmer 
that  one  part  of  the  design  was  to 
destroy  the  will  before  the  murder 
was  committed.  There  had  been  a 
previous  will,  and  that  previous  will 
was  known  or  believed  to  have  been 
more  favorable  than  the  other,  to 
the  Beckford  family.  So  that  by 
destroying  the  last  will,  and  de- 
stroying the  life  of  the  testator  at 
the  same  time,  either  the  first  and 
more  favorable  will  would  be  set  up, 
or  the  deceased  would  have  no  will, 
which  would  be,  as  was  supposed, 


No.  393. 


KNAPP'S    TRIAL 


114/ 


still  more  favorable.  But  the  con- 
spirators not  having  succeeded  in 
obtaining  and  destroying  the  last 
will,  though  they  accomplished  mur- 
der, but  the  last  will  being  found  in 
existence  and  safe,  and  that  will 
bequeathing  the  mass  of  the  prop- 
erty to  others,  it  seemed,  at  the  time, 
impossible  for  Joseph  Knapp,  as 
for  any  one  else,  indeed,  but  the 
principal  devisee,  to  have  any  motive 
which  should  lead  to  the  murder. 
The  key,  which  unlocks  the  whole 
mystery,  is  the  knowledge  of  the 
intention  of  the  conspirators,  to 
steal  the  will.  This  is  derived  from 
Palmer,  and  it  explains  all.  It 
solves  the  whole  marvel.  It  shows 
the  motive  actuating  those,  against 
whom  there  is  much  evidence,  but 
who,  without  the  knowledge  of  this 
intention,  were  not  seen  to  have  had 
a  motive.  This  intention  is  proved, 
as  I  have  said,  by  Palmer ;  and  it  is 
so  congruous  with  all  the  rest  of 
the  case,  it  agrees  so  well  with  all  the 
facts  and  circumstances,  that  no 
man  could  well  withhold  his  belief, 
though  the  facts  were  stated  by  a 
still  less  credible  witness.  If  one, 
desirous  of  opening  a  lock,  turns 
over  and  tries  a  bunch  of  keys  till 
he  finds  one  that  will  open  it,  he 
naturally  supposes  he  has  found  the 
key  of  tknt  lock.  So  in  explaining 
circumstances  of  evidence,  which  are 
apparently  irreconcilable,  or  unac- 
countable, if  a  fact  be  suggested, 
which  at  once  accounts  for  all,  and 
reconciles  all,  by  whomsoever  it  may 
be  stated,  it  is  still  difficult  not  to 
believe  that  such  fact  is  the  true 
fact  belonging  to  the  case.  In  this 
respect.  Palmer's  testimony  is  singu- 
larly confirmed.  If  he  were  false, 
then  his  ingenuity  could  not  furnish  us 
such  clear  exposition  of  strange-ap- 
pearing circumstances.  Some  truth, 
not  before  known,  can  alone  do  that. 
When  we  look  back,  then,  to  the 
state  of  things  immediately  on  the 
discovery  of  the  murder,  we  see  that 
suspicion  would  naturally  turn  at 
once,  not  to  the  heirs  at  law,  but 
to   those    principally   benefited    by 


the  will.  They,  and  they  alone, 
would  be  supposed  or  seem  to  have 
a  direct  object,  for  wishing  Mr. 
White's  life  to  be  terminated.  And 
strange  as  it  may  seem,  we  find 
counsel  now  insisting,  that  if  no 
apology,  it  is  yet  mitigation  of  the 
atrocity  of  the  Knapps'  cotuhict,  in 
attempting  to  charge  this  foul  mur- 
der on  Mr.  White,  the  nephew  and 
principal  devisee,  that  public  sus- 
picion was  already  so  directed  I 
As  if  assassination  of  character 
were  excusable,  in  proportion  as 
circumstances  may  render  it  ea.sy. 
Their  endeavors,  when  they  knew 
they  were  suspected  themsehes,  to 
fix  the  charge  on  others  by  foul 
means  and  by  falseliood,  is  fair  and 
strong  proof  of  their  own  guilt. 
But  more  of  that,  hereafter. 

The  counsel  say  that  they  might 
safely  admit,  that  Riciiard  Crownin- 
shield,  jr.;  was  the  perpetrator  of  this 
murder. 

But  how  could  they  safely  admit 
that  ?  If  that  were  admitted,  every- 
thing else  would  follow.  For  why 
should  Richard  Crowninshield,  jr., 
kill  ]\Ir.  White?  He  was  not  his 
heir,  nor  his  devisee  ;  nor  was  he  his 
enemy.  \Vhat  could  be  his  motive  ? 
If  Richard  Crowninsliield,  jr.,  killed 
Mr.  White,  he  did  it  at  .some  one's 
procurement  who  himself  had  a  mo- 
tive ?  And  who,  having  any  motive, 
is  shown  to  have  had  any  inter- 
course with  Richard  Crowninshield, 
jr.,  but  Joseph  Knapp,  and  this, 
principally  through  the  agency  of 
the  Prisoner  at  the  Bar  ?  —  It  is 
the  infirmity,  the  distressing  difln- 
culty  of  the  Prisoner's  ca.se,  that  his 
counsel  cannot  and  dare  not  admit 
what  they  yet  cannot  disprove  ami 
what  all  must  believe.  He  who  be- 
lieves, on  this  evidence,  that  Hichanl 
Crowninshield,  jr.,  was  the  immediate 
murderer,  cannot  doubt  that  both 
the  Knapps  were  conspirators  in 
that  murder.  The  counsel,  there- 
fore, are  wrong,  I  think,  in  saying 
they  might  safely  admit  this.  The 
admission  of  so  important,  and  .so 
connected,  a  fact  would  rciidtT  it  ini- 


1146 


PART   III.       PROBLEMS    OF    PROOF 


No.  393. 


possible  to  contend  further  against 
the  proof  of  the  entire  conspiracy, 
as  we  state  it. 

What,  then,  was  this  conspiracy  ? 
J.  J.  Knapp,  jr.,  desirous  of  destroy- 
ing the  will,  and  of  taking  the  life 
of  the  deceased,  hired  a  ruffian,  who 
with  the  aid  of  other  ruffians,  were 
to  enter  the  house,  and  murder  him, 
in  his  own  bed. 

As  far  back  as  January,  this  con- 
spiracy began.  Endicott  testifies 
to  a  conversation  with  J.  J.  Knapp 
at  that  time  in  which  Knapp  told  him 
that  Capt.  White  had  made  a  will, 
and  given  the  principal  part  of  his 
property  to  Stephen  White.  When 
asked  how  he  knew,  he  said  "black 
and  white  don't  lie."  —  When  asked 
if  the  will  was  not  locked  up,  he  said, 
*' there  is  such  a  thing  as  two  keys 
to  the  same  lock."  And  speaking  of 
the  then  late  illness  of  Capt.  White 
he  said,  that  Stephen  White  would 
not  have  been  sent  for,  if  he  had  been 
there. 

Hence  it  appears,  that  as  early  as 
January,  Knapp  had  a  knowledge  of 
the  will,  and  that  he  had  access  to  it, 
by  means  of  false  keys.  —  This 
knowledge  of  the  will,  and  an  in- 
tent to  destroy  it,  appear  also  from 
Palmer's  testimony  —  a  fact  dis- 
closed to  him  by  the  other  con- 
spirators. He  says,  that  he  was 
informed  of  this  by  the  Crownin- 
shields  on  the  2d  of  April.  But, 
then,  it  is  said  that  Palmer  is  not  to 
be  credited  —  that  by  his  own  con- 
fession he  is  a  felon,  —  that  he  has 
been  in  the  State  Prison  in  Maine,  — 
and  above  all,  that  he  was  an  inmate 
and  associate  with  these  conspirators 
themselves.  —  Let  us  admit  these 
facts.  —  Let  us  admit  him  to  be  as 
bad  as  they  would  represent  him  to 
be ;  still  in  law,  he  is  a  competent 
witness.  How  else  are  the  secret 
designs  of  the  wicked  to  be  proved 
but  by  their  wicked  companions,  to 
whom  they  have  disclosed  them  ? 
The  Government  does  not  select  its 
witnesses.  The  conspirators  them- 
selves have  chosen  Palmer.  He 
was  the  confidant  of  the  prisoners. 


The  fact  however  does  not  depend 
on  his  testimony  alone.  —  It  is 
corroborated  by  other  proof,  and 
taken  in  connection  with  the  other 
circumstances,  it  has  strong  prob- 
ability. In  regard  to  the  testimony 
of  Palmer,  generally,  —  it  may  be 
said  that  it  is  less  contradicted,  in 
all  parts  of  it,  either  by  himself  or 
others,  than  that  of  any  other 
material  witness,  and  that  every- 
thing he  has  told,  has  been  corrob- 
orated by  other  evidence,  so  far  as 
it  was  susceptible  of  confirmation. 
An  attempt  has  been  made  to  impair 
his  testimony,  as  to  his  being  at  the 
halfway  house,  on  the  night  of  the 
murder ;  you  have  seen  with  what 
success.  Mr.  Babb  is  called  to  con- 
tradict him  —  you  have  seen  how 
little  he  knows  —  and  even  that 
not  certainly  ;  —  for  he,  himself,'  is 
proved  to  have  been  in  an  error,  by 
supposing  him  to  have  been  at  the 
halfway  house  on  the  evening  of  the 
9th  of  April.  At  that  time  Palmer 
is  proved  to  have  been  at  Dustin's 
in  Danvers.  If,  then,  Palmer,  bad 
as  he  is,  has  disclosed  the  secrets  of 
the  conspiracy,  and  has  told  the 
truth  —  there  is  no  reason  why  it 
should  not  be  believed.  Truth  is 
truth,  come  whence  it  may ;  — 
though  it  were  even  from  the  bottom 
of  the  bottomless  pit. 

The  facts  show  that  this  murder 
had  been  long  in  agitation  —  that  it 
was  not  a  new  proposition  on  the 
2d  of  April  —  that  it  had  been  con-, 
templated  for  five  or  six  weeks  before 
R.  Crowninshield  was  at  Wenham 
in  the  latter  part  of  March,  as  testified 
by  Starrett.  F.  Knapp  was  at 
Danvers,  in  the  latter  part  of 
February,  as  testified  by  Allen. 
R.  Crowninshield  inquired  whether 
Capt.  Knapp  .  was  about  home, 
when  at  Wenham.  The  probability 
is,  that  they  would  open  the  case 
to  Palmer,  as  a  new  project.  There 
are  other  circumstances  that  show 
it  to  have  been  some  weeks  in  agi- 
tation. Palmer's  testimony  as  to 
the  transactions  on  the  2d  of  April, 
is   corroborated   by   Allen,   and   by 


No.  393. 


KNAPP  S    TRIAL 


1147 


Osborn's  books.  He  says  that  F. 
Knapp  came  there  in  the  afternoon 
—  and  again  in  the  evening.  So 
the  book  shows.  He  says  that 
Capt.  White  had  gone  out  to  his 
farm  on  that  day.  So  others  prove. 
How  could  this  fact,  or  these  facts, 
have  been  known  to  Palmer,  unless 
F.  Knapp  had  brought  the  knowl- 
edge ?  and  was  it  not  the  special 
object  of  this  visit,  to  give  informa- 
tion of  this  fact,  that  they  might 
meet  him  and  execute  their  purpose 
on  his  return  from  his  farm  ?  The 
letter  of  Palmer,  written  at  Belfast, 
has  intrinsic  evidence  of  genuineness. 
It  was  mailed  at  Belfast,  May  13. 
It  states  facts  that  he  could  not  have 
known,  unless  his  testimony  be  true. 
This  letter  was  not  an  afterthought ; 
it  is  a  genuine  narrative.  In  fact,  it 
says,  "  I  know  the  business  your 
brother  Frank  was  transacting  on 
the  2d  of  April "  - —  how  could  he 
have  possiblv  known  this,  unless  he 
had  been  there?  — The  "SIOOO, 
that  was  to  be  paid";  where  could 
he  have  obtained  this  knowledge  ? 
The  testimony  of  Endicott,  of  Pal- 
mer, and  these  facts  are  to  be  taken 
together;  and  they,  most  clearly, 
show  that  the  death  of  Capt. 
White  must  have  been  caused  by 
somebody  interested  in  putting  an 
end  to  his  life. 

As  to  the  testimony  of  Leighton. 
As  far  as  manner  of  testifying  goes, 
he  is  a  bad  witness  :  — 'but  it  does 
not  follow  from  this  that  he  is  not  to 
be  believed.  There  are  some  strange 
things  about  him.  It  is  strange 
that  he  should  make  up  a  story 
against  Capt.  Knapp,  the  per- 
son with  whom  he  lives ;  —  that  he 
never  voluntarily  told  anj'thing ;  — 
all  that  he  has  said  is  screwed  out 
of  him.  The  story  could  not  have 
been  invented  by  him ;  —  his  char- 
acter for  truth  is  unimpeached  — 
and  he  intimated  to  another  witness, 
soon  after  the  murder  happened, 
that  he  knew  something  he  should 
not  tell.  There  is  not  the  least 
contradiction  in  his  testimony,  — 
though  he  gives  a  poor  account  of 


withholding  it.  He  says  that  he  was 
extremely  bothered  by  those  who 
questioned  him.  In  the  main  story 
that  he  relates,  he  is  universally 
consistent  with  himself.  —  Some 
things  are  for  him  —  and  some 
against  him.  Examine  the  intrinsic 
probability  of  what  he  says.  See  if 
some  allowance  is  not  to  be  made  for 
him,  on  account  of  his  ignorance, 
with  things  of  this  kind.  It  is  said 
to  be  extraordinary,  that  he  should 
have  heard  just  so  much  of  the  con- 
versation and  no  more ;  —  that  he 
should  have  heard  just  what  was 
necessary  to  be  proved,  and  nothing 
else.  Admit  that  this  is  extraordi- 
nary ;  —  still,  this  does  not  prove  it 
is  not  true.  It  is  extraordinary,  that 
you  twelve  gentlemen  should  be 
called  upon  out  of  all  the  men  in  the 
county,  to  decide  this  case ;  —  no 
one  could  have  foretold  this,  three 
Aveeks  since.  It  is  extraordinary, 
that  the  first  clew  to  this  conspiracy, 
should  have  been  derived  from  in- 
formation given  by  the  Father  of  the 
prisoner  at  the  bar ;  —  and  in  every 
case  that  comes  to  trial  there  are 
many  things  extraordinary  —  the 
murder  itself  in  this  case  is  an  ex- 
traordinary one  —  but  still  we  do  not. 
doubt  its  reality. 

It  is  argued,  that  this  conversa- 
tion between  Joseph  and  Frank, 
could  not  have  been,  as  Leighton 
has  testified,  because  they  had  beert 
together  for  several  hours  before,  — 
this  subject  must  have  been  upper- 
most in  their  minds,  —  whereas  this 
appears  to  have  been  the  commence- 
ment of  their  conversation  upon  it. 
Now,  this  depends  altogether  upon 
the  tone  and  manner  of  the  ex- 
pression ;  —  upon  the  particular 
word  in  the  sentence,  which  was 
emphatically  spoken  —  If  he  had  said 
"when  did  you  sec  Dick,  Frank  ?  " 
—  this  would  not  seem  to  be  the 
beginning  of  the  conversation.  With 
what  emphasis  it  was  uttered,  it  is 
not  possible  to  learn ;  and  there- 
fore nothing  can  be  made  of  this 
argument.  If  this  boy's  testimony 
stood   alone,   it   should  be  received 


1148 


PART    III.       PROBLEMS    OF   PROOF 


No.  393. 


with  caution.  And  the  .same  may 
be  said  of  the  te.stimony  of  Pahner. 
But  they  do  not  stand  ah)ne.  They 
furnish  a  clew  to  numerous  other 
circumstances,  which,  when  known, 
react  in  corrol)orating  what  wouhl 
have  been  received  with  caution, 
until  thus  corroborated.  How  could 
Leighton  have  made  up  this  con- 
versation ?  "  When  did  \ou  see 
Dick  ?  "  "  I  saw  him  this  morning." 
"When  is  he  going  to  kill  the  old 
man?"  "I  don't  know."  "Tell 
him  if  he  don't  do  it  soon,  I  won't 
pay  him."  Here  is  a  vast  amount, 
in  few  words.  Had  he  wit  enough  to 
invent  this  ?  There  is  nothing  so 
powerful  as  truth  ;  and  often  nothing 
so  strange.  It  is  not  even  suggested 
that  the  story  was  made  for  him. 
There  is  nothing  so  extraordinary 
in  the  whole  matter,  as  it  would  have 
been  for  this  country  boy  to  have 
invented  this  story. 

The  acts  of  the  parties  themselves, 
furnish  strong  presumption  of  their 
guilt.  What  was  done  on  the  receipt 
of  the  letter  from  Maine  ?  This 
letter  was  signed  by  Charles  Grant, 
jr.,  a  person  not  known  to  either  of 
the  Knapps,  —  nor  was  it  known  to 
them,  that  any  other  person,  beside 
the  Crowninshields,  knew  of  the 
conspiracy.  This  letter,  by  the 
accidental  omission  of  the  word  jr., 
fell  into  the  hands  of  the  father, 
when  intended  for  the  son.  The 
father  carried  it  to  Wenham  where 
both  the  sons  were.  They  both  read 
it.  Fix  your  eye  steadily,  on  this 
part  of  the  circumstantial  "stuff," 
which  is  in  the  case ;  and  see  what 
can  be  made  of  it.  This  was  shown 
to  the  two  brothers  on  Saturday, 
15th  of  May.  They,  neither  of 
them,  knew  Palmer.  And  if  they 
had  known  him,  they  could  not 
have  known  him  to  have  been  the 
writer  of  this  letter.  It  was  mys- 
terious to  them,  how  any  one,  at 
Belfast,  could  have  had  knowledge 
of  this  affair.  Their  conscious  guilt 
prevented  due  circumspection.  — 
They  did  not  see  the  bearing  of  its 
publication.  —  They    advised    their 


father  to  carry  it  to  the  Committee 
of  Vigilance,  and  it  was  so  carried. 
On  Sunday  following,  Joseph  began 
to  think  there  might  be  something 
in  it.  Perhaps,  in  the  meantime,  he 
had  seen  one  of  the  Crowninshields. 
He  was  apprehensive,  that  they 
might  be  suspected,  —  he  was  anx- 
ious to  turn  attention  from  their 
family.  —  What  course  did  he  adopt 
to  effect  this  ?  He  addressed  one 
letter,  with  a  false  name,  to  Mr. 
White,  and  another  to  the  Com- 
mittee ;  —  and  to  complete  the 
climax  of  his  folly,  he  signed  the 
letter  addressed  to  the  Committee, 
''Grant"  —  the  same  name  as  that 
signed  to  the  letter  they  then  had 
from  Belfast,  addressed  to  Knapp.  — 
It  was  in  the  knowledge  of  the  Com- 
mittee, that  no  person  but  the 
Knapps  had  seen  this  letter  from 
Belfast ;  —  and  that  no  other  person 
knew  its  signature.  —  It  therefore 
must  have  been  irresistibly  plain, 
to  them,  that  one  of  the  Knapps 
must  have  been  the  writer  of  the 
letter  they  had  received,  charging 
the  murder  on  Mr.  White.  Add  to 
this,  the  fact  of  its  having  been  dated 
at  Lynn,  and  mailed  at  Salem,  four 
days  after  it  was  dated,  and  who 
could  doubt  respecting  it  ?  Have 
you  ever  read,  or  known,  of  folly 
equal  to  this  ?  Can  you  conceive  of 
crime  more  odious  and  abominable  ? 
Merely  to  explain  the  apparent  mys- 
teries of  the  letter  from  Palmer, 
they  excite  the  basest  suspicions  of 
a  man,  who,  if  they  were  innocent, 
they  had  no  reason  to  believe  guilty  ; 
and  who,  if  they  were  guilty,  they 
most  certainly  knew  to  be  innocent. 
Could  they  have  adopted  a  more 
direct  method  of  exposing  their  own 
infamy?  The  letter  to  the  Com- 
mittee has  intrinsic  marks  of  a  knoM^l- 
edge  of  this  transaction.  It  tells 
of  the  time,  and  the  manner,  in  which 
the  murder  was  committed.  Every 
line  speaks  the  writer's  condemna- 
tion. In  attempting  to  divert  at- 
tention from  his  family,  and  to 
charge  the  guilt  upon  another,  he 
indelibly  fixes  it  upon  himself. 


No.  393. 


KNAPP  S    TRIAL 


114!) 


Joseph  Knapp  requested  Allen 
to  put  these  letters  into  the  Post- 
office,  because,  said  he,  "I  wish  to 
nip  this  silly  affair  in  the  bud."  If 
this  were  not  the  order  of  an  over- 
rulinjj;  Providence,  I  should  say  that 
it  was  the  silliest  piece  of  folly  that 
was  ever  practised.  Mark  the 
destiny  of  Crime.  It  is  ever  obliged 
to  resort  to  such  subterfuges ;  it 
trembles  in  the  broad  light ;  it 
betrays  itself,  in  seeking  conceal- 
ment. He  alone  walks  safely,  who 
walks  uprightly.  Who,  for  a  mo- 
ment, can  read  these  letters  and 
doubt  of  J.  Knapp's  guilt  ?  The 
constitution  of  nature  is  made  to 
inform  against  him.  There  is  no 
corner  dark  enough  to  conceal  him. 
There  is  no  turnpike  broad  enough, 
or  smooth  enough,  for  a  man  so 
guilty  to  walk  in  without  stumbling. 
Every  step  proclaims  his  secret 
to  every  passenger.  His  own  acts 
come  out,  to  fix  his  guilt.  In  at- 
tempting to  charge  another  with  his 
own  crime,  he  writes  his  own  con- 
fession. To  do  away  the  effect  of 
Palmer's  letter,  signed  Grant  —  he 
writes  his  own  letter  and  affixes  to 
it  the  name  of  Grant.  He  writes  in 
a  disguised  hand ;  but  how  could  it 
happen,  that  the  same  Grant  should 
be  in  Salem,  that  was  at  Belfast  ? 
This  has  brought  the  whole  thing 
out.  Evidently  he  did  it ;  because 
he  has  adopted  the  same  style. — 
Evidently  he  did  it ;  —  because  he 
speaks  of  the  price  of  blood,  and  of 
other  circumstances  connected  with 
the  murder,  that  no  one  but  a  con- 
spirator could  have  known. 

Palmer  says  he  made  a  visit  to 
the  Crow^linshields,  on  the  9th  of 
April.  George  then  asked  him 
whether  he  had  heard  of  the  mur- 
der. Richard  inquired,  whether  he 
had  heard  the  music  at  Salem.  They 
said  that  they  tvcre  suspected,  that 
a  Committee  had  been  appointed 
to  search  houses  —  and  that  they 
had  melted  up  the  dagger,  the  day 
after  the  murder,  because  it  would 
be  a  suspicious  circumstance  to  have 
it  found  in  their  possession.     Now 


this  Committee  was  not  appointed, 
in  fact,  until  Friday  evening.  — 
But  this  proves  nothing  against 
Palmer  —  it  does  not  pr()\e  that 
George  did  not  tell  him  so  —  it  only 
proves  that  he  gave  a  false  reason, 
for  a  fact.  They  had  heard  that 
they  were  suspected  —  how  could 
they  have  heard  this,  unless  it  were 
from  the  whisperings  of  their  own 
consciences?  —  surely  this  rumor 
was  not  thus  public. 

About  the  27th  of  April,  another 
attempt  is  made  l)y  the  Knapps  to 
give  a  direction  to  public  suspicion. 
They  reported  themselves  to  have 
))een  rohheil,  in  passing  from  Salem 
to  Wenliam,  near  Wenham  pond. 
They  came  to  Salem,  and  stated  the 
particulars  of  the  adventure. — They 
described  persons,  their  dress,  size, 
and  appearance,  who  had  been  sus- 
pected of  the  murder.  They  would 
have  it  understood,  that  the  com- 
munity was  infested  with  a  band 
of  Ruffians,  and  that  thei/,  themselves, 
were  the  particular  objects  of  their 
vengeance.  Now,  this  turns  out  to 
be  all  fictitious,  —  all  fal.se.  Can 
you  conceive  of  anything  more 
enormous  — any  wickedness  greater, 
than  the  circulation  of  such  reports  ? 
—  than  the  allegation  of  crimes,  if 
committed,  capital  ?  —  if  no  such 
thing  —  thus  it  reacts,  with  double 
force  upon  themselves,  and  goes  very 
far  to  show  their  guilt.  How  did 
they  conduct  on  this  occasion  ?  did 
they  make  hue  and  cry  ?  —  did  they 
give  information  that  they  had  been 
assaulted,  that  night  at  Wenham  ? 
No  such  thing.  They  rested  quietly 
on  that  night  —  they  waited  to  he 
called  on  for  the  particulars  of  their 
adventure  —  they  made  no  attempt 
to  arrest  the  offenders  —  this  was 
not  their  object.  They  were  con- 
tent to  fill  the  thfuisand  mouths  of 
rumor,  —  to  spread  abroad  false 
reports,  —  to  (livert  the  attention 
of  the  public  from  themselves  —  for 
they  thought  every  man  suspected 
them,  because  they  knew  they  ought 
to  be  suspected. 

The   manner   in   which   the  com- 


1150 


PART   III.       PROBLEMS    OF    PROOF 


No.  S93. 


pensation  for  this  murder  was  paid, 
is  a  circumstance  worthy  of  con- 
sideration. By  examining  the  facts 
and  dates,  it  will  satisfactorily 
appear,  that  Joseph  Knapp  paid 
a  sum  of  money  to  Richard  Crown- 
inshield  in  five  franc  pieces  on  the 
24th  of  April.  On  the  21st  of  April, 
Joseph  Knapp  received  five  hundred 
five  franc  pieces,  as  the  proceeds  of 
an  adventure  at  sea.  The  remainder 
of  this  species  of  currency  that  came 
home  in  the  ^■essel  was  deposited  in  a 
bank  at  Salem.  On  Saturday,  24th 
of  April,  Frank  and  Richard  rode 
to  Wenham. — They  were  there  with 
Joseph  an  hour  or  more.  —  Ap- 
peared to  be  negotiating  private 
business  —  Richard  continued  in  the 
chaise.  —  Joseph  came  to  the  chaise 
and  conversed  with  him.  These 
facts  are  proved  by  Hart,  and  Leigh- 
ton,  and  by  Osborn's  books.  On 
Saturday  evening,  about  this  time, 
Richard  Crowninshield  is  proved  to 
have  been  at  Wenham,  with  another 
person,  whose  appearance  corre- 
sponds with  Frank,  by  Lummus. 
Can  any  one  doubt  this  being  the 
same  evening  ?  What  had  Richard 
Crowninshield  to  do  at  Wenham, 
with  Joseph,  unless  it  were  this  busi- 
ness ?  He  was  there  before  the 
murder  —  he  was  there  after  the 
murder  —  he  was  there  clandes- 
tinely, unwilling  to  be  seen.  If  it 
were  not  upon  this  business,  —  let 
it  be  told  what  it  was  for  —  Joseph 
Knapp  could  explain  it  —  Frank 
Knapp  might  explain  it.  But  they 
don't  explain  it  —  and  the  inference 
is  against  them. 

Immediately  after  this,  Richard 
passes  five  franc  pieces  —  on  the 
same  evening,  one  to  Lummus  — 
five  to  Palmer  —  and  near  this  time 
George  passes  three  or  four  in  Salem. 
—  Here  are  nine  of  these  pieces 
passed  by  them  in  four  days  — 
this  is  extraordinary.  —  It  is  an  un- 
usual currency  —  in  ordinary  busi- 
ness, few  men  would  pass  nine  such 
pieces  in  the  course  of  a  year.  If 
they  were  not  received  in  this  way, 
why  not  explain  how  they  came  by 


them  ?  Money  was  not  so  flush  in 
their  pockets,  that  they  could  not  tell 
whence  it  came,  if  it  honestly  came 
there.  It  is  extremely  important 
to  them  to  explain  whence  this 
money  came,  and  they  would  do  it 
if  they  could.  If,  theUj  the  price  of 
blood  was  paid  at  this  time,  in  the 
presence  and  with  the  knowledge 
of  this  defendant ;  does  not  this  prove 
him  to  have  been  connected  with 
this  conspiracy  ? 

Observe,  also,  the  effect  on  the 
mind  of  Richard,  of  Palmer's  being 
arrested,  and  committed  to  prison, 

—  the  various  efforts  he  makes  to 
discover  the  fact  —  the  lowering, 
through  the  crevices  of  the  rock,  the 
pencil  and  paper  for  him  to  write 
upon  —  the  sending  two  lines  of 
poetry,  with  the  request  that  he 
would  return  the  corresponding  lines 

—  the  shrill  and  peculiar  whistle  — 
the  inimitable  exclamations  of  "  Pal- 
mer! Palmer!  Palmer!^'  —  all  these 
things  prove  how  great  was  his 
alarm  —  they  corroborated  Palmer's 
story,  and  tend  to  establish  the  con- 
spiracy. 

Joseph  Knapp  had  a  part  to  act 
in  this  matter ;  he  must  haNC  opened 
the  window,  and  secreted  the  key  — 
he  had  free  access  to  ever}'  part  of 
the  house  —  he  was  accustomed  to 
visit  there  —  he  went  in  and  out  at 
his  pleasure  —  he  could  do  this  with- 
out being  suspected  —  he  is  proved 
to  have  been  there  the  Saturday 
preceding. 

If  all  these  things,  taken  in  con- 
nection, do  not  prove  that  Capt. 
White  was  murdered  in  pursuance  of 
a  conspiracy  —  then  the  case  is  at 
an  end. 

Savary's  testimony  is  wholly  un- 
expected. He  was  called  for  a  dif- 
ferent purpose.  When  asked  who 
the  person  was,  that  he  saw  come 
out  of  Capt.  White's  yard  between 
3  and  4  o'clock  in  the  morn- 
ing, —  he  answered   Fronk  Knapp. 

—  I  am  not  clear  this  is  not  true. 
There  may  be  many  circumstances  of 
importance  connected  with  this ; 
though   we   believe   the   murder   to 


Mo.  393. 


KXAPP  S    TRIAL 


1151 


have  been  committed  between  10 
and  11  o'clock.  The  letter  to 
Dr.  Barstow  states  it  to  have  been 
done  about  1 1  o'clock  —  it  states 
it  to  have  been  done  with  a  blow  on 
the  head,  from  a  weapon  loaded  with 
lead.  Here  is  too  great  a  corre- 
spondence with  the  reality,  not  to 
have  some  meaning  to  it.  Dr. 
Peirson  was  always  of  the  opinion 
that  the  two  classes  of  wounds  were 
made  with  different  instruments,  and 
by  diflFerent  hands.  —  It  is  possible, 
that  one  class  was  inflicted  at  one 
time,  and  the  other  at  another.  It 
is  possible,  that  on  the  last  visit,  the 
pulse  might  not  have  entirely  ceased 
to  beat ;  and  then  the  finishing 
stroke  was  given.  —  It  is  said,  when 
the  body  was  discovered,  some  of 
the  wounds  weeped,  while  the  others 
did  not.  They  may  have  been  in- 
flicted from  mere  wantonness.  It 
was  known  that  Capt.  White  was 
accustomed  to  keep  specie  by  him  in 
his  chamber  —  this  perhaps  may  ex- 
plain the  last  visit.  —  It  is  proved, 
that  this  defendant  was  in  the  hal)it 
of  retiring  to  bed,  and  leaving  it 
afterwards,  without  the  knowledge 
of  his  family  —  perhaps  he  did  so  on 
this  occasion  —  we  see  no  reason  to 
doubt  the  fact  —  and  it  does  not 
shake  our  belief  that  the  murder 
was  committed  early  in  the  night. 

What  are  the  probabilities  as  to 
the  time  of  the  murder  ?  Mr.  White 
was  an  aged  man ;  —  he  usually 
retired  to  bed  at  about  half  past 
nine  —  he  slept  soundest  in  the 
early  part  of  the  night  —  usually 
awoke  in  the  middle  and  latter  part 
—  and  his  habits  were  perfectly  well 
knoAvn.  When  would  persons,  with 
a  knowledge  of  these  facts,  be  most 
likely  to  approach  him  ?  most  cer- 
tainly in  the  first  hour  of  his  sleep. 
This  would  be  the  safest  time.  If 
seen  then,  going  to  or  from  the  house, 
the  appearance  would  be  least  sus- 
picious. The  earlier  hour  would 
then  have  been  most  probalily 
selected. 

Gentlemen,  I  shall  dwell  no  longer 
on  the  evidence  which  tends  to  prove 


that  there  was  a  conspiracy,  and  that 
the  Prisoner  was  a  conspirator. 
All  the  circumstances  concur  to 
make  out  this  point.  Not  only 
Palmer  swears  to  it,  in  eflect.  and 
Leigliton,  but  Allen  mainly  siipjjorts 
Palmer,  and  Osborn's  lr)()ks  lend 
confirmation,  so  far  as  possible  from 
such  a  source.  Palmer  is  con- 
tradicted in  nothing,  either  by  any 
other  witness,  or  any  proved  cir- 
cumstance, or  occurrence.  What- 
ever could  be  expected  to  support 
him,  does  support  him.  Ail  the 
evidence  clearly  manifests,  I  think, 
that  there  was  a  conspiracy ;  that 
it  originated  with  J.  Knapp ;  that 
defendant  became  a  party  to  it,  and 
was  one  of  its  conductors,  from  first 
to  last.  One  of  the  most  powerful 
circumstances  is  Palmer's  letter 
from  Belfast.  The  amount  of  this 
was,  a  direct  charge  on  the  Knapps, 
of  the  authorship  of  this  murder. 
How  did  they  treat  this  charge,  like 
honest  men,  or  like  guilty  men  ? 
We  have  seen  how  it  was  treate<l. 
J.  Knapp  fal)ricated  letters,  charging 
another  person,  and  caused  them  to 
be  put  into  the  Post-office. 

I  shall  now  proceed  on  the  sup- 
position, that  it  is  proved  that  there 
was  a  conspiracy  to  murder  Mr. 
White,  and  that  the  Prisoner  was 
party  to  it. 

The  second,  and  the  material  in- 
quiry is,  was  the  Prisoner  present,  at 
the  murder,  aiding  and  ahettino 
therein  f  .   .   . 

It  is  not  necessary  that  tlu'  .il)«'tt()r 
should  actually  lend  a  hand  —  that 
he  should  take  a  part  in  the  act 
itself;  —  if  he  be  present,  ready  to 
assist  —  that  is  a.ssisting.   .   .  . 

You  are  to  consider  the  defendant 
as  one  in  the  league,  —  in  the  com- 
bination to  commit  the  murder.  If 
he  was  there  by  appointment,  with 
the  perpetrator,  he  is  an  abettor. 
The  conciUTence  of  the  perpetrator 
in  his  being  there,  is  proved  i»y  the 
previous  evidence  of  the  conspiracy. 
If  Richard  ( 'rowninshield,  for  any 
purpose  whatsoever,  made  it  a  con- 
dition of  the  agreement,  that  Frank 


llo2 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


Knapp  should  stand  as  backer,  then 
Frank  Knapp  was  an  aider  and  abet- 
tor —  no  matter  what  the  aid  was 

—  of  what  sort  it  was,  or  degree  — 
be  it  never  so  httle.  Even  if  it  were 
to  judge  of  the  hour,  when  it  was  best 
to  go  —  or  to  see  when  the  hghts 
were  extinguished  —  or  to  give  an 
alarm  if  any  one  approached.  Who 
better  calculated  to  judge  of  these 
things  than  the  murderer  himself  ? 
and  if  he  so  determined  them,  that 
is  sufficient. 

Now  as  to  the  facts — Frank  Knapp 
knew  that  the  murder  was  that  night 
to  be  committed  —  he  was  one  of 
the  conspirators  —  he  knew  the  ob- 
ject —  he  knew  the  time ;  —  he  had 
that  day  been  to  Wenham  to  see 
Joseph,  and  probably  to  Danvers  to 
see  Richard  Crowninshield,  for  he 
kept  his  motions  secret,  he  had  that 
day  hired  a  horse  and  chaise  of 
Osborn,  and  attempted  to  conceal 
the  purpose  for  which  it  was  used  — 
he  had  intentionally  left  the  place 
and  the  price  blank  on  Osborn's 
books  —  he  went  to  Wenham  by 
the  way  of  Danvers  —  he  had  been 
told  the  week  before  to  hasten  Dick 

—  he  had  seen  the  Crowninshields 
several  times  within  a  few  days  — 
he  had  a  saddle  horse  the  Saturday 
night  before  —  he  had  seen  Mrs. 
Beckford,  at  Wenham,  and  knew 
she  would  not  return  that  night. 
She  had  not  been  away  before  for 
six  weeks,  and  probably  would  not 
soon  be  again  —  he  had  just  come 
from  there  —  every  day,  for  the 
week  previous,  he  had  visited  one 
or  other  of  these  conspirators,  save 
Sunday,  and  then  probably  he  saw 
them  in  town.  When  he  saw 
Joseph  on  the  (ith,  Joseph  had  pre- 
pared the  house  and  would  naturally 
tell  him  of  it  —  there  were  constant 
communications  between  them  — 
daily  and  nightly  visitation  —  too 
much  knowledge  of  these  parties  and 
this  transaction,  to  lea\e  a  particle 
of  doubt  on  the  mind  of  any  one,  that 
Frank  Knapp  knew  that  the  murder 
was  to  be  done  this  night.  —  The 
hour  was  come  and  he  knew  it  — 


if  so,  and  he  was  in  Brown  Street, 
without  explaining  why  he  was 
there  —  can  the  Jury  for  a  moment 
doubt,  whether  he  was  there  to  coun- 
tenance, aid,  or  support ;  —  or  for 
curiosity  alone  ;  —  or  to  learn  how 
the  wages  of  sin  and  death  were 
earned  by  the  perpetrator  ?  .   .   . 

What  are  the  Facts  in  relation  to 
this  presence  ?  Frank  Knapp  is 
proved  a  conspirator  —  proved  to 
ha\e  known  that  the  deed  was  now 
to  be  done.  Is  it  not  probable  that 
he  was  in  Brown  Street  to  concur  in 
the  murder  ?  There  were  four  con- 
spirators. —  It  was  natural  that  some 
one  of  them  would  go  with  the  per- 
petrator. Richard  Crowninshield 
was  to  be  the  perpetrator  —  he  was 
to  give  the  blow.   .  .   . 

Aid  could  not  have  been  received 
from  Joseph  Knapp,  or  from  George 
Crowninshield.  Joseph  Knapp  was 
at  Wenham,  and  took  good  care  to 
prove  that  he  was  there.  George 
Crowninshield  has  proved  satis- 
factorily where  he  was  —  that  he 
was  in  other  company,  such  as  it 
was,  until  11  o'clock.  This  nar- 
rows the  inquiry.  —  This  demand 
of  the  prisoner  to  show,  that  if  he 
was  not  in  this  place,  M^here  he  was  ? 
It  calls  on  him  loudly  to  show  this,  and 
to  show  it  truly  —  if  he  could  show 
it,  he  would  do  it.  —  If  he  don't  tell, 
and  that  truly,  it  is  against  him.  .  .  . 

The  prisoner  has  attempted  to 
prove  an  alibi,  in  two  ways.  In  the 
first  place,  by  four  young  men  with 
whom  he  says  he  was  in  company  on 
the  evening  of  the  mmxler,  from 
7  o'clock,  till  near  10  o'clock  — 
this  depends  upon  the  certainty  of 
the  night.  In  the  second  place,  by 
his  family,  from  10  o'clock  after- 
wards —  this  depends  upon  the  cer- 
tainty of  the  time  of  the  iiic/ht.  These 
two  classes  of  proof  have  no  con- 
nection with  each  other.  One  may 
be  true,  and  the  other  false,  or  they 
nuiy  both  be  true,  or  both  be  false. 
1  shall  examine  this  testimony  with 
some  attention,  because  on  a  former 
trial,  it  made  more  impression  on 
the  minds  of  the  Court,  than  on  n.y 


No    393. 


KNAPP  S    TRIAL 


1153 


own  mind.  I  think  when  care- 
fully sifted  and  compared,  it  will 
be  found  to  have  in  it  more  of 
plausibility  than  reality. 

Mr.  Page  testifies,  that  on  the  even- 
ing of  the  6th  of  April,  he  was  in 
company  with  Burchmore,  Balch, 
and  Forrester  —  and  that  he  met 
the  defendant  about  seven  o'clock, 
near  the  Salem  Hotel  —  that  he 
afterwards  met  him  at  Remond's, 
about  9  o'clock,  and  that  he  was 
in  company  with  him  a  considerable 
part  of  the  evening.  This  young 
gentleman  is  a  member  of  College, 
and  says  that  he  came  in  town  the 
Saturday  evening  previous,  that  he 
is  now  able  to  say  that  it  was  the 
night  of  the  murder,  when  he  walked 
with  Frank  Knapp,  from  the  rec- 
ollection of  the  fact,  that  he  called 
himseK  to  an  account,  on  the  morn- 
ing after  the  murder,  as  was  natural 
for  men  to  do  when  an  extraordinary 
occurrence  happens.  Gentlemen, 
this  kind  of  evidence  is  not  satis- 
factory —  general  impressions  as  to 
time  are  not  to  be  relied  on.  If  I 
were  called  upon  to  state  the  partic- 
ular day  on  which  any  witness 
testified  in  this  cause,  I  could  not 
do  it.  Every  man  will  notice  the 
same  thing  in  his  own  mind.  There 
is  no  one  of  these  young  men  that 
could  give  any  account  of  himself 
for  anj^  other  day  in  the  month  of 
April.  They  are  made  to  remember 
the  fact,  and  then  they  think  they 
remember  the  time.  He  has  no 
means  of  knowing  it  was  Tuesday 
more  than  any  other  time.  He  did 
not  know  it  at  first  —  he  could  not 
know  it  afterwards.  He  says  he 
called  himself  to  an  account  —  this 
has  no  more  to  do  with  the  murder, 
than  with  the  man  in  the  moon. 
Such  testimony  is  not  worthy  to  be 
relied  on,  in  any  forty  shilling  cause. 
What  occasion  had  he  to  call  him- 
self to  an  account  ?  Did  he  sup- 
pose, that  he  should  be  suspected? 
Had  he  any  intimation  of  this  con- 
spiracy ? 

Suppose,  gentlemen,  you  were 
either  of  you  asked,  where  you  were, 


or  what  you  were  doing,  on  the  ir)ih 
day  of  June — you  could  not  answer 
this  (juestion,  without  calling  to  mind 
some  events  to  make  it  certain  —  just 
as  well  may  you  remember  on  what 
you  dined  on  each  day  of  the  year 
past.  Time  is  identical.  Its  subdi- 
visions are  all  alike.  Xo  man  knows 
one  day  from  another,  or  one  lK)ur 
from  another,  but  by  some  fact  con- 
nected with  it.  Diiys  and  hours  are 
not  visible  to  tlie  senses,  nor  to  be 
apprehended  and  distinguishetl  by 
the  understanding.  The  flow  of 
time  is  known  only  by  something 
.which  marks  it;  and  he  who  speaks 
of  the  date  of  occurrences  with 
nothing  to  guide  his  recollection, 
speaks  at  random,  and  is  not  to  be 
relied  on.  This  young  gentleman 
remembers  the  facts  and  occurrences 
—  he  knows  nothing  why  they 
should  not  have  happened  on  the 
evening  of  the  sixth ;  but  he  knows 
no  more.  All  the  rest,  is  evidently 
conjecture  or  impression. 

Mr.  White  informs  you  that  he 
told  him  he  could  not  tell  what 
night  it  was.  —  The  first  thoughts 
are  all  that  are  valuable  in  such  case. 
They  miss  the  mark  b;\-  taking 
second  aim. 

Mr.  Balch  believes,  but  is  not  sure, 
that  he  was  with  Frank  Knapp  on 
the  evening  of  the  murder.  He  has 
given  different  accounts  of  the  time. 
He  has  no  means  of  making  it  cer- 
tain. All  he  knows  is,  that  it  was 
some  evening  before  Fast.  But 
whether  Monday,  Tuesday,  or  Satur- 
day, he  cannot  tell. 

Mr.  Burchmore  says,  to  the  best 
of  his  belief,  it  was  the  evening  of  the 
murder.  Afterwards  he  attempts 
to  speak  positively,  from  recollect- 
ing that  he  mentioned  the  circum- 
stance to  William  Peirce,  as  he  went 
to  the  Mineral  Spring  on  Fast  day. 
Last  Monday  morning,  he  told  ("ol. 
Putnam  he  could  not  fix  the  time. 
This  witness  stands  in  a  much  worse 
plight  than  either  of  the  others.  It 
is  difficult  to  reconcile  all  he  h;us  sai<l, 
with  any  belief  in  the  accuracy  of 
his  recollections. 


1154 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


Mr.  Forrester  does  not  speak  Avith 
any  certainty  as  to  the  nifjht  —  and 
it  is  very  cei;tain,  that  he  told  Mr. 
Loring  and  others,  that  he  did  not 
know  Avhat  night  it  was. 

Now,  what  does  the  testimony  of 
these  four  A'oung  men  amount  to  ? 
The  only  circumstance,  by  which 
they  approximate  to  an  identifying 
of  the  night  is  —  that  three  of  them 
say  it  was  cloudy  —  they  think  their 
walk  was  either  on  ^Monday  or  Tues- 
day evening;  and  it  is  admitted 
that  Monday  evening  was  clear  — 
whence  they  draw  the  inference  that 
it  must  have  been  Tuesday. 

But,  fortunately,  there  is  one  fact 
disclosed  in  their  testimony  that 
settles  the  question.  Balch  says, 
that  on  the  evening,  whenever  it  was, 
that  hesawthePri.soner,  the  Prisoner 
told  him  he  was  going  out  of  town  on 
horseback,  for  a  distance  of  about 
twenty  minutes  ride,  and  that  he  was 
going  to  get  a  horse  at  Osborn's. 
This  was  about  7  o'clock.  At 
about  nine,  Balch  says  he  saw  the 
prisoner  again,  and  was  then  told 
by  him,  that  he  had  had  his  ride,  and 
had  returned.  —  Now  it  appears  by 
Osborn's  books,  that  the  prisoner 
had  a  saddle  horse  from  his  stable, 
not  on  Tuesday  evening,  the  night  of 
the  murder,  but  on  the  Saturday  even- 
ing previous.  This  fixes  the  time, 
about  which  these  young  men  testify 
and  is  a  complete  answer  and  ref- 
utation of  the  attempted  alibi,  on 
Tuesday  evening. 

I  come  now  to  speak  of  the  testi- 
mony adduced  by  the  defendant  to 
explain  where  he  was  after  10 
o'clock  on  the  night  of  the  murder. 
This  comes  chiefly  from  members  of 
the  family  —  from  his  Father  and 
brothers. 

It  is  agreed  that  the  affidavit  of 
the  prisoner,  should  be  received  as 
evidence  of  what  his  brother  Samuel 
H.  Knapp,  would  testify  if  present. 
S.  H.  Knapp  says  that  about  ten 
minutes  past  10  o'clock,  his  brother 
F.  Knapp  on  his  way  to  bed,  opened 
his  chamber  door,  made  some  re- 
marks, closed  the  door,  and  went  to 


his  chamber,  and  that  he  did  not 
hear  him  leave  it  afterwards.  How 
is  this  witness  able  to  fix  the  time  at 
ten  minutes  past  ten  ?  There  is  no 
circumstance  mentioned,  by  which 
he  fixes  it.  He  had  been  in  bed, 
probably  asleep  —  and  was  aroused 
from  his  sleep,  by  the  opening  of  the 
door.  Was  he  in  a  situation  to 
speak  of  time  with  precision  ?  Could 
he  know,  under  such  circumstances, 
whether  it  was  ten  minutes  past  ten, 
or  ten  minutes  before  eleven,  when 
his  brother  spoke  to  him  ?  What 
would  be  the  natural  result,  in  such 
a  case  ?  But  we  are  not  left  to 
conjecture  this  result.  We  have 
positive  testimony  on  this  point. 
Mr.  Webb  tells  you  that  Samuel  told 
him  on  the  8th  of  June,  "  that  he  did 
not  know  what  time  his  brother 
Frank  came  home  —  and  that  he  was 
not  at  home  when  he  went  to  bed." 
You  will  consider  this  testimony  of 
Mr.  Webb  as  indorsed  upon  this 
affidavit  —  and  with  this  indorse- 
ment upon  it,  you  will  give  it  its 
due  weight.  —  "This  statement  was 
made  to  him  after  Frank  was  ar- 
rested. 

I  come  to  the  testimony  of  the 
Father.  I  find  myself  incapable  of 
speaking  of  him  or  his  testimony 
with  severity.  Unfortunate  old 
man  !  Another  Lear,  in  the  con- 
duct of  his  children ;  another  Lear, 
I  fear,  in  the  effect  of  his  distress 
upon  his  mind  and  understanding. 
He  is  brought  here  to  testify,  under 
circumstances  that  disarm  severity, 
and  call  loudly  for  sympathy. 
Though  it  is  impossible  not  to  see 
that  his  story  cannot  be  credited, 
yet  I  am  not  able  to  speak  of  him 
otherwise  than  in  sorrow  and  grief. 
Unhappy  father  !  he  strives  to  re- 
member, perhaps  persuades  him- 
self that  he  does  remember,  that  on 
the  e\'ening  of  the  murder  he  was 
himself  at  home  at  10  o'clock.  — 
Hetiiinks,  — or  .seems  to  think,  that 
his  son  came  in,  at  about  five  minutes 
past  ten.  —  He  fancies  that  he 
remembers  his  conversation  —  he 
thinks  he  spoke  of  bolting  the  door 


No.  393. 


KNAPP  S   TRIAL 


1  lo5 


—  he  thinks  he  asked  the  time  of 
night  —  he  seems  to  remember  his 
then  going  to  his  bed.  —  Ahis  !  — 
these  are  but  the  swimming  fancies 
of  an  agitated  and  distressed  mind 

—  Alas  !  they  are  but  the  dreams  of 
hope,  its  uncertain  Hghts,  flickering 
on  the  thick  darkness  of  parental 
distress.  Alas  !  the  miserable  father 
knows  nothing,  in  reality,  of  all  these 
things. 

IVIr.  Shepard  says  that  the  first 
conversation  he  had  with  Mr.  Knapp, 
was  soon  after  the  murder,  and  before 
the  arrest  of  his  sons.  Mr.  Knapp 
says  it  was  after  the  arrest  of  his  sons. 
His  own  fears  led  him  to  say  to  Mr. 
Shepard  that  his  "  son  PVank  was  at 
home  that  night  —  and  so  Phippen 
told  him,  or  as  Phippen  told  him" 

—  Mr.  Shepard  says  that  he  was 
struck  with  the  remark  at  the  time 

—  that  it  made  an  unfavorable 
impression  on  his  mind  —  he  does 
not  tell  you  what  that  impression 
was  —  but  when  you  connect  it  with 
the  previous  inquiry  he  had  made 

—  Whether  Frank  had  continued  to 
associate  with  the  Crowninshields  ? 
and  recollect  that  the  Crowninshields 
were  then  known  to  be  suspected 
of  this  crime  —  can  you  doubt  what 
this  impression  was  ?  —  can  you 
doubt  as  to  the  fears  he  then  had  ? 

This  poor  old  man  tells  you,  that 
he  was  greatly  perplexed  at  the 
time  —  that  he  found  himself  in 
embarrassed  circumstances  —  that 
on  this  very  night  he  was  engaged 
in  making  an  assignment  of  his 
property  to  his  friend  Mr.  Shepard. 

—  If  ever  charity  should  furnish  a 
mantle  for  error,  it  should  be  here. 
Imagination  cannot  picture  a  more 
deplorable,  distressed  condition. 

The  same  general  remarks  may 
be  applied  to  his  conversation  with 
Mr.  Tread  well,  as  have  been  made 
upon  that  with  Mr.  Shepard.  He 
told  him  that  he  believed  Frank  was 
at  home  about  the  usual  time.  In 
his  conversations  with  either  of  these 
persons,  he  did  not  pretend  to  know, 
of  his  own  knowledge,  the  time  that 
he  came  home.     He  now  tells  you, 


positively,  that  he  recollects  the  time, 
and  that  he  .so  told  Mr.  Siicpard. 
He  is  directly  contratlicted  by  l)()th 
these  witnes.se.s,  as  respectable  men 
as  Salem  affords. 

This  idea  of  alibi  is  of  recent 
origin.  Would  Samuel  Knapp  have 
gone  to  sea,  if  it  were  then  thought 
of  ?  His  testimony,  if  true,  was  too 
important  to  be  lost.  If  there  be 
any  truth  in  this  part  of  the  alibi, 
it  is  so  near  in  point  of  time,  that 
it  cannot  be  relied  on.  —  The  mere 
variation  of  half  an  hour  would 
avoid  it. —  The  mere  variations  of 
different  timepieces  would  explain 
it. 

Has  the  defendant  proved  where 
he  was  on  that  night  ?  If  you  doubt 
about  it  —  there  is  an  end  of  it. 
The  burthen  is  upon  him  to  satisfy 
you  beyond  all  reasonable  doubt. 
Osborn's  l)Ooks,  in  connection  with 
what  the  young  men  state,  are  con- 
clusive, I  think,  on  this  point.  He 
has  not,  then,  accounted  for  him- 
self —  he  has  attempted  it,  and  has 
failed.   .  .  . 

But,  Gentlemen,  let  us  now  con- 
sider what  is  the  evidence  produced 
on  the  part  of  the  Go\ernment  to 
prove  that  John  Francis  Knapp,  the 
prisoner  at  the  bar,  inu-  in  Brown 
Street  on  the  night  of  the  nnirder. 
This  is  a  point  of  vital  importance 
in  this  cause.  Unless  this  be  made 
out,  beyond  reasonable  doubt,  the 
law  of  presence  does  not  apply  to  the 
case.  The  Government  undertake 
to  prove  that  he  was  present,  aiding 
in  the  murder,  by  proving  that  he 
was  in  Brown  Street  for  this  purpose. 
Now,  what  are  the  undoubted  facts  ? 
They  are,  that  two  persons  were  seen 
in  that  street,  at  several  times, 
during  that  evening,  under  suspicious 
circumstances  ;  —  under  such  cir- 
cumstances as  induced  those  who 
saw  them,  to  watch  their  movements. 
Of  this,  there  can  be  no  doubt.  — 
Mirick  saw  a  man  standing  at  the 
post  opposite  his  store,  from  fiftiH'n 
minutes  before  nine,  until  twenty 
minutes  after,  dressed  in  a  full  frock 
coat,   glazed   eap,   etc.,   in   size  and 


1156 


PART  III.   PROBLEMS  OF  PROOF 


No.  303 


general  appearance  answering  to  the 
prisoner  at  the  bar.  This  person 
was  waiting  there — ^and  whenever 
any  one  approached  him,  he  m()\e(l 
to  and  from  the  corner,  as  though  he 
wouhl  avoid  being  suspected,  or 
recognized.  Afterwards,  two  per- 
sons were  seen  by  AVebster,  walking 
in  Howard  Street,  with  a  slow,  de- 
liberate movement,  that  attracted 
his  attention.  —  This  was  about 
one-half  past  nine.  One  of  these 
he  took  to  be  the  prisoner  at  the  bar 

—  the  other  he  did  not  know. 
About    half    past    ten,    a    person 

is  seen  sitting  on  the  ropewalk 
steps,  WTapped  in  a  cloak.  He 
drops  his  head  when  passed,  to  avoid 
being  known.  Shortly  after,  two 
persons  are  seen  to  meet  in  this 
street,  without  ceremony  or  saluta- 
tion, and  in  a  hurried  manner  to 
converse  for  a  short  time  —  then  to 
separate  and  runoff  with  great  speed. 
Now,  on  this  same  night,  a  gentle- 
man is  slain,  —  murdered  in  his  bed, 

—  his  house  being  entered  by  stealth 
from  without,  and  his  house  situated 
within  300  feet  of  this  street.  The 
windows  of  his  chamber  were  in 
plain  sight  from  this  street  —  a 
weapon  of  death  is  afterwards  found 
in  a  place  where  these  persons  were 
seen  to  pass  —  in  a  retired  place 
around  which  they  had  been  seen 
lingering.  It  is  now  known,  that 
this  murder  was  committed  by  a 
conspiracy  of  four  persons,  con- 
spiring together  for  this  purpose. 
No  account  is  given  who  these  sus- 
pected persons  thus  seen  in  Brown 
Street  and  its  neighborhood  were. 
Now,  I  ask.  Gentlemen,  whether  you 
or  any  man  can  doul)t,  that  this 
murder  was  committed,  by  the  per- 
sons who  were  thus  in  and  about 
Brown  Street  ?  ,  .  . 

Every  man's  own  judgment,  I 
think,  must  satisfy  him  that  this 
must  be  so.  It  is  a  plain  deduction 
of  common  sense.  It  is  a  point,  on 
which  each  one  of  you  may  reason 
like  a  Hale,  or  a  Mansfield.  The 
two  occurrences  explain  each  other. 
The  murder  shows  why  these  per- 


sons were  thus  lurking,  at  that  hoin-, 
in  Brown  Street,  and  their  lurking 
in  Brown  Street  shows  who  com- 
mitted the  murder. 

If,  then,  the  persons  in  and  about 
Brown  Street,  were  the  plotters  and 
executors  of  the  murder  of  Capt. 
White,  we  know  who  they  were, 
and  you  know  that  there  is  one  of 
them. 

This  fearful  concatenation  of  cir- 
cumstances puts  him  to  an  account. 
He  was  a  conspirator.  He  had  en- 
tered into  this  plan  of  murder.  The 
murder  is  committed,  and  he  is 
known  to  have  been  within  three 
minutes  walk  of  the  place.  He  must 
account  for  himself.  He  has  at- 
tempted this  and  failed.  Then, 
with  all  these  general  reasons  to 
show  he  was  actually  in  Brown 
Street,  and  his  failures  in  his  alibi, 
let  us  see  what  is  the  direct  proof  of 
his  being  there.  But  first,  let  me  ask, 
is  it  not  very  remarkable,  that  there 
is  no  attempt  to  show  where  Richard 
Crowninshield,  jr.,  was  on  that  night? 
We  hear  nothing  of  him.  He  was 
seen'  in  none  of  his  usual  haunts 
about  the  town.  Yet,  if  he  was  the 
actual  perpetrator  of  the  murder, 
which  nobody  doubts,  he  was  in  the 
town,  somewhere.  Can  you,  there- 
fore, entertain  a  doubt,  that  he  was 
one  of  the  persons  seen  in  Brown 
Street  ?  And  as  to  the  prisoner, 
you  will  recollect,  that  since  the 
testimony  of  the  young  men  has 
failed  to  show  where  he  was,  that 
evening,  the  last  we  hear  or  know 
of  him  on  the  day  preceding  the 
murder,  is,  that  at  4  o'clock  p.m. 
he  was  at  his  brother's,  in  Wenham. 
He  had  left  home,  after  dinner,  in 
a  manner  doubtless  designed  to 
avoid  observation,  and  had  gone 
to  Wenham,  probably  by  way  of 
Danvers.  As  we  hear  nothing  of 
him,  after  4  o'clock,  p.m.,  for  the 
remainder  of  the  day  and  evening, 
as  he  was  one  of  the  conspirators,  as 
Richard  Crowninshield,  jr.,  was  an- 
other, as  Richard  Crowninshield,  jr., 
was  in  town  in  the  evening,  and  yet 
seen  in  no  usual  place  of  resort,  the 


KNAPP  S    TRIAL 


11. -)7 


inference  is  very  fair  that  Rlchanl 
Crowninshield,  jr.,  and  the  prisoner 
were  together,  acting  in  execution  of 
their  conspiracy.  Of  the  four  con- 
spirators, J.  J.  Knapp,  jr.,  was  at 
Wenham,  and  George  Crowninshield 
has  l)een  accounted  for;  so  that  if 
the  persons,  seen  in  Brown  Street, 
were  the  murderers,  one  of  them  must 
have  been  Richard  Crowninshield, 
jr.,  and  the  other  must  have  been 
the  prisoner  at  the  bar.  Now,  as 
to  the  proof  of  his  identity  with 
one  of  the  persons  seen  in  Brown 
Street. 

Mr.  Mirick,  a  cautious  witness, 
examined  the  person  he  saw  closely, 
in  a  light  night,  and  says  that  he 
thinks  the  prisoner  at  the  bar  is  the 
same  person  —  and  that  he  should 
not  hesitate  at  all,  if  he  were  seen  in 
the  same  dress.  His  opinion  is 
formed,  partly  from  his  own  ob- 
servation, and  partly  from  the 
description  of  others.  But  this  de- 
scription turns  out  to  be  only  in 
regard  to  the  dress.  It  is  said, 
that  he  is  now  more  confident,  than 
on  the  former  trial.  If  he  has  varied 
in  his  testimony,  make  such  allow- 
ance as  you  may  think  proper.  I 
do  not  percei\e  any  material  ^■ari- 
ance.  He  thought  him  the  same 
person,  when  he  was  first  brought  to 
Court,  and  as  he  saw  him  get  out  of 
the  chaise.  This  is  one  of  the  cases, 
in  which  a  witness  is  permitted  to 
give  an  opinion.  This  witness  is  as 
honest  as  yourselves  —  neither  will- 
ing nor  swift  —  but  he  says,  he  be- 
lieves it  was  the  man;  "this  is  my 
opinion,"  and  this  it  is  proper  for 
him  to  give.  If  partly  founded  on 
what  he  has  heard,  then  his  opinion 
is  not  to  be  taken ;  but,  if  on  what 
he  saw,  then  you  can  have  no  better 
evidence.  I  lay  no  stress  on  simi- 
larity of  dress.  No  man  will  e\cr 
be  hanged  by  my  voice  on  such  e\i- 
dence.  But  then  it  is  proper  to 
notice,  that  no  inferences  drawn  from 
any  dissimilarity  of  dress,  can  be 
given  in  the  prisoner's  favor ;  be- 
cause, in  fact,  the  person  seen  by 
Mirick  was  dressed  like  the  prisoner. 


The  description  of  the  person  seen 
by  Mirick  answers  to  that  of  the 
prisoner  at  the  bar.  In  regard  to 
the  supposed  discrepancy  of  state- 
ments, before  and  now,  there  would 
be  no  end  to  such  minute  in(iuiries. 
It  would  not  be  strange  if  witnesses 
should  vary.  I  do  not  think  much 
of  slight  shades  of  variation.  If 
I  I)elieve  the  witnesses  honest,  that 
is  enough.  If  he  has  expressed  him- 
self more  strongly,  now  than  then, 
this  does  not  prove  him  false. 

Peter  E.  Webster  saw  the  prisoner 
at  the  bar,  as  he  then  thought  and 
still  thinks,  walking  in  Howard 
Street  at  half  past  nine  o'clock.  He 
then  thought  it  was  Frank  Knapp, 
and  has  not  altered  his  opinion  since. 
He  knew  him  well  —  he  had  long 
known  him.  If  he  then  thought  it 
was  he,  this  goes  far  to  prove  it. 
He  observed  him  the  more,  as  it  was 
unusual  to  see  gentlemen  walk  there 
at  that  hour.  It  was  a  retired, 
lonely  street.  Now,  is  there  reason- 
able doubt  that  Mr.  Webster  did 
see  him  there  that  night  t  How 
can  you  have  more  proof  than  this  't 
He  judged  by  his  walk,  by  his 
general  appearance,  l)y  his  deport- 
ment. We  all  judge  in  this  manner. 
If  you  believe  he  is  right,  it  goes  a 
great  way  in  this  case  But  then 
this  person  it  is  said  had  a  cloak  on, 
and  that  he  could  not,  therefore,  be 
the  same  person  that  Mirick  saw. 
If  we  were  treating  of  men  that  had 
no  occasion  to  disguise  themselves 
or  their  conduct,  there  might  be 
something  in  this  argument.  But 
as  it  is,  there  is  little  in  it.  It  may 
be  presumed,  that  they  would  change 
their  dress.  This  would  help  their 
disguise.  What  is  easier  than  to 
throw  off  a  cloak,  and  again  put  it 
on  ?  Perhaps  he  was  less  fearful 
of  being  known  when  alone,  than 
when  with  the  perpetrator. 

Mr.  Southwick  swears  all  that  a 
man  can  swear.  He  has  the  best 
means  of  judging  that  could  be 
had  at  the  time.  He  tells  you  that 
he  left  his  father's  house  at  half 
past  ten  o'clock,  and  a-^  he  pa'-si'd 


1158 


PART    III.       PROBLEMS   OF   PROOF 


No.  393. 


to  his  own  house  in  Brown  Street, 
he  saw  a  man  sitting  on  the  steps 
of  the  ropewalk,  etc.  —  that  he 
passed  him  three  times,  and  each 
time  he  held  down  his  head,  so 
that  he  did  not  see  his  face.  That 
the  man  had  on  a  cloak,  which 
was  not  wrapped  around  him,  and 
a  glazed  cap.  That  he  took  the 
man  to  be  Frank  Knapp  at  the  time, 
that  when  he  went  into  the  house, 
he  told  his  wife  that  he  thought  it 
was  Frank  Knapp  ;  —  that  he  knew 
him  well,  having  known  him  from 
a  boy.  And  his  wife  swears  that 
he  did  so  tell  her  at  the  time.  What 
could  mislead  this  witness  at  the 
time?  He  was  not  then  suspect- 
ing Frank  Knapp  of  anything.  He 
could  not. then  be  influenced  by  any 
prejudice.  If  you  believe  that  the 
witness  saw  Frank  Knapp  in  this 
position,  at  this  time,  it  proves  the 
case.  Whether  you  believe  it  or 
not,  depends  upon  the  credit  of 
the  witness.  He  swears  it  —  if  true, 
it  is  solid  evidence.  Mrs.  South- 
wick  supports  her  husband.  Are 
they  true  ?  Are  they  worthy  of 
belief?  If  he  deserves  the  epithets 
applied  to  him,  then  he  ought  not 
to  be  believed.  In  this  fact,  they 
cannot  be  mistaken,  they  are  right, 
or  they  are  perjured.  As  to  his  not 
speaking  to  Frank  Knapp,  that  de- 
pends upon  their  intimacy.  But 
a  very  good  reason  is,  Frank  chose 
to  disguise  himself.  This  makes 
nothing  against  his  credit.  But  it  is 
said  that  he  should  not  be  believed. 
And  why  ?  Because,  it  is  said,  he 
himself  now  tells  you  that  when  he 
testified  before  the  Grand  Jury  at 
Ipswich  he  did  not  then  say  that  he 
thought  the  person  he  saw  in  Brown 
Street  was  Frank  Knapp,  but  that 
"the  person  was  about  the  size  of 
Selman."  The  means  of  attacking 
him,  therefore  come  from  himself. 
If  he  is  a  false  man,  why  should  he 
tell  truths  against  himself?  they 
rely  on  his  veracity  to  prove  that 
he  is  a  liar.  .  .  .  But  suppose  that 
we  admit,  that  he  did  not  then  tell 
all  he  knew,  this  does  not  affect  the 


fact  at  all  —  because  he  did  tell, 
at  the  time,  in  the  hearing  of  others, 
that  the  person  he  saw  was  Frank 
Knapp.  There  is  not  the  slightest 
suggestion  against  the.  veracity  or 
accuracy  of  Mrs.  Southwick.  Now, 
she  swears  positively,  that  her  hus- 
band came  into  the  house  and  told 
her  that  he  had  seen  a  person,  "on 
the  ropewalk  steps  and  believed  it 
was  Frank  Knapp. 

It  is  said,  that  Mr.  Southwick  is 
contradicted,  also,  by  Mr.  Shillaber. 
I  do  not  so  understand  Mr.  Shilla- 
ber's  testimony.  I  think  what  they 
both  testify  is  reconcilable,  and  con- 
sistent. My  learned  brother  said 
on  a  similar  occasion,  that  there  is 
more  probability  in  such  cases,  that 
the  persons  hearing  should  mis- 
understand, than  that  the  person 
speaking,  should  contradict  himself. 
I  think  the  same  remarks  applicable 
here. 

You  have  all  witnessed  the  uncer- 
tainty of  testimony,  when  witnesses 
are  called  to  testify  what  other  wit- 
nesses said.  Several  respectable 
counsellors  have  been  called  on, 
on  this  occasion,  to  give  testimony 
of  that  sort.  They  have,  every  one 
of  them,  given  different  versions. 
They  all  took  minutes  at  the  time, 
and  without  doubt  intend  to  state 
the  truth.  But  still  they  differ. 
Mr.  Shillaber's  version  is  different 
from  everything  that  Southwick 
has  stated  elsewhere.  But  little 
reliance  is  to  be  placed  on  slight 
variations  in  testimony,  unless  they 
are  manifestly  intentional.  I  think 
that  INIr.  Shillaber  must  be  satisfied 
that  he  did  not  rightly  understand 
Mr.  Southwick.  I  confess  I  mis- 
understood Mr.  Shillaber  on  the 
former  trial,  if  I  now  rightly  under- 
stand him.  I  therefore  did  not  then 
recall  Mr.  Southwick  to  the  stand. 
Mr.  Southwick,  as  I  read  it,  under- 
stood Mr.  Shillaber  as  asking  him 
about  a  person  coming  out  of  New- 
bury Street,  and  whether,  for  aught 
he  knew,  it  might  not  be  Richard 
Crowninshield,  jr.  He  answered 
that  he  could  not  tell.      He  did  not 


No.  393. 


KNAPP  S    TRIAL 


1159 


understand  Mr.  Shillaber,  a.s  ques- 
tioning him,  as  to. the  person,  whom 
he  saw  sitting  on  the  steps  of  the 
ropewalk.  Southwick,  on  this  trial, 
having  heard  Mr.  Shillaber,  has 
been  recalled  to  the  stand,  and 
states  that  Mr.  Shillaber  entirely 
misunderstood  him.  This  is  cer- 
tainly most  probable ;  because  the 
controlling  fact  in  the  case  is  not 
controverted  —  that  is,  that  South- 
wick did  tell  his  wife,  at  the  very 
moment  he  entered  his  house,  that 
he  had  seen  a  person  on  the  rope- 
walk  steps,  whom  he  believed  to  be 
Frank  Knapp.  Nothing  can  prove, 
with  more  certainty  than  this,  that 
Southwick,  at  the  time,  thought  the 
person  whom  he  thus  saw  to  be  the 
prisoner  at  the  bar. 

Mr.  Bray  is  an  acknowledged 
accurate  and  intelligent  witness. 
He  was  highly  complimented  by 
my  brother,  on  the  former  trial, 
although  he  now  charges  him  with 
varying  his  testimony.  What  could 
be  his  motive  ?  You  will  be  slow 
in  imputing  to  him  any  design  of 
this  kind.  I  deny  altogether,  that 
there  is  any  contradiction.  There 
may  be  differences,  but  not  con- 
tradiction. These  arise  from  the 
difference  in  the  questions  put ; 
the  difference  between  believing 
and  knowing.  On  the  first  trial, 
he  said  he  did  not  knoic  the  person, 
and  now  says  the  same.  Then  we 
did  not  do  all  we  had  a  right  to  do. 
We  did  not  ask  him  who  he  thought 
it  was.  Now,  when  so  asked,  he 
saj'S  he  hclicvcs  it  was  the  prisoner 
at  the  bar.  If  he  had  then  been 
asked  this  question,  he  would  have 
given  the  same  answer.  That  he 
has  expressed  himself  stronger  I 
admit ;  but  he  has  not  contradicted 
himself.  He  is  more  confident  now, 
and  that  is  all.  A  man  may  not 
assert  a  thing,  and  still  not  have  any 
doubt  upon  it.  Cannot  e\ery  man 
see  this  distinction  to  be  consistent  ? 
I  leave  him  in  that  attitude ;  that 
only  is  the  difference.  .  .  . 

We  have  crfFered  to  produce  wit- 
nesses  to   prove,    that   as   soon    as 


Bray  saw  the  prisoner,  he  pro- 
nounced him  the  same  person.  V\e 
are  not  at  liberty  to  call  them  to 
corroborate  our  own  witness.  How 
then  could  this  fact  of  prisoner's 
being  in  Brown  Street,  be  better 
proved  ?  If  ten  witnesses  had  testi- 
fied to  it,  it  would  be  no  better. 
Two  men,  who  knew  him  well,  took 
it  to  be  Frank  Kiuij)p,  and  one  of 
them  so  said,  when  there  was  noth- 
ing to  mislead  them.  Two  others, 
that  examined  him  closely,  now 
swear  to  their  opinion  that  he  is  the 
man. 

Miss  Jaqueth  saw  three  persons 
pass  by  the  ropewalk,  several 
evenings  before  the  nuirder.  She 
saw  one  of  them  pointing  towards 
Mr.  White's  house.  She  noticed 
that  another  had  something  which 
appeared  to  be  like  an  instrument 
of  music  ;  that  he  put  it  behind  hini, 
and  attempted  to  conceal  it.  Who 
were  these  persons  ?  This  was  but 
a  few  steps  from  the  place  where 
this  apparent  instrument  of  music 
(of  music  such  as  Richard  Crown in- 
shield,  jr.,  spoke  of  to  Palmer) 
was  afterwards  found.  These  facts 
prove  this  a  point  of  rendezvous  for 
these  parties.  They  show  Brown 
Street  to  have  been  the  place  for 
consultation,  and  observation  ;  and 
to  this  purpose  it  was  well  suited.    - 

Mr.  Burns's  testimony  is  also  im- 
portant. What  was  the  defendant's 
object,  in  his  private  conversation 
with  Burns  ?  He  knew  that  Burns 
was  out  that  night;  that  he  li\ed 
near  Brown  Street,  and  that  he  had 
prol)ably  seen  him  ;  and  he  wished 
him  to  say  nothing.  He  said  to 
Burns,  "  if  you  saw  any  of  your 
friends  out  that  night,  say  nothing 
about  it ;  my  brother  Jo.  and  I  are 
your  friends."  This  is  plain  proof, 
that  he  wished  to  say  to  him.  if 
you  saw  me  in  Brown  Street  that 
night,  say  nothing  about  it. 

But  it  is  said  tliat  Burns  ought  not 
to  be  believed  l)ecause  he  mistook 
the  color  of  the  dagger,  and  i)ecause 
he  has  varied  in  his  description  of  it. 
These   are   slight  ■ciniim-i:m. •.•-<.    if 


1160 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


his  general  character  be  good.  To 
my  mind  they  are  of  no  importance. 
It  is  for  you  to  make  what  deduction 
you  may  think  proper  on  this  ac- 
count from  the  weight  of  his  evitlence. 
His  conversation  with  Burns,  if 
Burns  is  believed,  shows  two  things  ; 
first,  that  he  desired  Burns  not  to 
mention  it,  if  he  had  seen  him  on 
the  night  of  the  murder;  second, 
that  he  wished  to  fix  the  charge  of 
murder  on  Mr.  Stephen  White. 
Both  of  these  prove  his  own 
guilt. 

I  think  you  will  be  of  opinion. 
Gentlemen,  that  Brown  Street  was 
a  probable  place  for  the  conspirators 
to  assemble,  and  for  an  aid  to  be. 
If  we  knew  their  whole  plan  —  and 
if  we  were  skilled  to  judge  in  such 
a  case,  then  we  could  perhaps  de- 
termine on  this  point  better.  But 
it  is  a  retired  place,  and  still  com- 
mands a  full  view  of  the  house ;  — 
a  lonely  place,  but  still  a  place  of 
observation.  Not  so  lonely  that 
a  person  would  excite  suspicion  to 
be  seen  walking  there  in  an  ordinary 
manner ;  —  not  so  public  as  to  be 
noticed  by  many.  It  is  near  enough 
to  the  scene  of  action  in  point  of 
law.  It  was  their  point  of  cen- 
trality.  The  club  was  found  near 
the  spot  —  in  a  place  provided  for 
it  —  in  a  place  that  had  been  pre- 
viously hunted  out  —  in  a  con- 
certed place  of  concealment.  —  Here 
was  their  point  of  rendezvous.  — 
Here  might  the  lights  be  seen.  — 
Here  might  an  aid  be  secreted.  — 
Here  was  he  within  call.  —  Here 
might  he  be  aroused  })y  the  sound  of 
the  whistle.  —  Here  might  he  carry 
the  weapon.  —  Here  might  he  receive 
the  murderer,  after  the  murder. 

Then,  Gentlemen,  the  general 
question  occurs,  is  it  satisfactorily 
proved,  by  all  these  facts  and  cir- 
cumstances, that  the  defendant  was 
in  and  about  Brown  Street,  on  the 
night  of  the  murder  ?  —  Consider- 
ing, that  the  murder  was  effected 
by  a  conspiracy  ;  —  considering,  that 
he  was  one  of  the  four  conspirators ; 
—  considering,  that  two  of  the  con- 


spirators have  accounted  for  them- 
selves, on  the  night  of  the  murder, 
and  were  not  in  Brown  Street ;  — 
considering  that  the  Prisoner  does 
not  account  for  himself,  nor  show 
where  he  was  ;  —  considering  that 
Richard  Crowninshield,  the  other 
conspirator,  and  the  perpetrator,  is 
not  accounted  for,  nor  shown  to  be 
elsewhere  ;  —  considering,  that  it  is 
now  past  all  doubt  that  two  persons 
were  seen  in  and  about  Brown  Street 
at  different  times,  lurking,  avoiding 
ol)servation,  and  exciting  so  much 
suspicion  that  the  neighbors  actually 
watched  them  ;  —  considering,  that 
if  these  persons,  thus  lurking  in 
Brown  Street,  at  that  hour,  were  not 
the  murderers,  it  remains,  to  this 
day,  wholly  unknown  who  they  were, 
or  what  their  business  was  ;  —  con- 
sidering the  testimony  of  Miss 
Jaqueth,  and  that  the  club  was  after- 
wards found  near  this  place  —  con- 
sidering, finally,  that  Webster  and 
Southwick  saw  these  persons,  and 
then  took  one  of  them  for  the  de- 
fendant, and  that  Southwick  then 
told  his  wife  so,  and  that  Bray  and 
Mirick  examined  them  closely,  and 
now  swear  to  their  belief  that  the 
prisoner  was  one  of  them  ;  it  is  for 
you  to  say,  putting  these  considera- 
tions together,  whether  you  believe 
the  prisoner  was  actually  in  Brown 
Street,  at  the  time  of  the  murder.  .  .  . 
Now,  it  is  obvious,  that  there  are 
many  purposes,  for  which  he  might 
be  in  Brown  Street. 

1.  Richard  Crowninshield  might 
have  been  secreted  in  the  garden,  and 
waiting  for  a  signal. 

2.  Or  he  might  be  in  Brown 
Street,  to  advise  him  as  to  the  time 
of  making  his  entry  into  the  house. 

3.  Or  to  favor  his  escape. 

4.  Or  to  see  if  the  street  was  clear 
when  he  came  out. 

5.  Or  to  conceal  the  weapon,  or 
the  clothes. 

6.  To  be  ready  for  any  other  un- 
foreseen contingency. 

Richard  Crowninshield  lived  in 
Danvers  —  he  would  retire  the  most 
secret  way.     Brown   Street  is  that 


No.  393. 


KNAPP  S    TRIAL 


way.  —  If  you  find   him  there,  can 
you  doubt,  why  he  was  there  ! 

If,  Gentlemen,  the  Prisoner  went 
into  Brown  Street,  by  appointment 
with  the  perpetrator,  to  render  aid 
or  encouragement,  in  any  of  tliese 
ways,  he  was  present,  in  legal  con- 
templation, aiding  and  abetting,  in 
this  murder.   .   .   . 

I  now  proceed,  Gentlemen,  to 
the  consideration  of  the  testimony 
of  Mr.  Colman.  Although  this  evi- 
dence bears  on  every  materia!  part 
of  the  cause,  I  have  purposely  avoided 
every  comment  on  it,  till  the  present 
moment,  when  I  have  done  with 
the  other  evidence  in  the  case.  ,  .  . 

Who  is  Mr.  Colman  ?  He  is  an 
intelligent,  accurate,  and  cautious 
witness.  A  gentleman  of  high  and 
well-known  character ;  and  of  un- 
questionable veracity.  As  a  clergy- 
man, highly  respectable ;  as  a  man, 
of  fair  name  and  fame. 

Why  was  Mr.  Colman  with  the 
prisoner  ?  Joseph  J.  Knapp  was 
his  parishioner.  He  was  the  head 
of  a  family,  and  had  been  married 
by  Mr.  Colman.  The  interests  of 
his  family  were  dear  to  him.  He 
felt  for  their  afflictions,  and  was 
anxious  to  alleviate  their  sufferings. 
He  went  from  the  purest  and  best 
motives  to  visit  Joseph  Knapp.  He 
came  to  save,  not  to  destroy  —  to 
rescue,  not  to  take  away  life.  In 
this  family  he  thought  there  might  be 
a  chance  to  save  one.  It  is  a  miscon- 
struction of  Mr.  Colman's  motives, 
at  once  the  most  strange  and  the 
most  uncharitable,  a  perversion  of  all 
just  views  of  his  conduct  and  in- 
tentions, the  most  unaccountable, 
to  represent  him  as  acting,  on  this 
occasion,  in  hostility  to  any  one, 
or  as  desirous  of  injuring  or  en- 
dangering any  one.  He  has  stated 
his  own  motives,  and  his  own  con- 
duct, in  a  manner  to  command  uni- 
versal belief,  and  universal  respect. 
For  intelligence,  for  consistency,  for 
accuracy,  for  caution,  for  candor, 
never  did  witness  acquit  himself 
better,  or  stand  fairer.  In  all  that 
he  did,  as  a  man,  and  all  he  has  said. 


as  a  witness,  he  has  shown  himself 
worthy  of  entire  regard. 

Now,  Gentlemen,  very  important 
confessions,  made  by  the  prisoner, 
are  sworn  to  by  Mr.  Colman.  They 
were  made  in  the  prisoner's  cell, 
where  Mr.  Colman  had  gone,  witli 
the  prisoner's  brother,  X.  P.  Knapp. 
Whatever  conversation  took  place, 
was  in  the  presence  of  N.  P.  Knapp. 
Now,  on  the  part  of  the  prisoner, 
t^yo  things  are  asserted ;  first,  that 
such  inducements  were  suggested  to 
the  prisoner,  in  this  interview,  that 
any  confessions  l)y  him  ought  n(jt  to 
be  received.  —  Second,  that,  in  point 
of  fact,  he  made  no  such  confessions, 
as  Mr.  Colman  testifies  l,j,  nor,  in- 
deed, any  confessions  at  all.  These 
two  propositions  are  attempted  to 
be  supported  by  the  testimony  of 
N.  P.  Knapp.  These  two  witnesses, 
Mr.  Colman  and  N.  P.  Knapp,  differ 
entirely.  There  is  no  possibility 
of  reconciling  them.  No  charity 
can  cover  both.  One  or  the  other 
has  sworn  falsely.  If  N.  P.  Knapp 
be  believed,  Mr.  Colman's  testimony 
must  be  wholly  disregarded.  It  is, 
then,  a  question  of  credit,  a  ques- 
tion of  belief,  between  the  two  wit- 
nesses. As  you  decide  between 
these,  so  you  will  decide  on  all  this 
part  of  the  case. 

Mr.  Colman  has  given  you  a  plain 
narrative,  a  consistent  account,  an<i 
has  uniformly  stated  the  same 
things.  He  is  not  contradicted  by 
anything  in  the  case,  except  Phip- 
pcn  Knapp.  He  is  infiuenced  as  far 
as  we  can  see  by  no  bias,  or  prejudice, 
any  more  than  other  men,  except  so 
far  as  his  character  is  now  at  stake. 
He  has  feelings  on  this  point  doubt- 
less, and -ought  to  have.  If  what 
he  has  stated  be  not  true,  I  camiot 
see  any  ground  for  his  escape.  If 
he  be  a  true  man,  he  must  have 
heard  what  he  testifies.  No  treacluTV 
of  memory  brings  to  memory  things 
that  never  took  place.  There  is  no 
reconciling  his  evidence  with  good 
intention,  if  the  facts  are  not  as  he 
states  them.  He  is  on  trial,  as  to 
his  veracitv. 


1162 


PART    III.       PROBLEMS    OF    PROOF 


No.  3f)3. 


The  relation  in  which  the  other 
witness  stands  deserves  your  care- 
ful consideration.  He  is  a  member 
of  the  family.  He  has  the  lives  of 
two  brothers,  depending,  as  he  may 
think,  on  the  efl'ect  of  his  evidence ; 

—  depending,  on  every  word  he 
speaks.  .  .  .  Compare  the  situation 
of  these  two  witnesses.  Do  you  not 
see  mighty  motive  enough  on  the 
one  side,  —  and  want  of  all  motive 
on  the  other  ?  I  would  gladly  find 
an  apology  for  that  witness,  in  his 
agonized  feelings,  —  in  his  distressed 
situation  ;  -^  in  the  agitation  of  that 
hour,  or  of  this.  I  would  gladly 
impute  it  to  error,  or  to  want  of 
recollection,  to  confusion  of  mind, 
or  disturbance  of  feeling.  —  I  would 
gladly  impute  to  any  pardonable 
source,  that  which  cannot  be  rec- 
onciled to  facts,  and  to  truths ; 
but,  even  in  a  case  calling  for  so 
much  sympathy,  justice  must  yet 
prevail,  and  we  must  come  to  the 
conclusion,  however  reluctantly, 
which  that  demands  from  us.  .  .   . 

Again.  ^Ye  know  that  Mr.  Col- 
man  found  the  cluh  the  next  day  — 
that  he  went  directly  to  the  place 
of  deposit,  and  found  it  at  the  first 
attempt,  —  exactly  where  he  says 
he  had  been  informed  it  was.  Now 
Phippen  Knapp  says  that  Frank 
had  stated  nothing  respecting  the 
club  —  that  it  was  not  mentioned 
in  that  conversation.  He  says,  also, 
that  he  was  present  in  the  cell  of 
Joseph  all  the  time  that  Mr.  Colman 
was  there  —  that  he  belie\es  he 
heard  all  that  was  said  in  Joseph's 
cell  —  and  that  he  did  not  himself 
know  where  the  club  was  —  and 
never  had  known  where  it  was,  until 
he  heard  it  stated  in  Court.  Now, 
it  is  certain  that  Mr.  Colman  says, 
he  did  not  learn  the  particular  place 
of  deposit  of  the  club  from  Joseph  — 
that  he  only  learned  from  him  that 
it  was  deposited  under  the  steps 
of  the  Howard  Street  Meeting-house, 
without  defining  the  particular  steps 

—  it  is  certain,  also,  that  he  had 
more  knowledge  of  the  position  of 
the    club,    than     this  —  else    how 


could  he  have  placed  his  hand  on  it 
so  readily  '!  —  and  where  else  could 
he  have  obtained  this  knowledge, 
except  from  Frank  ?  (Here  Mr. 
Dexter  said  that  Mr.  Colman  had 
had  other  interviews  with  Joseph, 
and  might  have  derived  the  infor- 
mation from  him  at  previous  visits. 
IVIr.  Webster  replied,  that  Mr.  Col- 
man had  testified  that  he  learned 
nothing  in  relation  to  the  club 
until  his  visit.  Mr.  Dexter  denied 
there  being  any  such  testimony. 
Mr.  Colman's  evidence  was  then 
read  from  the  notes  of  the  judges, 
and  several  other  persons,  and  Mr. 
Webster  then  proceeded)  —  My 
point  is,  to  show  that  Phippen 
Knapp's  story  is  not  true,  is  not 
consistent  Avith  itself.  That  taking 
it  for  granted,  as  he  says,  that  he 
heard  all  that  was  said  to  Mr. 
Colman  in  both  cells,  b}'  Joseph,  and 
by  Frank  —  and  that  Joseph  did 
not  state  particularly  where  the  club 
was  deposited  —  and  that  he  knew 
as  much  about  the  place  of  deposit 
of  the  club,  as  INIr.  Colman  knew  — 
why  then,  Mr.  Colman  must  either 
have  been  miraculously  informed  re- 
specting the  clul),  or  Phippen  Knapp 
has  not  told  you  the  whole  truth. 
There  is  no  reconciling  this  without 
supposing  Mr.  Colman  has  misrep- 
resented, what  took  place  in  Joseph's 
cell,  as  well  as  what  took  place  in 
Frank's  cell. 

Again.  Phippen  Knapp  is  directly 
contradicted  by  Mr.  Wheatland. 
]\Ir.  Wheatland  tells  the  same  story 
as  coming  from  Phippen  Knapp,  as 
Mr.  Colman  now  tells.  Here  there  are 
two  against  one.  Phippen  Knapp 
says  that  Frank  made  no  con- 
fessions, and  that  he  said  he  had 
none  to  make.  In  this  he  is  con- 
tradicted by  Wheatland.  He,  Phip- 
pen Knapp,  told  Wheatland,  that 
Mr.  Colman  did  ask  Frank  some 
cjuestions,  and  that  Frank  answered 
them.  He  told  him  also  what  these 
answers  were.  Wheatland  does  not 
recollect  the  questions  or  answers  — 
but  recollects  his  reply  —  which  was, 
"Is  not  this  premature f  "  —  I  think 


No.  393. 


KNAPP's   TRIAL 


11  (;3 


this  answer  is  sufficient  to  make 
Frank  a  principal.  Here  Phippen 
Knapp  opposes  himself  to  Wheat- 
land, as  well  as  to  Mr.  Colman.  Do 
you  believe  Phippen  Knapp  against 
these  two  respectable  witnesses  — 
or  them  against  him  ? 

Is  not  Mr.  Colman's  testimony 
credible,  natural,  and  proper  ?  To 
judge  of  this,  you  must  go  back  to 
that  scene. 

The  murder  had  been  committed 
— the  two  Knapps  were  now  arrested 

—  four  persons  were  already  in  gaol 
supposed  to  be  concerned  in  it  — 
the  Crowninshields  and  Selman  and 
Chase  —  another  person  at  the  east- 
ward was  supposed  to  be  in  the  plot 

—  it  was  important  to  learn  the 
facts  —  to  do  this,  some  one  of  those 
suspected  must  be  admitted  to  turn 
State's  Witness  —  the  contest  was, 
who  should  have  this  privilege  f  .  .  . 
He  then  went  to  Joseph's  cell,  and 
while  there  it  was  that  the  dis- 
closures were  made.  .  .  .  He  was  in- 
credulous as  to  some  of  the  facts 
which  he  had  learned  —  they  were 
so  different  from  his  pre\^ious  im- 
pressions. He  was  desirous  of  know- 
ing whether  he  could  place  confidence 
in  what  Joseph  had  told  him  — 
he  therefore  put  the  questions  to 
Frank,  as  he  has  testified  before  you, 
in  answer  to  which  Frank  Knapp  in- 
formed him, 

1.  "That  the  murder  took  place 
between  10  and  11  o'clock." 

2.  "That  Richard  Crowninshield 
was  alone  in  the  house." 

3.  "  That  he,  Frank  Knapp,  went 
home  afterwards." 

4.  "That  the  club  was  deposited 
under  the  steps  of  the  Howard  Street 
Meeting-house  —  and  under  the 
part  nearest  the  burying  ground,  in 
a  rat  hole,  etc." 

5.  "That  the  dagger  or  daggers 
had  been  worked  up  at  the  Factory." 

It  is  said  that  the.se  five  answers 
just  fit  the  case  —  that  they  are  just 
what  was  wanted,  and  neither  more 
or  less.  True  they  are  —  but  the 
reason  is,  because  truth  always  fits 

—  truth  is   always  congruous,   and 


agrees  with  itself.  Every  truth  in 
the  universe  agrees  with  every  otlicr 
truth  in  the  universe,  whereas  false- 
hoods not  only  disagree  with  truths, 
but  usually  c|uarrel  among  tlu-in- 
selves.  Surely  Mr.  Colman  is  in- 
fluenced by  no  I)ias  —  no  prejudice 
—  he  has  no  feelings  to  warj)  him  — 
e.v'cept  now  he  is  contradicted,  he 
may  feel  an  interest  to  be  believed. 

If  you  believe  Mr.  Colman,  then 
the  evidence  is  fairly  in  the  case. 

I  shall  now  proceed  on  the  ground 
that  you  do  believe  Mr.  Colman.  .  .  . 

The  defendant  said,  "he  told 
Joseph  when  he  propo.sed  it,  that  it 
was  a  silly  business,  and  would  get 
us  into  trouble."  —  He  knew,  then, 
what  this  business  was.  .  .  . 

He  knew  the  daggers  had  been 
destroyed  —  and  he  knew  who  com- 
mitted the  murder.  How  could  he 
have  innocently  known  these  facts? 
Why  —  if  by  Richard's  story,  this 
shows  him  guilty  of  a  knowledge 
of  the  murder,  and  of  the  conspiracy. 
More  than  all  he  knew  when  the  deed 
was  done,  and  that  he  went  home 
afterwards..  This  shows  his  partici- 
pation in  that  deed  —  "went  home 
afterwards"  —  home,  from  what 
■scene? —  home,  from  what  fact?  — 
home,  from  ivhat  trariiiaction  f  — 
home,  from  what  place?  This  con- 
firms the  supposition  that  the  pris- 
oner was  in  Brown  Street  for  the 
purpo.ses  ascribed  to  him.  .  .  .  Then 
comes  the  club.      He   told  where  it 


Joseph  Kna{)p  was  an  accessory, 
and  acces.soiy  only  —  he  knew  only 
what  was  told  him.  But  the  pris- 
oner knew  the  particular  spot  in 
which  the  club  might  be  found. 
This  shows  his  knowledge  something 
more  than  that  of  an  accessory.  .  .  . 

Gentlemen  —  Your  whole  concern 
should  be  to  do  your  duty,  and  lea\e 
consequences  to  take  care  of  tiieni- 
selves.  .  .  . 

A  sense  of  duty  pursues  us  ever. 
It  isoinnijiresent,  like  the  Deity.  If 
we  takj'  toourselv(>s  the  wings  of  the 
morning  and  dwell  in  the  utt'Tuiost 
parts  of  till-  >fa>,  (liii\  perfoniied.  or 


1164 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


(hity  violated,  is  still  with  us,  for 
our  happiness,  or  our  misery.  If  we 
say  the  darkness  shall  co\er  us,  in 
the  darkness  as  in  the  light,  our 
obligations  are  yet  with  us.  We 
cannot  escape  their  power,  nor  fly 
from  their  presence.  They  are  wath 
us  in  this  life,  will  be  with  us  at  its 
close,  and  in  that  scene  of  incon- 
ceivable solemnity,  which  lies  yet 
farther  onward  —  we  shall  still  find 
ourselves  sun'ounded  by  the  con- 
sciousness of  duty,  to  pain  us,  wher- 
ever it  has  been  violated,  and  to 
console  us  so  far  as  God  may  have 
given  us  grace  to  perform  it. 

The  Prisoner  was  then  inquired 
of  by  the  Court  whether  he  had  any- 
thing further  to  add  to  the  defense 
made  by  his  Counsel,  to  wdiich  he  re- 
plied, "  I  have  nothing  more  to  say." 

Judge  Putnam  charged  the  Jury  : 

Gentlemen  of  the  Jury,  The 
Prisoner  at  the  bar  stands  accused 
by  the  Grand  Jury  of  this  County 
of  the  crime  of  murder  —  as  prin- 
cipal in  the  second  degree.  .  .  . 

If  the  abettor  at  the  time  of 
the  commission  of  the  crime,  were 
assenting  to  the  murder  —  and  in  a 
situation  where  he  might  render 
some  aid  to  the  perpetrator  —  ready 
to  give  it  if  necessary  —  according 
to  an  appointment  or  agreement  with 
him,  for  that  purpose  —  he  would, 
in  the  judgment  of  the  law,  be  pres- 
ent and  aiding  in  the  commission 
of  the  crime.  .  .  . 

The  murder  having  been  proved, 
the  next  question  is  if  the  Prisoner 
were,  in  the  sense  of  the  law  as  it 
has  been  explained  and  declared, 
■prrsent  aiding  and  abetting.  The 
Government  contends,  that  the  evi- 
dence proves  that  Richard  Crownin- 
shield,  jr.,  was  the  perpetrator  of  the 
deed ;  so  that  the  question  is  nar- 
rowed —  and  you  are  to  consider 
if  the  Prisoner  were  present,  aiding 
and  assisting  Richard  Crowninshield, 
jr.,  to  commit  the  murder?  .  .  . 

The  first  witness  who  was  called 
to  prove  the  conspiracy  was  Leigh- 
ton,  who  swears  to  a  most  remark- 


able conversation  between  the  pris- 
oner and  his  brother  Joseph.  He 
seems  to  have  heard  just  enough  to 
prove  the  fact,  and  it  seems  not  to 
be  susceptible  of  much,  if  any  ex- 
planation. But  you  saw,  that  his 
appearance  and  manner  of  testify- 
ing was  somewhat  extraordinary, 
and  that  he  has  not  been  consistent 
in  regard  to  his  knowledge  upon  this 
matter.  You  are  the  judges  of  the 
credil>ility  of  the  witnesses  who  are 
permitted  by  the  rules  of  the  law  to 
testify  in  the  case.  It  does  not 
appear  that  this  Avitness  had  ever 
been  impeached  on  account  of  his 
general  bad  character  for  truth. 
But  if  the  facts  and  circumstances 
Avhich  he  relates,  were  so  unlikely 
to  take  place  and  so  improbable  as 
to  induce  you  to  doubt  of  their  truth, 
you  will  not  depend  upon  them. 
The  contradictory  statements  he 
has  made  upon  the  matter  w^ill  also 
be  taken  into  your  consideration. 
If,  however,  you  believe  the  con\-er- 
sation  to  have  been  as  he  sw^ears  it 
was,  it  goes  very  clearly  to  fix  the 
conspiracy  upon  the  prisoner,  his 
brother  Joseph, 'and  Richard  Crown- 
inshield, jr.  [States  Leighton's  tes- 
timony.] 

It  is  for  you  to  consider  under 
what  circumstances  these  words 
were  uttered.  Would  a  conversation 
of  this  nature  have  been  delayed  so 
long  ?  They  had  been  together  for 
some  hours  before,  walking  about  in 
the  fields.  This  seems  to  be  the 
beginning  of  a  conversation  upon 
that  subject,  which  must  Irdxe  been 
uppermost  in  their  minds.  Would 
it  have  been  so  long  deferred  ? 

It  is  contended  on  the  part  of  the 
Government  that  nothing  which  was 
said  before  or  after,  can  take  away 
the  force  of  the  words.  They  must 
refer  to  Capt.  White  and  to 
Richard  CrowMiinshield,  jr.,  and  to 
the  thousand  dollars,  (^onsider  the 
excuse  which  the  witness  offers  for 
his  contradictory  statements.  "He 
was  frightened,  and  could  not  rec- 
ollect anything  about  it."  This 
was    most    extraordinary    conduct. 


No.  393. 


KXAPP  S    TRIAL 


11(15 


But  it  is  contended  for  the  prisoner 
that  one  part  of  tlie  story  cannot  be 
true  —  that  he  heard  their  con- 
versation when  they  were  twenty- 
five  rods  off.  You  must  judge 
whether  the  witness  was  mistaken 
merely  in  regard  to  the  distance. 
But  he  swears  that  he  was  within 
a  few  feet  when  they  had  the  con- 
versation which  is  so  material  in 
this  case.  In  that  he  cannot  be 
mistaken.  If  he  speaks  the  truth 
he  was  near  enough  to  hear  dis- 
tinctly what  they  said.  If  they  did 
not  speak  the  words,  the  witness 
must  be  corrupt  or  perjured.  But 
what  motive  is  there  to  induce  him 
to  give  this  evidence  if  it  be  not  true  ? 
If  he  has  been  bribed,  who  bribed 
him  ?  He  has  been  in  the  employ- 
ment of  the  brother  of  the  prisoner, 
and  still  remains  upon  the  farm. 

The  next  witness  is  Palmer,  who 
from  his  own  account  and  the  other 
evidence  is  probably  one  of  the  most 
corrupt  of  men.  He  has  been  con- 
victed in  Maine  of  an  infamous 
crime,  and  would  be  an  incompetent 
witness  in  that  State.  But  his  con- 
viction there  does  not  render  him 
incompetent  here.  He  is  a  legal 
witness,  whose  credibility  is  to  be 
weighed  by  the  Jury.  [States  his 
evidence.]  This  story  seems  hardly 
credible,  and  would  be  disregarded 
if  it  were  not  confirmed  by  other 
evidence  in  the  case.  The  murder 
has  been  committed.  It  is  proved 
that  Mr.  White  was  at  his  farm  with 
and  horse  wagon  and  returned  in 
it  alone,  at  the  time  that  Palmer 
swears  it  was  proposed  to  upset  him 
and  kill  him.  The  housekeeper 
was  to  be  absent.  It  is  proved  that 
she  was  absent  at  the  time  of  the 
murder.  It  does  not  follow,  that 
because  a  man  is  of  infamous  char- 
acter, he  cannot  speak  the  truth. 
If  his  testimony  is  corroborated  by 
other  facts  pro\ed,  it  may  be  be- 
lieved, notwithstanding  it  comes 
from  an  infamous  source.  There 
is  evidence,  that  the  Prisoner  said, 
that  the  thing  was  done  for  Joseph's 
benefit.     You    will    judge    whether 


that  statement  does  not  strongly  sup- 
port the  testimony  of  Piihiier.  Tlic 
frequent  visits  of  the  prisoner  to 
the  Crowninsliields  are  of  tlie  .sunie 
tendency.  Do  you  bclirve  li(>  went 
there  for  social  interc-ourse,  or  that 
he  was  there,  procuring  tiie  murder 
to  be  conunitted.  Tlie  declaration 
which  Mr.  ("ohnan  swears  the  pris- 
oner made,  that  the  thing  was  done 
for  Joseph's  benefit,  is  urged  as 
strong  proof  of  the  conspiracy-,  and 
that  the  pri.soner  was  one  of  the  con- 
spirators. The  ])risoncr  said.  "  I 
told  Joseph,  when  he  jjroposcd  it, 
that  it  was  a  silly  business,  and 
would  only  get  us  into  difliculty." 
To  what  thing  did  the  jjrisoner  refer 
unless  to  the  proposal  to  murder  Mr. 
White.  Before  he  made  that  state- 
ment, that  subject  had  Ijeen  dis- 
tinctly presented  to  his  mind.  He 
was  informed  that  Joseph  had  de- 
termined to  make  a  confession,  and 
wanted  the  prisoner's  consent.  They 
both  knew  to  what  subject  that  con- 
fession was  to  relate.  .Vnd  it  is  to 
be  recollected  that  this  declaration 
was  before  any  suggestion  had  been 
made  to  the  pri.soner  of  any  bj'uefit 
or  fa\or  from  any  course  which  the 
prisoner  might  pursue. 

There  are  various  other  circum- 
stances proved  in  the  case,  tending 
to  establish  the  points  now  under 
consideration,  to  which  I  would  re- 
fer you  without  particularly  stating 
them.  .  .  . 

This  leads  you  to  the  (piestion  — 
Was  he  present,  and  if  so,  with  what 
intent  '! 

The  Goveriunent  conteml  u{)on 
the  evidence  that  the  pri.soner  was 
in  Brown  Street  at  the  time  that  the 
murder  was  committed;  viz.  at 
about  half  past  10  o'clock,  and  that 
he  had  been  near  to  that  part  of 
Brown  Street  which  opens  into 
Howard  Street,  for  some  hours 
before,  on  that  evening.  They  con- 
tend that  he  was  either  at  the  corner 
of  Brown  and  Newi)ury  stre<'ts.  or 
in  Howard  Street,  or  in  Brown  Stn'et 
a  little  to  the  westward  of  Howard 
."-Street,     from     aI>ont     half     pa>t     S 


1166 


PART    III.       PROBLEMS    OF    PROOF 


No.  393. 


o'clock,  until  the  perpetrator  met 
him  in  Brown  Street  after  the  mur- 
der, between  half  past  10  and  11 
o'clock,  when,  after  a  short  inter- 
view, they  separated.  [States  the 
evidence  given  by  Mirick,  Webster, 
Southwick,  and  Bray.] 

Upon  the  point  now  under  con- 
sideration the  jury  should  recollect 
the  difficulty  of  identifying  persons, 
especially  in  the  evening.  It  was 
for  the  Government  to  prove  the 
fact  of  presence.  It  is  but  fair  that 
the  prisoner  should  have  the  ad\an- 
tage  arising  from  the  difficulty  of 
proving  in  the  night  time,  that  he 
was  in  the  places  where  they  contend 
he  was  seen  by  these  witnesses. 
The  state  of  the  weather  and  at- 
mosphere is  however  to  be  con- 
sidered ;  some  witnesses,  Mr.  Chad- 
wick,  and  Mr.  Saltonstall,  speak  of 
it.  The  moon  was  obscured  by 
passing  clouds,  yet  it  was  so  light 
that  Mr.  Chadwick  recognized  the 
two  Messrs.  Saltonstalls  about  three 
rods  off,  and  ]Mr.  Saltonstall  thinks 
persons  of  Nour  acquaintance  could 
be  seen  and  known  at  considerable 
distance.  Consider  also  the  op- 
portunity which  the  witnesses  had 
of  knowing  the  prisoner.  They 
did  not  hear  him  speak,  but  Mr. 
"Webster  says  he  knew  him  well  and 
passed  him  wnthin  six  or  eight  feet, 
that  he  thought  at  the  time  it  was 
the  prisoner,  judging  from  his  walk 
and  appearance.  He  thinks  now 
that  it  was  the  prisoner,  but  will 
not  swear  positively  to  the  fact. 

But  the  dress  of  the  person  de- 
scribed by  Mirick  and  Bray,  is  not 
like  that  worn  by  the  person  seen 
by  Webster,  or  Southwick.  Mirick 
and  Bray  describe  him  as  wearing  a 
dark  frock  coat  and  glazed  cap, 
corresponding  with  the  dress  usually 
worn  by  the  prisoner.  Webster 
says  he  had  a  cloak  or  wrapper  on, 
and  Southwick  says  that  the  pris- 
oner had  a  cloak  on,  when  he  was  in 
Brown  Street  on  the  steps  of  the 
rope  walk. 

The  Government  suggests  that  the 
prisoner    couUl    easily    change    his 


apparel,  for  the  purpose  of  disguis- 
ing his  person,  when  engaged  in 
such  a  criminal  design. 

Mr.  Southwick  speaks  of  the 
identity  of  the  prisoner  with  con- 
siderable confidence.  But  there  is 
a  fact  proved  in  the  case  which  has 
a  strong  tendency  to  impair  the 
weight  of  his  testimony.  He  was 
a  witness  before  the  Grand  Jury 
at  the  last  term  of  this  Court,  when 
there  was  an  inquiry  as  to  the  sup- 
posed guilt  of  Mr.  Selman,  and  Mr. 
Southwick  stated  that  the  person 
whom  he  saw  upon  the  steps  was 
about  the  size  of  Selman.  That 
might  be  so.  But  the  witness  knew 
as  much  about  the  matter  then  as  he 
does  now,  and  did  not  state  to  the 
Grand  Jury  that  it  was  Frank  Knapp 
who  was  on  the  steps.  His  evidence 
then  had  a  tendency  to  prove  that 
it  was  Selman  whom  he  saw  on  the 
steps.  You  will  judge  whether  this 
ought  not  somewhat  to  detract  from 
the  testimony  which  he  has  now 
given.  If  he  then  thought  it  was 
the  prisoner,  how  could  he  as  an 
honest  witness  leave  the  impression 
on  the  Grand  Jury,  that  it  was  Sel- 
man. If  his  testimony  on  this  trial 
were  not  confirmed  by  the  declara- 
tion that  he  made  at  the  time  to  his 
wife  that  it  was  the  prisoner  whom  he 
saw  on  the  steps,  the  Jury  probably 
would  not  be  disposed  greatly  to 
rely  upon  it.  But  she  states,  that 
he  did  tell  her  when  he  came  into 
the  house  on  that  evening  that  "  it 
was  Frank  Knapp." 

It  has  l)een  contended  in  behalf  of 
the  prisoner  that  the  testimony  of 
Mr.  Bray  is  so  much  stronger  upon 
this  than  upon  the  former  trial,  as  to 
be  considered  contradictory.  The 
appearance  of  the  witness,  and  his 
manner  are  to  be  consiflered  by 
the  Jury.  He  states  now  that  he  has 
no  doubt  but  that  it  was  the  prisoner 
wli(im  he  saw,  and  he  did  not  say  so 
before ;  but  it  should  be  recollected 
that  the  question  was  not  put  to 
him  before.  He  does  not  now  un- 
dertake to  swear  positively  as  to 
his   identity.     He  says   he  has   re- 


No.  393. 


KNAPP  S   TRIAL 


iio: 


fleeted  upon  the  subject  since  his 
former  evidence,  and  he  gives  you 
the  reasons  which  have  inchicedhini 
to  form  the  opinion  which  he  has 
expressed. 

But  the  Counsel  for  the  prisoner 
contend  that  all  these  witnesses 
who  are  called  to  prove  that  he  was 
in  Brown  Street,  must  be  mistaken, 
because  (as  they  say),  the  prisoner, 
was  in  another  place,  and  they  refer 
you  to  the  testimony  of  four  young 
gentlemen,  viz. :  —  Messrs.  Balch, 
Burchmore,  Forrester,  and  Page,  as 
well  as  to  Mr.  Knapp,  sen.,  and  Sam- 
uel and  Phippen  Knapp,  to  prove  the 
alibi.     [States  their  evidence.] 

The  time  embraced  by  the  four 
witnesses  is  from  about  seven  until 
near  ten,  and  by  the  three  last,  from 
at  five  minutes  after  ten,  until  he 
went  to  bed  ;  and  if  they  are  not 
mistaken  in  the  night,  and  the  father 
and  his  sons  who  ha\'e  testified  are 
not  mistaken  in  regard  to  the  facts 
of  which  they  speak,  the  alibi  would 
seem  to  be  proved. 

The  burthen  of  proof  is  upon  the 
party  who  would  establish  the  alibi. 
You  must  determine  whether  it  was 
on  the  evening  of  the  murder  that 
these  young  men  were  with  the 
prisoner  —  or  on  some  other  even- 
ing near  that  time.  There  is  one 
fact  mentioned  by  Balch,  upon 
which  the  Government  much  rely, 
to  show  that  it  was  not  on  the  Gth, 
which  was  the  night  of  the  murder, 
but  on  the  3d,  the  Saturday  night 
before.  He  stated,  that  the  pris- 
oner told  them  that  he  was  going 
to  ride  out  of  town  on  horseback, 
and  was  going  to  Osborn's  to  get  his 
horse.  And  when  he  came  back 
he  said  he  had  been  out  of  town, 
and  that  it  was  "about  a  twenty 
minutes  ride."  There  is  a  charge 
for  a  ride  on  horseback  on  the  3d  — 
but  none  on  the  Gth.  I  would  refer 
you  to  the  testimony  of  the  young 
men,  and  particularly  to  their  cross- 
examination,  and  have  the  whole 
to  be  weighed  by  you. 

In  regard  to  the  testimony  of  the 
father  —  can  vou  doubt  that  he  is 


mistaken?  I  refer  you  to  (h«-  testi- 
mony of  Mr.  Shepard,  and  of  Mr. 
Treadwell  upon  this  point.  ilc 
stated  to  them  that  lie  did  not  know 
at  what  hour  Frank  came  home  on 
that  night.  He  spoke  to  Mr.  Shep- 
ard,   not   of    his   own    knowK-dgc 

but  of  what  "  Pliii)pen  had  told  iiim." 
Does  he  know  more  al>out  it,  than 
he  did  when  he  had  the  conversation 
with  those  gentlemen '(  \a\\  imist 
consider  the  testimony  of  Samuel 
Knapp  in  connection  with  the  con- 
tradictory evidence  given  by  Mr. 
Webb ;  and  the  testimony  of  Phip- 
pen Knapp  in  connection  with  the 
contradictory  e\idence  in  the  ease, 
to  which  I  will  now  more  partic- 
ularly refer  you   .... 

If  you  believe  Mr.  < 'olinan.  there 
is  evidence  from  the  prisoner  him- 
self, that  he  was  not  at  home  at 
the  time  of  the  murder,  but  went 
home  afterwards.  That  he  knew; 
who  was  the  perpetrator  —  the 
weapons  which  he  used  —  the  par- 
ticular place  of  concealment  of  one 
and  destruction  of  the  other,  and 
the  time  when  the  deed  was  done. — 
Did  the  prisoner  l)ear  a  part  in  it  ? 
Could  he  know  these  circumstances 
without  having  his  knowledge  from 
the  perpetrator  ?  Did  they  come 
into  town  upon  that  evening  each  to 
perform  the  part  which  had  been  as- 
signed to  him  ?  From  whom  could 
the  prisoner  have  been  informed 
before  he  went  home  on  the  night 
of  the  murder,  that  it  had  been  com- 
mitted ?  The  Jury  will  compare  the 
evidence  arising  from  the  confes- 
sions of  the  pri.soner  (if  they  are 
admitted  under  the  rule  before 
stated)  with  the  other  testimony  in 
the  case,  and  determine  whether  he 
was  in  Brown  Street  as  the  Govern- 
ment contend  that  he  was  —  and 
if  so,  with  what  intent  he  was  there  ? 
It  has  been  contended  on  the  part 
of  the  prisoner,  that  if  he  were  there, 
he  was  not  in  a  situation  in  which 
he  could  render  any  aid  or  assistance 
to  the  perpetrator  at  the  time  of  tlie 
murder.  This  is  a  matter  of  fact 
for  the  Jury. 


116S 


PART   III.      PROBLEMS   OF   PROOF 


No.  393. 


It  is  proved  that  the  part  of  the 
house  occupied  by  the  deceased  as 
his  sleeping  chamber  could  be  dis- 
tinctly seen  from  Brown  Street,  and 
the  distance  of  Brown  Street  from 
the  house  of  the  deceased,  and  the 
means  of  commimication  with  it  by 
the  streets  or  otherwise,  have  been 
stated  by  the  witnesses.  The  Jury 
must  judge  upon  the  evidence  if 
the  prisoner  was  there  performing  his 
part  according  to  an  agreement  with 
the  perpetrator,  ready  to  afford 
him  assistance  if  necessary  —  by 
watching  —  giving  notice  in  any  way 
of  the  approach  of  danger,  or  assist- 
ing in  the  escape,  or  rendering  any 
aid  or  assistance  which  would 
strengthen  the  arm  and  heart  of  the 
perpetrator.   .  .  . 

You  must  decide  upon  the  evi- 
dence as  you  have  heard  it  within 
these  walls  —  you  will  shut  out  from 
your  minds  everything  you  may 
have  heretofore  read  or  heard  upon 
this  subject  —  recollecting  that  all 
reasonable  doubts  upon  any  matter 
incumbent  upon  the  government  to 
prove,  are  to  weigh  in  favor  of  the 
prisoner  —  with  these  remarks  I 
lea\"e  the  prisoner  with  his  Country 
and  his  God. 

The  cause  was  committed  to  the 
Jury  at  1  o'clock,  p.m.,  on  Friday, 
August  20,  and  at  6  o'clock  they 
returned  a  verdict  of  guilty. 


On  Saturday  morning  the  prisoner 
was  placed  at  the  bar.   .  .  . 

Judge  Putnam  then  inquired  of 
the  prisoner  if  he  hat!  aught  to  say 
wliy  sentence  of  Death  should  not 
now  be  pronounced  against  him  : 

He  replied,  "  I  have  only  to  say, 
that  I  am  innocent  of  the  charge 
alleged  against  me." 

Judge    Putnam    then    addressed 
him  as  follows  : 
"John  Francis  Knapp, 

You  have  been  indicted  for  the 
crime  of  Murder  —  and  upon  your 
arraignment  ha\e  pleaded  that  you 
were  not  guilty  —  and  put  yourself 
upon  God  and  your  Country  for 
trial.  .  .  ,  The  truth  has  prevailed  — 
and  the  jvuy  of  your  country  have 
established  your  guilt  —  the  Court 
is  satisfied  with  their  verdict,  and 
yoU'  come  now  to  receive  the  Sen- 
tence of  the  Law.   .   .   . 

"  It  only  remains  for  us  to  declare 
the  sentence  of  the  Law  —  which  is, 
and  this  Court  doth  accordingly 
adjudge, 

"  That  you  be  carried  from  hence 
to  the  prison  from  whence  you  came 
—  and  from  thenco  to  the  place  of 
execution  —  and  there  be  hanged  by 
the  neck  until  you  shall  be  dead. 
And  ma\-  God  of  his  infinite  grace 
have  mercy  upon  your  soul." 

The  prisoner  was  remanded,  as 
soon  as  the  sentence  was  pronoiuiced, 
and  the  Court  was  adjourned  sine  die. 


APPENDIX 
LIST  OF  TRIALS  USEFUL  FOR  STUDY 

The  follo\\-ing  select  list  of  trials  is  meant  to  include  a  few  which  are 
specially  profitable  because  (a)  they  are  fully  reporteil.  with  counsel's 
arguments ;  (6)  they  have  a  stirring  plot,  and,  being  more  or  less  open  to 
debate  as  to  the  verdict,  their  interest  is  a  sustained  one  ;  (c^  they  were  tried 
by  eminent  counsel  and  thus  afford  good  models  ;  {d)  they  are  accessible  in 
the  book  market  of  to-day ;  and  (f^l  they  are  among  the  most  famous  of 
their  time  in  legal  annals.  American  cases  fulfilling  all  these  requirements 
are  rare,  except  in  Massachusetts. 

England,  Ireland,  and  Scotland. 

R.  V.  AxxESLEY,  17  Howell's  St.  Tr.  1093  (murder "I ;  Crxig  d.  Axxesley 
r.  AxGLESE.\.  17  Howell's  St.  Tr.  1139  (ejectment,  involving  kidnapping  and 
disputed  identity) :  R.  r.  He.\th.  IS  Howell's  St.  Tr.  1  (perjury) ;  R.  r. 
AxGLESE.^.  IS  Howell's  St.  Tr.  197  (assault).  These  four,  in  the  years  1742- 
1743,  belong  together;  read  first  page  1443.  Vol.  17:  then  in  the  above 
order.  One  of  the  strangest  romances  in  history,  and  a  great  mystery  is  left 
unsolved;  read  the  follo\Wng  critical  discussions:  John  Paget,  "Judicial 
Puzzles"  (1S76:  reprinted  from  Blackwood's  Magazine.  1S60) ;  Andrew 
Lang,  preface  to  "The  Annesley  C;ise"  (Notable  English  Trials  Series.  1912  ; 
this  preface  contains  a  full  account  of  the  sources  and  discussions,  but  this 
edition  of  the  trial  itself  is  unfortunately  unsuited  for  study  because 
it  omits  most  of  Mrs.  Heath's  Trial,  supra,  without  which  the  testimony 
cannot  be  weighed). 

R.  V.  Squires  &  Wells.  19  Howell's  St.  Tr.  262  (larceny:  really  kid- 
napping) ;  R.  r.  EuzABETH  Canxixg.  19  Howell's  St.  Tr.  2S3  (perjury \ 
These  two,  from  the  year  1754,  belong  together  and  form  the  most  singular 
problem  of  evidence  in  the  records  of  the  1700  s  ;  read  the  following  critical 
discussions  :  Courtney  Kenny,  in  the  Law  Quarterly  Review.  1SS7.  Vol.  XIIL 
p.  368;  John  Paget.  "Judicial  Puzzles"  (1S76;  reprinted  from  Blackwood's 
Magazine.  1S60),  p.  90;  V.  If".  Sibley,  "Criminal  Appeal  and  Evidence" 
(190S),  p.  162. 

Spexcer  Cowper's  Trl\l.  13  Howell's  St.  Tr.  1105  (1699;  murder  of 
a  spinster ;  the  accused  was  a  well-known  lawyer,  later  a  judge,  related  to 
the  poet) ;  read  the  following  critical  tiiscussions  :  John  Paget.  "Judicial  Puz- 
zles" (1S76;  reprinted  from  Blackwood's  Magazine,  1S60\  p.  109;  preface 
to  Co\\-per's  Trial  (in  the  Notable  English  Trials  Series,  1912). 

The  Staux-toxs'  Trl\l  (Notable  English  Trials  Series,  1911),^  ed.  J.  B. 

1  This  series,  critically  edited  in  the  best  style,  is  published  by  Wm.  Hodge  &  Sona.  of 
Edinburgh,  and  sponsored  in  the  United  States  by  the  Cromarty  Law  Book  Co..  of  Phila- 
delphia. It  is  to  be  continued  in  other  volumes,  and  its  sennce  will  be  even  greater  than 
that  of  the  Notable  Scottish  Trials  Series. 

IIOD 


1170  APPENDIX 

Atlay(1876;  murder  by  starvation  ;  one  of  the  strangest  stories  in  criminal 
annals,  and  a  trial  conducted  by  the  most  eminent  practitioners  of  the 
modern  English  bar;   Montagu  "Williams  led  the  defense). 

AViLLiAM  Palmer's  Trial  (Notable  English  Trials  Series,  1912),  ed.  Geo. 
H.  Knott  (1856 ;  murder  by  poisoning ;  the  most  famous  one  of  its  kind  in 
England  in  the  1800s  ;  Sir  J.  Stephen  calls  it,  "as  a  whole,  one  of  the  great- 
est trials  in  the  history  of  English  law;"  the  expert  testimony  is  its  special 
feature). 

Mrs.  Maybrick's  Trial  (Notable  English  Trials  Series,  1912),  ed.  H.  B. 
Irving  (1881  ;  husband-murder  by  poisoning ;  the  accused  was  an  American  ; 
her  counsel  was  Sir  Charles  Russell ;  the  trial  judge  was  Sir  J.  F.  Stephen ; 
this  case  aroused  international  interest,  and  competes  with  Palmer's  for 
the  description  of  the  most  famous  poisoning  case  of  the  century). 

Chantrelle's  Trial  (Notable  Scottish  Trials  Series,  1906),^  ed.  A.  Dun- 
can Smith  (1878  ;  wife-murder  by  poisoning  ;  the  most  notable  modern  case 
of  its  kind  in  Scotland). 

Oscar  Slater's  Trial  (Notable  Scottish  Trials  Series,  1910),  ed.  Wm. 
Roughead  (1908  ;  murder  for  money  ;  a  most  astonishing  verdict  of  Guilty, 
which  enlisted  the  interest  of  Sir  A.  Conan  Doyle,  in  1912,  to  secure  the  re- 
lease of  the  convicted  man). 

Mrs.  M'Lachlan's  Trial  (Notable  Scottish  Trials  Series,  1911),  ed, 
Wm.  Roughead  (1862  ;  murder  for  money  ;  known  as  the  Sandyford  Mystery  ; 
it  gave  rise  to  popular  factions,  and  agitated  a  generation). 

Fraxz  Muller's  Trial  (Notable  English  Trials  Series,  1911),  ed.  H.  B, 
Irving  (1864  ;  murder  in  a  railway  compartment ;  the  first  railway  murder, 
which  revealed  the  dangers  of  the  European  compartment  system ;  famous 
for  the  accused's  detection  through  exchanging  hats  with  the  victim ;  one 
of  Serjeant  Ballan tine's  prosecutions,  exhibiting  his  methods  of  examination.) 

Madeleine  Smith's  Trial  (Notable  Scottish  Trials  Series,  1905),  ed.  A. 
Duncan  Smith  (1857;  murder  of  a  lover  by  arsenic-poisoning;  one  of  the 
permanent  mysteries  of  criminal  annals). 

Wm.  Lamson's  Trial  (Notable  English  Trials  Series,  1911),  ed.  H.  L. 
Adam  (1882;  murder  by  poisoning,  by  a  doctor;  an  instructive  poisoning 
trial). 

Monson's  Trial  (Notable  Scottish  Trials  Series,  1908),  ed.  John  W. 
More  (1893 ;  murder  for  insurance  money ;  the  accused  a  tutor,  the 
deceased  a  rich  pupil ;  on  a  shooting  excursion,  the  latter  is  killed ;  known 
as  the  Ardlamont  Mystery,  and  enshrined  in  wax  by  Mrae.  Tussaud). 

United  States. 

John  W.  Webster's  Trial  (Little,  Brown  &  Co.,  Boston,  1850),  ed. 
Geo.  Bemis  (1850;  murder  of  Dr.  Parkman,  by  Professor  W^ebster,  of  the 
Harvard  University  Medical  School ;  the  most  notable  American  trial  of 
the  1800  s). 

Emil  Lowenstein's  Trial  (Wm.  Gould  &  Son,  Albany,  1874),  ed.  Gould 
(1873 ;  murder  for  money ;  one  of  New  York's  best-known  cases ;  tried  by 
Nathaniel  C.  Moak  and  D.  C.  Herrick  as  counsel). 

*  This  series,  also  puVjlished  by  Wra.  Hodge  &  Sons,  Glasgow  and  Edinburgh,  is  an 
enterprise  of  great  value,  filling  a  long-felt  want  for  the  student  of  trials. 


APPENDIX  1171 

James  M.  Lowell's  Trial  (Dresser,  McLellan  &  Co.,  Portland,  Me., 
1875),  ed.  H.  M.  Plaisted  (1875  ;  wife-murder ;  known  as  the  Mystery  of  the 
Headless  Skeleton  ;   tried  by  eminent  counsel  of  the  Maine  bar). 

Thos.  W.  Piper's  Trial  (State  Printers,  Boston,  1887),  ed.  the  Attorney- 
general  (1875  ;  murder  of  a  little  girl  by  a  sexton  in  the  church  belfry  ;  the 
jury  disagreed  on  the  first  trial ;  eminent  counsel  were  on  both  sides). 

John  C.  Best's  Trial  (State  Printers,  Boston,  1903),  ed.  the  Attorney- 
general  (1901 ;  murder  by  shooting ;  a  good  example  of  a  trial  for  assassi- 
nation motived  by  hostility). 

Mudgett's  (alias  Holmes)  Trial  (Geo.  T.  Bisel,  Philadelphia,  1897), 
ed.  Bisel  (1895 ;  murder ;  the  accused,  whose  character  and  history  are  set 
forth  in  No.  98,  ante,  was  one  of  the  monsters,  occasionally  arising,  who 
murder  wholesale;  his  killings  ranged  between  Chicago,  Indianapolis, 
Toronto,  Detroit,  and  Philadelphia). 

Hersey's  Trial  (A.  Williams  &  Co.,  Boston),  ed.  J.  W.  Yerrinton  (1860; 
murder  of  the  victim  of  seduction ;  one  of  the  leading  American  poisoning 
cases,  well  argued). 

Trefethen's  Trial  (State  Printers,  Boston,  1895),  ed.  Albert  E.  Pillsbury 
(1892  ;  murder  of  the  victim  of  a  seduction  ;  one  of  the  best-known  and  best- 
tried  Massachusetts  cases,  with  distinguished  counsel). 

Sarah  J.  Robinson's  Trial  (State  Printers,  Boston,  1888),  ed.  the  At- 
torney-general (1886;  murder  of  a  whole  family  by  poisoning;  the  best- 
known  modern  American  poisoning  case). 

John  O'Neil's  Trial  (State  Printers,  Boston,  1901),  ed.  the  Attorney- 
general  (1897 ;  rural  murder  and  rape ;  a  good  example  of  circumstantial 
evidence). 

Durrant's  Trial,  ed.  Peixotto  (San  Francisco,  1895  ;  murder  in  a  church 
belfry  ;  a  remarkable  instance  of  a  guilty  man  successfully  passing  the  ordeal 
of  cross-examination ;  published  under  the  title  "  The  Crime  of  the  Cen- 
tury"). 


LIST   OF   AUTHORS   OF   EXTRACTS   REPRINTED 

[The  Compiler  desires  to  express  his  special  thanks  to  the  following  authors  and 
publishers  for  assent  to  the  reprinting  of  some  of  the  longer  extracts  in  this  work  : 
Hans  Gross,  professor  in  the  University  of  Graz,  author  of  "Criminal  Psychology" 

(translated  by  Dr.  H.  M.  Kallen,  of  the  University  of  Wisconsin) ;  and  author 

also  of  "Criminal  Investigation"  (translated  by  Messrs.  J.  and  J.  C.  Adam). 
Hugo  Miinsterberg,  professor  in  Harvard  University,  author  of  "On  the  Witness 

Stand." 
^     Charles  C.  Moore,  Esq.,  author  of  "A  Treatise  on  Facts,  or  The  Weight  and  Value 

of  Evidence,"  and  the  Edward  Thompson  Co.,  publisher  of  the  same. 
Arthur  C.  Train,  Esq.,  of  New  York,  author  of  "  Courts,  Criminals,  and  the  Camorra,'* 

and  of  "The  Prisoner  at  the  Bar." 
Guy  M.  Whipple,  professor  in    Cornell  University,  author  of   "Manual  of  Mental 

and  Physical  Tests, "  and  Messrs.  Warwick  and  Yorke,  of  Baltimore,  publishers 

of  the  same. 
\,'The  Boston  Book  Co.  and  Lawyer  s   Cooperative    Publishing  Co.,  publishers  of  the 

American  edition  of  "Wills  on  Circumstantial  Evidence." 
Francis  L.  Wellman,  Esq.,  of  New  York,  author  of  "The  Art  of  Cross-examination" 

and   "Day  in  Court."] 

[References  are  to  pages.] 

Adam,  K.  L.,  "The  Story  of  Crime,"  166,  188,  220,  286. 
Anon,  in  "The  Green  Bag,"  194. 
V  Arnold,  G.  F.,  "Psychology  applied  to  Legal  Evidence,"  65,  182,  213,  317.  351,  382, 

455,  467,  524,  631. 
Arnold,  Isaac  N.,  "Life  of  Abraham  Lincoln,"  662. 
Atlay,  J.  B.,  "Famous  Trials  of  the  Century,"  232. 
Balzac,  Honore  de,  "Lucien  de  Rubempre,"  541. 
Best,  W.  M.,  "The  Principles  of  the  Law  of  Evidence,"  555. 
Buchholz,  Dr.,  "Testimony,"  702. 

Burke,  P.,  "Celebrated  Naval  and  Military  Trials,"  136,  772. 
^    Burrill,  Alexander  M.,  "A  Treatise  on  Circumstantial  Evidence,"  121,  142,  148,  159, 

164,  184,  218,  269,  283,  297,  738,  745. 
Carter,  A.  G.  W.,  "The  Old  Court  House,"  187,  398,  708. 
Chalmers,  M.  D.,  "Petty  Perjury,"  319. 
Coke,  Sir  E.,  "Third  Institute,"  289. 

Colegrove,  F.  W.,  "Memory:  an  Inductive  Study,"  318,  478. 
Craik,  G.  L.,  "Enghsh  Causes  Celebres,"  291,  369,  387. 
Daly,  Hon.  J.  F.,  in  "The  Brief,"  604. 
Defoe,  Daniel,  "Robinson  Crusoe,"  734. 
Dickens,  Charles,  "The  Pickwick  Club,"  502. 

"Three  Detective  Anecdotes,"  168. 

Dunphy,  T.,  and  Cummins,  T.  J.,  "Remarkable  Trials  of  All  Countries,"  153,  162, 

271,  635. 
Duprat,  D.  L.,  "Le  Mensonge :  etude  de  psychosociologie,"  377,  493. 
Evans,  D.  Morier,  "Facts,  Failures,  and  Frauds,"  199. 
Feuehbach,  Anselm  von,  "Remarkable  German  Criminal  Trials,"  225,  289,  302, 

304,  621. 
Foster,  William  L.,  "Expert  Testimony,"  423. 
Geeting,  John  F.,  "The  Case  of  the  Booms,"  559. 
Gilbert,  Barry,  "Mobile  &  O.  R.  Co.  v.  New  South,"  670. 
Gleed,  Charles  L.,  "Hillmon  v.  Insurance  Co.,"  856. 

/Griffiths,  Arthur,  "Mysteries  of  Police  and  Crime,"  106,  122,  125,  189,  287. 
V  Gross,  Hans,  "Criminal  Investigation,"  300,  333,  357,  383,  403,  602,  698,  726. 
VGross,  Hans,  "Criminal  Psychology,"  181,  258,  333,  340,  383,  403,  429,  462,  490,  537. 

1173 


1174  INDEX   TO    AUTHORS 

[References  are  to  pages.] 

'Guntlier,  Arno,  "A  Dramatic  Inrident  as  reported  by  Witnesses  and  reconstructed 

by  a  Jury,"  583. 
Hall,  G.  Stanley,  "Children's  Lies,"  337. 
^Harris,  Richard," "Hints  on  Advocacy,"  192.  369,  396,  399,  414,  497,  530,  650. 
Harvey,  Peter,  "Reminiscences  of  Daniel  Webster,"  515. 
International  Association  of  Chiefs  of  Police,  550. 

Jagg,  William,  "A  Manual  of  Forensic  Chemistry  and  Chemical  Evidence,"  56. 
James,  William,  "The  Princii)les  of  Psychology,"  485. 
M'Kkka  EK,  Wm.  A.,  "Kansas  University  Experiment,"  581. 
MacDonald,  Arthur,  "Man  and  Abnormal  Man,"  202,  205. 
V  Mercier,  Charles,  "Sanity  and  Insanity,"  354. 

.^'Miller,  Amos  C,  "Examination  of  Witnesses,"  340,  395,  497,  505,  594. 
,y-Mitchell,  C.  Ainsworth,  "Science  and  the  Criminal,"  55,  79, 164, 167, 250, 293, 621, 663. 
Mongan's  "Celel)rated  Trials  in  Ireland,"  617. 
-Moore,  Charles  C,  "A  Treatise  on  Facts,  or  the  Weight  and  Value  of  Evidence," 

349,  367,  392,  510,  514,  516,  697. 
Moore-Willson,  Minnie,  "The  Seminoles  of  Florida,"  320. 
Miinsterberg,  Hugo,  "On  the  Witness  Stand,"  568. 
O'Flanagan,  J.  Roderick,  "The  Irish  Bar,"  512. 

Osborn,  Albert  S.,  "Expert  Testimony  from  the  Standpoint  of  the  Witness,"  421. 
Page,  Samuel  S.,  "Personal  Injury  Actions,"  413. 
Paget,  John,  "Judicial  Puzzles,"  558,  703. 
Pelham,  Camden,  "The  Chronicles  of  Crime,"  44,  135,  170,  195,  229,  247,  709,  720, 

721,  766. 
Phillipps,  S.  ]\I.,  "Famous  Cases  of  Circumstantial  Evidence,"  73,  78,  166,  227, 

666. 
Pinkerton,  Allan,  "Bank  Robbers  and  Detectives,"  547. 
Plowden,  A.  C,  "Grain  or  Chaff;  The  Autobiography  of  a  Police  Magistrate,"  186, 

231,  401,  496,  564,  667. 
Ram,  James,  "On  Facts  as  Subjects  of  Inquiry  by  a  Jury,"  152,  273,  508,  656,  704, 

.    714. 
Reade,  Charles,  "Readiana,"  73. 
^-Reed,  John  C,  "Conduct  of  Lawsuits,"  394,  503,  518,  596,  666,  698,  702. 

Rice,  Frank  S.,  "The  Medical  Expert  as  a  Witness,"  419. 
___Robinson,  Wm.  C,  "Forensic  Oratory;  a  Manual  for  Advocates,"  368,  459,  481, 

489,  526,  697. 
Royce,  Josiah,  "Outlines  of  Psychology,"  402. 
Sibley,  N.  W.,  "Criminal  Appeal  and" Evidence,"  251,  275,  398. 
Stevenson,  Robert  Louis,  "Virginil)us  Puerisque,"  330. 
Sully,  James,  "The  Human  Mind,"  178,  210,  245,  256. 
Train,  Arthur  C,  "  Courts,  Criminals,  and  the  Camorra,"  221,  554. 

"The  Prisoner  at  the  Bar,"  344,  461,  482,  491,  519. 

"Whv  do  Men  Kill,"  221. 

Waitt,  G.  ().,  "Three  Years  with  Counterfeiters,  Smugglers,  and  Boodle  Carriers," 

360. 
Webster,  Daniel,  "Great  Speeches  and  Orations,"  539. 
Wellman,  Francis  L.,  "Day  in  Court,"  511,  518,  520. 

■■ ,  "The  Art  of  Cross-examination,"  259,  386,  688. 

Westermarck,  Erlward,  "Origin  and  Growth  of  Moral  Ideas,"  314. 

Whately,   Richard,  "Elements  of  Rhetoric;  comprising  an  Analysis  of  the  Laws 

of  Moral  Evidence,"  387,  411. 
Whii)ple,  (niy  M.,  "Manual  of  Mental  and  Physical  Tests,"  340,  350,  506,  521,  575. 
Whitney,  Wm.  I).,  "Oriental  and  Linguistic  Studies,"  487. 
Wigmore,  John  H.,  "The  Borden  Case,"  806;  "The  Durrant  Case,"  815. 

,  "Hie  Luetgert  Case,"  827. 

,  "The  Psychology  of  Testimony,"  571,  591. 

Wills,  W.,  "Circumstantial  Evidence,"  72,  98,  123,  155,  156,  254,  292,  306,  593,  736. 
Woorlali,  W.  ().,  "Rei)orts  of  Celebrated  Trials,"  160,  309. 


LIST   OF   CASES   REPRINTED 


[References  arc  to  pages.] 


American  Express  Co.  t'.  Haggard,  261. 

Anon,  164. 

Aram's  (Eugene)  Case,  98,  195. 

Armstrong's  (Cal)  Case,  594,  662. 

Attesting  Witnesses'  Case,  The,  635. 

B,  Case  of,  202. 

Baillie's  (Captain)  Trial,  598. 

Baker's  Case,  The,  271. 

Bardell  v.  Pickwick,  502. 

Barnard's  (WiUiam)  Case,  110. 

Beer-Wagon  Case,  The,  594. 

Beggs'  (John)  Trial,  642. 

Blandy's  (Mary)  Case,  101,  390. 

Bond  Payment  Case,  The,  666. 

Boorns,  The  Case  of  the,  559. 

Borden  Case,  The,  806. 

Bottomry  Bond  Case,  The,  595. 

Bradbury  i\  Dwight,  242. 

Braddon's   (Laurence)    Trial,  340,  351, 

637,  662,  990. 
Bradford's    (Jonathan)   Case,   152,  250. 
Bradford  v.  Boylston  Fire  and  Marine 

Ins.  Co.,  45,  139. 
Brook's  Case,  593. 
Brown  v.  Bramble,  515. 
Byrne's  (James)  Trial,  602,  687. 
Canning's  (Elizabeth)  Trial,  592. 
Cant's  (George)  Case,  350,  721. 
Chicago  Anarchists'  Case,  The,  72,  123. 
Chicago,  C.  C.  &  St.  L.  R.  Co.  y.  Dixon, 

52. 
Chicago  &  Alton  R.  Co.  v.  Crowder,  173. 

V.  Gibbons,  351. 

Clare's  (Philip)  Case,  703. 
Cochrane's  (Lord)  Case,  706. 
Commonwealth  v.  Borden,  735. 

V.  Jeffries,  240. 

V.  Knapp,  539,  1080. 

r.  Umihan,  761. 

r.  Webster,  78,  736. 

Copied  Will,  The,  702. 

Courvoisier's  Case,  275. 

Cranberry  Cask  Case,  The,  72. 

Day  v.  Day.  369. 

Denver  &  Rio  Grande  R.  Co.  r.  Glass- 

cott,  262. 
Disbelieved  Child's  Case,  The,  340.  702. 
Doctor's  Case,  The,  604. 
Donellan's   (John)  Case,  292,  419,  766. 
Downie's    (David)   Case,   104. 
Downie  and  Milne's  Case,  72. 

1 


Downing's  Case,  155. 

Dryad,  Case  of  The,  122. 

Durrant  Case,  The,  163,  815. 

East  St.  Louis  v.  Wiggins  Ferry  Co.,  47. 

Eidt  V.  Cutter,  45. 

Escaped  Convict's  Case,  The,  286. 

Farm  Burglary  Case,  The,  667. 

Finger-print  Identification,  79. 

Food  Adulteration  Cases,  55. 

Forbes  r.  Morse,  108. 

Forster's  (John  Paul)  Case,  304. 

Franz's  (Karl)  Case,  78,  163,  173,  840. 

General  Rucker,  The,  327,  662. 

Gloucester  Child-Murder,  The,  231,  559. 

Golden  Reward  Mining  Co.  v.  Buxton 

Mining  Co.,  48. 
Gordon's  (Lord  George)  Trial,  604. 
Gould's  (Richard)  Case,  247. 
Great  Over  of  Poisoning,  The,  250. 
H.  case\)F,  205. 
Habron's  (William)  Case,  251. 
Hardy's  (Thomas)  Case,  371. 
Hatchett  v.  Commonwealth,  763. 
Hawkins'  (John)  Case,  163,  666. 
Hawkins'  (Robert)  Case,  163,  291,  387, 

659. 
Heath's  Trial,  593. 
Hermione  Case,  The,  558. 
Hetherington  v.  Kemp,  260. 
Hillmon    v.    Insurance    Co.,     164,    351, 

419,  856. 
Hoag's  (Thomas)  Case,  77,  351,  714,  720. 
Hodges'  and  Probin's  Case,  135. 
Hogan's  (Pat)  Case,  512. 
Ireland's  Trial,  674. 
Ivy's  (Lady)  Trial,  597,  671. 
jENNixcis'  (John)  Case.  273. 
Jones'  (William)  Case,  170. 
Kansas  University  Experiment.  581. 
Kent  Case,  The,  232. 
Kerne's  Trial,  634. 
Kidd's  (Caj)tain)  Case,  136. 
King's  (Colonel)  Case,  360. 
Knapp's  Trial,  539,  1080. 
Knowles  r.  State.  47. 
Lakahge's  (]\Ia(!ame)  Case,  125. 
Langhorn's  Trial,  ()02. 
Lcsur(|ues'  (Joseph)  Case.  77,  704. 
List  Pu!)lishing  Co.  r.  Keller.  141. 
Looker's  Case,  l.'ifi. 
Loucks  r.  Paden,  628. 
175 


1176 


LIST    OF    CASES    REPRINTED 


[References  are  to  pages.] 


Luetgert  Case,  The,  419,  827. 
M'Garahan  v.  Maguire,  617. 
McDonald's  (Green)  Case,  708. 
Macclesfield's   (Lord  Chancellor)  Trial, 

99,  637. 
Manners'  (George)  Case,  227. 
Maroy  v.  Barnes,  244. 
Mobile  &  O.    R.    Co.   v.  Steamer  New 

South,  670. 
Morris'  (Mrs.)  Case,  531,  564. 
Moudy  V.  Snider,  279,  779. 
Mullins'  Case,  287. 
Netherclift's  Case,  621,  663. 
Newton's  Case,  306. 
Northwestern   University   Experiments, 

585. 
O'Bannon  v.  Vigus,  256,  784. 
Gates'  Trial,  680. 

Obstinate  Juryman's  Case,  The,  166. 
Pair  of  Gloves,  The  Case  of  the,  168. 
Parnell       Commission's       Proceedings, 

618,  670. 
Patteson's  (Thomas)  Case,  229. 
People  V.  Jennings,  83. 
Perreaus'  Case,  The,  99,  351,  709. 
Pittsburg,  C.  C.  &  St.  Louis  R.  Co.  v. 

Story,  663. 
Poisoned  Coffee  Case,  The,  596. 
Poison  Tests,  56. 
Popish  Plot,  The,  163,  674. 
Postman's  Case,  The,  192. 
Puyenbroeck's  Case,  521. 
Queen  Caroline's  Trial,  603,  617. 
Ranney's  (Dr.)  Case,  668. 
Rauschmaier's  (George)  Case,  289. 
Redpath's  (Leopold)  Case,  199. 
Regina  i".  Cleary,  156,  251. 
V.  Hill,  358. 


Robinson's  (Frank)  Case,  162,  635. 
Rupprecht's    (Christopher)    Case,    302, 

621. 
Sackville's  (Lord)  Case,  772. 
Sailmaker's    Apprentice,    the    Case    of 

The,  272. 
Salmon's  (Robert)  Case,  44. 
Self-Sacrificing  Brother's  Case,  The,  194. 
Shaw's  (William)  Case,  153. 
Sheffield  Case,  The,  166. 
Shelp  V.  United  States,  321. 
Sheridan's  (Walter)  Case,  189. 
Smith's  (Madeleine)  Case,  254. 
Smyth  V.  Smyth,  660. 
Starne  Coal  Co.  v.  Ryan,  277. 
Stevenson  v.  Stewart,  238. 
Susanna's  Case,  634. 
Thanet's  (Earl  of)  Trial,  1018. 
Thornton's  (Abraham)  Case,  160,  309. 
Throckmorton  v.  Holt,  351,  419,  897. 
Tichborne  Case,  The,  73. 
Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  Clark, 

176. 
Tourtelotte  v.  Brown,  164,  796. 
Turner's  (Colonel)  Trial,  617. 
Twichell's    Case,    259. 
Uncle's  Case,  The,  289. 
United  States  v.  Lee  Huen  et  al.,  322. 

V.  Roudenbush,  185. 

Vancil  v.  Hutchinson,  800. 
Wachs'  (George)  Case,  255. 
Webber's  Case,  73. 

Webster-Parkman  Case,  The,  78,  736. 
Whitebread's  Trial,  679. 
Willis'  (Francis)  Trial,  623. 
Winterbotham's  (William)  Trial,  610. 
Wood's  (Robert)  Case,  293. 
Yarmouth  Murder,  The,  167. 


INDEX  OF  TOPICS 


[References  are  to  pages.] 


Act,  proof  of,  143. 

Admissibility,  defined,  12. 

Age,  as  affecting  testimonial  trustworthi- 
ness, 334,  338. 

as  affecting  sense  of  hearing,  442. 

Alibi,  exposure  of  a  false,  653. 

theory  of  proof  of  an,  148,  159. 

Aphasia,  487. 

Association-tests  of  guilt,  569,  572. 

Attention,   as  affecting  trustworthiness 
of  testimony,  457,  461. 

Autoptic  preference,  5. 

Awkward  witness,  examination  of,  535. 

Beuef,  evidence  to  prove,  96. 

Bertillon  system  of  proving  identity,  79, 
83. 

Bias,    as    affecting    trustworthiness    of 
testimony,  382. 

Blind  spot,  as  affecting  testimony,  439. 

Bloodmarks,  cause  of  death  as  proved  by, 
173. 

Bold  witness,  examination  of,  529. 

Brand,  as  proof  of  animal's  ownership, 
266. 

Bribery,  as  evidence  of  bias,  388. 

Capacity,  as  proof  of  an  act,  164. 

proof  of,  36. 

Cask,  identity  of,  72. 

Cause,  proof  of,  32,  36. 

Chain  of  circumstances,  736. 

Character,  as  affecting  testimonial  trust- 
worthiness, 365-382. 

as  evidence  of  an  act,  178-210. 

conduct  as  evidence  to  prove,  91. 

Chemical  analyst,  as  an  expert  witness, 
409. 

Child-murder,  motive  for,  231. 

Children,  as  witnesses,  331-341. 

Chinese,  as  witnesses,  323. 

Circumstantial  evidence,  defined,  6. 

classification  of,  30. 

Circumstantial  and  testimonial  evidence, 
relative  value  of,  735. 

Clergjinan,  as  a  witness,  399. 

Clothing,  as  proof  of  an  act,  164. 

Coaching  a  witness,  518,  519. 

Coat,  identity  of,  72. 

Coat  sleeve,  as  proof  of  a  crime,  166. 

Conception,  as  affecting  testimony,  447. 

Concomitant  circumstances,  as  proof  of 
an  act,  147. 

Conductor,  railway  patronage  as  proof 
of  receipts  of,  262. 

1 


Confessions,  trustworthiness  of,  538-569. 

Consciousness,  evidence  to  prove,  96. 

Contradictions,  as  exposing  testimonial 
error,  635-702. 

Convict,  as  a  witness,  370. 

Conviction  of  crime,  as  proof  of  moral 
character,  186,  187,  188,  189. 

Cop^Tight,  proof  of  knowing  infringe- 
ment of,  141. 

Coupling  cars,  as  cause  of  injury,  53. 

Cross-dropping,  proof  of  intent  to  de- 
fraud by,  135. 

Cross-examination,  modes  of,  501,  504, 
506. 

Cross-examination  to  expose  contradic- 
tions and  self-contradictions,  618-702. 

Cunning  witness,  examination  of,  533. 

Custom,  as  proof  of  a  human  act,  256. 

Dactyloscopy,  as  proof  of  identity,  79, 
83. 

Datum  solvendum,  296. 

Deductive  proof,  defined,  15. 

Defective  basis  of  perception,  as  affect- 
ing testimonial  correctness,  593. 

Delusion,  as  affecting  testimony,  352. 

Demeanor,  as  evidence  of  lying,  497. 

Design,  as  proof  of  a  human  act,  245. 

proof  of  existence  of,  120. 

Desire,  as  affecting  testimony,  382. 

Destruction  of  evidence,  as  proof  of 
guilt,  282. 

Detective,  as  a  witness,  401. 

Dog-bark,  convict  detected  by  fright 
due  to,  287. 

Dogged  witness,  examination  of,  531. 

Effect,  proof  of  an,  32,  36. 

Emotion,  as  affecting  memory,  470. 

as  affecting  testimony,  382. 

as  proof  of  an  act,  210. 

Error  latent  in  normal  testimonial  pro- 
cess, 576. 

Error  on  collateral  points,  as  exposing 
testimonial  untrustworthiness,  635- 
702. 

Evidence,  defined,  5. 

Examination  of  a  witness,  in  general, 
498-525. 

in  chief,  mode  of,  498. 

Existence,  proof  of,  34. 

Experience,  as  affecting  testimonial 
trustworthiness,  403-426. 

Expert  witnesses,  403-426. 

Explanation,  as  a  logical  process,  23. 

177 


1178 


INDEX   OF   TOPICS 


[References  are  to  pages.] 


Explosives,  proof  of  design  to  use,  123. 

Expression,  as  affecting  testimony,  491. 

F.\BHiCATi()X  of  evidence,  as  proof  of 
guilt,  284. 

P'actum  prohanduni,  defined,  5. 

Fallibility  of  testimony,  sundry  illus- 
trations of,  703. 

Falsus  in  uno,  falsus  in  omnibus,  698. 

Father,  proof  of  murder  by,  153. 

Feeling,  as  affecting  testimony,  382. 

Finger-print,  as  proof  of  identity,  79,  83. 

Flippant  witness,  examination  of,  531. 

Forgery,  motive  for,  240. 

Gas,  proof  of  effect  of,  45. 

Gloves,  as  proof  of  a  crime,  168. 

Guilt-diagnosis  by  association-tests,  569, 
572. 

Habit,  as  proof  of  a  human  act,  256. 

as  related  to  character,  180. 

Hallucination,  as  affecting  testimony, 
352.  452. 

Handwriting,  proof  of,  69. 

Handwriting  expert,  as  witness,  418,  422. 

Hearing,  as  affecting  testimony,  441. 

Hesitating  witness,  examination  of,  532. 

Hostile  witness,  examination  of,  529. 

Human  act,  proof  of,  143. 

Hiunan  trait,  quality,  or  condition,  proof 
of,  89. 

Humorous  witness,  examination  of,  533. 

Hypnotism,  as  affecting  testimony,  525. 

Hypocritical  witness,  examination  of,  534. 

Identity,  mistakes  in  testimony  to  per- 
sonal, 715. 

as  distinguished  from  Traces,  267. 

theory  of  proof  of,  63,  65. 

Illusions  of  the  senses,  434,  439,  442,  444, 
446. 

of  memory,  467,  478. 

Imagination,  as  affecting  testimony,  450. 

Impeaching  facts,  classified,  728. 

See  aho  Contradiction ;  Error;  Self- 

Contradicfion. 

Iiiipossil)ility,  proof  of,  40. 

Indians,  as  witnesses,  319,  321,  322,  482. 

Inductive  proof,  defined,  15. 

Inference,  as  distinguished  from  memory, 
474. 

from  illusion  of  sense,  435. 

Insanity,  as  affecting  testimony,  352-365. 

Insurance  fraud,  proof  of,  122,  139. 

Intent,  j)roof  of,  131. 

Intention,  as  proof  of  a  human  act,  245. 

proof  of  existence  of  an,  120,   134. 

Interested  person,  as  a  witness,  397,  457. 

Interrogation,  as  affecting  tenor  of  tes- 
timony, 498-525. 

Intoxicating  liquor,  proof  of  quality  of, 
48. 


Knowledge,  as  an  element  in  testimony, 

427. 

evidence  to  prove,  96,  132. 

Landlord,  proof  of  murder  by,  152. 
Language,  as  affecting  testimony,  454, 

480. 
Laundry  mark,  as  proof  of  a  crime,  167. 
Leading  questions,  509-513. 
Liar,  mode  of  examination  of,  530. 
Lie,  as  a  product  of  moral  character,  377. 
Lies,  kinds  of,  494. 
Lying,  as  a  racial  trait,  315. 
Lying  witness  to  an  alibi,  how  exposed, 

653. 
Mail,  business  habit  as  proof  of  use  of, 

260. 
Medical  man,  as  an  expert  witness,  416, 
.    420. 

Medicines,  proof  of  effect  of,  44. 
Memoranda,  as  aids  to  recollection,  475, 

476,  515. 
Memory,  as  an  element  in  testimony, 

463-485. 

kinds  of,  469. 

Mendacitv,  as  a  trait  affecting  testimony, 

377. 
Mental  disease,  as  affecting  testimony, 

352-365. 
Method  of  agreement,  in  logic,  20. 

of  difference,  in  logic,  20. 

Microscopist,  as  an  expert  witness,  407. 
Mining  trespass,  proof  of,  48. 
Misunderstanding,     as    affecting    testi- 
mony, 454. 
Money-lending,  motive  for,  238,  244. 
Moral  character.    See  Character 
Motive,  as  proof  of  an  act,  210. 

evidence  to  prove  existence  of,  94. 

Murder,  as  evidenced  by  habit,  260. 

by  intention,  247, 250, 251, 254. 

bv  guilty   consciousness,  287, 

289,  292,  293. 

by  traces,  271,  272,  273,  275. 


motives  for,  221,  225. 

Narration,  extent  of  latent  error  in, 
576-592. 

as  an  element  in  testimony,  485. 

Nature  and  nurture,  as  proof  of  an  act, 
181. 

Negligence,  traces  as  evidence  of  injury 
by,  277. 

Negroes,  as  witnesses,  328. 

memory  of,  319. 

Nervous  witness,  examination  of,  532. 

Observation,  as  an  element  in  testi- 
mony, 427. 

Occurrence  of  an  event,  proof  of,  32. 

Opi)ortunity,  as  proof  of  an  act,  148. 

Par'i^,  as  witness,  394. 


INDEX   OF   TOPICS 


1179 


[References  are  to  pages.] 


Perception,  as  affecting  testimony,  427, 

447. 
testimonial  correctness  as  affected 

by  defective  basis  of,  593. 
Perjury,  as  varying,  in  different  peoples, 

320. 

See  also  Lies ;  Lying. 

Personal  identity,  proof  of,  63,  73. 
Physicist,  as  an  expert  witness,  409. 
Picture  test,  testimonial  error  exposed 

by,  576. 
Piracy,  proof  of  intent  to  commit,  136. 
Pitchfork,  as  proof  of  a  murder,  166. 
Place  of  an  act,  as  proof,  148. 
Plan,  proof  of  existence  of,  120. 

as  proof  of  a  human  act,  245. 

Poison,  proof  of  alibi  on  charge  of  murder 

by,  164. 

proof  of  design  to  use,  125. 

Poison  tests,  as  proof,  56. 

Police,  as  witnesses,  399,  400,  402. 

confessions  made  to,  551. 

Positive  witness,  examination  of,  535. 

Possibility,  proof  of  a,  38. 

Post,  business  habit  as  proof  of  receipt 

of  notice  by,  260. 
Poverty,  as  motive  for  forgery,  240. 
Preacher,  as  a  witness,  399. 
Prejudice,  as  affecting  testimony,  388. 
Price  of  goods,  motive  for  fixing,  242. 
Probability,  proof  of,  38. 
Probanda,  classification  of,  31. 
Probative  processes,  summarized,  25. 
Proof,  defined,  5,  12. 
Psychological  method   of  testing  testi- 
monial correctness,  576-592. 
Race,    as    affecting    testimonial    trust- 
worthiness, 315. 
Rail,  as  proof  of  cause  of  an  injury,  176. 
Razor-case,  as  proof  of  guilt,  170. 
Reading  wTiting  upside  down,  testimony 

of  sailor  to,  596. 
Recollection,  as  an  element  in  testimony, 

463. 
testimonial  error  as  indicated  by 

incomplete,  603. 

See  also  Memorii. 

Repetition  of    questions  to  a  witness, 

513. 
Robbery,  proved  by  guilty  consciousness, 

291. 


Samples,  as  evidence,  36. 

Self-contradictory  statements,  as  affect- 
ing testimonial  trustworthiness,  618- 
634. 

Sense-perception,  as  affecting  testimony, 
430. 

Separation  of  witnesses  to  detect  false- 
hood, 634,  658. 

Sex,  as  affecting  testimonial  trustworthi- 
ness, 335,  341-352. 

as  affecting  sense  of  hearing,  442. 

Sight,  as  affecting  testimony,  436. 

Smell,  as  affecting  testimony,  444. 

Soldier,  proof  of  murder  by,  156. 

Stolen  goods,  identity  of,  72. 

stealing  proved  by  possession  of, 

269. 

Stupid  witness,  examination  of,  528. 

Suggestion,  as  affecting  testimony,  507- 
525. 

Surveyor,  as  an  expert  witness,  417. 

Taste,  as  affecting  trustworthiness  of 
testimony,  444. 

Teeth,  as  proof  of  identity,  78. 

Temperament,  as  affecting  a  witness' 
examination,  527. 

Tendency,  proof  of,  36. 

Testimonial  Evidence,  defined,  6. 

in  general,  313. 

Testimonial  and  circumstantial  evidence, 
relative  value  of,  735. 

"Third  degree"  confessions,  548,  551, 
555. 

Time  of  an  act,  as  proof,  148. 

Timid  witness,  examination  of,  528. 

Tools,  as  proof  of  an  act,  164. 

Touch,  as  affecting  trustworthiness  of 
testimony,  445. 

Traces,  as  proof  of  a  human  act,  265. 

Tutored  witnesses,  518,  519. 

UnchL'Vstity,  as  affecting  testimonial 
trustworthiness,  368,  370. 

Usage,  as  proof  of  a  human  act,  256. 

Verdict  correctness,  comparison  of  tes- 
timonial correctness  with,  574-592. 

Vibrations,  proof  of  effect  of,  47. 

Visual  process,  as  affecting  testimony, 
437. 

Volition,  as  affected  by  character,  179. 

Will,  as  an  element  of  intention,  246. 

Women  as  witnesses,  341-352. 


V 


DATE  DUE 


JUN     ; 

MAY  2 
M  APR 


J977__ 

i  1977  4 
^  1978 
WftY     a  1978  X 


JUL  2'^  19-/8  7 

HUB  nPT  ^  9  ™ 


OCT  f  ?^  ^>8^S 


SEP  2  9 
Or.H  JANO 


GAYLORD 


1981 


flCR  FEB    11983 


u- 


.w( 


FED  IN  U    S 


/ 


li^aU  <^ 


LH-^j  ^-  ^'    ' 


3  1210  00125  6534 


~yid^ 


^uM^ 


C\ 


7 


^■■^'■'UCSOUTHERNREGIONALUBBA^^^^ 


AA    001142  718    4 


